BOARD DATE:	  9 May 2013

		DOCKET NUMBER:  AR20130003275


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 his DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), for the period 1 May 2009 through 30 April 2010 (hereafter referred to as the contested NCOER), be expunged from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File (OMPF)) and replaced with a corrected NCOER covering the same period (hereafter referred to as the corrected NCOER).  

2.  The applicant states:

* the contested NCOER resulted from a conflict he had with his rater during a deployment
* after the NCOER was submitted to the U.S. Army Human Resources Command (HRC), it was rejected because of administrative error 
* he then requested a Commander's Inquiry to determine the appropriateness of his rater's comments and ratings
* following the Commander's Inquiry and consultation between the rating officials, the NCOER was amended
* the corrected NCOER was digitally signed by the same rating officials as the contested NCOER – proving that all rating officials were aware of the results of the Commander's Inquiry and agreed to the changes
* his battalion Command Sergeant Major (CSM) called HRC and discovered the contested NCOER (and not the corrected NCOER) was filed in his AMHRR, so it could be reviewed by the upcoming Sergeant First Class (SFC) Promotion Selection Board
* he appealed the contested NCOER to the Enlisted Special Review Board (ESRB), but his request was denied
* the ESRB found his substantive appeal did not support removing the contested NCOER from his AMHRR
* the ESRB also found his request lacked documentation related to the Commander's Inquiry, but due to the fact he was deployed at the time it was conducted, the necessary paperwork was not retained
* he believes the ESRB thought his intention was to have the contested NCOER removed from his record – in reality, his true intention is to have the appropriate NCOER represented in his record   

3.  The applicant provides:

* the contested NCOER, digitally signed by the applicant on 27 May 2010
* the corrected NCOER, digitally signed by the applicant on 13 January 2011
* a memorandum from the applicant, dated 18 January 2012, subject: Evaluation Report Appeal, [Applicant], Staff Sergeant (SSG),...
* a memorandum from his battalion CSM, dated 15 February 2012, subject: Evaluation Report Appeal, [Applicant], SSG,...
* a memorandum from his battalion commander, dated 15 February 2012, subject: Evaluation Report Appeal, [Applicant], SSG,...

CONSIDERATION OF EVIDENCE:

1.  The applicant is serving in the Regular Army, in the rank/grade of SSG/E-6.  

2.  The applicant enlisted in the Regular Army on 22 January 2002.  He completed his initial entry training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  He served in a variety of positions of increased responsibility, and on 1 September 2008, he was promoted to the rank/grade of SSG/E-6.

3.  His Enlisted Record Brief (ERB) shows he deployed on numerous occasions; specifically, to the following operational areas:

* Kuwait, from on or about 1 September 2002 to on or about 22 March 2003
* Iraq, from on or about 23 March 2003 to on or about 26 August 2003
* Iraq, from on or about 22 January 2005 to on or about 10 January 2006
* Iraq, from on or about 10 October 2006 to on or about 12 January 2008
* Afghanistan, from on or about 1 June 2009 to on or about 31 May 2010

4.  On 27 May 2010, he received the contested NCOER.  A review of the contested NCOER shows the applicant received:

* "Excellence" ratings in Part IV (Rater) (Values/NCO Responsibilities), sections b. (Competence), e. (Training), and f. (Responsibility and Accountability)
* "Success" rating in Part IV, section c. (Physical Fitness and Military Bearing)
* "Needs Improvement (Some)" rating in Part IV, section d. (Leadership)
* "Marginal" rating in Part V (Overall Performance and Potential), section a. (Rater)
* "4 (Fair)" rating in Part V, section c. (Senior Rater – Overall Performance)
* "3 (Superior)" rating in Part V, section d. (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility)

5.  The Interactive Web Response System (IWRS) reflects data on evaluations received at Reports Processing Branch, HRC, for administrative management of evaluation systems at the lowest possible level.  According to IWRS, the contested NCOER was received and accepted at HRC on 21 July 2010.  

6.  The Interactive Personnel Electronic Records Management System (iPERMS) shows the contested NCOER was added to the performance folder of his AMHRR on 13 January 2011.

7.  His record is void of documentation, and he has not provided documentation, that shows he either requested or received a Commander's Inquiry related to the contested NCOER.  Regardless, it appears that on 13 January 2011, his rating chain amended the contested NCOER.

