IN THE CASE OF:	  	 

		BOARD DATE:	    4 March 2014

		DOCKET NUMBER:  AR20130021705 


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 correction of his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 11 December 2009 through 10 October 2010 (hereafter referred to as the contested NCOER) to show he received a "Success" rating in Part IVd (Rater – Values/NCO Responsibilities – Leadership).

2.  The applicant states:

* his first sergeant (1SG) at the time did not care for him and he pressured his rater and senior rater to give him a marginal NCOER with a "Needs Improvement" rating in Leadership, knowing it would affect his career
* both his rater and senior rater knew it was unjust – however, they were told to rate him in that manner by the company commander and 1SG
* his reviewer did not wish to appear to be in conflict with the 1SG and simply allowed the report to stand as written
* the NCOER as written does not accurately represent his actions in combat during the rated period
* he is submitting third-party letters from Soldiers who were in contact with him at the time who know the 1SG held a personal bias toward him

3.  The applicant provides:

* the contested NCOER
* third-party letters of support, dated 22 October 2013, 25 October 2013, 21 November 2013, and 2 December 2013
* DA Form 4980-18 (Army Achievement Medal (AAM) Certificate) showing Permanent Order Number 173-001 issued by Headquarters, 1st Battalion, 327th Infantry Regiment, Forward Operating Base (FOB) Blessing, Afghanistan, dated 15 June 2010
* DA Form 4980-14 (Army Commendation Medal (ARCOM) Certificate) showing Permanent Order Number 002-255 issued by Headquarters, Task Force Bastogne, FOB Fenty, Jalalabad, Afghanistan, dated 2 January 2011

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having had prior service, on 20 June 2006, the applicant enlisted in the Regular Army.  He served in a variety of stateside assignments, including multiple combat deployments, and he was promoted to the rank/grade of staff sergeant (SSG)/E-6 in military occupational specialty 11B (Infantryman) on 1 January 2009.  He is currently serving as a drill sergeant at Fort Benning, GA.

3.  On 11 September 2009, he completed the Basic NCO Course (now known as the Advanced Leader Course (ALC)), a prerequisite for promotion to the rank/grade of sergeant first class (SFC)/E-7.

4.  On 11 December 2010, he received the contested NCOER, a change-of-rater report that covered 10 months of rated time from 11 December 2009 through 10 October 2010.  He was rated for his duties as a squad leader in Company C, 1st Battalion, 327th Infantry Regiment, 101st Airborne Division (Air Assault), during combat operations in Afghanistan.  His rater was the platoon sergeant, his senior rater was the platoon leader, and his reviewer was the company commander.  The NCOER shows the following entries:

	a.  In Part IVd, the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following comments:
* failed to understand the importance of his position; had a negative influence on his peers
* spent five weeks at Observation Post Hammerhead enhancing FOB security
* led his squad on four live fire training exercises

	b.  In Part Va (Overall Performance and Potential – Rater), the rater placed an "X" in the "Fully Capable" block.

	c.  In Part Vc (Overall Performance and Potential – Senior Rater – Overall Performance), the senior rater placed an "X" in the "Successful/3" block.

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

	e.  In Part Ve (Overall Performance and Potential – Senior Rater Bullet Comments), the senior rater entered the following comments:

* promote at the convenience of the Army
* send to ALC when promoted
* standard performance
* has potential, should increase training efforts and emphasize the importance of leadership and career progression

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

6.  There is no available evidence that shows the applicant requested a Commander's Inquiry (CI) into the contested NCOER.  Similarly, there is no indication the applicant appealed the contested NCOER through the U.S. Army Human Resources Command (HRC) to the Enlisted Special Review Board.

7.  His Army Military Human Resource Record (AMHRR) contains each of his previous NCOER's.  These reports are all favorable reports, with the exception of the contested NCOER.  In four of the seven reports contained in his AMHRR, he was assigned to Company C, 1st Battalion, 327th Infantry Regiment – the same unit he was assigned to during the period covered by the contested NCOER.  In three of those four reports, he received "Excellence" ratings for leadership.  In 

the last of these four reports, he was rated as the platoon sergeant – a promotion from his previous ratings as a squad leader.

