IN THE CASE OF:	  

		BOARD DATE:  17 July 2012

		DOCKET NUMBER:  AR20120008451 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) be amended by:

* changing the rating in Item IVc (Physical Fitness and Military Bearing) from "Needs Improvement" to, in effect, "Success"
* changing the "No" to a "Yes" in Item IVc for meeting height/weight requirements

2.  The applicant states he weighed 204 pounds at 67 inches tall and:

* was taped in January 2008 and determined to be in compliance with body fat standards
* his NCOER was completed and forwarded through his chain of command
* was re-taped in February 2008 and determined to not be in compliance with body fat standards
* was flagged on 15 February 2008 and his NCOER was ordered to be 
re-done due to his failure to maintain height/weight standards
* was deployed to Afghanistan when he discovered the error and was not cognizant of the appeal process
* is currently in the process of compiling documents to submit for a Standby Advisory Board to be reconsidered for sergeant first class for the fiscal year 2008 board



3.  The applicant provides:

* NCOER for the period 20070201 to 20080131
* memorandum for record, dated 31 January 2012, from his former rater
* an extract, Suspension of Favorable Personnel Actions Listing, from his eMILPO (Electronic Military Personnel Office)
* a letter from the Human Resources Command (HRC) Appeals and Corrections Section, dated 20 April 2012

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is a career NCO serving as a staff sergeant (SSG/E-6) in military occupational specialty 91D (Operating Room Specialist).  

3.  A memorandum in the applicant's records from the commanding officer, U.S. Army Medical Department Activity, Fort Campbell, KY, dated 4 January 2008, shows he was disqualified for award of the Army Good Conduct Medal for the period 19 January 2005 through 18 January 2008 because he was flagged for weight failure during that time period.

4.  The applicant's records contain an NCOER for the period 20070201 through 20080131.  This report, which was completed in February 2008, shows the applicant weighed 204 pounds at a height of 67 inches.  It further shows a rating of "Needs (Some) Improvement" in the area of physical fitness and military bearing, and "No" for meeting height/weight standards, and contains the comment, "failed to meet height and weight standards IAW AR 600-9; worked diligently to make substantial progress."

5.  The applicant appealed the contested NCOER to the Enlisted Special Review Board (ESRB).  On 20 April 2012, the ESRB returned his appeal because it was not received within 3 years of the "thru" date of the contested NCOER.  
6.  The applicant provides a memorandum, dated 31 January 2012, prepared by the rater of the contested NCOER.  The rater, a second lieutenant, was a sergeant first class (SFC/E-7) at the time.  The rater states:

	a.  She and another senior NCO taped the applicant prior to the end of his rating period (31 January 2008) and he met body fat standards for his height and weight.

	b.  She completed the applicant's quarterly counseling and his NCOER and sent them to the senior rater and reviewer for signature.

	c.  The hospital command sergeant major (CSM) reviewed the applicant's NCOER during the second week of February.  Based on his review (and his knowledge of the applicant's appearance), he insisted the applicant be re-taped, which was after the rating period ended.

	d.  The CSM ordered the applicant's first sergeant to re-tape the applicant during the second week of February 2008. 

	e.  The applicant failed the re-tape and the CSM ordered the rater to re-do the applicant's NCOER reflecting "Needs Improvement" and "No" in Item 4c.  A flagging action was imposed due to the weight failure, thus making the applicant ineligible for award of the Army Good Conduct Medal for the period January 2005 through January 2008. 

	f.  The directive for re-taping the applicant was against the rater's recommendation because it was after the rating period ended.  

	g.  She recommends removal of the NCOER from the applicant's official military personnel file (OMPF) and award of his Army Good Conduct Medal for the period January 2005 through January 2008.  She further states the applicant needs a relook for his promotion to SFC.  

7.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).

	a.  Paragraph 2-12 states, in pertinent part, the rater will verify the rated individual's Army Physical Fitness Test (APFT) and height and weight data for entry on the evaluation report and provide an objective and comprehensive evaluation of the rated Soldier's performance.

	b.  Paragraph 2-17a states every NCOER will be reviewed by the first sergeant, CSM, or SGM (sergeant major) and signed by an official who meets the reviewer requirements.

	c.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for amendment of his contested NCOER was carefully considered.

2.  The CSM is the commander's designated representative for ensuring compliance with the APFT.  The CSM determined that the applicant's height and weight was not accurate and, therefore, ordered a re-taping.  Although the rater states the applicant initially passed the height and weight standards, the applicant was re-taped the second week after the close of the rating period and failed the height and weight standards, roughly less than a month after the initial taping.  It is improbable that a Soldier would be out of standard that soon.  Further, the applicant was denied award of the Army Good Conduct Medal due to weight failure for the period 19 January 2005 through 18 January 2008, a period prior to the closeout of the contested report.

3.  Additionally, the contested report was authenticated by the rating chain on 26 February 2008, indicating it was accurate and the applicant acknowledged the form on the same date.  

4.  The NCOER was accepted and presumed to represent the considered opinion and objective judgment of rating officials.  In the absence of clear and compelling evidence to establish that the report is in error or unjust, there is no basis to amend the report.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X ___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ___________X____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120008451



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ABCMR Record of Proceedings (cont)                                         AR20120008451



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