IN THE CASE OF:	  

		BOARD DATE:	 23 April 2014

		DOCKET NUMBER:  AR20130012436 


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 Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rated periods 1 August 2011 through 
14 February 2012 (hereinafter referred to as contested NCOER 1) and 
14 February 2012 through 20 July 2012 (hereinafter referred to as contested NCOER 2) be removed from his Army Military Human Resource Record (AMHRR).

2.  The applicant states his request to remove contested NCOERs 1 and 2 from his AMHRR is based on administrative and substantive errors.

	a.  Contested NCOER 1:

		(1)  Part I(f.1) (Administrative Data-Unit, Organization, Station, Zip Code or APO, Major Command) contains the entry “HHC, 2/12 IN, 4 IBCT, 4ID, Fort Carson, CO…” [Headquarters and Headquarters Company, 2nd Battalion, 12th Regiment, 4th Infantry Brigade Combat Team, 4th Infantry Division, Fort Carson, CO.]  However, when the applicant was promoted to sergeant (SGT)/E-5 on 
1 August 2011, he was reassigned to A Company, 2nd Battalion, 12th Regiment, 4th Infantry Division, Fort Carson, CO.

		(2)  Part II(a) (Authentication-Name of Rater) shows his rater as SGT KAR.  However, SGT KAR was not his rater during this rated period.  When the applicant was promoted to SGT and reassigned to A Company, his rater became Staff Sergeant (SSG)/E-6 BM.  

		(3)  Part II(e) (Rated NCO/Date) contains the entry 1 August 2012.  He did not sign his NCOER until 8 months after the "THRU" date.  Furthermore, his NCOER was sent up more than 90 days after the rating period ended.  

		(4)  Part III(c) (Duty Description-Daily Duties and Scope) contains the entry "Serves as an [sic] Fire Support Sergeant in a light Infantry Battalion deployed in support of Operation Enduring Freedom…"  However, during that rated period he did not deploy in support of the listed operation and the duties and responsibilities listed on his NCOER do not match his actual duties and responsibilities.

		(5)  Part III(d) (Duty Description-Area of Special Emphasis) contains the entry "Brigade Fire Support Team [FiST] certification…"  However, he did not participate in the certification because, during this period, he was attending the Warrior Leader Course (WLC).

		(6)  Part III(f) (Duty Description-Counseling Dates) shows he received an initial counseling on 25 August 2011 and a later counseling on 15 November 2011.  In accordance with (IAW) Army Regulation 623-3, the rated NCO is supposed to receive quarterly reviews prepared on a DA Form 2166-8-1 (NCOER Counseling and Support Form) to identify the rated NCO's strengths and weaknesses and identify areas in which that NCO can improve.  He did not receive any counseling or quarterly reviews and his rater never prepared a DA Form 2166-8-1.  Therefore, he was not informed of his deficiencies or provided with the opportunity to develop and grow as an NCO.

		(7)  Part IV(b) (Values/NCO Responsibilities-Competence):

		a.  bullet 1 states "failed Joint Fires Observer [JFO] Course despite attendance at two week preparatory course and individualized assistance; second failure at this course."  However, according to Army Regulation 623-3, periods of school attendance are considered non-rated time on the NCOER, and events taking place during school are non-rated periods and are not covered on the NCOER. 

		b.  bullet 2 states "failed to become qualified during Brigade FiST certification because of inability to pass land navigation practical exercise."  This is an incorrect statement.  He was attending WLC during the Brigade FiST certification.

		(8)  At the time this NCOER was written he was being seen by behavioral health and was prescribed medication.  However, his NCOER does not mention his medical treatment at behavioral health, the medication he was taking, or the effects this had on his duty performance.  His treatment at behavioral health and the medication had adverse effects on his behavior and performance.  Furthermore, he requested all copies of all his counseling statements and associated paperwork; however, his chain of command reported that his entire counseling packet disappeared.  Without the counseling paperwork there is no way his rating chain can substantiate the bullet remarks.

	b.  Contested NCOER 2:

		(1)  Part III(d) listed the JFO course and Joint Readiness Training Center (JRTC) Rotation 12-02.  The JFO course should not have been mentioned because IAW Army Regulation 623-3, the period of school attendance is non-rated on the NCOER and events/actions during non-rated periods are not covered on the NCOER.  Furthermore, the entry pertaining to the JRTC rotation is incorrect.  4th Brigade, 4th Infantry Division deployed to JRTC from October - November 2011 and he was not part of C Company, 2nd Battalion, 12th Regiment, 4th Infantry Brigade Combat Team, 4th Infantry Division, Fort Carson, CO during the rotation; he was assigned to A Company.

