IN THE CASE OF:	  

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130021468 


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 Noncommissioned Officer Evaluation Report (NCOER) for the period 1 October 2009 through 14 February 2010 (hereafter referred to as the contested NCOER) be removed from his Army Military Human Resource Record (AMHRR).  

2.  He states the basis of his appeal of the contested NCOER is substantive inaccuracy due to a "no" mark for integrity, a "needs improvement" mark in leadership, and a "Fair (4)" for overall potential for promotion and/or service in positions of greater responsibility.  He asks that the entire report be removed from his record.  It only covers 4 months of a 12-year career.  This is the only negative NCOER in his record, and it has already had an impact on his career.  He was "deleted" from a recruiting assignment and he was not selected for a nominative position at Redstone Arsenal, AL.  He also requested a waiver to reenlist indefinitely, which was signed by the Commander, Fort Sill, OK.  

3.  He states that during the period of the contested NCOER there was an incident involving a changed weapons card.  He was on leave at the time of the incident, but he was accused of telling a sergeant to sign the card.  He wasn't aware of the incident until he returned from leave.  He was called into the office, notified of the incident, and told a formal investigation was to be conducted.  He received a local letter of concern from the battalion commander that stated "although I cannot prove you did this I believe you did."  

3.  He provides two supporting statements.

CONSIDERATION OF EVIDENCE:

1.  On 17 January 2001, the applicant enlisted in the Regular Army.  He has continued his service through reenlistments and he has been promoted to staff sergeant.  

2.  From 1 October 2006 through 30 September 2009, he received four NCOERs.  

	a.  None of these NCOERs indicate that he needed improvement in any areas.

	b.  On three of the four NCOERs, Part Va (Rater - Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows his raters rated him as "Among the Best."  One NCOER shows a rating of "Fully Capable" in Part Va.  

	c.  On all four NCOERs, Part Vc (Senior Rater - Overall Performance) and Part Vd (Senior Rater - Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows his senior raters rated him as "Successful" and "Superior."

3.  On 18 February 2010, the rater, senior rater, and reviewer signed the contested NCOER.  The reviewer concurred with the rater and senior rater evaluations.  On 20 February 2010, the applicant signed the contested NCOER.  It shows in:

* Part IV (Army Values/Attributes/Skills/Actions (Rater)), his rater marked the "YES" box for items 1-5 and 7 and the "NO" box for item 6 (Integrity)
* Part IV, his rater entered, in part, the comment "demonstrated a serious lack of integrity and poor judgment without consideration of others, and the overall impact on the mission"
* Part IV, his rater marked the box for "Success" for all items except item d (Leadership), where the rater marked the box for "Needs Improvement (Some)"
* Part IVd, his rater entered the following comments – 

* "becomes uncooperative at times when corrected on personal behavior and displayed a consistent lack of interest in instilling the spirit to achieve within his Soldiers"
* "demonstrated little regard for the G-1 section's overall teamwork concept; has a difficult understanding of the principles of leadership concerning BE, KNOW, and DO"
* "displayed unprofessional behavior towards a Soldier outside his section, when directed to correct behavior became disruptive and ineffective to the overall mission"

* Part Va, his rater marked the box for "Fully Capable"
* Part Vc, his senior rater rated him as "Successful"
* Part Vd, his senior rater rated him as "Fair"
* Part Ve (Senior Rater Bullet Comments), his senior rater entered, in part, the comment "needs additional training in areas of leadership and mentoring Soldiers; promotion to Senior NCO should be considered according to the needs of the Army"

4.  Subsequent to the contested NCOER, he has received four NCOERs covering the period 15 February 2010 through 31 March 2013.  

	a.  None of these NCOERs indicate that he needed improvement in any areas.

	b.  On three of the four NCOERs, Part Va shows his raters rated him as "Among the Best."  One NCOER shows a rating of "Fully Capable" in Part Va.  

	c.  On all four NCOERs, Part Vc (Senior Rater - Overall Performance) and Part Vd (Senior Rater - Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows his senior raters rated him as "Successful" and "Superior."

5.  On 3 April 2013, he reenlisted for an indefinite term.  To be eligible to reenlist, he requested and received a waiver for the Fiscal Year 2013 NCOER retention policy.  

6.  On 10 October 2013, he submitted an appeal of the contested NCOER to the U.S. Army Human Resources Command (HRC).  The basis for his appeal was essentially the same as that stated in his application to this Board.  On 5 November 2013, the Appeals and Corrections Section, HRC, notified him his request was returned without action because his appeal on the basis of substantive inaccuracy had not been submitted within 3 years of the "thru" date on the contested NCOER.