8.  On or about 24 January 2012, the Department of the Army (DA) Fiscal Year 2012 (FY12) SFC Promotion Selection Board convened to consider eligible SSG's for promotion to SFC.  This board considered the applicant for promotion to SFC; however, he was not selected.

9.  On or about 4 February 2013, the DA FY13 SFC Promotion Selection Board convened to consider eligible SSG's for promotion to SFC.  This board considered the applicant for promotion to SFC; however, he was not selected.

10.  He provided the following documents in support of his application:

	a.  Signed third-party letters of support, dated 22 and 25 October 2013, from two of his former company commanders who served as his company commander during the periods immediately before and after the period covered by the contested NCOER describe the applicant as a consummate professional, a trusted leader and trainer who held the confidence and respect of these men.  Each statement references actions taken by the unit 1SG; moreover, the statement of 25 October 2013 goes into greater detail regarding the 1SG's dislike of the applicant.

	b.  A signed third-party letter of support, dated 21 November 2013, from a fellow NCO who served with the applicant during the period covered by the contested NCOER elaborates on the unit 1SG's negative treatment of the applicant during the rated period.

	c.  An unsigned third-party letter of support, dated 2 December 2013, from the Soldier who served as his rater during the period covered by the contested NCOER states:

* he served as the applicant's rater during the period 11 December 2009 through 10 October 2010
* in that position he observed the applicant's performance of duty on a daily basis
* the applicant's daily duties and responsibilities adhered to military standards and embodied what the NCO Corps needed at the time
* in hindsight, he does not believe the applicant was rated accurately
* the applicant should have received a "Success" rating for Leadership
* the applicant always led from the front, regardless of the mission, and always placed his Soldiers' needs above his own
* although the NCOER states the applicant had a negative impact on his peers, he believes the applicant's actions were misjudged by the chain of command

	d.  His ARCOM and AAM Certificates show he was cited for his meritorious service during the period covered by the contested NCOER.

	e.  Each of the submitted documents paints the applicant in a favorable light.  The third-party letters of support he submitted were authored by his past rater, a fellow NCO, and commissioned officers who were in a position to observe his duty performance during the rated period and immediately thereafter.

11.  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 1-9 provides that evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the NCO Corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pamphlet 623-3 (Evaluation Reporting System).  Consideration will be given to the relative experience of the rated NCO, the efforts made by the rated NCO, and the results that could be reasonably expected given the time and resources available.  

	b.  Paragraph 1-11 provides that when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate commander may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter.  The CI 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 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.

	c.  Paragraph 3-2i provides that 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 their 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.

	d.  Chapter 6 contains guidance pertaining to the Evaluation Redress Program.

	e.  Paragraph 6-3 provides that commanders are required to look into alleged errors, injustices, and illegalities in evaluation reports.

	f.  Paragraph 6-4 provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's attention by the rated individual or anyone authorized access to the report.  The primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeal process, which is the primary means of addressing errors and injustices after they become a matter of permanent record.

	g.  Paragraph 6-7 provides that evaluation reports accepted for inclusion in a Soldier's official record are presumed to:

* be administratively correct
* have been prepared by the proper rating officials
* represent the considered opinion and objective judgment of rating officials at the time of preparation

	h.  The rated Soldier or other interested parties who know the circumstances of a rating may appeal any report they believe is incorrect, inaccurate, or in violation of the intent of this regulation.  An appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.

	i.  Paragraph 6-11a provides that the burden of proof rests with the appellant. 
Accordingly, to justify deletion or amendment of a report, the appellant will 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.

