IN THE CASE OF:  	   

		BOARD DATE:  4 September 2014	  

		DOCKET NUMBER:  AR20140010414 


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 removal of his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), for the rating period 1 May 2007 through 13 December 2007, from his Official Military Personnel File (OMPF).  Hereafter, this report will be referred to as the contested NCOER.

2.  The applicant states:

	a.  The reason the contested NCOER should be removed from his OMPF is because the year before he received the contested NCOER (a Relief for Cause report) he was rated as "among the best" as a first sergeant (1SG) in the same company.  Then a new commander came in and within 4 months he was the worst 1SG.  He never received a support form and he was never counseled.  He was removed in November 2007 from the 1SG position to work in the battalion.

	b.  He left the Oklahoma Recruiting Battalion in 10 May 2008 to report to Fargo, ND, as the senior guidance counselor without an NCOER.  When he left Fargo and made a permanent change of station (PCS) move to New Orleans, LA, he realized the contested NCOER was in his record.  He was informed it was too late to appeal the NCOER.

	c.  He is requesting the contested NCOER be removed from his record for different reasons.  The most important reason is that after 7 years [from receipt of the contested NCOER] he is being forced to retire under All Army Activities (ALARACT) message 147, subject:  Sexual Harassment Assault Response and Prevention Program (SHARP) Army Stand-Down, dated 2013.  
	d.  The contested NCOER was completed after he left the battalion.  The first signature on the report was dated 9 days after he left the unit, the last signature was dated 2 months after he left, and the reviewer nonconcurred with the report. The remarks on the report are false and this was not an NCOER under the total Army concept.  The contested NCOER stated he refused to sign it.  He would have refused to sign the report but he never saw it until he found it in his OMPF.

3.  The applicant provides two DA Forms 2166-8 and three statements of support.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 November 1988 and he holds military occupational specialty 79R (Senior Guidance Counselor).  In or about May 2006, he was assigned to the Texarkana Recruiting Company, Oklahoma City Recruiting Battalion, Oklahoma City, OK.  He was promoted to the rank/grade of master sergeant (MSG)/E-8 on 1 September 2006. 

2.  The applicant provides a DA Form 2166-8, an annual NCOER he received during the month of July 2007, covering 12 months of rated time from 1 June 2006 through 30 April 2007 for his duties while serving as 1SG for the Texarkana Recruiting Company.  His rater was Captain (CPT) TL, his senior rater was Lieutenant Colonel (LTC) FLW, and his reviewer was COL FJC.  The NCOER shows the following entries:

	a.  In Part IVa (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block of all seven values.  

	b.  In Part IVb (Competence), the rater placed an "X" in the "Excellence" block.  This block contained, in part, the following comment:

* committed countless hours of his personal time that resulted in nine semester hours of online classes during the rated period

	c.  In Part IVd (Leadership), the rater placed an "X" in the "Excellence" block.  This block contained, in part, the following comments:

* selected for 1SG position over his peers within the battalion
* was the focal point of the overall success of his company while ensuring the needs of all his Soldiers were met

	d.  In Part IVe (Training), the rater placed an "X" in the "Success" block.  This block contained, in part, the following comment:
* flawlessly executed quarterly and annual company training to ensure compliance and proper recruiter progression

	e.  In Part V (Overall Performance and Potential), the rater placed an "X" in the "Among the Best" block. 

	f.  In Part V, the senior rater placed an "X" in the "Successful/2" block and in Vd, he placed an "X" in the "Superior/1" block.  

	g.  In Part Ve, the senior rater entered the following comments:

* promote with peers
* groom for selection to the Sergeants Major (SGM) Academy
* continue to groom for future SGM positions

3.  This NCOER was signed by the applicant's rater on 29 June 2007, his senior rater on 13 July 2007, and the applicant on 16 July 2007.  The reviewer concurred with the rating officials evaluations and signed the NCOER on 16 July 2007.  This NCOER is currently filed in the performance folder of his OMPF.

4.  During the month of August 2008, the applicant received the contested NCOER, a Relief for Cause NCOER, which covered 5 months of rated time during the period 1 May 2007 through 13 December 2007, based on his performance as a 1SG for the Texarkana Recruiting Company.  His rater was CPT HMA, his senior rater was the now COL FLW, and his reviewer was COL FJC.  The NCOER shows the following entries:

	a.  In Part 1k (Number of Enclosures), it shows a "2" to indicate there were 2 enclosures to the NCOER; however, his OMPF does not contain any enclosures to this NCOER.

	b.  In Part IIIf (Counseling Dates) it shows the applicant was counseled on 8 August 2007, 20 August 2007, and 14 November 2007.

	c.  In Part IVa, the rater placed an "X" in the "Yes" block of six of the seven values and an "X" was placed in the "No" block of the (Duty-fulfills their obligation) value.  This block contained the following comment:

* did not portray or exhibit due diligence to duty to ensure Soldier and unit success

	d.  In Part IVb, the rater placed an "X" in the "Needs (Some) Improvement" block.  This block contained the following comments:
* daily reviewed station prospecting and processing performance
* did not demonstrate technical knowledge needed for an NCO assigned to the 1SG position

	e.  In Part IVc (Physical Fitness & Military Bearing), the rater placed an "X" in the "Success" block.  This block contained the following comments:

* emphasized the Warrior Ethos statement and never quit
* always maintained his military bearing

	f.  In Part IVd, the rater placed an "X" in the "Needs (Much) Improvement" block.  This block contained the following comments:

