IN THE CASE OF:	  

		BOARD DATE:  20 August 2013

		DOCKET NUMBER:  AR20130000615 


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 noncommissioned officer evaluation report (NCOER) for the period ending 31 January 2007 from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  The applicant states, in effect, the rating he received was based on his rater's discrimination.  He states his rater used his rank and position to destroy his career and it has affected his life, his career, and his family.  He previously appealed the report and is applying to this Board because injustices like this should be prevented as it is wrong to let a racist NCO disgrace his life and career.

3.  The applicant provides a self-authored statement and copies of the contested NCOER, as well as copies of his NCOER's before and after the contested report, and his appeal to the Department of the Army Suitability Evaluation Board.

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 New York Army National Guard (NYARNG) on 7 March 1991 for a period of 8 years and training as a supply specialist.  He continued to serve until he was honorably discharged from the NYARNG on 20 April 1999 to enlist in the Regular Army.

3.  He enlisted in the Regular Army on 21 April 1999 for a period of 3 years and training as an automated logistics specialist.  He remained on active duty through a series of continuous reenlistments and was promoted to pay grade E-6 on 1 August 2005.

4.  On 15 April 2007, the applicant received an annual NCOER covering the period 1 February 2006 through 31 January 2007 which evaluated him as the Battalion Prescribed Load List (PLL)/The Army Maintenance Management System Noncommissioned Officer in Charge.

5.  In Part IV (Army Values/Attributes/Skills/Actions), the applicant's rater gave him "NO" ratings under "Loyalty" and "Integrity."  The supporting comments indicate that he lacked loyalty to his section by continuously jumping the chain of command and that he was seen by the commander doing physical training after being scheduled for medical evacuation.

6.  His rater gave him "Needs Improvement" ratings under "Competence," "Loyalty," and "Responsibility and Accountability."  His rater gave him a "Marginal" rating for overall potential and/or service in positions of greater responsibility.  The supporting comments stated:

* he failed to seek self-improvement in the area of effective communication and effective Army writing; resulted in PLL shop inefficiency during his tenure
* judgments were not consistent; had to have constant supervision due to lack [of] trust in his day to day decision making process
* does [well] when only given a single task at a time; incapable of handling multiple taskings
* failed to use chain of command five times; went to the commander without informing first line supervisor
* received two traffic violations while deployed; resulted in the loss of his military vehicle driving privileges that greatly impacted the section's mission
* left a sensitive item unsecured only days after being formally counseled on security of equipment job ordered for maintenance
* did not enforce shop safety effectively; had to be medically evacuated from theater for 80 days after hurting his back while engaged in horseplay with a Soldier

7.  His senior rater (a chief warrant officer three) gave him "Fair" ratings for overall performance and potential for promotion.  The supporting comments stated:

* do not select for promotion at this time
* do not send to schooling until he can communicate effectively
* has the potential to perform at a higher level if he can become organized and communicate effectively
* extremely reliable when given one task to complete
* NCO refuses to sign

8.  On 9 November 2007, he appealed the NCOER to the Enlisted Special Review Board (ESRB), contending that the contested report was unjust because it did not accurately reflect his overall performance.  He also stated that he used the open-door policy to discuss issues he had with his rater and contended that his rater hindered his capabilities when he suspended his driving privileges.

9.  After reviewing all of the available evidence in the case, the ESRB opined that the applicant had not submitted sufficient evidence to show the ratings and comments were inaccurate or unjust and voted unanimously to deny his appeal on 31 July 2008.

10.  A review of his records shows the same rater evaluated the applicant during the 12-month period preceding the contested report and gave the applicant maximum ratings with no derogatory comments.

11.  Army Regulation 623-3 (Evaluation Reporting System) prescribes policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System.  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.  Requests that an evaluation report in a Soldier's AMHRR be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly establishes that the regulatory presumption of regularity referred to in paragraphs 3-39 and 6-7 of this regulation will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the NCOER covering the period 1 February 2006 through 31 January 2007 from his AMHRR has been carefully considered.  However, there is insufficient evidence of a clear and compelling nature that would support overriding the presumption of regularity attached to reports accepted for filing by HQDA.

2.  Additionally, he failed to provide sufficient evidence to show the contested NCOER does not represent the considered opinions and objective judgment of the rating officials at the time of preparation.

3.  The applicant's contentions that his rater's comments and ratings were the result of discrimination by the rater and that his rater was a racist has also been noted and appears to lack merit.  Not only did the rater give him essentially a maximum rating for the year preceding the contested report, his senior rater also gave him a minimum rating and made equally-strong comments regarding his performance and potential.

4.  The mere act of stating that his rating officials had personal motives for rating him as they did is not sufficient to justify allegations of wrongdoing and the applicant has not provided any evidence that supports his allegations.  Allegations of wrongdoings must be supported by valid verifiable evidence.

5.  Accordingly, in the absence of evidence to the contrary, the contested report appears to represent a fair, objective, and valid appraisal of his performance and potential during the period in question.

6.  Therefore, since the applicant has not provided evidence to substantiate his contentions that the ratings and comments are unjust and inaccurate, there appears to be no basis to grant his request to expunge the contested NCOER from his records.

7.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20130000615



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ABCMR Record of Proceedings (cont)                                         AR20130000615



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