IN THE CASE OF:	

		BOARD DATE:	    20 November 2012

		DOCKET NUMBER:  AR20120014622 


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 his DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period 19 June 2008 through 18 June 2009 (Ne***, Mo***, Sh***) be removed from his Army Military Human Resource Record (AMHRR) (formerly known as Official Military Personnel File (OMPF)) and replaced with the one he provides for the period of 1 July 2008 through 30 June 2009 (Ga***, Mi***, Rh***).

2.  He states the individual rating him on the NCOER he wants replaced was never his rater on any NCOER rating schemes.  The individuals on the NCOER he wants used were in his actual chain of command.  He reported to them during the time his unit was deployed and he remained with the rear detachment.

3.  He provides:

* U.S. Army Human Resources Command (HRC) memorandum; subject: Evaluation Report Appeal (19 June 2008-18 June 2009)
* NCOER for the period 19 June 2008 through 29 March 2009
* NCOER for the period 19 June 2008 through 18 June 2009
* NCOER for the period 1 July 2008 through 30 June 2009
* various emails
* various Unit Personnel Accountability Reports (AAA-162)
* various rating schemes
* email regarding replacement of currently filed NCOER


* Evaluation Reports inquiry listing items needing correction
* applicant's Evaluation Report Appeal for the period 19 June 2008 through 18 June 2009

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 was serving in the Regular Army in the rank/grade of sergeant first class (SFC)/E-7 at the time of his application.

3.  He submits a 511th Engineer Company rating scheme with an as of date of 24 June 2008.  This rating scheme shows his rater as Bu***, Executive Officer (XO); senior rater as Mo***, Company Commander (CC); and reviewer as Ta***, Battalion Commander (BC).  It further shows his rated position as Rear Detachment Commander.

4.  He submits a DA Form 705 (Army Physical Fitness Test Scorecard) showing he successfully completed the APFT on 30 June 2009.  It further shows he did not meet the height/weight standard; however, he met the body fat standard.  A DA Form 5500-R (Body Fat Content Worksheet) also completed on 30 June 2009 shows he met the body fat standard.

5.  He submits a 511th Engineer Company rating scheme with an as of date of 25 January 2009 that shows his rater as Bu***, XO; senior rater as Mo***, CC; and reviewer as Pa***, BC.  It also shows his rated position as Rear Detachment Commander.

6.  He submits another 511th Engineer Company rating scheme with an as of date of 25 January 2009 that shows his rater as Ma***, XO; senior rater as Mo***, CC; and reviewer as Pa***, BC.  It shows his position as Rear Detachment Commander.


7.  He submits an NCOER for the period 19 June 2008 through 29 March 2009.  It shows his rater as Bu***, first lieutenant (1LT), (XO); senior rater as Mo***, captain (CPT) (CC); and reviewer as Sh***, lieutenant colonel (LTC) (BC).  This NCOER was signed and dated by the above listed individuals but not by the applicant.  In this NCOER the applicant was rated as a Rear Detachment NCO in charge (NCOIC).  The rater gave the applicant "Success" ratings in all sections of Part IV (Army Values/Attributes/Skills/Actions).  Part IVc (Physical Fitness and Military Bearing) contains the entry "APFT - PROFILE" and "Height/Weight - 72/212" with the following "yes/no" portion of the block whited out.  It is not known why this NCOER was not posted to his AMHRR.

8.  He submits another 511th Engineer Company rating scheme with an as of date of 5 May 2009.  This document shows his rater as Ne***, First Sergeant (1SG); senior rater as Mo***, (CC); and reviewer as Sh***, (BC).  It shows his rated position as Rear Detachment NCOIC and shows the date of his last NCOER was 18 June 2008 with the next NCOER to be through 18 June 2009.

9.  His AMHRR contains a change of duty NCOER covering the period 19 June 2008 through 18 June 2009 (the contested NCOER) that was signed by the rater (Ne***, 1SG) on 26 August 2009, the senior rater (Mo***, CPT, CC) on 21 September 2009, and the reviewer (Sh***, LTC, BC) on 28 September 2009.  It was not signed by the applicant.  The AMHRR indicates this document was filed on 29 June 2011.  In this NCOER, the applicant was evaluated as a Rear Detachment NCOIC.  The rater provided "Yes" responses to all the questions in Part IV.

