IN THE CASE OF:	  

		BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20120022010 


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 correction of his Army Military Human Resource Record (AMHRR) by removing his DA Form 2166-8 (NCO Evaluation Report)(NCOER)) for the rated period ending on 16 November 2009.

2.  The applicant states his NCOER for the period 1 June to 16 November 2009 should be removed from his AMHRR because he was not properly counseled by his rater in accordance with Army Regulation 623-3 (Evaluation Reporting System) and Department of the Army Pamphlet 623-3 (Evaluation Reporting System).  His platoon leader, who was his rater at the time, told him that he did not write this NCOER, but he refused to write a sworn statement.  At the time, his rater was a newly-appointed second lieutenant who was given to following instructions.  The applicant further contends he never received an initial counseling from his rater.  He only received quarterly counseling which did not reflect the relief for cause NCOER.  He knows in his heart his rater did not write this NCOER because his writing skills are more impeccable than the NCOER shows.  Additionally, some of the bullet comments were copied from a book titled "The Mentor" which can be purchased online or from any military clothing and sales.  He contends the NCOER is unjust because his AMHRR does not have any other negative remarks.  He is willing to appear before the Board to plead his case.


3.  The applicant provides:

* Two DA Forms 4856 (Developmental Counseling Form) dated
18 September 2009 and 28 October 2009
* DA Form 2166-8, dated 23 November 2009

CONSIDERATION OF EVIDENCE:

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

2.  A DA Form 4856, dated 18 September 2009. reports the applicant was counseled by his platoon leader, who discussed duty performance and both short and long term professional growth.  Bullets indicated the applicant needed to improve in the following areas:

* Time management
* Suspenses
* Delegating and supervising
* Sharing information with his Soldiers
* Adapting to his senior leaders' command philosophy

3.  A DA Form 4856, dated 28 October 2009, reports the applicant was counseled by his platoon leader, who discussed needed improvements, accomplishments, and professional growth.  Bullets indicated the applicant needed to improve in the following areas:

* Time management and the mandatory closing time each day of the office
* Military courtesy from subordinates needed to improve
* Working relationships

4.  A DA Form 2166-8, for the period 1 June to 16 November 2009, evaluated the applicant's duty performance as a platoon sergeant.

	a.  Part I (Administrative Data) states the subject NCOER was a relief for cause report.

	b.  Part II (Authentication) states the rating chain included the applicant's platoon leader as rater; company commander as senior rater; and the battalion commander as reviewer.  His rater digitally signed the report on 23 November 2009.


	c.  Part III (Duty Description) states the applicant was responsible for the readiness, training, morale, and safety of 30 Soldiers in a medium truck company.

	d.  Part IIIf (Counseling Dates) indicates the applicant received initial counseling on 21 July 2009 and later counseling on 9 November 2009.

	e.  Part IVa (Army Values/Attributes/Skills/Actions) shows "YES" for each of the 7 Army values.  He practiced equal opportunity throughout the platoon; his personal conduct was above reproach; and he strongly supported the Army's programs for equal employment and opportunity.

	f.  Part IVb (Values/NCO Responsibilities) shows the applicant was rated as successful in the areas of Physical Fitness and Military Bearing and in Training.  He was rated as needing much improvement in the areas of Competence, Leadership, and Responsibility and Accountability.  Bullet comments include:

* Many times failed to inspect Soldiers and their equipment
* Allowed subordinates to ignore verbal and written directives
* Routinely failed to meet given suspense's and to complete tasks in the prescribed manner
* Had difficulty in delegating authority
* Consistently failed to meet administrative suspense's
* The rated NCO has been notified of the reasons for relief

	g.  Part Va (Overall Performance and Potential) shows the rater found the applicant to be marginal for overall potential.

	h.  Part Vc (Senior Rater Overall Performance) rated as poor.

	i.  Part Vd (Senior Rater Overall Potential) rated as fair.

	j.  Part Ve (Senior Rater Bullets) included: 

* Do not promote at this time
* Do not place him in demanding positions
* Limited potential
* Exhibits questionable leadership traits


5.  Army Regulation 623-3 (Evaluation Reporting System):

	a.  This regulation prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, to include the NCOER.

	b.  Alleged errors, injustices, and illegalities in a rated Soldier's evaluation may be brought to the attention of the commander by the rated individual or anyone authorized access to the report.  The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.

	c.  NCOERs accepted for inclusion in the official record of a Soldier is presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation.  To justify deletion or amendment of the 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 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 applicant.

6.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the AMHRR and states the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  The NCOER is to be filed in the performance section of the AMHRR.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph
2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his AMHRR should be corrected by removing his NCOER for the rated period ending on 16 November 2009 because he was not properly counseled at the time and his rater told him he did not write the evaluation.
2.  The applicant, in effect, requested a personal appearance before the Board; however, because there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted.  If the applicant is not satisfied with the results of the informal Board hearing, he may request reconsideration and provide new evidence that was not previously considered by the Board.

3.  The subject NCOER is a relief for cause report that was rendered by his platoon leader and company commander.  It states the applicant needed much improvement in the areas of his competence, leadership, and responsibility and accountability.  The two available counseling records clearly show his platoon leader had discussed these areas of his performance in September and October.

4.  The subject NCOER also indicates that the applicant had been counseled in July and November 2009; however, those counseling forms were not available for review.  However, he was counseled in September and October.

5.  In view of the above, the applicant's argument that he was not properly counseled concerning his performance during the subject rating period is not sufficiently convincing.  Furthermore, the applicant has not provided any documentary evidence showing that the report was written by anyone other than the indicated rater and senior rater.  Also, whether his rater wrote the evaluation or not, he signed the evaluation.

6.  There is no available evidence showing the applicant had requested a Commander's Inquiry concerning his belief that the NCOER was inaccurate or improper.

7.  The applicant has not provided any evidence showing substantive inaccuracy of the contested report from anyone in a vantage point equivalent to that of the members of the rating chain.  Such 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 applicant.

8.  The subject NCOER is properly filed in the performance section of his AMHRR.  To justify its removal from the AMHRR, the applicant must produce clear and convincing evidence showing that the presumption of regularity should not be applied to the report.  In this case, the applicant has failed to do so.

9.  In view of the foregoing, there is an insufficient evidentiary basis for granting this portion of his request.


10.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

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)                                         AR20120022010



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ABCMR Record of Proceedings (cont)                                         AR20120022010



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