		(2)  In Part IV(b), all the bullet comments indicate he had difficulty with terrain knowledge and could not demonstrate a working knowledge of key tasks. However, his DA Form 638 (Recommendation for Award) dated 29 July 2012 states in achievement 2 that "[Applicant] conducted over 70 patrols and provided the platoon with any and all fire support needs."  Additionally, the citation reads "[Applicant's] expertise enhanced the combat readiness of his unit."  These documents are contradictory in that his NCOER states he needs improvement and his recommendation for award reports a high level of expertise. 

		(3)  Part IV(d) (Leadership), bullet 1 states "lacked initiative when given opportunities to lead from the front."  However, the proposed citation listed on his DA Form 638 reads, "[Applicant's] leadership directly enhanced the combat readiness of his unit."  

		(4)  Part IV(d), bullet 2, states Soldier "…needs improvement in maintaining composure."  However, nowhere in the NCOER is it stated that he was seeking behavioral health assistance and was on medication to help adjust his personality.  This bullet violated Army Regulation 623-3 which states that service members who seek assistance for behavioral health issues must have it noted in the NCOER and show either improvement or needs improvement.  He served in Afghanistan during this rating period and suffered from depression and anxiety so severe that he engaged in self-cutting and was prescribed 80mg of Prozac.  His unit/medical officials determined he would be transferred to a larger Forward Operating Base (FOB) with weekly accesses to behavioral health.  During this period he received both contested NCOERs at the same time and was told to sign them both.  For the record, he would like the Board to know that the amount of medication being administered kept him in a state where he was barely able to function and had difficulty being cognizant of his surroundings.

		(5)  Part IV(e) (Training) states he "reduced training time for lower enlisted by requiring extended training from the Fire Support NCO [FSNCO]."  He served as the night shift tactical operations center (TOC) NCO in charge (NCOIC); his shift ended when the FSNCO reported for duty.  He requested to participate in the FSNCO’s daily training.  He sought training on his own time so that he could remain proficient in the performance of his duties.

		(6)  The rating period ended on 20 July 2012 and the NCOER was not presented to him for review until September 2012.  As previously stated, he requested copies of all his counseling statements and associated paperwork; however, his chain of command reported that his entire counseling packet disappeared.  Without the counseling paperwork there is no way his rating chain can substantiate the bullet remarks.

3.  The applicant provides:

* Two memoranda, dated 25 June 2013
* Contested NCOERs 1 and 2 
* DA Form 638 (Recommendation for Award), dated 29 July 2012
* Certificate for award of the Army Commendation Medal

CONSIDERATION OF EVIDENCE:

1.  After having previous enlisted service, the applicant enlisted in the Regular Army on 22 August 2007.  He held military occupational specialty (MOS) 13F (Fire Support Specialist).  The highest rank/grade he attained while serving on active duty was SGT/E-5.

2.  Orders Number 206-25, issued by Headquarters, 4th Infantry Brigade Combat Team, 4th Infantry Division, Fort Carson, CO, on 25 July 2011 promoted him to SGT with an effective date and date of rank of 1 August 2011.

3.  His record contains a DA Form 3340-R (Request for Reenlistment or Extension in the Regular Army) a Memorandum of Understanding, and a DA Form 1695 (Oath of Extension or Enlistment), dated 20 October 2011 wherein he listed and/or his unit was listed as Headquarters and Headquarters Company, 2nd Battalion, 12th Regiment, Fort Carson, CO.