	a.  In Part IV of the contested report the rater gave the applicant "Success" ratings in Part IVb (Competence), Part IVe (Training), and Part IVf (Responsibility and Accountability).  He gave the applicant "Needs Improvement (Some)" in
Part IVc and Part IVd (Leadership).  Part IVc contains the entry "APFT - PROFILE" and "Height/Weight - 72/212" with the following "NO" entry indicating he did not meet the height/weight standard.  In support of his rating in Part IVc, the rater entered the bullet comment "does not conform to AR (Army Regulation) 600-9 Army Weight Control Program standards; lacked the self-discipline to maintain a trim military appearance."  To support his rating in Part IVd, the rater entered the bullet comments "failed to assist Family members and FRG (Family Readiness Group) on several occasions while performing duties as the Rear Detachment Commander" and "failed to attend a monthly Company FRG meeting, resulting in no unit representation at the meeting and limited visibility on family and FRG issues and concerns."

	b.  The rater gave the applicant a "Marginal" rating in Part Va (Overall Performance and Potential, Rater).  The senior rater gave the applicant a 4 (Fair) 
rating in Part Vc (Overall Performance) and a 4 (Fair) rating in Part Vd (Overall potential for promotion and/or service in positions of greater responsibility).  He provided the following bullet comments in Part Ve (Senior Rater Bullet Comments):
   
* "promote with peers, if ready"
* "send to Battle Staff Course, if slot available"
* "demonstrated the abilities of a Non-Commissioned Officer"
* "performed most duties during the rating period to standard; assisted in the deployment of the unit to Operation Iraqi Freedom and late-deploying Soldiers"
* rated NCO refused to sign"

10.  He submits what appears to be a computer screen shot that shows he was part of the rear detachment assigned as excess and non-deployable.  The document contains no date.

11.  He submits an email, dated 16 July 2009, with an attached "working copy" of his NCOER for the period 1 July 2008 through 30 June 2009, that was addressed to the reviewer below stating he had attached a copy of his "working" NCOER.  This "working NCOER" shows his rater as Ne***, 1SG; senior rater as Mo***, CPT; and reviewer as Sh***, LTC.  He stated in the email that he found this NCOER to be inaccurate and unjust.  He further stated that if his rater and senior rater wished to submit it as it was he would be requesting a commander's inquiry in accordance with Army Regulation 623-3 (Evaluation Reporting System).

12.  He submits an email from his senior rater/company commander, dated 16 July 2009, that stated the "working" NCOER was not the one sent to the applicant for review and it appeared as though the applicant had written the NCOER himself.  He further stated that Lieutenant Ma*** was not the applicant's rater but that 1SG Ne*** was his rater based on the commander's guidance.

13.  He submits another NCOER that covers the period 1 July 2008 through
30 June 2009 that was signed by the rater (Ga***, 1SG, S-3 NCOIC), senior rater (Mi***; CPT, Assistant S-3 OIC), and reviewer (Rh***, Major, S-3 OIC) on 28 July 2010.  It was signed by the applicant on 29 July 2010.  In this NCOER, the applicant was evaluated as a Rear Detachment Commander.  The rater provided "Yes" responses to all the questions in Part IV.

	a.  In Part IV of the "replacement" report the rater gave the applicant an "Excellence" rating in Part IVb.  He gave "Success" ratings in the remaining sections of Part IV.  Part IVc contains the entry "APFT - PASS 20090630" and "Height/Weight - 70/209" "YES."
	b.  The rater gave the applicant a "Fully Capable" rating in Part Va.  The senior rater, a major, gave the applicant a 2 (Successful) rating in Part Vc and a 1 (Superior) rating in Part Vd.  He provided the following bullet comments in Part Ve:

* "promote now"
* "performed duties during the rating period exceeding standards; assisted in the deployment of the unit to Operation Iraqi Freedom and late-deploying Soldiers"
* demonstrated the abilities of a Non-Commissioned Officer"

14.  He submits Unit Personnel Accountability Reports printed in January, April and August 2009 listing him in the 511th Engineer Company Home Detachment.

15.  An Evaluation Reports Inquiry printout related to the applicant's NCOER for the period of 19 June 2008 through 18 June 2009, assigned the Headquarters, Department of the Army (HQDA) identification number 04425266, shows a status of "needs correction" and lists those items needing correction.  The printout shows the NCOER was received [at HQDA] on 28 September 2009.  The errors listed were a wrong reason for submission, missing profile date, and missing bullet comment regarding weight control program progress.

