BOARD DATE:	 1 April 2014 

		DOCKET NUMBER:  AR20130022339 


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 reconsideration of his previous request for removal of the DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)) for the period June 1998 to February 1999 (hereafter referred to as the contested NCOER) from his Army Military Human Resource Record (AMHRR).

2.  The applicant states, in effect:

   a.  He previously incorrectly stated the surgery performed on him in February 1999 was for a wisdom tooth extraction; however, after personally checking his records he found the surgery was actually for an advancement genioplasty.

   b.  The contested report demonstrates a lack of adherence to regulatory guidance on the part of the rater and senior rater.  According to regulation, counseling should be performed initially and at least quarterly on the rated NCO.  The contested report demonstrates negligence on the part of the rater.  Two counselings were missed for the months of September and December 1998.  An initial counseling was performed as well as counseling toward the end of the rating period; however, the regulation clearly states when counseling dates are omitted, the senior rater will enter a statement to explain why the counseling was not accomplished.

   c.  The lack of attention to detail and disregard of regulatory guidance was a clear indicator of the lack of importance of the evaluation in the eyes of the rating officials.  As outlined by the regulation, comments should start with action verbs and should be separated by semicolons.  "No" entries in Part IV - Values/NCO Responsibilities of the NCOER should have a mandatory specific bullet comment.  The comment entered on the evaluation is very broad in nature and does not give a clear picture of what action warranted the "No" entry.  Additionally, if the action was for "lack of NCO professionalism and judgment" why weren't more suitable "No" blocks checked?

   d.  The rater marked "No" in Part IV of the NCOER, but failed to find an area on the NCOER that "Needs Improvement."  This alone is sending a very unclear picture to the Soldier and to board members.  This fact shows the influence of the senior rater.  Under Part IV of the NCOER, he received two "excellence" and three "success" ratings and was rated as "fully capable" in Part V - Overall Performance and Potential by the rater.  The senior rater marked him a 2/2 in terms of promotion and potential, which are in the successful/superior categories.  Once again, the rater and senior rater were not consistent per regulatory guidance.

   e.  He feels the contested NCOER is full of inconsistencies and the rating was personal in nature.  The claim was that he failed to show judgment and professionalism during a departmental mission.  The fact remains that he never assumed a mission for a justified reason.  The contested NCOER was not challenged before because he made staff sergeant before the report was signed and he was advised that it would not have an impact on his career.  This was the only reason he signed the report.  He has attached proof of the dental surgery, which was missing from his initial request, as well as an eyewitness account and two character letters from before and during the time in question.       

3.  The applicant provides:

* a self-authored statement
* the contested NCOER
* four Optional Forms 275 (Medical Record Report) 
* DA Form 4700 (Medical Record - Supplemental Medical Data)
* two-page Record of Inpatient Treatment Form
* one page of the U.S. Army Sergeants Major Course Resident Class            63 & Non-Resident 39 Authorized Frocking List
* seven pages of Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System)
* three letters in support of his application 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130002440, on 30 April 2013.

2.  The applicant submits letters of support and medical documents which were not previously reviewed by the Board.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant is an active duty sergeant major performing duties as the Chief Clinical NCO, Madigan Army Medical Center.

4.  While serving in the rank/grade of sergeant (SGT)/E-5, his rating officials issued him the contested NCOER which is a Change of Rater NCOER for the period June 1998 through February 1999 for his duties as a respiratory technician, while assigned to Evans Community Hospital, U.S. Army Medical and Dental Activity (MEDDAC), Fort Carson, CO.  His rater was Sergeant First Class (SFC)/E-7 DMC, the NCO in charge (NCOIC) of the Cardiopulmonary Ward; his senior rater was GS-09 LJO, a civilian supervisor in the Cardiopulmonary Ward; and his reviewer was Captain (CPT)/O-3 BLP, Deputy Chief, Primary Careline.  The contested NCOER shows the following entries:

	a.  Part IV, the rater placed an "X" in the "No" block for "Maintains high standards of personal conduct on and off duty" and entered the following comments:

* unequaled ability to obtain maximum results in every mission assigned
* conducts independent judgment and decision-making ability
* demonstrated a lack of NCO professionalism and judgment during a departmental mission