4.  Contested NCOER 1 is a change of rater NCOER that covers the rating period 1 August 2011 through 14 February 2012 and shows in:

	a.  Part I(f)(1), the entry Headquarters and Headquarters Company, 2nd Battalion, 12th Regiment, 4th Infantry Brigade Combat Team, 4th Infantry Division, Fort Carson, CO.

	b.  Part I(e), the applicant's signature and the date of 1 August 2012.

	c.  Part II(a), that his rater was SGT KAR.

	d.  Part III(c), the entry "Serves as an [sic] Fire Support Sergeant in a light Infantry Battalion deployed in support of Operation Enduring Freedom…"

	e.  Part III(d), the entry "Brigade [FiST] certification…"

	f.  Part III(f), his counseling dates as 25 August 2011 and 15 November 2011.

	g.  Part IV(b), bullet number 2 states "failed to become qualified during Brigade FiST certification because of inability to pass land navigation practical exercise."

5.  Orders Number CR-025-0032, issued by Headquarters, 4th Infantry Division, Fort Carson, CO, on 25 January 2012 ordered him to deploy to Afghanistan and issued a will proceed date of 10 March 2012.

6.  His record contains a DA Form 638 dated 9 July 2012 which lists the period of award as 13 March 2012 through 3 December 2012 and indicated the award was recommended for service.  Part III (Justification and Citation) states in:

	a.  Achievement 1:  "[Applicant] served as the Night TOC NCOIC for Chosen Company at COP Fortress from 13 March 2012 to 30 May 2012 during Operation Enduring Freedom XIII.  As the Night TOC NCOIC he battle tracked over 100 patrols and maintained Situational Awareness enhancing Chosen Company's effectiveness within it's [sic] Battlespace.  He maintained the operational readiness of the Company communication and surveillance equipment, to include the radios, Tacsat, Raid Tower and Base Surveillance Cameras."

	b.  Achievement 2:  "[Applicant] served as the Forward Observer for 2nd Platoon for Chosen Company from 31 May 2012 to 03 December 2012 during Operation Enduring Freedom XIII.  As a Forward Observer for 2nd Platoon, [Applicant] conducted over 70 patrols ensuring that the platoon was provided with any and all Fire Support needs.
	c.  Proposed Citation:  " FOR EXCEPTIONALLY MERITORIOUS SERVICE AND PERFORMANCE FROM 13 MARCH 2012 TO 03 DECEMBER 2012 WHILE SERVING AS THE NIGHT TOC NCOIC AND FORWARD OBSERVER. [APPLICANT'S] DEVOTION TO DUTY WAS INSTRUMENTAL TO THE OVERALL SUCCESS OF THE BATTALION'S COMBAT OPERATIONS.  [APPLICANT'S] LEADERSHIP, EXPERTISE, AND PROFESSIONALISM DIRECTLY ENHANCED THE COMBAT READINESS OF HIS UNIT AND REFLECT GREAT CREDIT UPON HIMSELF, TASK FORCE LETHAL WARRIOR, TASK FORCE MOUNTAIN WARRIOR, AND THE UNITED STATES ARMY."

7.  Contested NCOER 2 is a change of rater NCOER that covers the rating period 14 February 2012 through 20 July 2012 and shows in:

	a.  Part I(f)(1), the entry C Company, 2nd Battalion, 12th Regiment, 4th Infantry Brigade Combat Team, 4th Infantry Division, Fort Carson, CO.

	b.  Part I(e), the applicant's signature and the date 6 September 2012.

	c.  Part III(d), lists the JFO course and JRTC Rotation 12-02.

	d.  Part IV(b) contains the bullet comments:

* struggled with terrain association, failing to identify Known Point 1, on two separate assessments despite being oriented by the evaluator prior to evaluation
* despite efforts, could not demonstrate working knowledge of key task[s] such as range estimation and accurate reporting
* routinely required supervision during assigned task while working as Fire Support Specialist that reduced the effectiveness of the Fires Cell

	e.  Part IV(d) contains the bullet comments:

* lacked initiative when given opportunities to lead from the front
* demonstrated desire to lead; needs improvement in maintaining composure

	f.  Part IV(e) contains the bullet entry "reduced training time for lower enlisted by requiring extended training from the [FSNCO]."

