IN THE CASE OF:	

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20130001594 


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 Evaluation Report (NCOER)) for the period 15 April 2008 through
9 January 2009 (hereafter referred to as the contested NCOER) from his Army Military Human Resource Record (AMHRR).  He also requests promotion reconsideration to master sergeant (MSG)/E-8 under the criteria of the Fiscal Year (FY) 2011, 2012, and 2013 MSG Promotion Selection Boards.

2.  He states:

	a.  he was not selected for promotion by the MSG promotion boards due to the contested NCOER in his AMHRR; that constitutes a material error.

	b.  the Army Special Review Board (ASRB) removed improper entries from the contested NCOER, but left intact the contested report's original rating of "2" in Part V(c) (Overall Performance and Potential).  The continued presence of the contested report in his record serves as a negative connotation each time the promotion selection board has reviewed his potential for promotion for three consecutive years.

	c.  the Commander's Inquiry determined the contested NCOER was unjust and biased.


	d.  he has gained a wealth of experience in leading Soldiers, managing resources, and producing outstanding results through a variety of challenging assignments.  He has performed duties in demanding positions such as Senior Financial Advisor, Training Developer, and Concept and Doctrine Developer for the Finance Corps.  He also completed a 6-month deployment as a Resource Management Noncommissioned Officer in Charge (NCOIC) for a Joint Task Force at Guantanamo Bay, Cuba.  This mission enhanced his versatility in managing Soldiers, Airmen, Sailors, and Marines.  These experiences have progressively prepared him to successfully perform the duties of a MSG.

	e.  his NCOERs prior to and subsequent to the contested NCOER show the rater assigned him a "1" for his overall performance.  He possesses the Total Soldier Army Concept, experience, and education required of a Senior NCO.  He earned an Associate of Arts degree in General Studies and he is pursuing a Bachelor of Science degree in Business online from Columbia Southern University.  He also maintains technical and tactical proficiency, is physically fit, and consistently seeks ways to develop his subordinates, his unit, and himself.

3.  He provides:

* Six memoranda
* ASRB Record of Proceedings
* Memorandum for Record
* Twelve DA Forms 2823 (Sworn Statement) 
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* Eleven affidavits

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 September 1993.

2.  He was promoted to SFC on 1 July 2007.

3.  The contested NCOER is a change-of-rater report for the period 15 April 2008 through 9 January 2009 that rated his performance as a Financial Manager.

	a.  Part II (Authentication) shows his rater as MSG SR-H, his senior rater (SR) as Major RDL, and the reviewer as Lieutenant Colonel TAH.


	b.  Part IIIf (Counseling Dates) shows he received his initial counseling on 30 April 2008 and later counseling on 17 July 2008 and 16 October 2008.

	c.  Part IVa(3) (Army Values) contains all "Yes" entries.

	d.  Part V (Overall Performance and Potential) shows the rater assessed his overall potential for promotion and/or service as "Fully Capable."  The SR listed his overall performance as "Successful-2" and potential for promotion and/or service in positions of greater responsibility as "Superior-1."  The SR recommended him for promotion to MSG and to send him to the First Sergeant course.

	e.  The rater listed three positions in which the applicant could best serve the Army at his current or next higher grade.  They are:

* Budget Manager
* Disbursing Manager
* Accounting Senior Finance Manager Advisor

4.  In an undated memorandum, the investigating officer (IO) in the Commander's Inquiry recommended the contested NCOER be removed from the applicant’s record and resubmitted with changes to bullet comments in Part IVa, Part IVf, and Part Ve.  The IO also recommended that a Command Climate Survey be administered to Battle Company.  The IO stated these recommendations were substantiated due to the lack of proper counseling.

5.  On 1 September 2009, the applicant submitted an appeal to the contested NCOER to the Appeals and Corrections Branch.  He alleged his rater expressed biased judgment and included unverified inaccurate information in the evaluation report and false counseling dates.  He requested the initial counseling date of
30 April 2008 and later date of 17 July 2008 be removed from the contested report.  He further requested the bullet comments be removed from Part IIIf, Part IVa, and Part IVf.

