IN THE CASE OF: 

		BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20140000463 


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 the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 11 April 2012 to 10 April 2013 (hereafter referred to as the contested NCOER) from his Army Military Human Resource Record (AMHRR).

2.  The applicant states, in effect, the contested NCOER is unjust and his appeal is based on substantive inaccuracy.

	a.  He did not abuse the emergency leave just to take extra time off prior to going to the Joint Readiness Training Center (JRTC) as the bullet comment states in Part IV (Integrity).  His father-in-law requested his presence through the American Red Cross in case he would have to request leave to see his wife's grandmother one last time.  This was done to avoid requesting emergency leave at the last minute.

	b.  He did not go through an actual section certification during the rating period; he did fail the gunner's test, but he only took the gunner's test once during the rating period.  The only way you can certify as a section chief is to pass the gunner's test first.  There was no follow through with counseling after failing the gunner's test.  Further, he was not removed from the battery during the rating period to be trained by the battalion master gunner.

	c.  Part IVd (Leadership) states he failed the Air Assault School three times; he only failed it once.  He did not place his personal needs above the unit/
mission needs as stated.

	d.  The bullet comment in Part IVf (Responsibility and Accountability) stating he failed to verify data on the howitzer refers to an event that happened outside the rating period when he was not certified as a section chief.

	e.  He tried to utilize the open door policy through his chain of command; however, nothing was resolved.  Despite receiving counseling for some events, there was no follow-up on the counseling and he believes there was no concern from his rating scheme to help better him as an NCO in the best Army in the world.

3.  The applicant provides:

* two memoranda
* DA Forms 2166-8
* five signed statements
* four DA Forms 4856 (Developmental Counseling Form)
* Red Cross Case Details printout
* DA Form 31 (Request and Authority for Leave)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 June 2001.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 October 2011 and he is currently serving as an SSG in military occupational specialty (MOS) 13B (Cannon Crewmember).

2.  The contested NCOER shows he was rated for his duties as the Ammunition Team Chief, duty MOS 13B2O, while assigned to Battery B, 4th Battalion, 320th Field Artillery Regiment, 101st Airborne Division (Air Assault), Fort Campbell, KY.

	a.  Part 1g (Reason for Submission) shows "Annual";

	b.  Part II (Authentication) shows:

* his rater was his platoon sergeant
* his senior rater was his platoon leader
* the NCOER was reviewed by his battery commander who concurred with the rater and senior rater evaluations

	c.  Part IIIa (Principal Duty Title) shows "Ammunition Team Chief";

	d.  Part IIIf (Counseling Dates) shows he was counseled quarterly throughout the rating period;

	e.  Part IVa (Army Values/Attributes/Skills/Actions – Army Values) shows "No" was selected for item 6 (Integrity) and "Yes" was selected for all other items;

	f.  Part IVa (Army Values/Attributes/Skills/Actions – Bullet Comments) states, in part, "abused emergency leave and lied to superiors in order to take an extra day off prior to JRTC; Integrity is questionable";

	g.  Part IVb (Competence) shows "Needs (Some) Improvement" was selected and the following bullet comments were entered:

* was unable to serve in the key position for a Staff Sergeant; he failed to certify as a chief three times and failed to make any significant progress in 120 days of training
* was unable to pass the gunners test twice, validating that he does not have the ability to serve as a section chief
* performance is consistently sub-standard rendering him undependable; failed to seize opportunity training in an effort to seek self-improvement

	h.  Part IVc (Physical Fitness and Military Bearing) shows "Success (Meets Standard)" was selected;

	i.  Part IVd (Leadership) shows "Needs (Some) Improvement" was selected and the following bullet comments were entered:

* failed Air Assault School three times, setting a poor example to Soldiers in the Army's only Air Assault Division
* lagged behind contemporaries in every aspect of training and readiness; his seniors, peers and subordinates had zero confidence in his ability to lead them
* consistently places personal needs above mission accomplishment, resulting in incomplete tasks and suspenses

	j.  Part IVe (Training) shows "Success (Meets Standard)" was selected;

	k.  Part IVf (Responsibility and Accountability) shows "Needs (Some) Improvement" was selected and the following bullet comments were entered:

* failed to grasp the importance of maintaining arms and equipment; lost a high dollar optic system during field training and failed to report it to higher [blank]
* failed to understand the importance of his duties, takes advantage of every situation to avoid responsibility
* failed to verify data on Howitzer during fire missions, thus eliminating critical redundant secondary checks required for all artillery operations

	l.  Part V (Overall Performance and Potential) shows:

* his rater rated him as "Marginal"
* his senior rater rated his overall performance as "Fair" and his overall potential for promotion and/or service in positions of greater responsibility as "Fair"

	m.  Part Ve (Senior Rater Bullet Comments) shows the following bullet comments were entered:

* recommend providing SM [service member] with time to refocus on the Army and being an NCO in a less demanding and stressful position
* do not send to any career enhancing schools ahead of peers
* would not serve the military well in a higher skill level or position
* despite increasing assistance and training, continues to have difficulty completing assigned tasks, recommend reclassification or elimination from the Army

3.  The contested NCOER shows all rating officials authenticated it with their electronic signatures.  The reviewer concurred with the rater and senior rater evaluations.  Further, the applicant signed the form on 13 June 2013, verifying the rating officials, duty description, counseling dates, and Army Physical Fitness Test (APFT)/Height/Weight entries were correct; that he has seen the completed report; and that he was aware of the appeal process of Army Regulation 623-3 (Evaluation Reporting System (ERS)).  The contested NCOER was placed in his AMHRR on 19 June 2013.

4.  There is no evidence the applicant requested a Commander's Inquiry (CI).

5.  The applicant appealed the contested NCOER through the U.S. Army Human Resources Command (HRC) to the Enlisted Special Review Board (ESRB).  On 14 November 2013, the ESRB determined the evidence he submitted did not establish clearly and convincingly that the presumption of regularity should not have been applied to the contested NCOER or that action was warranted to correct a material error, inaccuracy, or injustice.  Therefore, by unanimous vote, the ESRB determined the overall merits of his case did not warrant the requested relief.

6.  The applicant provided:

	a.  Page 8-1 of a policy memorandum, dated 12 January 2012, subject:  Howitzer Section Certification (Battalion Standardization Memorandum #8), establishes standards for howitzer section training and certification for the 4th Battalion, 320th Field Artillery Regiment (Air Assault).

	b.  A counseling statement, dated 18 June 2012, shows he was counseled by his platoon sergeant for performance/professional development.  This form shows the applicant was counseled for his poor performance as a leader.  He failed the gunner's test twice and his section failed to qualify or certify in order to be able to fire live.

	c.  A counseling statement, dated 26 June 2012, shows he was counseled by his platoon sergeant for performance/professional development and for follow up on the gunner's test failure.  The counseling reflects the applicant's duty performance as subpar.  On 19 and 20 June 2012, he was given the field artillery gunner's test.  The applicant failed the hands-on portion of the test.  The master gunner terminated the test to prevent the applicant from embarrassing himself further in front of his seniors and peers.  Continued failure of the test would result in a recommendation to transfer the applicant to the ammunition section or battalion staff.  The applicant agreed with the content of the counseling session and signed this form on 26 June 2012.

	d.  A counseling statement, dated 15 October 2012, shows he was counseled by his platoon leader for failing the Air Assault School three times, twice by his own actions.  On 10 October 2012, the applicant failed to pass inspection.  On 15 October 2012, he failed to complete the obstacle course.  The applicant agreed with the content of the counseling session and signed this form on 15 October 2012.

	e.  A counseling statement, dated 26 November 2012, shows he was counseled by his platoon sergeant for his performance in connection with monthly professional development counseling.  The counseling shows he attempted and failed the Air Assault School during the month.  The applicant was not performing the duties of a section sergeant; he was performing duties as an ammunition sergeant.  He had adequate time to progress, yet he could not meet the basic requirements.  The applicant agreed with the content of the counseling session and signed this form on 26 November 2012.

	f.  A copy of his DA Form 31 for the period 14 December 2012 through 1 January 2013 shows his leave was extended until 6 January 2013.

	g.  A letter from his father-in-law, dated 18 July 2013, states he requested the applicant's presence through the Red Cross in the event of the passing of the applicant's spouse's grandmother.  He believed it would be wise to put in a request rather than waiting until the last minute to attain approval for emergency leave due to the medical uncertainty of the grandmother.

