IN THE CASE OF:	

		BOARD DATE:	    9 January 2014

		DOCKET NUMBER:  AR20130007218 


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 the deletion of derogatory comments from his DA Forms 2166-6 (Enlisted Evaluation Report (EER)) covering the rating period:

* February 1984 through January 1985; hereafter known as contested EER number 1
* February 1985 through June 1985; hereafter known as contested EER number 2
* July 1985 through November 1985; hereafter known as contested EER number 3
* through August 1987; hereafter known as contested EER number 4

2.  The applicant states:

   a.  On the contested EER number 1, his rater, Staff Sergeant (SSG) JDK, had personal issues with him and took it out on his EER.  SSG JDK was never around to view his performance operating with teams or his communication operations.
   
   b.  On the contested EER number 2, his rater, Sergeant First Class (SFC) DWZ, had just gotten promoted when he completed his (the applicant’s) EER.  SFC DWZ was never around to see how he performed but he understands someone has to be the rater on an EER.  As for the equal opportunity (EO) complaint, he (the applicant) was the company level EO noncommissioned officer (NCO) as well as the team chief for military occupational specialty (MOS) 31C (Radio Teletype Operator).  He had to report that an officer was having an affair with an enlisted member and that she (the officer) had his baby.  The officer showed favorable action to the enlisted member and to other members within her group.  The officer started giving him a hard time when he was just trying to do his job.

	c.  On the contested EER number 3 his rater, SSG JDH, was not in his MOS; so how could he rate him when he didn’t know his (the applicant’s) job.  SSG JDH came under investigation with ties to the Ku Klux Klan and the indorser on the EER was the officer whom he had the EO complaint on.

	d.  On the contested EER number 4 his rater, SFC RLY, was not in his MOS and held MOS 72E (Tactical Telecommunications Center Operator).  SFC RLY failed his own MOS test and the Army Physical Fitness Test (APFT) the year he was assigned to the unit in Germany.  The first sergeant (1SG) and SFC RLY were alcoholics and good friends.  The 1SG never liked him because he (the applicant) came from a Special Forces unit.

	e.  During his active duty time and in the MOS field of communications, he never failed his Skill Qualification Test (SQT) or his APFT.  He never failed a mission or misguided any Soldiers under his command.  He was put out under the Qualitative Management Program (QMP) from Germany with an honorable discharge.  Some years later, he rejoined the New Jersey Army National Guard (NJARNG) to complete 20 years of service for retirement.  In the NJARNG, he was assigned to MOS 88M (Motor Transport Operator) and at times he held the platoon sergeant position.  He did a tour in Iraq in 2004 with the NJARNG.  He is now retired from both of his jobs and he would like his record to be clean of the derogatory remarks.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), four DA Forms 2166-6, two DA Forms 2166-7 (NCOER), and a résumé.

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.  Having had prior active service, the applicant enlisted in the Regular Army on 8 September 1977 and he held MOS 31C.  He attained the rank/grade of SSG on 5 August 1984.  He was assigned to Company B, 319th Military Intelligence (MI) Battalion, Fort Bragg, NC.

3.  During the month of February 1985, he received the contested EER number 1 covering the rated period February 1984 through January 1985 while serving in MOS 31C as the Radio Teletype Operations Supervisor.  His rater was SSG JDK, his indorser was First Lieutenant (1LT) CTB, and the reviewer was the company commander, Captain (CPT) JCW.  

   a.  In Block C1 (Demonstrated Performance - Rater’s Evaluation) of this EER his rater stated, in part, “During this time, [The Applicant] has sought self improvement by taking college courses.  These courses have improved his language abilities to some extent but he still has problems writing effective counseling statements.  During his absence, he retained little memory of his job’s technical skills…He consistently reports incorrect status of equipment to insure they are combat ready.”
   
   b.  In Block C2 (Indorser’s Evaluation) the indorser stated he had not observed the applicant and could not indorse the EER.
   