8.  His record contains a certificate for award of the Army Commendation Medal, dated 15 November 2012, which shows Permanent Orders Number 219-016, issue by Task Force Mountain Warrior, FOB Fenty, Jalalabad, Afghanistan, on 
6 August 2012 awarded him the Army Commendation Medal for the period 
13 March 2012 to 3 December 2012.  The citation on the certificate states, 
"FOR EXCEPTIONALLY MERITORIOUS SERVICE FROM 13 MARCH 2012 TO 3 DECEMBER 2012 WHILE SERVING AS THE NIGHT TOC NCOIC AND FORWARD OBSERVER FOR CHARLIE COMPANY, 2ND BATTALION, 12TH INFANTRY REGIMENT.  [APPLICANT'S] LEADERSHIP, EXPERTISE, AND PROFESSIONALISM DIRECTLY ENHANCED THE COMBAT READINESS OF HIS UNIT AND REFLECT GREAT CREDIT UPON HIMSELF, TASK FORCE LETHAL WARRIOR, TASK FORCE MOUNTAIN WARRIOR, AND THE UNITED STATES ARMY."

9.  He was honorably discharged for completion of required active service on 
16 April 2013.  His DD Form 214 shows he completed the 2-week WLC in 2012 and was deployed to Afghanistan from 17 March 2012 to 17 September 2012.

10.  The Army Training Requirements and Resources System (ATRRS) shows that the JFO Course is a 2-week course attended in a temporary duty (TDY) or active duty for training (ADT) status.   

11.  Army Regulation 623-3, dated 10 August 2007 (version 2007), in effect at the time contested NCOER 1 was completed and dated 5 June 2012 [version 2012], in effect at the time contested NCOER 2 was completed state in:

	a.  Paragraph 1-8a(3)(b) (version 2007)/paragraph 1-8a(4)(b) (version 2012) (School Evaluations) state evaluated time reported on academic evaluations (AER) is counted as nonrated time on OERs and NCOERs.

	b.  Paragraph 1-8e (versions 2007 and 2012) (Counseling) state that counseling will be conducted within 30 days after the beginning of the rating period and quarterly thereafter for NCOs.  It develops a duty description for the Soldier and major performance objectives to accomplish during the rating period. It will also be used to guide the rated leader’s performance during the early part of the rating period.

	c.  Paragraph 3-2 (versions 2007 and 2012) (Evaluation report requirements) state rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On one hand, this evaluation will give full credit to the rated Soldier 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, Department of the Army selection boards, and career managers can make intelligent decisions.  

	d.  Paragraph 3-5 (version 2012) (Army performance objectives and special interest items) states that comments related to safety, individual and unit deployment readiness, and support of behavioral health goals will be included on all NCOER support forms (or equivalent).  Special interest item topics are not expected to be reflected on subsequent NCOERs, but they may be addressed when evaluating the rated NCO’s overall performance and potential. 

	e.  Paragraph 3-24 (version 2012) (Participation in the Army Substance Abuse Program or a mental health program) states a rated Soldier who voluntarily seeks mental health counseling or is entered into a mental health care program for behavioral health issues that have not been detected by the chain of command will not be penalized by mention of this participation in a behavioral health treatment program in an evaluation report.  Doing so would discourage self referral to obtain assistance from health care professionals when problems exist.

	f.  Paragraph 3-29 (version 2007)/paragraph 3-25 (version 2012) (Evaluation of Adverse Actions) state that in addition to the Special Interest Items mentioned in paragraphs 3-4c(5) (version 2007) or 3-5b(2) (version 2012) as a requirement for the counseling and evaluation processes, Army Regulation 600–20 allows the following items to be mentioned in a Soldier’s evaluation report, when substantiated by a completed command or other official investigation:  (1) involvement in a driving under the influence charge; (2) physical or mental incapacitation; (3) acts of sexual misconduct, physical, or mental abuse; (4) criminal acts reported in official military or civil authorities; (5) behavior that is inconsistent or detrimental to good order, conduct and discipline; (6) adverse equal opportunity investigations; (7) acts of reprisal, and or (8) activities or behavior otherwise prohibited by Army Regulation 600–20.