	j.  Paragraph 6-11b provides that clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.
	k.  Paragraph 6-11d provides 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 Soldier or rating officials who have knowledge of the rated Soldier'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 first-hand 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.  The results of a CI may provide support for an appeal request.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing the promotion and reduction of Army enlisted personnel.  Chapter 4 provides guidance pertaining to the Centralized Promotion System to the ranks/grades SFC/E-7, master sergeant/E-8, and sergeant major/
E-9.  Paragraph 4-13 provides that the HQDA Deputy Chief of Staff, G-1, or his/her designee, may approve cases for referral to a Standby Advisory Board (STAB) upon determining that a material error existed in a Soldier's AMHRR when the file was reviewed by a promotion board.  For the purpose of this paragraph, HRC is a designee.  Error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected.  Reconsideration by a STAB will normally be granted when one or more of the following conditions existed on the Soldier's AMHRR at the time it was reviewed by a promotion selection board:  an adverse NCOER reviewed by a board was subsequently declared invalid in whole or in part and was determined to constitute a material error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his NCOER to show he received a "Success" rating in Part IVd was carefully considered.

2.  The applicant contends:

* his 1SG did not care for him and he pressured his rater and senior rater to give him a marginal NCOER with a "Needs Improvement" rating in Leadership, knowing it would adversely affect his career
* both his rater and senior rater knew it was unjust; however, they were told to rate him in that manner by the company commander and 1SG
* his reviewer did not wish to appear in conflict with the 1SG and simply allowed the report to stand as written
* the NCOER as written does not accurately represent his actions in combat during the rated period

3.  The applicant received a change-of-rater NCOER that covered 10 months of rated time.  His rating officials believed his demonstrated leadership during the rated period fell short of acceptable standards.  The rating is accompanied by one negative but vague comment and two otherwise positive comments.

4.  The applicant provides four third-party letters from commissioned officers and fellow NCO's who served with him before, during, and after the period covered by the contested NCOER.  These letters suggest the applicant was not liked, for whatever reason, by his unit 1SG.  The evaluation of unit personnel falls under the purview of the unit 1SG; therefore, it is not inconceivable that he, the unit 1SG, would have a tremendous amount of influence over the evaluation of unit NCO's.  The letters support this notion and further amplify the unit 1SG's harassment of the applicant.

5.  The applicant received four different NCOER's while assigned to Company C, 1st Battalion, 327th Infantry Regiment.  In three of those four reports he received "Excellence" ratings in Leadership.  Later, during a period following the period covered by the contested NCOER, he was rated as the platoon sergeant – a direct contradiction to the notion he needed improvement in leadership or that his leadership qualities were lacking and below the Army standard.

6.  Following numerous combat deployments, the Army clearly determined his leadership abilities were of the highest caliber and assigned him to Fort Benning to serve as a drill sergeant.

7.  There is no evidence the contested report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy; however, it does appear to be substantively inaccurate and improperly influenced by the unit 1SG based his negative view of the applicant.  The evidence of record, as well as the evidence submitted by the applicant, supports the notion that the applicant was improperly evaluated.  Therefore, it would be appropriate to amend his NCOER to show he received a "Success" rating in Part IVd.

8.  The applicant was promoted to SSG on 1 October 2009.  He was considered for promotion to SFC by the FY12 and FY13 SFC Promotion Selection boards; however, he was not selected.  Although the responsibility for reviewing his promotion file resides solely with the applicant, and although he failed to explain why he did not appeal the contested NCOER within 3 years of the ending date or simply send a letter to the promotion board president explaining the circumstances surrounding the contested NCOER, it is clear that had his NCOER not shown a "Needs Improvement" rating, there was a reasonable chance he could have been selected for promotion.  This constitutes a material error.

9.  Therefore, in the interest of equity and justice, the applicant's records should be further corrected by submitting his promotion file before a STAB for consideration for promotion to SFC/E-7 under the FY12 and FY13 selection criteria.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* amending the NCOER for the period 11 December 2009 through 10 October 2010 to show he received a "Success" rating in Part IVd
* submitting his corrected records to duly-constituted STAB's for promotion consideration to SFC under the FY12 and FY13 promotion selection criteria




      _____________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)                                         AR20130016644



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ABCMR Record of Proceedings (cont)                                         AR20130021705



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