IN THE CASE OF:	  

		BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130014860 


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 removal of his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 11 February through 7 July 2010 (5 rated months) from his Army Military Human Resource Record (AMHRR), referred to hereafter as the contested NCOER.

2.  The applicant states:

	a.  His request is based on substantive error in that there were two versions of this NCOER.  The NCOER without his signature was sent to him requesting his signature after he left his duty station.  He was never counseled during this rating period nor did he receive a DA Form 2166-8-1 (NCO Counseling and Support Form).

	b.  He wasn't completely dissatisfied with the rating itself, but with the strength of the bullets.  He requested stronger bullets to match the evaluation.  In August 2011, he received the NCOER again and the bullets were stronger, but the evaluation was worse.  He immediately signed and returned the NCOER out of fear of further reprisal if he questioned the evaluation further, as his rating chain may have made it even worse.

	c.  Based on evaluations he received since he attained the rank/grade of sergeant first class (SFC)/E-7, he feels that he was highly competitive for promotion with the exception of this evaluation.  He has already been excluded from an assignment because of it.  He tried to be as involved as possible in the evaluation process, but he felt the rating chain tried to punish him for questioning the evaluation.  At that time, he strongly felt any further contact with his former unit would result in further administrative errors since it seemed that his evaluation was made worse after the initial request for his signature.

3.  The applicant provides:

* memorandum from Headquarters and Headquarters Battery, 1st Battalion, 37th Field Artillery, dated 20 May 2013, subject:  Evaluation Report Appeal 20100211-20100707 (Applicant)
* memorandum from the U.S. Army Human Resources Command (HRC), dated 1 August 2013, subject:  Evaluation Report Appeal (20100211-20100707)
* DA Form 2166-8 for the period 20100111-20100707
* DA Form 2166-8 for the period 20100211-20100707
* DA Form 2166-8 for the period 20100708-20110707
* DA Form 2166-8 for the period 20110708-20120319

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Regular Army and holds military occupational specialty 68W (Health Care Specialist).  He was assigned to the Schweinfurt U.S. Army Health Clinic, Germany, during the period in question.  He was promoted to the rank/grade of SFC/E-7 on 1 June 2010.

2.  The applicant’s NCOER prior to the contested report was for the rating period 11 February 2009 through 10 February 2010.

3.  During the month of September 2010, the applicant received the contested change-of-rater NCOER covering rated time from 11 February through 7 July 2010 for his duties as the Heath Care NCO.  His rater was the Clinic Administrator, a civilian in grade YA-02; his senior rater was the Medical Director, a civilian in grade YA-02; and his reviewer was the Clinic Commander, a lieutenant colonel.

4.  In Part II (Authentication), the reviewer concurred with the rater and senior rater evaluations.  The contested NCOER was signed by the applicant's rating officials on 16 and 17 September 2010.  The applicant signed the NCOER on 20 September 2010.  The counseling dates are recorded as 12 February 2010 and 9 April 2010.  The contested NCOER is currently filed in the performance section of his AMHRR.

5.  The contested NCOER shows the following entries:

	a.  In Part IVa (Army Values/Attributes/Skills/Actions – Army Values), the rater placed an "X" in the "Yes" blocks of all the Army values and entered the following bullet comments:

* demonstrated the Army Values both on and off duty; the epitome of a true leader
* encouraged his Soldiers to value the act of expressing dignity and respect to all people
* displayed loyalty to both military and civilian leaders

	b.  In Part IV (Values/NCO Responsibilities), the rater placed an "X" in the "Excellence" block of Part IVb (Competence) and placed an "X" in the "Success" blocks of Part IVc (Physical Fitness and Military Bearing), Part IVd (Leadership), Part IVe (Training), and Part IVf (Responsibility and Accountability).  Block IVd contains the following bullet comments:

* served as the Schweinfurt Health Clinic Detachment Sergeant for 80 consecutive days providing leadership to a combined military and civilian staff of 116 personnel
* trained and developed another NCO to take charge as the Schweinfurt Health Clinic Detachment Sergeant; resulted in a smooth transition
* demonstrated sincere care for Soldiers by inspiring and developing performance through counseling

	c.  In Part V (Overall Performance and Potential), the rater placed an "X" in the "Fully Capable" block.

