IN THE CASE OF:	  

		BOARD DATE:	  30 July 2014

		DOCKET NUMBER:  AR20130019799 


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 a Change of Rater (CR) DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) rendered for the period 27 August 2008 through 3 January 2009 (hereafter, referred to as the contested NCOER), from his Official Military Personnel File (OMPF).  

2.  The applicant states this NCOER could have a negative impact on future selection boards and his ability to be assigned to positions of greater responsibility.  The NCOER was only for a 4-month period, but it has a 4/3 rating in Part V (Overall Performance and Potential).  There is also a "no" in the Army values Part IV (Army Values/Attributes/Skills/Actions (Rater)).  He believes there was a personal issue that did not get resolved.  He did not have a healthy and positive relationship with his rater.  His rater was also relieved from two positions of leadership due to Inspector General (IG) complaints prior to arriving in the Brigade Support Operations Office (SPO).  The NCOER prior to the contested NCOER was rated as a 2/2 and every NCOER after the contested NCOER was rated as 1/1.  He did not receive any disciplinary action under the provisions of the Uniform Code of Military Justice (UCMJ) during this rating period.  He increased his Army Physical Fitness Test (APFT) score, Army Skills and Vocational Aptitude Battery (ASVAB) score, enrolled in two college courses and went to the Advanced Leaders Course (ALC) Phase 1 (Common Core) during this rating period.

3.  The applicant further states that during the time in question, he was a newly promoted sergeant (SGT)/E-5.  He was following the instructions of his current command.  He requested to go to the IG and submit a complaint concerning his rater's conduct toward him and the counseling that he was given.  The command suggested that they could submit an early reassignment request so he could leave the duty station earlier than his scheduled time rather than rebutting the NCOER.  He accepted the recommendation to leave early.  Now that he has more knowledge as an NCO, he understands that this NCOER could keep him from seeking opportunities of greater responsibility; therefore, he must expend all of his effort in order to correct a wrong that may hinder his career progression.

4.  The applicant provides seven NCOERs rendered during the period 27 August 2007 through 31 January 2013, including the contested NCOER.

CONSIDERATION OF EVIDENCE:

1.  The applicant is an active duty staff sergeant (SSG)/E-6 who, following periods of enlisted service in the U.S. Marine Corps and the U.S. Army Reserve, initially enlisted in the Regular Army on 27 August 2007.

2.  While serving in the rank/grade of SGT/E-5, his rating officials issued him a CR NCOER for the period 27 August 2008 through 3 January 2009 for his duties as a Transportation Management NCO, while assigned to a brigade support battalion.  His rater was Sergeant First Class (SFC)/E-7 TLW, the NCO in charge (NCOIC) of the Transportation Section; his senior rater was Master Sergeant PLM, NCOIC of the SPO; and his reviewer was Major (MAJ)/O-4 MGK, the Officer in Charge (OIC) of the SPO.  This NCOER shows the following entries:

	a.  Part IV, the rater placed an "X" in the "No" block for "DUTY:  Fulfills their obligations." and entered the following comments:

* failed to be at appointed place of duty on several occasions
* supports team training effort

	b.  Part IV(d) (Leadership), the rater placed an "X" in the "NEEDS IMPROVEMENT (Much)" block and entered the following comments:

* failed to take initiative on all transportation operations which includes the preparing [sic] convoy clearances, combined movement request, and non-tactical vehicle request
* has failed to be at his appointed place of duty on several occasions as the charge of quarters putting the safety of the company at risk
* failed to prepare transportation briefs in a timely manner during battalion movement operations

	c.  Part V(a) (Overall Performance and Potential - Rater), the rater placed an "X" in the "Marginal" block.  

	d.  Part V(c), (d), and (e), the senior rater placed an "X" in the block "Fair" (fourth) performance block and "Superior" in the (third) overall potential block, and he entered the following comments in the "Senior Rater Bullet Comments" block:

* continue to groom at current rank
* send to BNCOC [Basic NCO Course] when eligible
* teach, coach and mentor this Soldier and he could develop into a valuable asset for any unit

3.  The contested NCOER was signed by the rating officials and the applicant.  The reviewer concurred with the rater's and senior rater's evaluations.

4.  There is no indication in the applicant's records that he requested a Commander's Inquiry or that he appealed this NCOER to the U.S. Army Human Resources Command. 

5.  The applicant was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 March 2010.

6.  He provides six NCOERs, one rendered prior to the contested NCOER and five rendered afterward, that show his various rating chains consistently gave him higher ratings and more favorable comments than he received on the contested NCOER.

7.  Army Regulation 623-205 (Evaluation Reporting System), in effect at the time, established the policies and procedures for the preparation and submission of the NCOERs for corporals through command sergeants major.  An evaluation report accepted for inclusion in the official record of the NCO is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. 

	a.  When it is brought to the attention of commanders that a report rendered by one of their subordinates or by a member of one of their subordinate commands may be illegal, unjust, or otherwise in violation of the regulation, they will look into the allegation.  These matters may be brought to the commander's attention by the rated NCO or anyone having knowledge of the alleged illegality, injustice, or violation. 

	b.  Appeals alleging bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature, and substantive appeals must be submitted within 5 years of the NCOER's completion date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exemption, for example, extended hospitalization

	c.  The burden of proof in an appeal of an NCOER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration, and that action is warranted to correct a material error, inaccuracy, or injustice. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's NCOERs rendered prior and subsequent to the contested NCOER as well as his overall service are noted.  However, by regulation, an NCOER must be an independent evaluation of the rated NCO for a specific rating period.  

2.  The applicant has provided no evidence that shows the negative entries on the contested NCOER were the result of a personality conflict with his rater.  Further, it appears the senior rater and reviewer agreed with the rater.

3.  The evidence of record shows the applicant received a change of rater NCOER for the period ending 3 January 2009.  The contested report appears to represent a fair, objective, and valid appraisal of the applicant’s demonstrated performance and potential during the period in question.

4.  There is no evidence that the contested report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown that the rating officials’ evaluations represented 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.

5.  Although it cannot be determined with any degree of certainty what occurred during the rating period that caused the applicant's rating chain to render their evaluation, there is insufficient evidence to warrant a change to the contested report or to remove the report in its entirety as it appears to reflect the considered opinion of the rating official at the time.

6.  In view of the foregoing evidence, he is not entitled to 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 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)                                         AR20130019799





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ABCMR Record of Proceedings (cont)                                         AR20130019799



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