IN THE CASE OF:	  

		BOARD DATE:  23 January 2014

		DOCKET NUMBER:  AR20130019262 


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 a Noncommissioned Officer Evaluation Report (NCOER) for the period 1 March 2009 through 28 February 2010 (hereafter referred to as the contested NCOER) be removed from his Army Military Human Resource Record (AMHRR).  Additionally, he requests a memorandum from the Enlisted Special Review Board (ESRB), dated 26 October 2010, denying his appeal also be removed from his AMHRR.

2.  He states his appeal of the contested NCOER with a through date of February 2010 was denied.  He adds that the memorandum of denial was placed in the performance section of his AMHRR instead of the restricted section which is contrary to Army Regulations 600-8-104 (Army Military Human Resource Records Management) and 600-37 (Unfavorable Information).  He opines that the ESRB is punishing him by displaying the denial memorandum in his official board file.  He also requests the NCOER be removed.  He states the counseling dates of 30 June 2009 and 28 September 2009 are false and that was the main reason he did not sign the NCOER.  He says he was in Ranger School in June 2009 and his rater did not arrive in Kuwait until 15 November 2009.  

3.  He provides:

* Self-authored statement
* ESRB Record of Proceedings with supporting documents, dated
7 October 2010 
* Contested NCOER
* ESRB denial memorandum, dated 26 October 2010
CONSIDERATION OF EVIDENCE:

1.  The applicant's contested NCOER for the period 1 March 2009 through
28 February 2010 shows he was rated as a sergeant first class with a date of rank of 1 January 2006.  His primary military occupational specialty (MOS) is listed as 89B (Ammunition Specialist).  This is a 12-month annual report while he was assigned to the 2d Battalion, 401st Army Field Support Brigade (AFSB), as an Operations NCO. 

2.  The contested NCOER shows he was rated by the Support Operations NCO In Charge (NCOIC), Master Sergeant (MSG) M; senior rated by the Battalion Operations Officer, a major; and the reviewer was the Battalion Commander, a lieutenant colonel.  The report was electronically signed by the rater on 30 April 2010 and the senior rater on 3 May 2010.  The reviewer checked the block indicating that he "concurred" with rater and senior rater evaluations and electronically signed the report on 3 May 2010.  The applicant's signature and date are left blank.  Additionally, the contested NCOER shows in:

* Part Ii (Rated Months) 12
* Part Ij (Non-Rated Codes) "I,S"
* Part IIIf (Counseling Dates) initial "20090630" and later "20090928" and "20091203"
* Part Ve (Senior Rater Bullet Comments) "Soldier refused to sign because he does not concur with his overall evaluation"

3.  On 14 August 2010, the applicant appealed to the ESRB.  As part of his appeal packet, he provided a letter from his senior rater, dated 12 August 2010, and a Ranger Course completion certificate.

   a.  In the memorandum the senior rater requested the administrative errors on the applicant's appeal memorandum be corrected, the statement of "Soldier refused to sign because he does not concur with the overall evaluation" be removed, and the applicant be allowed to sign the report.  However, the senior rater did not provide any explanation for these corrections.  

   b.  The Ranger Course completion certificate shows on 17 July 2009, the applicant successfully completed this course at Fort Benning, GA.  However, the exact dates of the course are not listed on the certificate.

   c.  The board denied his request citing that in the absence of more compelling evidence which clearly and convincingly shows the presumption of regularity should not be applied to the contested report, or that the report contains material error, was inaccurate or unjust, there was no basis to grant the requested relief.
4.  Information obtained from the AMHRR shows the applicant's rater, MSG M., received a change of rater NCOER for the period 22 December 2008 through 
24 October 2009 while assigned as the Battalion Motor Sergeant, Headquarters and Headquarters Company, 525th Military Police Battalion, Guantanamo Bay, Cuba.  The AMHRR also contains MSG M's annual NCOER for the period 
25 October 2009 through 24 October 2010 while he was assigned as the Battalion Support Operations NCOIC, 2d Battalion, 401st AFSB.  He was rated for 11 months with the non-rated codes of "Q and I."    

5.  Army Regulation 623-3 (Evaluation Reporting System) states that nonrated time encompasses periods of time when a rated Soldier cannot be evaluated.  These periods include a wide variety of circumstances when a Soldier is not performing duty in an assigned position under a valid rating chain.  