	d.  In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Successful 3" block and in Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), he placed an "X" in the "Superior 3" block.

	e.  In Part Ve (Senior Rater Bullet Comments), the senior rater entered the following bullet comments:

* promote with peers
* send to the Senior Leadership Course with peers
* give him the opportunity to demonstrate potential for higher degrees of responsibility

6.  The applicant also provides an NCOER covering rated time from 11 January through 7 July 2010 for his duties as the Health Care NCO.  The reviewing officials are the same as those shown on the contested NCOER.
7.  In Part III, the reviewer concurred with the rater and senior rater evaluations.  This NCOER was signed by the applicant's rating officials on 2 and 3 August 2010.  The only counseling date recorded on this NCOER is 17 March 2010.  The applicant did not sign this NCOER and it is not filed in his AMHRR.

8.  This NCOER shows the following entries:

	a.  In Part IVa, the rater placed an "X" in the "Yes" blocks of all the Army values and entered the following bullet comments:

* lives the Army values and is the epitome of a true leader
* always respects the person and treats everyone with dignity
* devotion and dedication to the development of his Soldiers is always of [sic] his highest priority

	b.  In Part IV, the rater placed an "X" in the "Excellence" block of Part IVb and Part IVd, and placed an "X" in the "Success" blocks of Part IVc, Part IVe, and Part IVf.  Block IVd contains the following bullet comments:

* an NCO under [Applicant's] leadership placed second in the MEDCOM [Medical Command] Best Warrior Competition
* served as the Detachment SGT for the Health Clinic for 60 consecutive days
* trained and developed another NCO to take charge as the clinic Detachment Sergeant; resulted in a smooth transition

	c.  In Part V, the rater placed an "X" in the "Fully Capable" block.

	d.  In Part Vc, the senior rater placed an "X" in the "Successful 2" block and in Part Vd placed an "X" in the "Superior 2" block.

	e.  In Part Ve, the senior rater entered the following bullet comments:

* send to the Senior Leadership Course with peers
* performance clearly demonstrates that he is ready for the next level of responsibility
* potential is unlimited; a great asset to the command

9.  The applicant provides a memorandum for the HRC Evaluation Systems Office, dated 20 May 2013, subject:  Evaluation Report Appeal 20100211-20100707 (Applicant), wherein he appealed the contested NCOER.  It is unknown when his request was received by HRC.  A memorandum from HRC, dated 1 August 2013, subject:  Evaluation Report Appeal (20100211-20100707), stated his request was being returned without action because his appeal was not received within 3 years of the through date of the report.

10.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, including the DA Form 2166-8.

	a.  Paragraph 3-2i states 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 his or her 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.

	b.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier 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.  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.

	c.  Paragraph 6-11d states that for 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.

11.  Part IIId of the DA Form 2166-8 states, "I understand my signature does not constitute agreement or disagreement with the evaluations of the rater and senior rater.  I further understand my signature verifies that the administrative data in Part I, the rating officials in Part II, the duty description to include the counseling dates in Part III, and the APFT and height/weight entries in Part IVc are correct.  I have seen the completed report.  I am aware of the appeals process of 
AR 623-3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested NCOER should be removed from his AMHRR because there are two versions of this NCOER which constitutes a substantive error.

2.  Although the applicant may have a version of an NCOER for the same or similar rating period, only the contested NCOER is maintained in his AMHRR.  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.

3.  The contested NCOER appears to be correct and appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question.  There is no evidence of record and the applicant has not provided any evidence to show his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  More importantly, 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.

4.  In addition, he stated he wasn't completely dissatisfied with the rating itself, but with the strength of the bullets.  He states that after he requested stronger bullets to match the evaluation and they were made stronger, the rating was less favorable.  Although his rating officials may have forwarded a draft NCOER to him and given him an opportunity to comment on it, the governing regulation does not require the rated NCO to agree with the ratings or bullet comments.  There is insufficient evidence that shows the comments and ratings on the final, contested NCOER did not represent the considered opinions and objective judgment of his rating officials.  It does appear that there were administrative errors on the draft NCOER, such as the beginning date of the rating period, that were corrected in the contested NCOER.  
5.  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.

6.  The applicant did not provide sufficient evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to 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 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)                                         AR20130014860



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ABCMR Record of Proceedings (cont)                                         AR20130014860



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