IN THE CASE OF:	  

		BOARD DATE:	  8 August 2013

		DOCKET NUMBER:  AR20130009594 


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, in effect, removal of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period 29 October 2009 through 11 February 2010 from the performance folder of his Army Military Human Resource Record (AMHRR).

2.  The applicant states:

	a.  He received a relief-for-cause (RFC) NCOER, dated 11 February 2010.  The report has two blocks marked "No," one for "Respect/EO [Equal Opportunity]/EEO [Equal Employment Opportunity]" and one for "Honor."  The report shows he was rated as "Needs Improvement (Much)" in "Physical Fitness & Military Bearing," as well as a "Marginal" rating for "Overall Performance and Potential" from his rater, a "Successful-3" rating for "Overall Performance" from his senior rater, and a "Fair-4" rating for "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" from senior rater.
 
	b.  This NCOER is not justified due to lack of substance.  The NCOER was written based on one incident and a personality conflict with his rater.

	c.  He was only rated for 2 months, not 3 months.  From 11 January 2010 until 5 February 2010, he was in the Advanced Leader Course (ALC) from which he graduated with a 98.3 percent average.  His NCOER had no rated code for his time in ALC, but he had this corrected by an administrative appeal in June 2011.

	d.  He states his email address is not correct and the rater's, senior rater's, and reviewer's authentication dates are out of order; the rater and senior rater signed the report on 21 April 2010 and the reviewer signed the report on 3 March 2010.  He did not sign the report because the rater refused to fix the administrative errors.

	e.  The copy of the NCOER his rater showed him was not the NCOER that was submitted.  The NCOER the rater submitted was rated more harshly because he refused to sign it.

	f.  The two "No" blocks he received were in response to an incident that escalated following a disagreement over a scheduling conflict.  Upon returning from ALC, he was involved in an incident with a staff sergeant.  He left the office to avoid a confrontation, but the staff sergeant followed him into the hall and told him to "get the f—k back over here or I will UCMJ you and take rank."  This was said in front of his peers, superiors, and subordinates.  In turn, he took off his rank and threw it on the ground.

	g.  Prior to this incident, he worked extremely well with all of his peers, mentoring two instructors to certify them at the academy, and he gave the utmost respect to the senior noncommissioned officer whom he worked for.

	h.  His previous NCOER in the same unit with the same senior rater and reviewer states "outstanding junior NCO, was instrumental in aiding in the establishment of the first ever multi-component NCOA [NCO Academy]."  This NCOER also states, "solid leader, genuinely cared for Soldiers; motivated students to accomplish all missions."

	i.  During the rating period in question he scored 275 points on the Army Physical Fitness Test.

	j.  There is no substantial evidence to back up the marginal rating he received in the NCOER.

	k.  His previous NCOER states "promote to SFC [sergeant first class] ahead of peers," "send to SLC [Senior Leader Course] now," "demonstrated excellent potential for assignment to a position of greater responsibility," and "outstanding junior NCO, was instrumental in aiding in the establishment of the first ever multi-component NCOA." 

3.  The applicant provides:

* NCOER covering the period 1 April 2009 through 28 October 2009
* NCOER covering the period 29 October 2009 through 11 February 2010
* DA Form 1059 (Service School Academic Evaluation Report) covering the period 11 January 2010 through 5 February 2010
* email
* letters of recommendation

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 January 2001 and trained as an infantryman.  He has remained on active duty through continuous reenlistments and he was promoted to staff sergeant on 1 August 2006.

2.  His NCOER covering the period 1 April 2009 through 28 October 2009 shows he was rated "Among the Best" by his rater for "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility."  His senior rater rated him "Successful-1" for "Overall Performance," "Superior-1" for "Overall Performance," and "Superior-1" for "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" with the following bullet comments:

* promote to SFC ahead of peers
* send to SLC now
* demonstrated excellent potential for assignment to a position of greater responsibility
* outstanding junior NCO, was instrumental in aiding in the establishment of the first ever multi-component NCOA