	g.  Paragraph 3-37 (version 2007)/3-33 (version 2012) (Preparation and Submission Requirements) state rated Soldiers will always be the last individual to sign the evaluation.  The rated Soldier’s signature will verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the Army Physical Fitness Test (APFT) and height and weight data; and that the rated Soldier has seen the completed report.  This action increases administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data.

	h.  Paragraph 3-52 (version 2007)/paragraph 3-49 (version 2012) (AER) state a DA Form 1059 (AER) is used to report the performance of students attending Army service schools, DOD schools, U.S. Army Reserve schools, NCO academies, allied nation schools, and Reserve Component chaplain candidates for training (IDT), as well as formal school status.  Time covered in AER-producing schools is nonrated on the NCOER that covers the same period.  (version 2007 only states:  AERs are prepared for Active Army personnel and personnel of other services attending courses or training scheduled for 60 calendar days or more.)

	i.  Paragraph 6-7a (version 2007)/paragraph 4-7a (version 2012) (Evaluation Appeals-Policies) state evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity 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 an administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	j.  Paragraph 6-7b (version 2007)/paragraph 4-7b (version 2012) (Evaluation Appeals-Policies) state the rated Soldier’s authentication in Part II of a DA 2166–8 verifies the information in Part I.  It also confirms that the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the APFT performance and height and weight data entries made by the rater.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and IIIa) will be accepted only under the most unusual and compelling circumstances.  The rated Soldier’s signature also verifies the rated Soldier has seen a completed evaluation report.  Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report.  Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier.

	k.  Paragraph 6-11 (version 2007)/paragraph 4-11 (version 2012) (Burden of Proof and type of evidence state 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.  Furthermore, a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials or other documents from official sources.  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 practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.

12.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System), version 2007 and 2012:

	a.  Table 3-1 states that Part If will contain the rated NCO’s unit, organization, station, zip code or APO, and Major Command.

	b.  Table 3-2 states that for Part II(a), the first line will list the rater's last name, first name, middle initial, and suffix.  The first line will also include the rater’s social security number (9 digit XXX–XX–XXXX) and signature/validation.  The second line will include the rater's rank, primary MOS, branch, organization, duty assignment and Army Knowledge Online (AKO) email address.  All grade entries will be current (as of the “Thru” date). 

	c.  Table 3-2 states that for Part II(e), the rated NCO’s signature verifies the following:  They have seen the completed report, the administrative data (Part I) is correct (except Part Ik through o), the rating officials are proper (Part II), the duty description is accurate (Part III) and includes the counseling dates, the APFT and height/weight entries are correct (Part IVc), and the rated NCO is aware of the appeals process.  It is important that rated NCOs and rating officials clearly understand that the rated NCO’s signature does not constitute agreement or disagreement with the evaluations of the rater and/or senior rater.

	d.  Table 3-3 states the entries in Part III(c) must include a series of phrases, starting with action words and separated by semicolons and ending in a period.  This portion should address the most important routine duties and responsibilities.  Ideally, this should include the number of people supervised, equipment, facilities, and dollars involved and any other routine duties and responsibilities critical to mission accomplishment.  
	e.  Table 3-3 states the entries in Part III(d) will include areas of special emphasis/appointed duties.  These must include a list of tasks/duties separated by semicolons and ending with a period.  This portion is most likely to change during the rating period.  It should include the most important items that applied at any time during the rating period.

	f.  Table 3-3 states that in Part III(f) the actual dates of counseling will be obtained from the DA Form 2166-8-1 (YYYMMDD).  When counseling dates are omitted, the senior rater will enter a statement in part Ve, explaining why counseling was not accomplished.  The absence of counseling will not be used as the sole basis for an appeal.  However, the lack of counseling may be used to help support other claims made in an appeal.

DISCUSSION AND CONCLUSIONS:

1.  With Respect to contested NCOER 1:  

	a.  The applicant contends contested NCOER 1 should be removed from his AMHRR because during this rating period he was being seen by behavioral health and was prescribed medication.  Contested NCOER 1 does not mention his medical treatment at behavioral health, the medication he was taking, or the effects this had on his duty performance.  

