BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20140009064 


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 Change of Rater DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 
1 November 2009 through 25 July 2010 (hereafter referred to as the contested NCOER) or, in the alternative, removal of the contested NCOER from his Official Military Personnel File (OMPF).

2.  The applicant states the basis for the appeal is substantive inaccuracy of the contested NCOER and improper influence on the rating officials by the chain of command.

	a.  He states he received a "NO" rating on the NCOER by the rater in Part IV (Army Values/Attributes/Skills/Actions), block a (Army Values), line 6 (Integrity:  Does what is right - legally and morally), along with the bullet comment:  "dishonored the unit with an isolated legal incident."  He asserts the incident that the rater refers to happened before the rating period.

   b.  He formally requested a Commander's Inquiry on two separate occasions concerning the contested NCOER, but his requests were denied.

   c.  He states that he obtained evidence from his rating chain that they were improperly influenced and directed to render the above rating, despite the rater's assessment that the applicant deserved a "YES" rating without any comment.

   d.  He appealed the contested NCOER to the Enlisted Special Review Board (ESRB) on two separate occasions, but his appeals were denied.
3.  The applicant provides copies of the following documents:

* the contested NCOER
* seven letters
* ESRB Record of Proceedings, dated 20 September 2012
* ESRB Record of Proceedings, dated 21 March 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 9 March 1999.  
He was promoted to staff sergeant (E-6) on 1 December 2007 in military occupational specialty 21B (Combat Engineer).  He served in Afghanistan from 
2 February 2009 to 30 September 2009.

2.  A review of the applicant's OMPF maintained in the Interactive Personnel Electronic Records Management System (iPERMS) revealed the contested NCOER is filed in the performance section of his OMPF.  It also shows in:

   a.  Part II (Authentication) that the rating chain at the time was:

* Rater:  Sergeant First Class (SFC) Dennis M. T-----, Platoon Sergeant
* Senior Rater:  First Lieutenant Daniel E. H-----, Platoon Leader
* Reviewer:  Captain (CPT) Sims H. S----, Company Commander

   b.  Part IV, block a, line 6, was marked "NO" and shows the bullet comment:  "dishonored the unit with an isolated legal incident."  He received "YES" ratings for all remaining Army Values.

   c.  The reviewer indicated with an "X" that he concurred with the rater and senior rater evaluations.

   d.  The rater, senior rater, reviewer, and rated NCO (applicant) digitally signed the NCOER on 30 July 2010.

3.  Army Review Boards Agency (ARBA), Arlington, VA, memorandum, dated 
8 November 2012, with ESRB Record of Proceedings, Docket Number AR20120014053, dated 20 September 2012, shows the President, ESRB, notified the applicant that he approved the unanimous vote of the ESRB to deny the applicant's NCOER appeal.


4.  ARBA, Arlington, VA, memorandum, dated 9 July 2013, with ESRB Record of Proceedings, Docket Number AR20130000520, dated 21 March 2013, shows that:

* the ESRB, by majority vote, determined that the evidence presented was sufficient to change the block check for "Integrity" to "YES" and remove the bullet comment "dishonored the unit with an isolated legal incident."  The ESRB determined that promotion reconsideration was not warranted.
* the Acting Deputy Assistant Secretary (Army Review Boards), after careful consideration of the facts and evidence in the applicant's case, and the recommendation contained in the Record of Proceedings, decided to reject the Board's decision and deny the relief requested.

5.  In support of his request for the applicant provides the following documents:
   
   a.  A letter, dated 30 November 2012, signed by CPT Daniel E. H-----, the applicant's platoon leader and senior rater for the contested NCOER.  He states that before he became the platoon leader, the applicant was involved in an incident in downtown Bamberg, Germany.  After he assumed the platoon leader position, the applicant received nonjudicial punishment (NJP) imposed by the battalion commander.
   
    	(1)  He states that he received professional development from his superiors about NCOER writing.  He adds, "My chain of command did not provide undue command influence over me or try to coerce me to write or omit anything specific."  He asserts that the ratings he rendered on the contested NCOER are his own.  
   
    	(2)  He opines, "Part IV of the NCOER, however, is very inconsistent and causes me to wonder how his rater intended to reflect [the applicant] and "the 'isolated legal incident' which the rater refers to occurred in October 2009, before the rating period of this NCOER."
   
    	(3)  He also offers a favorable recommendation of the applicant's character and potential for future service.

   b.  An undated letter, signed by CPT Sims H. S----, Jr., the applicant's company commander and reviewer for the contested NCOER.  He states that before he became the company commander, the applicant was involved in an altercation with several German National citizens in downtown Bamberg, Germany.  After he assumed the company commander position, an investigation was initiated in April 2010 and the applicant was brought up on charges.  The battalion commander found the applicant guilty of the charge of conduct unbecoming and he imposed NJP. 

    	(1)  He states that concerns regarding the NCOER were brought to his attention (on an unspecified date) when he was informed that the rater was directed to give the applicant a "NO" rating on "one of his core values."

