IN THE CASE OF:	  

		BOARD DATE:  27 August 2013

		DOCKET NUMBER:  AR20130011271 


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 reconsideration of his earlier request that his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period
1 May 2009 through 30 April 2010 (hereafter referred to as the contested NCOER) be removed from his Army Military Human Resource Record (AMHRR) and replaced with a corrected NCOER covering the same period (hereafter referred to as the corrected NCOER).

2.  The applicant states:

	a.  A conflict occurred between him and his rater while he was deployed.

	b.  The contested NCOER was submitted to the U.S. Army Human Resources Command (HRC) Evaluations Branch with a "marginal" rating in Part V (Overall Performance and Potential), section a. (Rater), and a "4 (Fair) " rating in Part V, section c.

	c.  A Commander's Inquiry (CI) was initiated, and on 13 January 2011, a revised NCOER was completed, signed by the same rating chain, and resubmitted in accordance with HRC's guidance and based on the results of the CI.

	d.  Part V, section a. was changed to "Fully Capable," and Part V, section c. was changed to a "3" rating.


	e.  It was later discovered the contested NCOER was filed in his AMHRR as an exception to policy due to an upcoming selection board.  The contested NCOER was filed so he would have a report on file for the board.

	f.  He filed an appeal with the Enlisted Special Review Board (ESRB) and all the proceedings are in his restricted file.  The ESRB did not support his request for removal of the contested report and found his substantive appeal did not provide sufficient evidence to his exception to policy.

	g.  The ESRB highlighted the rater's ratings and comments, but not the senior rater's comments or ratings.  The ESRB also highlighted a lack of a CI, but due to the deployment, none of the documentation was retained.

	h.  His intent was not to remove the contested NCOER, but to correct it.

3.  The applicant provides:

* ESRB appeal
* the contested NCOER, digitally signed by the applicant on 27 May 2010
* the corrected NCOER, digitally signed by the applicant on 13 January 2011
* self-authored memorandum, dated 18 January 2012
* a memorandum from his battalion command sergeant major (CSM), subject:  Evaluation Report Appeal, [Applicant], dated 15 February 2012
* a memorandum from his battalion commander, subject:  Evaluation Report Appeal, [Applicant], dated 15 February 2012
* a memorandum from his senior rater, subject:  Reconsideration of NCO Evaluation Report Appeal, [Applicant], dated 3 June 2013
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings, AR20130003275, dated 9 May 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2013000275, on 9 May 2013.

2.  The applicant provides new arguments and as such his application warrants consideration by the Board.

3.  The applicant is presently serving in the Regular Army in the rank/grade of staff sergeant (SSG)/E-6.


4.  On 22 January 2002, the applicant enlisted in the Regular Army.  He completed his training and he was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  On 1 September 2008, he was promoted to the rank/grade of SSG/E-6.

5.  His Enlisted Record Brief (ERB) shows he deployed to the following operational areas on or about the dates shown:

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

6.  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)

7.  The Interactive Web Response System shows data on evaluations received at Reports Processing Branch, HRC, for administrative management of evaluation systems at the lowest possible level.  On 21 July 2010, the contested NCOER was received and accepted at HRC.

8.  On 13 January 2011, the contested NCOER was added to the performance folder of his AMHRR.

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


10.  On 3 February 2011, the Fiscal Year (FY) 2011 Sergeant First Class (SFC) Promotion Board convened 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.

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

12.  On 24 January 2012, the Fiscal Year (FY) 2012 SFC Promotion Board convened, and it recessed on 2 March 2012.  The applicant was considered by this board, but not selected.  

13.  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 or 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

14.  On 4 February 2013, the FY2013 SFC Promotion Board convened, and it recessed on 8 March 2013.  The applicant was considered by this board, but not selected. 

15.  On 8 July 2013, an email was sent to the individual shown as the senior rater on the contested report.  He was specifically asked what made him change his rating with regard to the CI and whether or not he had a copy of the CI.

16.  On 8 July 2013, the former rater responded via email with the following:

* the S1 provided a "4/3" rating version and confusion arose over whether it should have been a "3/3" rating
* cool heads prevailed and a "3/3" rating  was determined to be the appropriate rating
* the applicant has been trying to correct this error for about 2 years
* S1 personnel attempted to have the corrected NCOER filed several years ago


* he does not have a copy of the CI and suggested that other individuals in the rating chain may have a copy since they were involved at the time of the contested and corrected NCOER

17.  On 18 July 2013, by email, a copy of the former rater's response was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.

18.  On 23 July 2013, the applicant responded with the following:

* there was a CI that revealed some aspects of the rating required adjustment
* the largest issue regarding the CI was the loss of supporting documentation that can be attributed to the deployment to Afghanistan when the rating period took place
* his former CSM contacted HRC Evaluations on his behalf because he evaluated the NCOER during the rated period 
* his former CSM urged him to request the CI
* when the error was discovered, attempts were made to correct and appeal the NCOER due to the inaccuracy

19.  He resubmits copies of the contested NCOER and the corrected NCOER along with letters from his battalion CSM, commander, and senior rater at the time, that attest to the circumstances that warranted the correction of the contested NCOER.  The corrected NCOER shows:

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

20.  The corrected NCOER was not added to his AMHRR.

21.  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:

		(a)  statements from rating officials that they underestimated the rated Soldier.

		(b)  statements from rating officials that they did not intend to assess the rated Soldier as they did.

		(c)  requests that ratings be revised.

		(d)  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.  Evidence shows the contested NCOER was accepted by HRC and filed in the performance folder of his AMHRR.

2.  Although the applicant contends a CI was conducted and resulted in a corrected NCOER, there is no documentary evidence to support this contention.  Regardless of the reasons, a corrected NCOER was prepared.

3.  The governing regulation clearly states an evaluation report accepted and included in the official record of a Soldier is presumed to be administratively correct; to have been prepared by 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.

4.  The evidence of record shows the contested NCOER was added to the performance folder of his AMHRR on 13 January 2011.  It appears that it was also on 13 January 2011 that his rating chain amended the contested NCOER.
However, once the contested NCOER was accepted by HQDA the only way to modify that report was through the appeals process.

5.  In view of the foregoing evidence and in the absence of the CI, there is an insufficient evidentiary basis for 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 to amend the decision of the ABCMR set forth in Docket Number AR20130003275, dated 9 May 2013.


      _______ _  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)                                         AR20130011271



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ABCMR Record of Proceedings (cont)                                         AR20130011271



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