6.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedures for completing evaluation reports.  

   a.  Part Ii enter the number of rated months by dividing the number of days in the rating period by 30.  Note.  Do not use the number of days in the entire period covered by the report.  Subtract all nonrated time.  If 15 or more days are left after dividing the rating period by 30, they will be counted as a whole month (for example, 130 days is 4 months and 10 days and is entered as 4 months; 140 days is 4 months and 20 days and is entered as 5 months).

	b.  Part Ij enter the appropriate nonrated codes from table 3-7.  These codes show, in pertinent part:

* Code "I" Soldiers in transit between duty stations, including leave, permissive temporary duty (TDY), and TDY
* Code "Q" lack of rater qualification
* Code "S" student at military or civilian school

   c.  Part IIe the rated NCO will sign and date the report after it has been completed and signed by all rating officials in the rating chain.  The rated NCO acknowledges that he or she has seen the completed report and verifies the accuracy of administrative data; the rating officials in Part II, the duty description and counseling dates in Part III, and the Army Physical Fitness Test and height/weight entries in Part IV, block c.

	d.  Part IIIf enter the actual dates of counseling as documented on the
DA Form 2166-8-1 (NCOER Counseling and Support Form).  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.

	e.  Appendix C-2 states the primary purpose of counseling is to improve performance and to professionally develop the rated Soldier.  The best counseling is always looking forward.  It does not dwell on the past and on what was done, rather on the future and what can be done better. 

7.  Army Regulation 600-8-104 provides that all personnel information recorded under the authority of this regulation is the property of the United States Government.

	a.  Once recorded, it will not be removed except as provided by law or this regulation.

	b.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from, or moved to, another part of the AMHRR unless directed by one or more of the following:

* Army Board for Correction of Military Records
* Department of the Army Suitability Evaluation Board 
* Chief, Appeals and Corrections Branch, U.S. Army Human Resources Command (HRC)
* AMHRR custodian when documents have been improperly filed
* Commander, HRC: ATTN: HRC-PDO-PO, as an approved policy change to this regulation
* Chief, Appeals Branch, National Guard Personnel Center

	c.  Appendix B of this regulation states to file ESRB appeal denial decision memorandum/letter in the "Performance" folder next to the evaluation that was appealed.  File the denial record of proceedings and all allied appeal documents to include allied various numbered forms in the "Restricted" folder.  Do not file ESRB appeal approvals or partial approvals that direct correction or removal of evaluation report from the AMHRR, unless directed by the board.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was rendered a 12-month annual NCOER for the period 1 March 2009 through 28 February 2010 with nonrated codes of I and S indicating that he was in transit and/or school sometime during the rating period.   

2.  The exact dates of the applicant's school are unknown, but his Ranger Course completion certificate shows he completed this course on 17 July 2009.  Nevertheless, the period covered by the contested NCOER is from 1 March 2009 through 28 February 2010.  The evidence of record verifies his rater, MSG M, was not assigned to 2d Battalion, 401st AFSB until 25 October 2009 as verified by his annual NCOER.  Additionally, the rater's NCOER contains non-rated codes of Q and I and an 11-month rating period.  Therefore, it is safe to assume that the rater did not become the applicant's rater until the early part of November 2009.

3.  Based on the above, his NCOER should be corrected to show the period from 1 March 2009 through on or about 15 November 2009 (as specified by the applicant) is nonrated with item Ii listed as "4" rated months with codes in Item Ij of "Q and S."  Additionally, since the period of 1 March 2009 through 
15 November 2009 is considered non-rated, the initial counseling date of 30 June 2009 and 28 September 2009 could not have happened and should be removed. 

4.  As cited above, the rated NCO signature verifies that he has seen the completed report and verifies the accuracy of administrative data.  Since it appears that the only reason the applicant refused to sign the report was based on the inaccuracy of the administrative data and not his non-concurrence with the overall evaluation of the report, this statement should be removed from item Ve.

5.  While the contested report may contain some discrepancies such as the rated months, non-rated codes, counseling dates, and the statement of Soldier refuses to sign, these are not fatal flaws that would invalidate the report.  Since it cannot be determined what occurred during the rating period, there is insufficient evidence to warrant removing the report in its entirety as it appears to reflect the considered opinion of the rating officials at the time.  Additionally, the applicant has failed to provide evidence to dispute the ratings and comments rendered by the rating officials.

6.  The evidence of record shows the memorandum from ESRB, dated
26 October 2010, denying his appeal is properly filed.  However, based on evidence that clearly shows errors were made in the rendering of the contested report, in the interest of equity and justice it would be appropriate to transfer this memorandum to the restricted portion of his AMHRR.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by making the following corrections to his NCOER for the period 1 March 2009 through 28 February 2010:

	a.  deleting from Part I, item i the entry of "12" and replacing it with the entry "4";

   b.  adding to Part I, item j the entry "Q";
   
   c.  deleting from Part III, item f the entry 30 June 2009 and 28 September 2009;

	d.  deleting from Part V, item e the statement "Soldier refused to sign because he does not concur with his overall evaluation"; and

	e.  removing from his AMHRR the ESRB memorandum, dated 26 October 2010, denying his appeal and transferring it to his restricted folder.











2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains removing the contested NCOER.  




      _______ _  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)                                         AR20130019262





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ABCMR Record of Proceedings (cont)                                         AR20130019262



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