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

* increased department productivity by 10% while supervising three civilians and one military by definitive changes to their conduct
* a determined individual with all of the capacity to overcome any obstacle and obtain promotion in the secondary zone
* encouraged to realize the missions of department, unit and Army are 24 hour jobs demanding a 24 hour professional attitude

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

	d.  Part V(c), (d), and (e) (Overall Performance and Potential - Senior Rater), the senior rater placed an "X" in the second "Successful" overall performance block and second "Superior" overall potential block, and he entered the following comments in the "Senior Rater Bullet Comments" block:

* unlimited potential - continue to assign positions of increasing responsibility
* sharp Soldier with a bright future

5.  The contested NCOER was signed by the rating officials and the applicant on 9 March 1999.  The reviewer concurred with the rater's and senior rater's evaluations.

6.  There is no indication in the applicant's records that he requested a Commander's Inquiry (CI) or that he appealed the contested report to the U.S. Army Human Resources Command (HRC). 

7.  The applicant provides:

   a.  Medical documentation pertaining to his genioplasty surgery which was conducted on 9 February 1999.  Evidence shows the applicant was discharged on 10 February 1999 to unit convalescent leave for 14 days.  He was prescribed Clindmycin, Percocet, and Motrin and was to follow up at the Oral Maxillofacial Surgery Clinic on 16 February 1999.

   b.  Two letters of support/character reference from Soldiers who attest to the applicant's intelligence, selfless service, and drive to learn and grow both personally and professionally.

   c.  A sworn statement from a Soldier who worked with the applicant during the period of the contested NCOER.  He states he remembers the applicant calling his senior rater after checking his answering machine.  He recalls thinking the request for him [the applicant] to take the mission seemed strange because he [the applicant] was not on call.  He remembers numerous phone calls between the applicant and his senior rater that became increasingly heated in tone.  Ultimately another Soldier took the mission.  He states the senior rater accused the applicant of disrespecting her during the phone conversation.  While he does not recall the phone conversation, disrespect would be something out of character for the applicant and something he would have remembered.  He further states he knows the applicant would never refuse a mission he was capable of performing.

8.  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.  Paragraph 4-2 provided that 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.  Paragraph 2-15 states 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.  The primary purpose of the CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated NCO and to correct errors before they become a matter of permanent record.   

   b.  Paragraphs 4-2 and 4-3 state appeals alleging bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature, and that 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.  Paragraph 4-2 further states appeals based solely on the lack of full compliance with performance counseling requirements will not normally serve as a basis to invalidate an evaluation report unless accompanied by additional evidence of inaccuracy or injustice.

   d.  Paragraph 4-7 states that 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 request for reconsideration of his prior request for removal of his NCOER for the period June 1998 to February 1999 from his AMHRR has been carefully reexamined.

2.  The applicant contends, in effect, that the contested report should be removed from his record because:
   
   a.  The "No" entry in Part IV, and corresponding comment "demonstrated a lack of NCO professionalism and judgment during a departmental mission" is very broad in nature and does not give a clear picture of what action warranted the entry;

   b.  Two quarterly counselings were missed for the months of December and September 1999;

   c.  The rating was personal in nature and the ratings of the rater and senior rater were not consistent; and  
   
   d.  He did not challenge the report because he was promoted to SSG before the report was signed and he was advised that it would not have an impact on his career.  

3.  Notwithstanding the applicant's contentions, there is insufficient evidence to show the contested report contains any substantive [emphasis added] deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown the rating officials' evaluations represented anything 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.

4.  By his own admission, he did not challenge the report because he was promoted to SSG before the report was signed and he claims he was advised that it would not have an impact on his career.  To contend well over 10 years later that his rating officials were negligent and disregarded regulatory guidance thereby indicating a lack of importance of the contested evaluation appears disingenuous considering he failed to take initiative to request a CI when more facts could have been uncovered or to appeal the report within regulatory guidelines.

5.  By regulation, in order to justify the 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 action is warranted to correct a material error, inaccuracy, or injustice.  In this case, the applicant did not provide sufficient evidence to warrant removal of the contested NCOER.  Therefore, 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 to amend the decision of the ABCMR set forth in Docket Number AR20130002440, dated 30 April 2013.



      __________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)                                         AR20130022339





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ABCMR Record of Proceedings (cont)                                         AR20130022339



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