16.  A second Evaluation Reports Inquiry printout, dated 28 July 2012, shows this same NCOER as completed.

17.  He submits a self-authored memorandum for record wherein he states that on 14 September 2009 he met with two Judge Advocate General personnel regarding his issues with his NCOER and friction that he was receiving from his chain of command and NCO support channel.  He states he was told he could "legally" not do anything until the NCOER was posted in his AMHRR maintained in the interactive Personnel Electronic Records Management System (iPERMS).  He also states he was informed that in accordance with Army Regulation 623-3 he was not required to sign the documents prior to their submission.

18.  He submits emails dated between 19 and 20 February 2011 to and from his rater (Ne***) on his evaluation report for the period 19 June 2008 through             18 June 2009 indicating he was attempting to get the 511th NCOER replaced by the one that he spoke with him (Ne***) about just days prior to his permanent 
change of station (PCS) in August 2010.  He requested MSG Ne*** confirm that it was alright to replace an NCOER with a different rating chain due to errors needing correcting and the PCSing of everyone from the 511th.  He stated that HRC needed some sort of confirmation so that the replacement NCOER could be placed in his file.
19.  He submits his memorandum, dated 1 July 2012, appealing his evaluation report for the period 19 June 2008 through 18 June 2009.  He stated that his appeal was based on both administrative and substantive error.  The report was received by HQDA on 28 September 2009 and returned for corrections.  The HQDA ID number is 04425266.  The NCOER was not posted in his AMHRR.  He lists the identified errors.

	a.  Regarding Part II (Authentication) he states that in all rating schemes emailed to him by the unit, both in garrison and while deployed, he was to be rated by the company XO.  The only exception to this was the rating scheme that was sent to LTC Sh*** from the applicant's deployed chain of command.  This was only after he sought assistance from the Fort Campbell Inspector General (IG).

		(1)  On 19 August 2008, he received a copy of the unit rating scheme from 1SG Ne***.  The rating scheme was labeled 19 August 2008 although the as of date still showed 24 June 2008.  This particular rating scheme showed the XO (1LT Bu***) as his rater.  He also received a rating scheme with an as of date of 25 January 2009 from 1SG Ne*** also showing the company XO (1LT Bu***) as his rater.

		(2)  On 6 May 2009, he received a copy of the unit rating scheme from 1SG Ne*** that was labeled "as of 25 January 2009" but the name of the document on the email attachment line was "511th EN rating scheme (6 May 09)."  On this rating scheme his rater was the company XO (1LT Ma***).

		(3)  He states he received an email from LTC Sh*** on 3 September 2009 with an attached unit rating scheme labeled "OLD 511 rating scheme - May 09."  He states this spreadsheet was falsified and manipulated to prevent the IG from validating his complaint.

		(4)  According to an email from CPT Mo***, dated 16 July 2009, 1LT Ma*** was not the applicant's rater based on his (CPT Mo***'s) guidance.  

	b.  Part III (Duty Description) shows he served as the Rear Detachment NCOIC when all legitimate rating schemes have him rated as the Rear 
Detachment Commander.  This section shows he was responsible for only two Soldiers but the attached copies of the AAA-162 show he was directly responsible for two officers, six NCO's and 18 Soldiers, totaling 26 personnel.  The counseling dates that are listed are also incorrect because neither his rater nor senior rater gave him the required counseling.

	c.  In Part IVc the physical fitness and military bearing information is incorrect in that he did take the APFT.  He even ensured that his battalion S3 NCOIC administered him the test so as to quell any suspicion of falsified documentation or favoritism.

		(1)  In Part IV (Leadership) he has never failed "to assist family members and Family Readiness Group [FRG] on several occasions."  He admits that he missed one FRG meeting because he had the date confused with the battalion steering committee meeting.  The only other two times that he was unable to assist a spouse was when he was over 40 miles away and when he deemed it was inappropriate at the time to do so.

		(2)  In Part IV the first bullet is generic and does not account for the fact that he was responsible and accountable for installation property, organizational property, and sensitive items valued at over $279,400.00.  They also refused to mention that he was the first of the deployed line companies to have the foresight of the need for a government purchase card or access to the unit arms room that would be needed in order to support the rear detachment late deployment Soldiers.

	d.  He states he tried to get the mistakes on the NCOER resolved prior to it posting in his AMHRR.  He stated he attached an email indicating he wanted a commander's inquiry, which never happened.  He also provided documents showing he requested assistance from CSM Ke*** and the office of the Fort Campbell IG.