8.  The FY11 SFC Promotion Board convened on 3 February 2011 and recessed on 22 February 2011.  The applicant was eligible for consideration by this board in the secondary zone.  He received a Noncommissioned Officer Education System (NCOES) waiver, since he was not yet a graduate of the requisite NCOES development course.  Although considered, he was not selected by this board.  

9.  On 12 August 2011, he graduated the Advanced Leader Course, the requisite level of NCOES for promotion to SFC.

10.  The FY12 SFC Promotion Board convened on 24 January 2012 and recessed on 2 March 2012.  The applicant was considered by this board, but not selected.  

11.  On 18 October 2012, the ESRB denied his request for removal of the contested NCOER from his AMHRR.  In its Record of Proceedings, the ESRB noted:

* the applicant, in his appeal request, did not provide sufficient evidence to show his evaluation was unfair of biased
* the applicant did not contest his senior rater's evaluations, which agreed with the rater's evaluations
* the applicant failed to provide evidence to show the presumption of regularity should not be applied

12.  The FY13 SFC Promotion Board convened on 4 February 2013 and recessed on 8 March 2013.  The applicant was considered by this board, but not selected. 

13.  He submitted a copy of the contested NCOER and the corrected NCOER, and letters from his battalion CSM and commander, which attest to the circumstances that warranted the correction of the contested NCOER, resulting in the corrected NCOER.  The corrected NCOER shows:

* on 13 January 2011, the corrected NCOER was digitally signed by the same rating officials who signed the contested NCOER
* the rater's rating in Part V, section a. was changed from "Marginal" to "Fully Capable"
* the senior rater's rating in Part V, section c. was changed from "4" to       "3 (Successful)"

The corrected NCOER was not added to his AMHRR.

14.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army’s ERS. 

   a. Paragraph 1-11 states, when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander or commandant will conduct an inquiry into the matter.  The Commander's or Commandant’s Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by Headquarters, Department of the Army (HQDA), and the conduct of the rated Soldier and members of the rating chain.  The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. 

   b. Paragraph 3-36 addresses requests for modifications to both completed evaluation reports that are filed in a Soldier’s AMHRR and reports that are being processed at HQDA prior to completion.  It states, in pertinent part:

      1.  An evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct; have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and represent the considered opinions and objective judgment of the rating officials at the time of preparation.

      2.  Requests for modifications to evaluation reports already posted to a Soldier’s AMHRR require use of the Evaluation Report Redress Program.

     3.  Requests for the alteration, withdrawal, or replacement of an accepted report with another report, pertaining to a completed evaluation report filed in a Soldier’s AMHRR, will not be honored if the request is based on the following:

* statements from rating officials that they underestimated the rated Soldier
* statements from rating officials that they did not intend to assess the rated Soldier as they did
* requests that ratings be revised
* statements from rating officials claiming administrative oversight or typographical error in checking blocks on forms for professional competence, performance, or potential (therefore, it is imperative that rating officials ensure evaluation reports (OERs, NCOERs, or AERs) are accurately recorded prior to signing)

   c. Paragraph 4-4 states alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander’s or commandant’s attention by the rated Soldier or anyone authorized access to the report.  The primary purpose of a commander’s or Commandant’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.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his contested NCOER be expunged from his AMHRR and be replaced with a corrected NCOER covering the same period.

2.  The evidence of record shows that both he and his rating officials digitally signed the contested NCOER, and that the contested NCOER was accepted by HRC and filed in the performance folder of his AMHRR.

3.  The applicant contends the NCOER was initially rejected by HRC, leading to a Commander's Inquiry, which resulted in the corrected NCOER.  Unfortunately, the evidence of record does not support this contention.  

4.  It appears that at sometime after the contested NCOER was initially submitted to HRC, his rating officials and chain of command had second thoughts regarding the ratings that appear on the contested NCOER.  Regardless of the reasons why, an attempt was made to amend the contested NCOER.

5.  The governing Army regulation clearly states an evaluation report accepted by 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 who meet the minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

6.  There is no evidence the contested report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOER or that they exercised faulty judgment in evaluating him as they did.  

7.  The applicant did not provide sufficient evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  There is insufficient evidence to grant him the 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)                                         AR20110023917



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ABCMR Record of Proceedings (cont)                                         AR20130003275



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