IN THE CASE OF:	  

		BOARD DATE:	  14 May 2014

		DOCKET NUMBER:  AR20140001816 


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 the Noncommissioned Officer Evaluation Report (NCOER) for the period 1 November 2009 through 31 October 2010 be removed from his Army Military Human Resource Record (AMHRR).  

2.  The applicant states:

	a.  His rater, Sergeant First Class (SFC) G--------, discovered that the NCOER was changed without his knowledge.  The NCOER was sent back to him as ready to be signed and he signed it without looking for changes.  

	b.  When the applicant looked at the NCOER in his record he found that it was derogatory.  The applicant called this to SFC G--------'s attention.  
SFC G-------- immediately wrote a memorandum for record stating what had taken place.  

	c.  The applicant appealed and the appeal was denied, "contrary to the evidence that was produced that my NCOER was changed without his or my knowledge."  

	d.  The applicant has been removed from his recruiting assignment and not selected for the Old Guard.  His military career has suffered a grave injustice.

3.  The applicant provides copies of the NCOER appeal decision from the Enlisted Special Review Board (ESRB), his Enlisted Record Brief (ERB), "previous NCOERs from the same unit (but) different raters showing my performance while assigned as a squad leader," a character reference from his former first sergeant, Sergeant Major S-------, and his cancelled reservation for recruiter school.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a Regular Army staff sergeant (pay grade E-6), had just over 9 years of service when the subject NCOER was generated by the applicant's relief for cause.  

2.  The NCOER shows in Part IVa (Army Values/Attributes/Skill/Actions:

	a.  the applicant was marked "No" on – 

* Duty:  Fulfills their obligations
* Respect EO/EEO:  Treats people as they should be treated
* Honor:  Lives up to Army values
* Integrity:  Does what is right legally and morally

	b.  bulleted comments included – 

* failed to fulfill his duties by disobeying orders, regulations, and policies
* willfully engaged in disrespectful off-duty conduct
* conduct was prejudicial to the good order and discipline of the unit

3.  Part IV (Rater) - Values /NCO Responsibilities –

* b. Competence was rated as "Success (Meets Stds)"
* c. Physical Fitness was rated as "Excellence"
* d. Leadership was rated as "Needs (much) Improvement"
* e. Training was rated as "Success (Meets Stds)"
* f. Responsibility & Accountability was rated as "Needs (some) Improvement"

4.  Pat V – Overall Performance and Potential - 

	a.  The rater marked the applicant as "Marginal"; and 

	b.  The senior rater entered bullet comments of – 

* NCO refuses to sign
* do not promote at this time
* do not send to advanced schooling until selected for promotion
* place this NCO in a position which will allow for improvement without direct supervision of Soldiers
* do not put in charge of Soldiers, his example is detrimental to their success

	c.  The reviewer, a Military Police captain, concurred with the rater’s and senior rater's evaluations.

5.  The applicant requests the Board carefully consider the ESRB decision.  He maintains that the details contained therein demonstrate that the relief-for-cause NCOER was done in a deceitful way so that his rater would not read it before signing.  In fact, the details behind the applicant's relief-for-cause are contained only in a 26 April 2010 written statement the applicant submitted to the ESRB.  It reads:

On August 28, 2010, I was informed by the acting 1SG, 
SFC L ------, that I was suspected of Adultery with a Soldier.  A…investigation was conducted; unfounded and closed that cleared me of the accusation.  On September 26, 2010, I received a call from SFC L------- to meet him at the Company at 0700 hrs.  I was told I was receiving a [sic] Article 15 and instructed to see the CSM.  SFC L------- stated it had nothing to do with the 15-6 investigation.  An appeal was submitted and denied.  I was never counseled or received written documentation stating the reason for the Field Grade Article 15, flagging or relieving me of duty.  As a result of these actions, SFC L------- changed my NCOER that had already been submitted…I was never given the opportunity to review or sign My NCOER…The first time I viewed my NCOER was in February 2010 [sic] when it was posted in my OMPF.  I was informed…that my NCOER was submitted and expedited to HRC as a Relief for Cause…that SFC G/Rater would submit a written statement that he had no part in the decisions and changes made to my NCOER.  AR [Army Regulation] 623-3, Section IV 2-17 b. (4) states the reviewer may not direct that the rater and/or senior rater change an evaluation believed to be honest.  AR 623-3 Section III 3-9c also states regardless of who directs the relief the rater will enter the bullet, “The rated NCO has been notified of the reason for the relief” in part IVf (Responsibility and Accountability). I believe this NCOER was done to hinder my promotion to Sergeant First Class (E-7) and not done according to Army Regulation.