6.  On 3 June 2010, the ASRB voted to grant partial relief of the applicant's request by:

	a.  removing the bullet comments in Part IVa:  "capable of fulfilling obligations with some degree of supervision."

	b.  removing the bullet comment in Part IVf:  "had difficulties meeting suspense and was often reminded to complete both the Daily Activity Report and Travel Log."

	c.  changing the bullet comment in Part Ve:  "NCO refused to sign; disagreed with assessment in Part IIIf, IVa, IVb, Va, and Ve," to "Soldier unavailable for signature."

	d.  placing "Corrected Copy" on the bottom center of the revised NCOER.

7.  The ASRB determined that promotion reconsideration was not warranted as a result of their action and based on the applicant's date of rank, he would not be in the primary zone for consideration for promotion to MSG until FY11.

8.  A review of the interactive Personnel Electronic Records Management System (iPERMS) revealed the contested NCOER was filed in the performance section of his AMHRR.

9.  He received six NCOER's subsequent to receipt of the contested NCOER.  The rater assessed him as "Among the Best."  The SR assessed him as "Successful-1" and "Superior-1" and recommended him for promotion to MSG immediately.

10.  His service record shows he was awarded the Joint Service Commendation Medal and the Meritorious Service Medal subsequent to receipt of the contested NCOER.

11.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies for completing evaluation reports that support the ERS.  This includes the DA Form 2166-8.

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional 
standards of the Army officer or NCO corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in Department of the Army
Pamphlet 623-3.  Consideration will be given to the following:  (a) the relative experience of the rated officer or NCO, (b) the efforts made by the rated officer or NCO, and (c) the results that could be reasonably expected given the time and resources available.  Potential evaluations will be performance-based assessments of the rated officers or NCOs of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for HQDA.

	b.  Paragraph 2-17b(4) states the reviewer may not direct that the rater and/or SR change an evaluation believed to be honest.

	c.  Paragraph 3-2f states rating officials will prepare reports that are accurate and as complete as possible within the space limitations of the form.  This responsibility is vital to the long-range success of the Army's mission.  With due regard for the rated individual's current grade, experience, and military schooling, evaluations will cover failures as well as achievements.  Evaluations will normally not be based on a few isolated minor incidents.

	d.  Paragraph 3-2i states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for their achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Headquarters Department of the Army selection boards, and career managers can make intelligent decisions.

	e.  Paragraph 3-5 states a rated NCO will discuss and fully understand or adjust goals and objectives discussed with the rater during the initial counseling session.

	f.  Paragraph 4-11d states evidence will include statements from third parties, rating officials, or other documents from official sources for a claim of inaccuracy or injustice of a substantive type.  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 practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  The results of a Commander's or Commandant's Inquiry may provide support for an appeal request.

	g.  Paragraph 6-11a states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant will 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 action is warranted to correct a material error, inaccuracy, or injustice.  The evidence presented must be of a clear and convincing 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.

12.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 states an NCOER will be filed in the performance section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not selected for promotion due to the contested NCOER in his AMHRR.  However, the promotion boards are not permitted to disclose the reasons for non-selection for promotion.  He was properly considered for promotion with his peers.  As a result he was clearly provided due process in the promotion selection process.

2.  On 3 June 2010, the ASRB granted partial relief of the applicant's appeal by removing bullet comments from Part IVa and Part IVf, changing the comment in Part Ve, and by placing "Corrected Copy" on the bottom of the contested NCOER.  

3.  The applicant's contentions pertaining to the ASRB's reason for leaving the SR's rating of "2" for his overall performance are acknowledged.  However, he has not provided clear and compelling evidence that shows the SR’s ratings on the contested NCOER were in error or were not the considered opinion and objective judgment of the SR at the time the report was rendered.  

4.  The evidence of record shows the "Corrected Copy" of the contested NCOER is properly filed on the performance section of the applicant's AMHRR in accordance with applicable regulations.

5.  It appears the applicant did not contest the SR’s rating when he requested the Commander’s Inquiry when he appealed his OER to the ASRB.  It appears he did not contest the SR’s rating until he was nonselected for promotion.
6.  It is concluded that the contested NCOER was processed and accepted for filing in the AMHRR in accordance with applicable regulations.  There is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and/or to remove the contested NCOER or that he is entitled to promotion reconsideration to MSG under the criteria of FY 2011, 2012, and 2013.

7.  In view of the foregoing, there is an insufficient evidentiary basis to support 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)                                         AR20130001594



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ABCMR Record of Proceedings (cont)                                         AR20130001594



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