BOARD DATE:	 4 March 2014 

		DOCKET NUMBER:  AR20130020926 


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, in effect, removal of the derogatory comments/block checks from his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 30 November 2008 through 29 November 2009 and replacement with favorable comments.

2.  The applicant states he does not believe the NCOER accurately reflects his overall performance for the rating period.  The NCOER only reflects the negative events that happened throughout the year.  It fails to convey detailed information regarding the negative incident for which he received a "Fair" rating.  He worked hard and he should not have been given a "Fair" rating by his senior rater.  This NCOER has had a negative impact on his career.  He is unable to advance in rank or "resilient" in the military.  Although this NCOER did not affect his reenlistment eligibility, a recent change to Army retention initiatives disqualifies Soldiers from an indefinite reenlistment if their files contain an NCOER with a rating of "Fair/4" in the "Overall Potential" block.

3.  The applicant provides:

* contested NCOER
* Enlisted Record Brief
* Army Directive 2012-3 (Army Retention Initiatives)
* two letters of support
* subsequent NCOER's
* Army Training Requirements and Resources System (ATRRS) Course Reservation Verification

CONSIDERATION OF EVIDENCE:

1.   The applicant's records show he enlisted in the Regular Army on 26 February 2003 and he holds military occupational specialty 19D (Cavalry Scout).

2.  He served through multiple reenlistments in a variety of stateside and overseas assignments, including Korea, Iraq (two tours), and Afghanistan, and he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 January 2007.

3.  He was assigned to Troop A, 1st Squadron, 14th Cavalry Regiment, 3d Brigade Combat Team (Stryker), 1st Cavalry Division, deployed to Iraq.

4.  On 6 December 2009, the applicant received an annual NCOER covering 12 months of rated time from 30 November 2008 through 29 November 2009 for his duties as section leader.  His rater was the section leader, SSG J____ A. A____; his senior rater was the platoon sergeant, Sergeant First Class T____ L. F____; and his reviewer was the platoon leader, Second Lieutenant T____ A. L____.  The NCOER shows the following entries:

	a.  In Part IVa (Army Values), the rater placed an "X" in all "Yes" blocks and entered favorable bullet comments.

	b.  In Parts IVb (Competence), IVc (Physical Fitness and Military Bearing), and IVe (Training), the rater placed an "X" in the "Excellence" or "Success" blocks and entered favorable bullet comments in each block.

	c.  In Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" and entered the following negative bullet comment:  "failure to conduct proper PCC/PCI's [Pre-Combat Checks/Pre-Combat Inspections] resulted in the damage of one .50 Caliber machine gun."

	d.  In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Some)" and entered the following negative bullet comment:  "conducted a combat mission with a non operational [sic] crew serve [sic] weapon."

	e.  In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Marginal" block.

	f.  In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Fair/4" block.
	g.  In Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an "X" in the "Superior/3" block.

	h.  In Part IVe (Senior Rater Bullet Comments) the senior rater entered the following bullet comments:

* "do not promote at this time"
* "send to SLC [Senior Leader Course] when slots are available"
* "lacked the discipline to conduct proper PCC/PCI's on his Stryker and Soldiers on several occasions"
* "leave as a Team Leader/Gunner to develop; with time and experience has the potential to be a successful Section Leader"

5.  The NCOER shows the rater, senior rater, and applicant authenticated this form by placing their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place.

6.  There is no available evidence showing the applicant requested a Commander's Inquiry regarding the subject NCOER.  Likewise, there is no indication the applicant appealed this NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board.

7.  He provided the following evidence in support of his application:

	a.  Army Directive 2012-3 (Army Retention Initiatives), dated 2 February 2012, provides guidance for disqualification from reenlistment of Soldiers in the grades of staff sergeant and above with negative NCOER ratings.

	b.  An ATRRS Course Reservation Verification, dated 30 August 2012, shows a reservation was made for the applicant to attend Drill Sergeant School.

	c.  A memorandum from Major G____ A. J____, History Instructor, U.S. Military Academy, West Point, NY, dated 9 July 2013, subject:  Supporting Statement for Evaluation Report Appeal of (Applicant), states he previously served as the applicant's troop commander during the period covered by the NCOER.  He describes the applicant as a top performer and an integral part of the best platoon in the troop.  The applicant was selected to execute training demonstrations and he led the troop combatives training, graduating at the top of his class.  As a result of his strong performance, he was moved to another platoon that needed additional leadership.  While serving as a section leader, a subordinate Soldier damaged a .50-caliber machine gun and, although this was a serious incident, there were no injuries and the incident did not truly reflect the quality of the applicant's leadership.

	d.  A memorandum from Captain J____ A. M____, the Assistant Operations Officer, 1st Battalion, 12th Cavalry Regiment, 3d Brigade Combat Team (Stryker), 1st Cavalry Division, Fort Hood, TX, dated 11 July 2013, subject:  Supporting Statement for Evaluation Report Appeal of (Applicant), recommends reconsideration of the contested NCOER.  He states he served with the applicant in the same platoon for approximately 9 out of the 12 months and the applicant's performance was resolute.  He conducted several training exercises without any incidents.  He had no issues maintaining a high degree of physical fitness, military bearing, or appearance.  He is disciplined and he sets a positive example for others.

	e.  NCOER's covering the periods 30 November 2009 to 11 October 2013 show exclusively "Success," "Excellence," "Among the Best," "Successful," and "Superior" ratings by his raters and senior raters.

8.  Army Regulation 623-3 (Evaluation Reporting System), effective 10 September 2007, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.

	a.  Paragraph 1-11 (Commander's Inquiry) states that when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter.  The Commander'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 3-2i (Evaluation Report Requirements) states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On the one hand, this evaluation will give full credit to the rated individual 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, selection boards, and career managers can make intelligent decisions.
	c.  Paragraph 3-23 (Unproven Derogatory Information) states that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA.  If the rated individual is absolved, comments about the incident will not be included in the evaluation.

	d.  Paragraph 3-24 (Prohibited Comments) states a thorough evaluation of the Soldier is required.

	e.  Paragraph 3-39 (Modification to Previously Submitted Reports) states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the 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 administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends several blocks of his NCOER should be amended to remove the derogatory comments/block checks and replace with favorable ratings.

2.  The available evidence shows the applicant, an NCO serving in a leadership position in combat, appears to have performed below standard.  He received an annual NCOER that covered 12 months of rated time.  The governing regulation permits references to any verified derogatory information.  His rating officials believed he did not conduct PCC/PCI's which resulted in damage to a machine gun.

3.  The NCOER reflects the objective judgment of the rating officials during a given rating period.  This Board does not substitute its own evaluation of the applicant to that rendered by his rating officials as the Board is neither privy to his performance during the rating period nor is it an evaluating Board.  He neither requested a Commander's Inquiry nor appealed this NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board within the time allotted.  Any negative impact on his military career is a natural result of his own performance.
4.  There is no evidence that the contested report contains any administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies.  Furthermore, the applicant has not shown evaluations rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time they prepared the NCOER or that they exercised faulty judgment in evaluating him as they did.

5.  In view of the foregoing evidence, 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)                                         AR20130020926



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ABCMR Record of Proceedings (cont)                                         AR20130020926



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