		(1)  He has not provided and his record does not contain any evidence to show he was being treated at behavioral health or that he was taking medications that had an adverse effect on his behavior and performance.  

		(2)  As such, there is insufficient evidence to justify removing contested NCOER 1 due to the absence of comments referring to behavioral health or any medication.

	b.  He contends that he requested copies of his counseling packet and his chain of command reported his counseling packet disappeared.  He further contends that without the counseling packet there is no way to substantiate the bullet remarks.

		(1)  The applicant has not provided any evidence showing that he requested his counseling packet and was denied or told it had been lost.  Nonetheless, the NCO plays an equal and key role in the counseling process.  If his counseling was not taking place, he had a responsibility as an NCO to seek counseling and mentorship.

		(2)  Furthermore, with or without the counseling packet, bullet comments are simply the rater's subjective view on a Soldier’s performance during the rating period.  The lack of his counseling packet does not justify the removal of his NCOERs or negate the validity of the bullet comments by his rater.

   c.  He contends that this unit was incorrectly listed as "Headquarters and Headquarters Company" vice A Company" in Part I and that the individual listed as his rater was not his rater.

		(1)  His record contains a request for reenlistment or extension, a memorandum of understanding, and an oath of extension or enlistment, dated 20 October 2011, wherein he listed and/or his unit was listed as Headquarters and Headquarters Company. 

		(2)  When he signed contested NCOER 1 he officially authenticated and verified that the information in Part I (unit) and in Part II (rating chain) was accurate and correct.

		(3)  He has not provided any evidence to show the entries in Part I, referring to his unit, and Part II referring to his rater are incorrect.

		(4)  Therefore, it is presumed that information in Parts I and II of contested NCOER 1 is administratively correct and was prepared by the proper rating officials. 

	d.  He argues that he did not sign contested NCOER 1 until 8 months after the THRU date and that it was forwarded to HRC more than 90 days after the THRU date.  He contends that since his rating chain violated the time standards listed in Army Regulation 623-3 this NCOER should be removed from his AMHRR.  

		(1)  The fact that the contested NCOER 1 was reviewed and signed by the applicant later than it should have been, and that contested NCOER 1 was submitted to HRC more than 90 days after the THRU date, has been acknowledged.  

		(2)  The evidence of record shows that the unit was preparing to deploy during the period that NCOER 1 was prepared.  As such, it is reasonable to believe that the unit's mission and operation tempo may have interfered with the timeliness of this report.  Nevertheless, the late submission of an NCOER does not invalidate an NCOER or justify the removal of an NCOER from a Soldiers AMHRR.

	e.  He contends that Part IIIc of contested NCOER 1 incorrectly stated he "Serves as a Fire Support Sergeant in a light Infantry Battalion deployed in support of Operation Enduring Freedom…"  He stated that he was not deployed during this rating period.  He further contends that his duty description did not mention his actual duties.

		(1)  The applicant has not provided any evidence to show that the duty description listed on contested NCOER 1 differed from his actual duties.  As such there is insufficient evidence to support removing contested NCOER 2 from his AMHRR on this basis.

		(2)  However, the evidence of record does confirm the applicant’s contention that he was not deployed during the rated period covered by contested NCOER.

		(3)  Army regulations state that correction of an NCOER for minor administrative errors seldom serves as a basis to invalidate an evaluation report. Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier.

		(4)  The administrative error in his duty description is a minor administrative error, which did not impact the applicant, his rating, or his career.  As such, there is insufficient justification for removing contested NCOER 1 on the basis of this harmless error.

	f.  He contends that contested NCOER 1 should be removed from his AMHRR because Part IIId contains the entry "Brigade Fire Support Team [FiST] certification…" and he was attending WLC during the period that Brigade FiST certification was conducted.

		(1)  He has not provided any evidence to show when the Brigade FiST certification was conducted or the exact dates he attended WLC.  

		(2)  Furthermore, it is clear that this was an area of special emphasis for him, since it was entered in the area of special emphasis and noted in a bullet entry that he failed to become qualified during Brigade FiST certification because of his inability to pass land navigation practical exercise.