	h.  A copy of his Red Cross Case Details, dated 22 July 2013, shows the Red Cross received a request from the applicant's father-in-law to contact the applicant due to the grandmother's illness on 31 December 2012.  The case details state the applicant did not live with the grandmother, but they tried to see each other as much as possible.  The applicant's spouse’s grandmother's condition was poor; her life expectancy was 6-8 weeks.

	i.  Three letters of support from three NCO's, dated on or about 5 September 2013, which are nearly identical.  All contend the applicant took care of his Soldiers, did not place his personal needs before the unit, only took the gunner's test once during the rated period, and did not certify to become a section chief during the rated period.  Two of the letters stated the firing incident that occurred at Combat Outpost Wilderness happened after the rating period in May 2013.

	j.  A statement of support from the Schools NCO for the applicant's unit, undated, states the applicant was submitted for attendance to the Air Assault School on more than one occasion from June 2012 until March 2013; however, he was only admitted to the school once.  He stated a Soldier is not considered part of the school until he or she passes through the "school arches."  The applicant's packet was removed from the class three separate times, but these did not count as failures because the applicant did not pass through the "school arches."

7.  Army Regulation 623-3 prescribes the policy for completing DA Forms 2166-8 and associated DA Forms 2166-8-1 (NCOER Counseling and Support Form) which are the basis for the Army's ERS.  Procedures, tasks, and steps pertaining to completion of each evaluation report and support form are contained in Department of the Army Pamphlet 623-3 (ERS).

	a.  Paragraph 4-1 states the Evaluation Report Redress Program consists of several elements at various command levels.  The program is both preventive and corrective, in that it is based upon principles structured to prevent and provide a remedy for alleged injustices or regulatory violations, as well as to correct them once they have occurred.

	b.  Paragraph 4-2 states an NCOER may have administrative errors or may not accurately record the rated Soldier's potential or the manner in which he or she performed his or her duties.  The Redress Program protects the Army's interests and ensures fairness to the evaluated NCO.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause.  A CI and an evaluation report appeal are separate and distinct actions.  Rated Soldiers seek an initial means of redress through a CI; however, a CI is not at prerequisite for submission of an appeal.

	c.  Paragraph 4-7h stipulates that appeals based on administrative error only will be adjudicated by Headquarters Department of the Army, Evaluation Appeals Branch for active Army NCOER's.  Such claims may include but are not limited to deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the reporting period, and errors in the APFT and/or height and weight entries.

	d.  Paragraph 4-11 states that evaluation reports accepted for inclusion in the Soldier's official record are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment or rating officials at the time of preparation.  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 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 applicant.

	e.  Paragraph 4-11e states that evidence will be material and relevant to the applicant's claim.  In this regard, note that support forms (or equivalent) or academic counseling forms may be used to facilitate writing an evaluation.  However, these are not controlling documents in terms of what is entered on the evaluation report form.  Therefore, no appeal may be filed solely because the information on a support form (or equivalent) or counseling form was omitted from an evaluation or because the comments of rating officials on the evaluation report form are not identical to those in the applicable support form or counseling form.

8.  Department of the Army Pamphlet 623-3 provides procedural guidance for completing and submitting evaluation reports and associated support forms that are the basis for the Army's ERS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the contested NCOER from his AMHRR has been dutifully examined.  Careful consideration was given to examining his contentions and his supporting evidence and letters of support; however, there is insufficient evidence to support the requested relief.

2.  The evidence shows the applicant was counseled quarterly throughout the rating period, to include separate instances of negative performance/professional counseling conducted by his platoon sergeant and platoon leader.   In each instance he agreed with the counseling and he ultimately signed the contested NCOER verifying the administrative information on the report was correct.  There is no evidence he requested a CI when more facts could have been uncovered prior to appealing the contested NCOER to HRC.

3.  Counseling statements provided by the applicant show he failed the Air Assault School on three occasions although it appears that two of the three instances were the result of being administratively dropped from the course for failing to complete the initial-entry requirements of the course.  Regardless, he did not complete the course as scheduled on three occasions.

4.  The applicant provides neither sufficient nor compelling evidence to support his contentions concerning his emergency leave and howitzer certification.  An NCOER reflects the objective judgment of the rating officials during a given rating period.  The Army Board for Correction of Military Records does not substitute its own evaluation of the applicant for 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.

6.  There is no evidence that the contested report contains any substantive 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.

7.  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 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)                                         AR20140000463



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ABCMR Record of Proceedings (cont)                                         AR20140000463



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