IN THE CASE OF:	  

		BOARD DATE:  11 July 2013

		DOCKET NUMBER:  AR20120022513 


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 DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 March 2008 to 
30 September 2008 (hereafter referred to as the contested NCOER).  Specifically, correction of bullet comments located in the following sections:

* Part IVa (Army Values)
* Part IVc (Physical Fitness & Military Bearing)
* Part IVd (Leadership)
* Part V (Overall Performance)

2.  He states he was forced to sign the contested NCOER without being allowed to read it.  The entire evaluation is unjust because it contradicts itself from beginning to end.  Further, his chain of command held him completely responsible for Soldiers not receiving their Expert Infantryman Badge (EIB) even though the EIB is an individual event.  He contends he was setting up and grading a station so he was unable to be with his Soldiers during the Physical Fitness test or while they navigated the EIB lanes.  He did what he could for his Soldiers by getting them to qualify expert with their rifle and 80 percent of his Soldiers received a first time go during the day and night Land Navigation.  Throughout his whole career he made the Soldiers his number one priority before himself and many times before his family.

3.  He provides the contested NCOER and NCOERs for the periods 1 December 2002 to 31 January 2005 and 1 April 2007 to 31 August 2011.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Regular Army as a staff sergeant (SSG)/E-6.

2.  The contested NCOER shows he was rated for duty as a Squad Leader in primary military occupational specialty (PMOS) 11B3O (Infantryman) while assigned to Company C, 1st Battalion, 12th Infantry Regiment, Fort Carson, CO.  The form shows in:

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

	b.  Part II (Authentication) – the evaluation was signed by his rating chain and the applicant.  The NCOER was reviewed by his commander, who concurred with the rater and senior rater evaluations;

	c.  Part IVa, the following was entered in the space provided for bullet comments – 

* will make a personal effort to his Soldiers if needed (highlighted by the applicant)
* gives leaders and Soldiers respect
* honorable in all aspects of his service

	d.  Part IVc, the entry "failed to implement a PT plan for his Squad, resulting [in] three members of his squad not achieving 70 pts in APFT for each event for EIB";

	e.  Part IVd, the following was entered in the space provided for bullet comments-

* counseled Soldiers for substandard performance after being forced to do so by chain of command
* failed to manage time effectively with his squad during EIB training and testing resulting in zero Soldiers from his squad earning the EIB (highlighted by the applicant)
* maintained a lackadaisical attitude when failing to reward or punish Soldiers in the Squad

	f.  Part IVe (Training) - the following was entered in the space provided for bullet comments-

* ensured all Soldiers in his Squad were trained on thier [sic] assigned weapon; with 100% qualified expert (highlighted by the applicant)
* trained his Squad in Land Navigation skills, honing skills for EIB with an 
80% first time go ratio (highlighted by the applicant)
* shared knowledge of Tactics, Techniques and Procedures from previous combat experience with all soldiers in the Platoon
	
	g.  Part V  – 

* 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 superior 3

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

* do not promote at this time
* send to BNCOC Phase II
* has the potential to be a good Squad Leader
* his performance in leading and caring for his Squad tasks to be accomplished has been substandard

3.  The available records do not show that the applicant sought redress of the contested report.

4.  The DA Forms 2166-8 provided by the applicant show that he received successful ratings for all rated periods prior to the contested report while serving as a squad leader, instructor/writer, training NCO, operations NCO, and rifle team leader.

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

	a.  Paragraph 2-15 states that the rated Soldier's signature verifies that administrative data, to include height/weight/APFT data.

	b.  Paragraph 3-23 states any verified derogatory information may be entered on an evaluation.

	c.  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.  

	d.  Chapter 6 defines the Evaluation Redress Program. 

		(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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of comments on the contested NCOER.

2.  He states the contested NCOER is contradictory and he highlighted bullet comments located under the Army Values and Training Sections of the contested NCOER.  These bullet comments show that the rater stated that the applicant made a personal effort with his Soldiers as needed, that all his Soldiers qualified expert with their assigned weapons, and that he trained his squad in Land Navigation Skills resulting in 80 percent of his squad qualifying on the first testing.  However, the rater stated in the Leadership Section of the contested NCOER that the applicant failed to manage time effectively with his squad during EIB training and testing resulting in zero Soldiers from his squad earning the EIB.  This statement is contradictory because the applicant received successful bullet comments regarding the training he provided to his squad in preparation for EIB.  However, this is an administrative error at best and does not meet the level of inaccuracy to be deemed a substantive error that would warrant modifying the report or rendering the report invalid.  Further, the contested NCOER was reviewed by his commanding officer who concurred with the rater and senior rater evaluations.  It must be presumed that the derogatory information in the NCOER was verified.

3.  He further contends he was forced to sign the report without reading it but he has provided no evidence to support this contention.  The applicant will note that his signature only serves to verify that administrative data was correctly entered on the report and not the accuracy of the report.  However, given his contentions of being forced to sign an unjust report, it is unclear why he failed to take advantage of the appeals process at the time the report was submitted.  The subsequent passage of time makes it difficult to substantiate his claims.

4.  He has failed to produce clear and convincing evidence to establish that the presumption of regularity should not be applied to the contested NCOER and that action is warranted to correct a material error, inaccuracy, or injustice.  Therefore, his request should be denied.

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)                                         AR20120022513





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ABCMR Record of Proceedings (cont)                                         AR20120022513



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