		(3)  As such, there is insufficient evidence to justify removing contested NCOER 1 on the basis of this entry.

	g.  He contends that the counseling dates listed in Part IIf of contested NCOER 1 were fabricated, that he did not receive any counseling or quarterly reviews, and his rater never prepared a DA Form 2166-8-1.  

		(1)  The applicant has not provided any evidence showing his rater failed to conduct initial counseling, quarterly counseling, or prepare a 
DA Form 2166-8-1.

		(2)  Even if he had not been counseled, the governing regulation states that the lack of counseling may not be used as the sole reason for an appeal.

		(3)  However, contested NCOER 1 shows he was counseled on 25 August 2011 and 15 November 2011, which, based on his 7-month rating period, the fact that the initial counseling was within 30 days of the start of the rated period and the second counseling appears to have occurred three months later, appears to have met the criteria of quarterly counseling.

	h.  He contends that contested NCOER 1 should be removed from his AMHRR because Part IVb, bullet 1 states "failed Joint Fires Observer (JFO) Course despite attendance at two week preparatory course and individualized assistance; second failure at this course."  He argues that periods of school attendance are considered non-rated time on the NCOER, and events taking place during school not covered on the NCOER.

		(1)  Army regulations state that the time covered in AER-producing schools is nonrated on the NCOER that covers the same period.  However, AERs are only issued for schools, courses, or training scheduled for 60 calendar days or more.  The JFO course was only two weeks long.  Therefore, this school would not have issued him an AER.

		(2)  His rater was not prohibited from mentioning his failure at the JFO course because the school did not issue an AER and, therefore, was not considered nonrated time.

		(3)  There is insufficient evidence to justify removing contested NCOER 1 from his AMHRR based on this bullet comment.

	i.  He contends that contested NCOER 1 should be removed from his AMHRR because Part IVb, bullet 2 states "failed to become qualified during Brigade FiST certification because of inability to pass land navigation practical exercise."  He argues that this bullet statement is a fabrication because he was attending WLC during the Brigade FiST certification.

		(1)  The Brigade FiST certification was a unit/brigade orchestrated training and certification and therefore was not considered non-rated time.  As such, there is no violation in mentioning his failure to acquire a certification.  Furthermore, as previously stated, he has not shown he was not present during this exercise, provided any evidence to show when the Brigade FiST certification was conducted, or the exact dates he attended WLC.  

		(2)  As such, there is insufficient evidence to justify removing contested NCOER 1 on the basis of this entry.

2.  With respect to contested NCOER 2:

	a.  The applicant contends contested NCOER 2 should be removed from his AMHRR because during this rating period he was being seen by behavioral health and was prescribed medication.  Contested NCOER 2 does not mention his medical treatment at behavioral health, the medication he was taking, or the effects this had on his duty performance.  

		(1)  He has not provided and his record does not contain any evidence to show he was being treated at behavioral health or that he was taking medications that had an adverse effect on his behavior and performance.  

		(2)  As such, there is insufficient evidence to justify removing contested NCOER 2 due to the absence of comments referring to behavioral health or any medication.

	b.  He contends that he requested copies of his counseling packet and his chain of command reported his counseling packet disappeared.  He further contends that without the counseling packet there is no way to substantiate the bullet remarks.

		(1)  The applicant has not provided any evidence showing that he requested his counseling packet and was denied or told it had been lost.  Nonetheless, the NCO plays an equal and key role in the counseling process.  If his counseling was not taking place, he had a responsibility as an NCO to seek counseling and mentorship.

		(2)  Furthermore, with or without the counseling packet, bullet comments are simply the rater's subjective view on a Soldier’s performance during the rating period.  The lack of his counseling packet does not justify the removal of his NCOERs or negate the validity of the bullet comments his rater annotated.

	c.  He argues that he did not sign or see contested NCOER 2 until 49 days after the THRU date.  He contends that since his rating chain violated the time standards listed in Army Regulation 623-3 this NCOER should be removed from his AMHRR.  

