IN THE CASE OF:	  

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120017458 


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) covering the period 1 April 2006 through 31 March 2007 from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File.

2.  The applicant states the NCOER in question has an error and does not represent his character of service during the rating period.  He claims he never received disciplinary or administrative action that supports a "NO" response in part IV (Army Values/Attributes/Skills/Actions) of the report.

3.  The applicant provides the documents identified in his application in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army in 2001 and last reenlisted on 20 October 2012.  He is currently serving on active duty in the Regular Army in the rank/grade of staff sergeant (SSG)/E-6 which he attained on 1 July 2006.  At the time of his application, he was serving in Germany.

2.  The applicant received an annual NCOER covering the period 1 April 2006 through 31 March 2007 in which he was evaluated as a squad leader in an infantry company in Germany.

3.  In part IVa (Army Values), the rater (an SSG) rendered a "NO" response to item 3 (Respect/Equal Opportunity/Equal Employment Opportunity).  In explanation for this "NO" response, the rater entered the bullet comment "incident demonstrates NCO does not respect Soldiers' needs."

4.  The rater provided "Excellence" ratings in part IVb (Competence), part IVc (Physical Fitness and Military Bearing), part IVe (Training), and part IVf (Responsibility and Accountability), and a "Successful" rating in part IVd (Leadership).  The rater gave the applicant an "Among the Best" rating in part Va (Overall Performance and Potential, Rater).

5.  The senior rater (a first lieutenant) gave the applicant a "Successful 2" rating in part Vc (Overall Performance) and a "Superior 2" rating in part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility).

6.  There is no indication in the record that the applicant requested a commander's inquiry or that he appealed the report to the Enlisted Special Review Board within its 3-year application time frame.

7.  The applicant provides statements from his rater on the report in question and from a command sergeant major (CSM) who indicates he was serving as the applicant's first sergeant during the period of the report.  The rater indicates the "NO" response in Part Iva was the result of undue command influence but he does not elaborate.  The CSM indicates he knows of no incident at the time that would have resulted in the "NO" response in part Iva of the report in question.

8.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and tasks for the Army's Evaluation Reporting Systems.  Paragraph 3-29 contains guidance on modifications to previously-submitted reports.  It states an evaluation report accepted by Headquarters, Department of the Army (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.

9.  Chapter 6 of Army Regulation 623-3 contains guidance on the evaluation report redress program.  Section III contains guidance on evaluation appeals and paragraph 6-7 outlines appeal policies.  Paragraph 6-11 contains guidance on the burden of proof and type of evidence required for appeals.  It states the burden of proof rests with the applicant.  The applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3-39 and 6-7 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to set aside and remove the NCOER in question from his AMHRR has been carefully considered.  However, there is insufficient evidence to support this request.

2.  The applicant failed to provide evidence of a clear and compelling nature that shows the evaluation report contained a material error, inaccuracy, or was unjust.  The applicant argues the report was in error and that he committed no incident that would have supported the "NO" response in part Iva of the report.  Although the rater indicates the "NO" response resulted from undue influence, he fails to explain this statement or to indicate why he succumbed to such influence without raising the matter through his support chain, particularly the first sergeant at the time, who is now the CSM who provides a statement in support of this request.  Absent any explanation of the circumstances, it is more likely than not that the rater's current statement is the result of retrospective thinking based on the applicant's accomplishments since the report was rendered.

3.  The rater's statement and statement of the CSM made almost 6 years after the fact are not sufficiently convincing to overcome the presumption of regularity attached to the contested report which was accepted for filing in the AMHRR.

4.  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 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)                                         AR20120017458



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ABCMR Record of Proceedings (cont)                                         AR20120017458



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