6.  In addition to the ESRB package, the applicant submitted with this appeal :

	a.  NCOERs for the periods 1 May 2008 through 31 October 2008 and from 1 November 2008 through 31 October 2009.  Both show that the applicant was marked among the best by the raters and in the top blocks by the senior raters and that the reviewers concurred.  

	b.  A 26 September 2010 supporting statement from Sergeant Major (SGM) S--------, who states he served as the first sergeant (1SG) and the appellant was assigned to his unit as a squad leader.  He reported:

		(1)  The appellant continuously maintained a professional attitude and appearance on a daily basis; that he did not allow his integrity or bearing to be questioned; and that he ran his squad with precision and ensured mission success. 

		(2)  He felt the appellant could overcome his current situation and continue to be a true asset to the United States Military Police Corps.

7.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  This includes the DA Form 2166-8 (NCOER).

	a.  Paragraph 1-10 states that except to comply with this regulation and corresponding pamphlet (DA Pamphlet 623-3), no person may require changes be made to an individual’s NCOER.  Members of the rating chain, the appropriate administrative personnel office, or HQDA will point out obvious inconsistencies or administrative errors to the appropriate rating officials.  After needed corrections are made, the original forms, with authenticated signatures, will be sent to the appropriate HQDA processing office or State Adjutant General (AG).

	b.  Paragraph 2-8b states the reviewer will be an officer, CSM, or SGM in the direct line of supervision and senior in pay grade or date of rank to the senior rater.  The regulation further states in paragraph 2-8b (1) that no minimum time period is required for reviewer qualification.

	c.  Paragraph 2-1 7b(4) states the reviewer may not direct that the rater and/or senior rater change an evaluation believed to be honest.

	d.  Paragraph 6-ha states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) 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 or 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.

8.  DA Pamphlet 623-3 prescribes the procedures for completing evaluation reports that support the ERS.  Paragraph 3-9 states, in pertinent part, the rating official directing the relief will clearly explain the reason for relief in Part IV, if the relieving official is the rater; if the relieving officer is the SR, in Part Ve. Regardless of who directs the relief, the rater will enter the bullet “The rated NCO has been notified of the reason for relief” in Part lVf.

9.  Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers)  establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  This regulation or any part of it may be made applicable to investigations or boards that are authorized by another directive, but only by specific provision in that directive or in the memorandum of appointment.  In case of a conflict between the provisions of this regulation, when made applicable, and the provisions of the specific directive authorizing the investigation or board, the latter will govern.  Even when not specifically made applicable, this regulation may be used as a general guide for investigations or boards authorized by another directive, but in that case
its provisions are not mandatory.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states his rater, SFC G--------, discovered that the NCOER was changed without his knowledge.  The NCOER was sent back to him as ready to be signed and he signed it without looking for changes.  When the applicant looked at the NCOER in his record and he found that it was derogatory he called it to SFC G--------‘s attention.  SFC G------ immediately wrote a memorandum for record stating what had taken place.

2.  The supporting statement from the applicant’s rater was not persuasive.  He digitally signed the contested NCOER on 1 November 2010 and took responsibility for the ratings at that time.  Although he now contends that the NCOER was changed without his knowledge, by authenticating the NCOER the rater took ownership of its contents.

3.  The applicant claims to have been cleared by a 15-6 investigation and seems to be claiming he doesn't know why he received NJP or was relieved for cause, but he does not provide any documents relating to those three separate events.

4.  His contention that he knew nothing about this NCOER until it was entered into his record does not comport with the senior rater's observation that the applicant refused to sign it.

5.  The applicant provides no evidence of errors, discrepancies, or wrongdoing in the preparation of the contested NCOER by the rater or senior rater.

6.  There is no evidence of material error, inaccuracy, or injustice in the contested NCOER that would support a conclusion that the NCOER does not represent the considered opinions and objective evaluations of the rating officials.  Therefore, there is insufficient evidence to correct any of the entries on the NCOER.

7.  The NCOER is properly filed in the performance section of the applicant's AMHRR.

8.  By regulation, in order to alter or remove a document from the AMHRR, there must be clear and convincing evidence showing the document is untrue or unjust.  The applicant failed to submit sufficient evidence to show the NCOER in question that is filed in her AMHRR is untrue or unjust.  Therefore, the entries in question on the NCOER are deemed to be valid and should not be altered.  In addition, the NCOER is properly filed and should not be removed from the applicant's record.

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)                                         AR20140001816





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140001816



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1