IN THE CASE OF:	  

		BOARD DATE:  31 July 2012

		DOCKET NUMBER:  AR20120008771 


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 removal of the Noncommissioned Officer Evaluation Report (NCOER) for the period from 1 July 2008 to 12 February 2009 (hereafter referred to as the contested NCOER) from his Official Military Personnel File (OMPF).

2.  The applicant states the contested NCOER is unjust due to a lack of cohesion between himself and his rater.  He claims he was never counseled by the rater and all of the counseling dates represented on the evaluation are false.  He states he should not have signed the evaluation because he did not realize he was not only verifying the administrative data, but the counseling dates as well.  He states his prior NCOERs will show he has never received an evaluation which reflects the behavior represented in the above NCOER.  He further states he was unable to begin the appeals process until after the evaluation was processed by the U.S. Army Human Resources Command and he was able to obtain third-party letters of support.

3.  The applicant provides:

* three memoranda
* DA Form 2823 (Sworn Statement)
* three letters of support
* six NCOERs dated between 1 September 2006 and 23 August 2011



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 enlisted in the Regular Army (RA) on 5 June 1997.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 December 2007 and he is currently serving in the RA as a SSG in military occupational specialty (MOS) 35F (Intelligence Analyst).  

3.  The contested NCOER shows he was rated for duty as the battalion S2 noncommissioned officer in charge (NCOIC), duty MOS 35F4O, while assigned to Headquarters and Headquarters Company, 1st Special Troops Battalion, Fort Campbell, KY.  The form shows in:

	a.  Part 1g (Reason for Submission) – "Change of Rater";

	b.  Part II (Authentication):

* his rater was the battalion S2 
* his senior rater was the battalion executive officer
* the NCOER was reviewed by his battalion commander, who concurred with the rater and senior rater evaluations

	c.  Part III (Duty Description (Rater)) – he was rated for principal duty as the Battalion S2, NCOIC;

	d.  Part IIIf (Counseling Dates) – he was counseled on 30 July 2008, 30 December 2008, and 11 February 2009;

	e.  Part IVa (Army Values) – "No" was selected for item 2 (Duty) and "Yes" was selected for all other items;

	f.  Part IVa shows the following entry "has shown a pattern of neglect for completion of appointed tasks";

	g.  Part IVb (Competence) – "Needs (Some) Improvement" was selected and the following was entered in the space provided for bullet comments:

* performed as the subject matter expert in all intelligence systems used in theater and in garrison
* unable to separate personal and professional issues which often negatively affected performance and Soldiers
* showed a pattern of neglect for completing multiple tasks and for the oversight of subordinate’s assigned tasks

   h.  Part IVc (Physical Fitness and Military Bearing) – "Excellence (Exceeds Standard)" was selected;

   i.  Part IVd (Leadership) – "Needs (Some) Improvement" was selected and the following was entered in the space provided for bullet comments:

* performed as a SSG in a SFC position
* neglected to mentor and professionally develop Soldiers when issues arose; took it upon himself to assume their duty rather than explain their task
* enrolled himself and started Basic Noncommissioned Officer Course without preparing section and Soldiers for his absence; did not alert chain of command of his intended absence

   j.  Part IVe (Training) – "Success (Meets Standard)" was selected;

   k.  Part IVf (Responsibility and Accountability) – "Success (Meets Standard)" was selected;

   l.  Part V (Overall Performance and Potential):

* his rater rated him as marginal 
* his senior rater rated his overall performance as fair and his overall potential for promotion and/or service in positions of greater responsibility as fair





   m.  Part Ve (Senior Rater Bullet Comments), his senior rater entered the following:

* promote only after further development
* send to ANCOC (Advance Noncommissioned Officer Course) after further development
* has the technical abilities to succeed at the next level but lacks the leadership and management abilities
* performance demonstrated he must mature and develop as an NCO and a leader before moving to the next level

4.  The contested NCOER shows all rating officials authenticated it with their electronic signature.  The reviewer concurred with the rater and senior rater evaluations.  Further, the applicant signed the form on 6 November 2009, verifying the rating officials, duty description, counseling dates, and APFT/ Height/Weight entries were correct; that he has seen the completed report; and that he was aware of the appeal process of Army Regulation 623-3 (Evaluation Reporting System).  The contested NCOER was placed in his OMPF on 3 May 2010.