    	(2)  He states that he and the first sergeant (1SG), 1SG Armando C-----, discussed the applicant's performance with the battalion commander and command sergeant major.  They expressed that the applicant "has been a superb Soldier and doesn't deserve the 'NO' block."  He opines "I believe that [the applicant] should not have received a 'NO'" block and the command negatively influenced the decision in order for the Soldier to PCS [permanent change of station]."

   	(3)  He also offers favorable comments about the applicant's duty performance after receiving the NJP.

   c.  A letter, notarized on 9 May 2012 and signed by SFC Dennis M. T-----, the applicant's platoon sergeant and rater for the contested NCOER.  He states that in October 2009 the applicant and two subordinate NCOs were involved in an altercation with several German National citizens.  The applicant was hospitalized as a result of his injuries.  He states that the investigation revealed the applicant "was assaulted by the two NCOs after attempting to assist one of the injured German Nationals.  [The applicant] was asked to testify against those [sic] two NCOs, but was unable to recall enough of the events to do so in his own good faith."

    	(1)  He states that after the applicant received NJP, he turned in his draft NCOER to the 1SG for review of administrative data and information on the report.  Some minor administrative corrections were made and the draft NCOER was then forwarded to the battalion command in accordance with the policy.

    	(2)  He states that the NCOER that was sent to the battalion did not have any "NO" markings in Part IV.  The NCOER was returned with a recommendation that "NO" be marked for "Integrity."  He disagreed with the recommendation because he felt that he had rated the applicant fairly.  He spoke to the 1SG (who agreed with him) and the draft NCOER was resubmitted without changes.
   
    	(3)  He adds that the NCOER was resubmitted to the battalion and returned approximately eight or nine times.  He states that during this period there were "many debates between [the applicant's] direct chain of command and the Battalion Command.  In many of these meetings direct and harsh pressure was put on [him], the Company Commander, and the Platoon Leader to change this block to 'NO.'  Eventually the Battalion Command directed that without this 'NO' block the NCOER would go no further.  I did add the 'NO' block to Part IV as directed and the NCOER was sent for final processing with all signatures."

 		(4)  He adds that he strongly supports the applicant's appeal and had he "not been directed [he] would have not submitted this NCOER with a 'NO' checked in part IV." 

   d.  A memorandum for record (MFR), dated 10 December 2012, that states, "The incident where [the applicant] was assaulted by myself and another NCO did occur in October of 2009."  The MFR is signed by Sergeant Harold K-----.

   e.  A letter, notarized on 8 May 2012, and signed by Master Sergeant (MSG) Armando M. C-----, U.S. Army (Retired), the applicant's 1SG during the period of the contested NCOER.  MSG C-----'s letter is essentially a restatement of the contents of the rater's (SFC T-----'s) letter.  He opines, "I know after reviewing the NCOER in question and discussing it in length with the rater, the 'NO' would not have been added if it had not been directed."  He fully supports the appellant's appeal of the contested NCOER.

   f.  An MFR, dated 10 December 2012, signed by 1SG Mark S. F-----, the applicant's 1SG in November 2011.  He states that in the course of scanning NCOERs prior to the Fiscal Year 2012 (FY12) SFC selection board, he identified some discrepancies in the applicant's contested NCOER.  His concern was with the "NO" block.  A determination was made that there was not enough time to complete a Commander's Inquiry (CI) before the promotion board.  The decision was made to postpone the CI until the results of the FY12 SFC selection board were announced.  The applicant departed the unit on 31 March 2012.  A CI was not initiated because he was on orders to become an instructor in the brigade.

   g.  An MFR, dated 1 December 2012, signed by SFC Aaron C. C---, Annex Chief and first member in the applicant's (new unit's) chain of command.  He states the applicant inquired about the initiation of a CI concerning the contested NCOER.  After reviewing the governing regulation, he denied the applicant's request because the NCOER in question was completed while the applicant was assigned to a different unit.

6.  An additional review of the applicant's OMPF maintained in iPERMS failed to reveal a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]) that was issued to the applicant in the April 2010 timeframe based on the altercation that occurred in October 2009.
7.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF.
	a.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

   b.  The Authorized Documents list provides guidance for filing documents in the OMPF.  It shows the DA Form 2166-8 will be filed in the performance section of the OMPF.

8.  Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, this includes the DA Form 2166-8.

	a.  Chapter 1 (Introduction), paragraph 1-10 (Changes to an Evaluation Report), provides that members of the rating chain, the appropriate administrative personnel office, or Headquarters, Department of the Army (HQDA), will point out obvious inconsistencies or administrative errors to the appropriate rating officials.  After needed corrections are made, the NCOER will be sent to the appropriate HQDA processing office.

	b.  Chapter 2 (The Rating Chain), paragraph 2-12 (Role of the Rater), provides that the rater will:

		(1)  assess the performance of the rated Soldier using all reasonable means to include personal contact, records and reports, and the information provided by the rated NCO on the NCOER Support Form, and

		(2)  provide an objective and comprehensive evaluation of the rated Soldier's performance and potential on the DA Form 2166-8.

	c.  Chapter 3 (Army Evaluation Principles):

		(1)  paragraph 3-14 (Rater Assessment), provides that the rater will assess the performance and potential of the rated NCO using all reasonable means to prepare a fair, correct report that evaluates the NCO's duty performance, values/NCO responsibilities, and potential.

