IN THE CASE OF

		BOARD DATE:	    29 July 2014

		DOCKET NUMBER:  AR20140009636 


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 a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER) for the period 1 October 2009 through 
5 December 2009 from the performance section of his Official Military Personnel File (OMPF) or, in the alternative, amend the "NO" blocks in the Army Values section to "YES" blocks and remove the negative comments.

2.  The applicant states:

	a.  this appeal is based on claims of both administrative and substantive errors.  

	b.  the rater failed to conduct counseling in accordance with Army Regulation 623-3 (Evaluation Reporting System).  

	c.  the Army Physical Fitness Test (APFT) score is different from the previous NCOER and the current Relief for Cause (RFC) NCOER by 11 days.  The NCOER states he scored a 228 on his most recent APFT, but he has had a permanent profile since 2006 which prevents him from scoring over a 200.    

	d.  the investigation began on 5 November 2009 and nothing he did for the month prior was annotated on the NCOER.  That is an entire month in which he submitted packets to validate two Iraqi Police Stations and the continuous work on 9 other stations’ physical security measures.  

	e.  all bullets were derogatory toward his performance.  Numerous bullets were used stating that he had an inappropriate relationship with a subordinate and the findings of his investigation were not concluded until 5 March 2010 which is 10 days after the NCOER was signed.  

	f.  this NCOER was used as a means of discipline and is an unjust evaluation of his performance during the rating period.  It contains numerous inaccurate statements and shows "claims of bias" on the part of the rating officials.

	g.  there are no areas of special emphasis in Part III (Duty Description), while his previous NCOER with the same principal duty title and daily duties and scope detail his areas of special emphasis.    

	h.  it was not a complete evaluation of his performance.

3.  The applicant provides:

* RFC NCOER
* NCOERs
* Memorandum, dated 7 April 2014
* Character statements
* General Officer Memorandum of Reprimand (GOMOR) 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 January 2000.  He has remained on active duty through continuous reenlistments.  He was promoted to sergeant first class on 1 August 2009.
 
2.  The contested RFC NCOER covers the period 1 October 2009 through 
5 December 2009.  

3.  Part IIId (Areas of Special Emphasis) of this report is blank.  Part IIIf (Counseling Dates) shows an entry in the initial block, but there are no entries in the three "following" blocks. 

4.  In Part IVa (Army Values), the rater placed an "X" in the "No" box for:

* Loyalty
* Duty
* Respect/EO/EEO [Equal Opportunity/Equal Employment Opportunity]
* Selfless-Service
* Honor
* Integrity
* Personal Courage

5.  The rater entered the following bullet comments in Part IVa:

* "had an inappropriate relationship with his direct subordinate that was under his supervision"
* "did not support or enforce his own rules and guidance that he gave out to his Soldiers"
* "does not support the EO/EEO program by showing favoritism towards certain subordinates"

6.  He was rated as "Needs Improvement (Much)" for "Competence" by his rater with the bullet comment "exercised extremely poor judgment by allowing and continuing an inappropriate relationship with one of his subordinates."

7.  He was rated as "Success (Meets Standard)" for "Physical Fitness and Military Bearing" with the bullet comment "scored a 228 on his most recent APFT."  This section shows he passed the APFT on 19 July 2009.

8.  He was rated as "Needs Improvement (Much)" for "Leadership" by his rater with the bullet comment "set the worst example for his Soldiers by willfully disobeying a lawful order or regulation; allowed a subordinate NCO to conduct himself in the same manner."  

9.  He was rated "Needs Improvement (Much)" by his rater for "Training" with the bullet comment "NCO was not mission focused; allowed personal agenda to interfere with the proper training of Soldiers."

10.  He was rated "Needs Improvement (Some)" by his rater for "Responsibility and Accountability" with the following bullet comments:

* "the rated NCO has been notified of the relief for cause
* "did not accept responsibility for his actions; allowed his Soldiers to violate his rules"

11.  He was rated "Marginal" by his rater for his overall potential for promotion and/or service in positions of greater responsibility.