4.  During the month of June 1985, he received the contested EER number 2 covering the rated period February 1985 through June 1985 while serving in MOS 31C as the Radio Teletype Senior Team Chief.  His rater was SFC DWZ, his indorser was 1LT CLB, and the reviewer was CPT JCW.  

   a.  In Block C1 of this EER, his rater stated, in part, “The applicant has the capabilities of becoming a good NCO…however, his inability to instill in his subordinates the team work necessary to perform certain tasks has resulted in his section's mission being delayed on numerous occasions."  
   
   b.  In Block C2, the indorser stated, in part, "The applicant is a highly motivated NCO.  Unfortunately, the applicant lacks sound comprehensive knowledge and judgment which enable him to be technically proficient in his field.  He has been verbally counseled on several occasions concerning alleged EO complaints."
   
5.  During the month of November 1985, he received the contested EER number 3 covering the rated period July 1985 through November 1985 while serving in MOS 31C as the Section Chief.  This EER was a Relief for Cause EER.  His rater was SSG JDH, his indorser was Second Lieutenant (2LT) CLW, and the reviewer was CPT DJB.  

   a.  In Block C1 of this EER, his rater stated, in part, “The applicant does not accomplish missions as a reliable NCO in his current duty position…His subordinates are often forced to look elsewhere for technical and professional advice…he has been notified of the reasons for relief."  
   
   b.  In Block C2, the indorser stated, in part, "The applicant is a dedicated self-conscious NCO…The applicant's subordinates have acquired no confidence or trust in his technical skills and do not respect his decisions because of his lack of decisiveness and stability."
   
6.  He was subsequently assigned to Company B, 302nd MI Battalion, Germany.

7.  During the month of August 1987, he received the contested EER number 4 covering the rated period (beginning date not listed) through August 1987 while serving in MOS 31C as the Section Chief.  His rater was SFC RLY, his indorser was 2LT EAS, and the reviewer was CPT CDB.  

   a.  In Block C1 of this EER, his rater stated, in part, “The applicant's performance of duties as section chief has required an exceptional amount of detailed instructions in order to get the mission(s) accomplished.  He appears to show a sincere desire to take on any assigned task, however, by applying his knowledge and techniques, he usually winds up failing the task."  
   
   b.  In Block C2, the indorser stated, in part, "The applicant has tried very hard to meet the standards expected of a section chief.  However, his performance has been substandard…He is a motivated Soldier who tackles assigned tasks with enthusiasm but is simply unable to get them completed properly."
   
8.  There is no indication he appealed any of the contested EERs to the Enlisted Special Review Board.

9.  He was honorably discharged from active duty on 17 November 1988 in the rank of SSG.  He completed 11 years, 2 months, and 10 days of creditable active service during this period of service.

10.  Army Regulation 623-205 (Enlisted Evaluation Reporting System), in effect at the time, prescribed the policies for completing evaluation reports that support the Evaluation Reporting System.  

	a.  Paragraph 3-5 stated the rater must be the immediate supervisor of the rated NCO and designated as the rater for a minimum of 90 days.  There was no requirement for the rater to hold the same MOS as the rated NCO (emphasis added).

	b.  Paragraph 4-2 stated evaluation reports accepted for inclusion in the official record of an NCO 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.  

	c.  Paragraph 4-7 stated for the appeal of evaluation reports, the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 4-2 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. 

DISCUSSION AND CONCLUSIONS:

1.  The governing Army regulation clearly states an evaluation report 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.

2.  It has been almost 30 years since the applicant received the first contested EER and almost 27 years since he received the contested EER number 4.  There is no evidence and the applicant has not provided any evidence that shows any of the four contested EERs contain any administrative deficiencies, that they were not prepared in compliance with applicable regulations and policy, that his rating scheme was improper, that the rating officials' evaluations represented anything other than their objective judgment, or that they exercised faulty judgment in evaluating him as they as they did.  

3.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.

4.  The applicant's arguments provided in this case address his dissatisfaction with his ratings and his belief that they were unfair assessments.  However, he did not provide any evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to all of the reports under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Therefore, 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)                                         AR20130007218





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ABCMR Record of Proceedings (cont)                                         AR20130007218



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