    	(2)  paragraph 3-20 (Evaluation parameters), provides that rating officials' evaluation of a rated Soldier will be limited to the dates included in the rating period of an evaluation report.  Each evaluation report will be an individual stand-alone evaluation of the rated Soldier for a specific rating period.  An evaluation report will not refer to performance or incidents occurring before or after the period covered or during periods of nonrated time.  The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation.

		(2)  paragraph 3-37 (Preparation and Submission Procedures), provides that the rated Soldier will always be the last individual to sign the evaluation.  The rated Soldier's signature will verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the Army Physical Fitness Test and height and weight data; and that he/she has seen the completed report.  If significant changes are made to a final evaluation after the rated Soldier has signed it, the senior rater will ensure the rated Soldier has an opportunity to see the evaluation.

	d.  Chapter 6 (Evaluation Report Redress Program):

    	(1)  section II (Commander's or Commandant's Inquiry), paragraph 6–4 (Purpose), provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's or commandant's attention by the rated Soldier or anyone authorized access to the report (emphasis added).  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.

    	(2)  section II (Evaluation Appeals), paragraph 6-7 (Policies), places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an NCOER.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the "NO" rating on the contested NCOER rendered by the rater in Part IV, block a, line 6, along with the bullet comment, "dishonored the unit with an isolated legal incident," should be deleted from the NCOER or, in the alternative, the NCOER should be removed from his OMPF.

2.  The evidence of record shows the applicant was issued a DA Form 2627, sometime in April 2010, for his misconduct that occurred in October 2009.  The DA Form 2627 is not filed in the applicant's OMPF and the applicant is unable to locate a copy of the DA Form 2627.  

3.  The contested NCOER is properly filed in the performance section of the applicant's OMPF.
4.  The contested NCOER shows in Part IV, block a, line 6, that the Rater marked "NO" and added the bullet comment, "dishonored the unit with an isolated legal incident."  This entry clearly refers to a legal (emphasis added) matter, not a "criminal act" or "international" incident.  Therefore, the "NO" entry and bullet comment are not in contravention of the governing regulation because the legal action occurred during the rating period.

5.  The evidence of record shows the applicant's senior rater acknowledged that he received professional development from his superiors about NCOER writing.  However, he asserts that his chain of command did not provide undue command influence over him or try to coerce him to write or omit anything specific on the contested NCOER.  He also asserts that the ratings he rendered on the NCOER are his own.  It is noted that, more than 2 years after the contested NCOER was rendered, he observed that Part IV of the NCOER "causes [him] to wonder how [the] rater intended to reflect [the applicant]."  It is not clear why the senior rater did not have this discussion with the rater at the time he rendered his evaluation of the applicant on the NCOER.  In any event, his letter does not support the applicant's contention regarding undue command influence.

6.  The evidence of record shows the applicant's reviewer acknowledged that concerns regarding the preparation of the NCOER were brought to his attention, but he does not provide the specific date(s) this occurred.  He opines that the applicant shouldn't have received a "NO" block.  He also opines (emphasis added) that the command negatively influenced the rater's decision.  However, it is noted that he doesn't explain in his letter the reason why he indicated on the NCOER that he concurred with the rater and senior rater evaluations on the contested NCOER.

7.  There is no evidence of record that shows the applicant or his rater, senior rater, 1SG, or company commander took timely action to request a Commander's Inquiry into the contested NCOER.  A timely request would have allowed for a review of the events and circumstances surrounding completion of the contested NCOER and correction of the NCOER, if that was appropriate, before it became a matter of permanent record.

8.  The evidence of record shows both the applicant's rater and 1SG indicated that undue command influence was placed on the rater to change his rating of the applicant on the contested NCOER.  It is noted that the two NCO's letters are very similar in content.  This calls into question the individuality of thought in each providing their own account of the events and circumstances.  In addition, this evidence was proffered almost 2 years after the rater rendered his rating on the contested NCOER.  Moreover, it is not clear why the rater and 1SG did not proffer this information in a timely manner in order to afford the applicant the opportunity to request a CI into the matter.

9.  An evaluation report accepted for inclusion in the official file of a rated NCO's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The evidence presented by the applicant in this case offers retrospective and conflicting evidence regarding the issue under review.  Thus, there is insufficient evidence to refute the presumption administrative regularity with respect to the contested NCOER or that there was improper influence on the rating officials.

10.  By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal.  The applicant failed to submit evidence of a compelling nature to show that the DA Form 2166-8 filed in the performance section of his OMPF is untrue, in error, or unjust.  Therefore, the DA Form 2166-8 is deemed to be properly filed and should not be removed from the applicant's OMPF.

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)                                         AR20140009064



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ABCMR Record of Proceedings (cont)                                         AR20140009064



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