12.  He was rated "Poor-5" by his senior rater for overall performance and he was rated "Poor-5" by his senior rater for overall potential for promotion and/or service in positions of greater responsibility with bullet comments:

* "do not promote"
* "do not send to school"
* "potential in the US Army is limited; consider for QMP [Qualitative Management Program] "
* "cannot be trusted to lead Soldiers; had an inappropriate relationship with his subordinate"

13.  On 24 February 2010, he was issued a GOMOR for his improper relationship with a private.

14.  There is no evidence which shows an investigation was completed on 
5 March 2010.

15.  His subsequent NCOERs covering the period 6 December 2009 through 
10 January 2014 show he was rated "Among the Best" and one rating of "Fully Capable" for his overall potential for promotion and/or service in positions of greater responsibility by his senior raters.

16.  A review of the applicant's performance folder of his OMPF on the Interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the NCOER.

17.  He provides a supporting statement from the commanding general who issued the GOMOR who states:

	a.  the purpose of this letter is to provide mitigation to the GOMOR he completed on the applicant 3 years ago.  Since receiving the reprimand the applicant has performed in an outstanding manner.  Many NCOs in the applicant's position would have let this event affect their attitude.  On the contrary, he has served with distinction since this 2009 mishap.  He has engaged his forward chain of command and his performance is characterized as superb.

	b.  it was not his intent to end the applicant's career.  It was his intent to document misconduct so the NCO would not repeat the mistake.  The truth is the applicant has unlimited potential.  By his willingness to learn from his mistake he would assess the applicant as more likely than his peers to avoid this type of misconduct in the future.  He is a "promote ahead of peers" NCO whose contributions far exceed his counterparts.  Unfortunately, Army personnel dynamics have changed from 2 years ago and there are reductions across all grades.

	c.  his formal request is to have the applicant's GOMOR transferred to the restricted portion of his iPERMS file.  Not selecting him for master sergeant will be a loss for the Army.       

18.  He provides numerous character statements from his chain of command who attest to his exceptional performance.

19.  He also provides a letter, dated 7 April 2014, from a doctor who states the applicant was issued a permanent profile for his back in February 2008 which included restrictions from sit-ups.  
 
20.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF.  Table 2-1 states that an NCOER will be filed permanently in the performance folder of the OMPF.

21.  Army Regulation 623-3 states that an evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR 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 regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant 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.

	a.  Paragraph 3-9 states that the senior rater will enter a statement in Part Ve of the NCOER explaining the reason why counseling was not accomplished when counseling was not completed and counseling dates are omitted from the form.  Paragraph 3-4g states that failure to comply with any or all support or counseling form requirements will not constitute sole grounds for an appeal of an evaluation report.

	b.  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.  The burden of proof rests with the applicant.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the RFC NCOER in question contains administrative and substantive errors.

2.  In order to justify amendment of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that:  

* the presumption of regularity should not be applied to the report under consideration
* action is warranted to correct a material error, inaccuracy, or injustice

3.  The evidence of record supports his contention the rater failed to conduct counseling in accordance with the governing regulation.  Part IIIf shows his initial counseling was conducted on 14 October 2009, but no later counseling was rendered for the rated period.  It was just a 2-rated month report.  However, this is not grounds for a successful appeal.

4.  His contention the APFT score is incorrect on the RFC NCOER because he had a permanent profile which prevented him from scoring over 200 days was noted.  However, it does not appear that this entry had a detrimental effect on the NCOER.

5.  He contends the RFC NCOER does not provide any details of his areas of special emphasis.  However, the governing regulation states that failure to comply with any or all support or counseling form requirements will not constitute sole grounds for an appeal of an evaluation report.

6.  He contends numerous bullet comments were used stating he had an inappropriate relationship with a subordinate and the findings of his investigation were not completed until 5 March 2010, which is 10 days after the RFC NCOER was signed.  However, there is no evidence and he provides no evidence which shows an investigation was completed after his RFC NCOER was signed.  Further, his GOMOR and supporting statement from the GOMOR imposing authority tends to validate the comments on the NCOER.

7.  He contends all bullet comments were derogatory towards his performance.  However, he has provided no evidence that shows the NCOER is inaccurate.

8.  The statements provided by the applicant were carefully considered.  However, there is no evidence that the information contained in the NCOER does not represent the considered opinion and objective judgment of the rating officials at the time of preparation.  
9.  The governing regulation states NCOERs will be filed in the performance folder of the OMPF.  The NCOER in question is properly filed in his military records in accordance with the governing regulation.

10.  Based on the foregoing, there is an insufficient basis for granting 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 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)                                         AR20140009636



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ABCMR Record of Proceedings (cont)                                         AR20140009636



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