7.  He provides two supporting statements dated 2 October 2013.

	a.  Chief Warrant Officer Five (CW5) BKM states he observed the applicant on a daily basis from January 2009 through February 2010.  

		(1) He states the applicant's integrity was never an issue during the time they served together.  The applicant was known as the "go-to" NCO for the section and there was never a task he couldn't accomplish.  In his opinion, the leadership at the time did not receive the honest feedback the applicant provided.  The applicant was vocal in his opinion, which sometimes led to a misunderstanding of his intent.  The applicant's mentorship of junior NCOs and Soldiers assigned to the G-1 was instrumental during their deployment.  

		(2) He states he believes the applicant will continue to serve with great honor as he has done for the past 12 years.  The contested NCOER should be removed to afford him the opportunity to compete fairly with his peers.  There is only one negative NCOER in his file, and preceding and subsequent NCOERs are solid.  The applicant should be retained in the military and be assigned to positions with increased responsibility.  

	b.  Major WRK (a captain at the time) states he served as the applicant's senior rater during the period of the contested NCOER.  He observed the applicant on a weekly basis and had contact with him on numerous occasions.  He recalls that they worked on opposite shifts, so their interaction was not daily.  He states he did have knowledge of the applicant's working relationship with his supervisor.

		(1) There was talk of a forged weapons card, and the battalion commander ordered an investigation into the allegations.  The alleged forgery could not be founded, and a local letter of concern was given to the applicant.

		(2) He feels he committed an injustice against the applicant.  He asks the appeal authority to take into account that he was a junior officer in a new unit and deployed for the first time.  He feels his inexperience as a leader failed the applicant.  The applicant was always first to volunteer and he could accomplish any mission put before him.  As the applicant's senior rater, he should have been more aware of his Soldiers and their concerns.  He asks for a favorable resolution of the applicant's appeal.

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

	a.  Paragraph 3-7b(2)(c) states the rater will assess the performance and potential of the rated NCO using all reasonable means to prepare a fair and correct report that accurately reflects an evaluation of the NCO’s duty performance, values, NCO responsibilities, and potential.  

	b.  Paragraph 3-9b(3)(a) states the senior rater will prepare an honest, fair, and correct report evaluating the NCO’s duty performance and potential.

	c.  Paragraph 3-10 states the reviewer has the overarching role of validating the accuracy of NCOERs and instilling fairness within the evaluation process.  The reviewer will ensure that evaluations are rendered by the proper rater and senior rater (in accordance with the established rating scheme) and they are clear, consistent, and just, based on known facts.

	d.  Chapter 4 defines the Evaluation Report Redress Program. 

		(1) Paragraph 4-7 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.  

		(2) Paragraph 4-8 states substantive appeals will be submitted within 3 years of an NCOER Thru date.  Failure to submit an appeal within this time 
will require the appellant to submit his or her appeal to the Army Board for Correction of Military Records.  

		(3) Paragraph 4-11 states to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong 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.

		(4) Paragraph 4-11d states that for a claim of inaccuracy or injustice of a substantive type, 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.  
		(5) Paragraph 4-13 states a decision to appeal an evaluation report will not be made lightly.  The prospective appellant will note, in part, that pleas for relief citing past or subsequent performance or assumed future value to the Army are rarely successful.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for removal of the contested NCOER from his AMHRR.

2.  The senior rater corroborates the applicant's statement that there was an incident involving a weapons card, but the senior rater does not indicate that the rater's assessment of the applicant's integrity and leadership or his evaluation of the applicant's potential were based solely on that incident.  Although he states he committed an injustice against the applicant, he does not specify how he failed to fulfill his obligation to prepare an honest, fair, and correct report. 

3.  CW5 BKM's statement of support was carefully considered.  While he states the applicant's integrity was never an issue, there is no evidence that the applicant was accountable to him in the same way the applicant was accountable to his rating chain.  While CW5 BKM may not have observed any issues with the applicant's integrity, this is not a basis for questioning the assessment given by his rater and senior rater and verified by the reviewer as clear, consistent, and just based on known facts.

4.  The applicant's contention that his career has suffered is noted; however, this is not evidence of a material error, inaccuracy, or injustice in the contested NCOER.

5.  The available evidence does not constitute evidence of a strong and compelling nature establishing clearly and convincingly that the presumption of regularity should not be applied to the contested NCOER.  Therefore, there is an insufficient basis upon which to grant 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)                                         AR20130021468





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ABCMR Record of Proceedings (cont)                                         AR20130021468



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