3.  He completed ALC on 5 February 2010.

4.  The contested RFC NCOER covers the period 29 October 2009 through 11 February 2010.  Part I, block i (Rated Months), shows the entry "3."  In Part II (Authentication), the rater and senior rater signed the report on 21 April 2010; however, the reviewer signed the report on 3 March 2010.  In Part IVa (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "No" block for the following items:

* Respect/EO/EEO
* Honor

5.  He was rated "Needs Improvement (Much)" for "Physical Fitness & Military Bearing" by his rater with the following bullet comments:

* disrespect to a peer and Senior Non-Commissioned Officer both verbally and physically
* did not work well with peers and seniors of different components
* worked hard to improve his physical fitness for Special Forces selection

6.  He was rated "Marginal" by his rater for "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility."

7.  His senior rater rated him "Successful-3" for "Overall Performance," and 
"Fair-4" for "Overall Performance," and "Fair-4" for "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" with the following bullet comments:

* Soldier refused to sign NCOER after being counseled by rater and senior rater
* do not promote at this time
* send to Senior Leaders Course if slot is available
* capable of performing duties in his current rank
* possesses great potential; must mature and come to terms with his shortcomings

8.  In 2011, he appealed the contested RFC NCOER.  The U.S. Army Human Resources Command Appeals and Corrections Section determined his appeal warranted partial relief.  A non-rated school code of "S" was added to his report based on the DA Form 1059 provided.  His substantive errors were not supported by appropriate documentation.

9.  He provides letters of recommendation for his return to the Special Forces Qualification Course and for completion of the 18E Communications Sergeant Program.

10.  A review of the applicant's performance folder of his AMHRR in the interactive Personnel Electronic Records Management System revealed a copy of the RFC NCOER.

11.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the AMHRR.  Table 2-1 states that an NCOER will be filed permanently in the performance folder of the AMHRR.

12.  Army Regulation 623-3 (Evaluation Reporting System) states that an evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

13.  Army Regulation 623-3, paragraph 3-33 (Authentication of Evaluation Reports), states the rated Soldier's signature will verify the accuracy of the administrative data in Part I.  The regulation also states the reviewer's signature and date will not be before the rater’s or senior rater's.

14.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System), Table 3-1 (Administrative Data NCOER), states for Part I, block i, the number of rated months is computed by:

* dividing the number of days in the rating period by 30
* subtracting all nonrated time
* if 15 or more days remain after dividing the rating period by 30, they will be counted as a whole month

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the RFC NCOER has multiple errors, it is not justified due to lack of substance, and it was written based on one incident and a personality conflict with his rater.

2.  He contends he was only rated for 2 months, not 3 months.  However, the evidence shows:

* there were 106 days in the rating period
* 106 divided by 30 equals 3 months and 16 days
* there were 25 days in his nonrated period
* the nonrated period (25 days) subtracted from 3 months and 16 days equals 2 months and 21 days
* since there were more than 15 days remaining after dividing the rating period by 30, they were counted as a whole month

3.  Therefore, the correct number of rated months is 3.  The number of rated months is properly reflected in Part I, block I, of his NCOER.

4.  He also contends his email address is not correct.  However, he should have verified the accuracy of the administrative data in Part I of the NCOER when he signed the report, but he refused to sign the NCOER.

5.  The evidence of record supports his contention that the rater's, senior rater's, and reviewing official's authentication dates are out of order for the NCOER covering the period 29 October 2009 through 11 February 2010.  The evidence of record shows the reviewer authenticated the form on 3 March 2010 while the rater and senior rater did not authenticate the form until 21 April 2010.  Although the governing regulation states the reviewer's signature and date will not be before the rater's or senior rater's, it does not appear that the sequence of dates had a detrimental effect on the NCOER.

6.  There is no evidence that the information contained in the RFC NCOER does not represent the considered opinion and objective judgment of the rating officials at the time of preparation.

7.  The governing regulation states NCOER's will be filed in the performance folder of the AMHRR.  The NCOER in question is properly filed in his military records in accordance with the governing regulation.

8.  Based on the foregoing, there is an insufficient basis for granting 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 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)                                         AR20130009594



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ABCMR Record of Proceedings (cont)                                         AR20130009594



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