5.  There is no evidence the applicant requested a Commander's Inquiry or that he appealed this NCOER to the U.S. Army Human Resources Command, Fort Knox, KY within the required timeframe.

6.  The applicant provides and his record contains several evaluations subsequent to the contested NCOER in which the applicant received ratings for overall potential for promotion and/or service in positions of greater responsibility of "among the best."  These reports also show he received the best possible ratings from his senior raters for overall performance and potential for promotion.  Each reviewer concurred with the rater and senior rater evaluations in each of the subsequent reports.    

7.  The applicant provides three letters in support of his request.  Each of the letters is undated and two of the letters are unsigned.  

   a.  His former first sergeant states, in an unsigned and undated letter, the applicant was a good NCO who would always listen and was eager to learn.  He was surprised when the applicant received the contested NCOER and believes the applicant was not evaluated fairly.  
   
   b.  The applicant’s former operations sergeant, in a signed and undated letter, attests to his experience, knowledge of his field, and work ethic.  He further states he believes the contested NCOER is unjust and was personal in nature.
   c.  He also provides an unsigned and undated letter from a Soldier who speaks to the applicant’s passion for his job and straight forward demeanor when expressing his opinion to his rater.  The Soldier further states he believes the applicant’s rater was not used to having a head strong NCO and feels the contested NCOER was unjust and should be removed in order for him to proceed in his career progression.
   
8.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. 
  
   a.  Table 3-3 states the absence of counseling will not be used as the sole basis for an appeal.  However, the lack of counseling may be used to help support other claims made in an appeal.
   
   b.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  

	c.  Chapter 6 defines the Evaluation Redress Program and provides guidance regarding redress programs, including commander inquiries and appeals.  

		(1)  Paragraph 6-8 states substantive appeals will be submitted within 3 years of an NCOER Thru date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. 

		(2)  Paragraph 6-11d states to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration 
and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

		(3)  Paragraph 6-11d further states that for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  

9.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records), chapter 2 governs the composition of the OMPF and states the performance section is used for filing performance commendatory and disciplinary data.  Once placed in the OMPF the document becomes a permanent part of that file.  The document will not be removed from a section or moved to another part of the section unless directed by certain agencies, to include this Board.  Evaluation reports are required to be filed in the permanent section of the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the contested report removed from his OMPF was carefully considered, however, there is insufficient evidence to grant relief.

2.  The applicant states he was not counseled regarding his job performance and all of the counseling dates represented on the evaluation are false.  He also states he should not have signed the evaluation because he did not realize he was not only verifying the administrative data but the counseling dates as well.   Part IIIf of the contested NCOER shows he was initially counseled on 30 July 2008 and he received later counseling on 30 December 2008, and 11 February 2009.  The applicant has failed to provide evidence to support his assertion; therefore, a presumption of administrative regularity must be presumed.   However, it should also be noted that the absence of counseling cannot be used as the sole basis for an appeal.

3.  The applicant claims he was unable to begin the appeals process until after the evaluation was processed by the U.S. Army Human Resources Command, and he was able to obtain third-party letters of support.  Army Regulation 623-3 clearly states substantive appeals will be submitted within 3 years of an NCOER Thru date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.  The contested report’s Thru date was 12 February 2009, the applicant signed it on    6 November 2009, and it was placed in his OMPF on 3 May 2010.  There is no evidence the applicant requested a Commander’s Inquiry; however, he had ample time to craft an appeal.  Therefore, his assertion is not supported by the available evidence.
4.  The applicant's contentions are noted; however, he failed to provide any evidence which clearly shows a substantive error or injustice existed in the processing of his evaluation report.  There is no evidence the contested NCOER contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, he has not shown that the rating officials’ evaluations represented other than their objective judgment and considered opinions at the time they prepared the contested NCOER, or that they exercised faulty judgment in evaluating him as they did.

5.  In the absence of compelling evidence which clearly and convincingly shows that the presumption of regularity should not be applied to this report, or that it contains material error, is inaccurate, or unjust, there is no basis to grant the relief requested.

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)                                         AR20120008771



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ABCMR Record of Proceedings (cont)                                         AR20120008771



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