	e.  He has provided an email from MSG Ne***, dated 20 February 2011, stating he agrees the NCOER for the period 19 June 2008 through 18 June 2009 with a rating chain of Ne***, Mo***, Sh*** should be replaced by the NCOER for the period 1 July 2008 through 30 June 2009 with the rating chain of Ga***, Mi***, and Rh***.

	f.  He further stated he provided additional documentation to show the malicious intent of this slanderous NCOER.  He believes then 1SG Ne*** was being influenced and persuaded to submit this NCOER and once he was no longer under the rating chain or influence of CPT Mo*** he decided to try and make amends by doing what is right in recommending that the NCOER be replaced with that of Ga***, Mi***, and Rh***.

	g.  He stated he felt it was unfair to any individual to be counseled by his rating chain located over 6,000 miles away.  While he was at the rear detachment, he had to report directly to the rating chain of Ga***, Mi***, and Rh***.  There was a rating chain posted.  However, he never received a copy and therefore is unable to provide a copy.

20.  An HRC memorandum; subject: Evaluation Report Appeal (19 June 2008 through 18 June 2009), dated 6 July 2012, states the applicant's correspondence concerning an evaluation report appeal was being returned without action.  The reason given was that the correspondence was not received within 3 years of the "thru" date on the NCOER as prescribed in Army Regulation 623-3, paragraph
6-8b.  His request as an exception to this policy was denied.

21.  Army Regulation 623-3 prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System.

	a.  Paragraph 1-11 states when it is brought to the attention of a commander that a report rendered by one of their subordinates or subordinate commands may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter.  The Commander’s Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.

	b.  Paragraph 2-3 states a rating chain is established by the commander, commandant, or leader of an organization and maintained by rating officials to provide the best evaluation of an individual Soldier’s performance and potential.  A rating chain also ties the rated Soldier’s performance to a specific senior or subordinate relationship.  This allows for proper counseling to develop the rated Soldier and accomplish the mission.  These functions are normally best achieved within an organization’s chain of command or supervision.  Generally, the evaluation of Soldiers by persons not involved in the chain of command or chain of supervision is inappropriate.

	c.  Paragraph 3-36 states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.

	d.  Paragraph 4-11 states the burden of proof in an appeal of an NCOER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for replacement of his NCOER for the period 19 June 2008 through 18 June 2009 with the one he provides for the period 1 July 2008 through 30 June 2009 because the individual rating him on the NCOER he wants replaced was never his rater on any NCOER rating schemes and that he never received the required counseling has been carefully considered.  He further contends the individuals in the rating chain on the NCOER he wants in his file were in his actual chain of command that he reported to during that time when his unit was deployed and he remained in the rear detachment.

2.  Evidence shows he did not deploy with his unit and he was part of the rear detachment during the contested rating period.  While his rating chain contained individuals deployed overseas and split geographically, it was his responsibility to support both the deployed unit and the late-deploying Soldiers in the rear detachment.  Based on the number of rating schemes produced by the unit in response to personnel changes it appears the unit strived to maintain a valid rating scheme for all its unit members.  Furthermore, it is not entirely uncommon for Soldiers to be rated by their chain of command who at times are geographically separated great distances from the rated Soldier.  Although he submits rating schemes, none of which list as his rater the rater on the contested NCOER, his company commander who is the individual responsible for the rating scheme stated in an email that he designated that individual as the applicant's rater.

3.  Furthermore, he is unable to show that any individual in the rating chain of the NCOER he wants used as the "replacement" was on an official published rating scheme for the applicant or officially in his chain of command during that time.  
Regulatory policy states that, generally, the evaluation of Soldiers by persons not involved in the chain of command or chain of supervision is inappropriate.  Additionally, the applicant has provided no evidence to support his contention that he was never counseled by his rater on the contested NCOER or for that matter that he was counseled on the dates listed by the rater of the NCOER he 


wants used as a replacement.  As such, these contentions are not a sufficient basis for substituting the requested NCOER for the NCOER currently in his AMHRR.

4.  There is no available evidence, aside from his statement, showing he requested a Commander's Inquiry or that there was no inquiry made regarding the contested NCOER.

5.  Regarding the bullet comments, he has not provided evidence that he passed an APFT and met the height/weight standards during the rating period on the NCOER currently in his AMHRR.  There is no evidence the contested report contains any serious substantive deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown the rating officials' evaluations represented anything 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.

6.  An evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  As a result, the regulatory burden of proof to support replacement of the evaluation report from the AMHRR has not been met in this case.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120014622



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ABCMR Record of Proceedings (cont)                                         AR20120014622



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