* did not provide adequate purpose, motivation, and direction to his subordinates
* did not look out past the present moment nor display situational awareness; needed to be directed to enforce standards

	g.  In Part IVe, the rater placed an "X" in the "Needs (Some) Improvement" block.  This block contained the following comment:

* not involved in training or forming his subordinates into an effective team

	h.  In Part IVf (Responsibility & Accountability), the rater placed an "X" in the "Success" block.  This block contained the following comments:

* the rated NCO has been notified of the reason for the relief
* maintained 100% accountability of his equipment

	i.  In Part V, the rater placed an "X" in the "Marginal" block. 

	j.  In Part V, the senior rater placed an "X" in the "Fair/4" block and in Vd, he placed an "X" in the "Fair/4" block.  

	k.  In Part Ve, the senior rater entered the following comments:

* do not promote, do not send to advanced NCO schooling, failed to show capability to handle responsibility
* does not have the potential to serve in leadership positions with greater responsibility

* continuously struggled as a leader; did not demonstrate the ability to inspire subordinates and handle multiple tasks
* Soldier refused to sign

5.  This NCOER was signed by the applicant's rater on 19 May 2008 and his senior rater on 25 August 2008.  The reviewer nonconcurred with the rating officials evaluations and signed the NCOER on 26 August 2008.  The applicant's signature block is blank.  This NCOER is currently filed in the applicant's performance folder of his OMPF.

6.  It is unclear when the applicant departed the Texarkana Recruiting Company. He is currently assigned to the Albuquerque Recruiting Company, Albuquerque, NM.

7.  Orders 006-0015, dated 6 January 2014, issued by Headquarters (HQ), U.S. Army Recruiting Command (USAREC), Fort Knox, terminated his special duty pay effective 12 December 2013.

8.  The applicant provides three memoranda as follows:

	a.  One, dated 6 March 2014, wherein Major CDB stated he has known the applicant since November 2010 and the applicant gave him the tools to succeed in the Army as a mentor and friend.  He was an exceptional career Soldier whose performance exceeded all requirements of his assigned duties.

	b.  One, dated 16 March 2014, wherein Command Sergeant Major (CSM) DCM stated he met the applicant in 2010 when the applicant was the senior guidance counselor for the Baton Rouge Recruiting Battalion and he was 1SG for the Lafayette Recruiting Company.  Over the course of 2 years he witnessed a professional and competent senior NCO who was committed to ensuring all applicants were processed in accordance with regulatory guidance. 

	c.  One, dated 22 March 2014, wherein CSM CAM stated he has had the opportunity to witness the applicant as a Soldier, leader, husband, and father and found him to be the caliber of NCO and leader the Army can count on to accomplish its mission with honor, integrity, and passion.

9.  ALARACT Message 147, subject:  SHARP Army Stand-Down, dated 13 June 2013, was issued by HQ, Department of the Army.  It stated, in part, the Army had started notifying certain senior 79R NCOs they were being reclassified to special reporting code 09U.  NCOs identified for 09U would have or would be given the opportunity to serve to 20 years active Federal service and retirement eligibility and may be subject to involuntary separation.  This included NCOs who had reports of unfavorable information, offenses, or disqualifying conditions resulting in mandatory permanent disqualification for appointment or retention as a recruiter to include any relief for cause NCOER.  

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

	a.  Paragraph 2-10 states the rated Soldier is the subject of the evaluation and has considerable responsibility in the evaluation process.  The rated Soldier will participate in counseling and provide and discuss with the rating chain the duty description and performance objectives including objectives for fostering a climate of dignity and respect.  Counseling will occur within 30 days after the beginning of a new rating period and at least quarterly thereafter.

	b.  Paragraph 3-2f states rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On one hand, this evaluation will give full credit to the rated Soldier for their achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army selection boards and career managers can make intelligent decisions.  

	c.  Paragraph 3-36 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  

	d.  Paragraph 4-11 states to justify deletion or amendment of a report, the appellant 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 an administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

DISCUSSION AND CONCLUSIONS:

1.  The governing Army regulation clearly states an evaluation report included in the official record of a rated Soldier is presumed to be administratively correct; to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

2.  The contested NCOER appears to be correct and appears to represent a balanced, fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question.  There is no evidence, and the applicant has not provided any evidence, to show his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  More importantly, he 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.

3.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.

4.  The applicant's arguments provided in this case address his dissatisfaction with the rating and his concern that the contested NCOER will now have an adverse impact on career.  He stated he was removed from the 1SG position in November 2007 but did not see the NCOER until after it was filed in his OMPF.  His senior rater stated the applicant refused to sign the NCOER, and he provides insufficient evidence to show he never saw it.  

5.  The applicant indicates he realized the NCOER was in his record when he moved to New Orleans in May 2008.  However, his contention that he was informed it was too late, only 6 months after the NCOER was written, then to appeal the NCOER is not credible.  He was a 1SG, and one of his duties should have been to counsel junior Soldiers with questions on appealing NCOERs.  Yet, there is no evidence to show he even raised the issue with his servicing personnel office or the reviewer who disagreed with the rating.

6.  The applicant did not provide any 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.  

7.  In view of the foregoing, there is insufficient evidence to grant him the requested relief.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      _______ _   _______   ___
               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)                                         AR20130010494



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ABCMR Record of Proceedings (cont)                                         AR20140010414



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