		(1)  The fact that the contested NCOER 2 was reviewed and signed by the applicant later than it should have been has been acknowledged.  

		(2)  The evidence of record shows the unit was deployed during the period that NCOER 2 was prepared.  As such, it is reasonable to believe that the unit's mission and operation tempo may have interfered with the timeliness of this report.  Nevertheless, the late submission of an NCOER does not invalidate an NCOER or justify the removal of an NCOER from a Soldiers AMHRR.

	d.  He contends that contested NCOER 2 should be removed from his AMHRR because the JFO course and JRTC rotation 12-02 were listed in Part IIId.  He argued the JFO course should not have been mentioned because periods of school attendance are non-rated periods and may not be mentioned on the NCOER.  He further argued that the entry pertaining to the JRTC should not have been listed because he was assigned to A Company during the rotation, not C Company.

		(1)  Army regulations do not prohibit the mention of schools or training in Part IIId.  His rater wanted to place a special emphasis on his attending this course during the rating period.  The fact a Soldier may attend a course that issues an AER and that the period covered by the AER is considered nonrated time does not prohibit the rater from listing that course as an area of special emphasis.  Therefore, there is no valid reason to remove his NCOER based on the inclusion of this course in Part IIId.

		(2)  Contested NCOER 2 indicates that he was assigned to C Company during the rated period.  

		(3)  He has not provided any evidence showing the dates JRTC rotation 12-02 was conducted or the companies or sections that were included in the rotation.  

		(4)  There is insufficient evidence to justify removing contested NCOER 2 based on the entry referring to JRTC.

	e.  He contends contested NCOER 2 should be removed from his AMHRR because the bullet comments in Part IVb indicate he had difficulty with terrain knowledge and could not demonstrate a working knowledge of key task and bullet 1 in Part IVd stated he lacked initiative when given opportunities to lead from the front.  These bullets directly contradict the comments listed on his DA Form 638.  The comments on his DA Form 638 state that he conducted over 70 patrols and provided the platoon with any and all fire support needs and that his leadership directly enhanced the combat readiness of his unit.

		(1)  Soldiers are recommended for awards, especially when they have been deployed, based on the positive contributions they made during the deployment.  Recommendations for an award only contain the positive statements.

		(2)  However, when a rater writes an NCOER he or she has a responsibility to balance their obligations to the rated Soldier with their obligations to the Army.  The rater is charged with making an honest and fair evaluation of the rated Soldier.  The NCOER must give rated Soldiers credit for their accomplishments and identify their deficiencies and weak areas.  

		(3)  These two documents are intended to be used as standalone documents and intended to serve separate purposes.  As such, the comments listed on an award recommendation cannot be used to negate those on an NCOER or to justify the removal of an NCOER from a Soldier’s AMHRR.

	f.  He contends contested NCOER 2 should be removed from his AMHRR because the bullet 2 in Part IVb stated he "…needs improvement in maintaining composure."  He argues his NCOER does not include statements addressing the fact that he was seeking behavioral health assistance and was on medication to help adjust his personality.  He further argues that the Army regulation mandates that service members who seek assistance for behavioral health issues must have it noted on their NCOER and show either improvement or needs improvement.  However, as previously stated, since the applicant has not provided any information showing he was being treated in behavioral health and taking medication there is insufficient evidence to justify removing his NCOER for this bullet comment.

	g.  He contends contested NCOER 2 should be removed from his AMHRR because a bullet comment in part IVe states he "reduced training time for lower enlisted by requiring extended training from the Fire Support NCO [FSNCO]."  He argued that he participated in the FSNCO's daily training on his own time so that he could remain proficient in his MOS.

		(1)  However, by participating during regular duty hours he may have potentially kept others from training due to the lack of space or by monopolizing the FSNCO’s time.  
		(2)  Nevertheless, his rater felt his presence at the training kept others from receiving the training they needed and therefore annotated this on his NCOER.  

		(3)  He has not provided any evidence to show this statement is untrue; therefore, there is insufficient evidence to justify removing his NCOER based on this comment.

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)                                         AR20130012436



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ABCMR Record of Proceedings (cont)                                         AR20130012436



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