IN THE CASE OF:	  

		BOARD DATE:	  30 October 2014

		DOCKET NUMBER:  AR20140012601 


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 that his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period ending 1 September 2010 be removed from his Official Military Personnel File (OMPF).

2.  He states the basis for his appeal is substantive inaccuracy in the contested NCOER.  

	a.  During the rating period, he failed the 2-mile run portion of the Army Physical Fitness Test (APFT) due to the undiagnosed condition of two herniated discs in his lower back. 

	b.  The rater did not enter a comment addressing whether or not he was making progress and rated his overall potential for promotion as "Fully Capable," which indicates he could be promoted.  The senior rater rated his overall potential for promotion as "4 Fair," which indicates he should not be promoted.  These ratings are inconsistent.

	c.  The senior rater's comments indicated he had the potential to be a top-level performer and that he failed the APFT due to an undisclosed medical condition.  The comments are inconsistent with an overall potential rating of "4."

	d.  The reviewer did not nonconcur and issue a statement in accordance with Army Regulation 623-3 (Evaluation Reporting System (ERS)) and Department of the Army Pamphlet 623-3 (ERS).  
	e.  The contested NCOER was submitted to the U.S. Army Human Resources Command (HRC) on 19 August 2011, after he had left the 200th Military Police (MP) Command.  On 23 August 2011, the NCOER was identified as needing correction, and comments entered by HRC addressed the items discussed above.  He was notified by his unit administrator on or about 26 June 2012 that the NCOER was listed as needing correction.  He notified the full-time support NCO at the 200th MP Command about the NCOER, and the NCO stated he would look into the matter.  

	f.  He contacted the HRC Evaluations Branch to discuss how the NCOER went from "needs correction" to "completed."  He was told that, after a certain amount of time has passed, an NCOER can be processed as an exception to policy (ETP) and included in a Soldier's promotion board file.  His NCOER was processed as an ETP, included in his promotion board file, and filed permanently in his OMPF.  

	g.  Due to this NCOER, he was selected to appear before the Qualitative Management Program (QMP) Board in June 2013.  The QMP Board elected to retain him.  

	h.  The contested NCOER was unwarranted and has kept him from progressing in his Army career.  It is not indicative of the type of Soldier he is.  Since that rating period, he completed a permanent change of station move to Tampa, FL, and he addressed his back issues.  Events combined to contribute to him losing track of the 3-year time limit for submitting an appeal of the NCOER.  He is currently a sergeant first class (SFC)/E-7 in the primary zone for promotion to master sergeant (MSG)/E-8.  He has been non-selected in the primary zone of consideration at least once, and his mandatory release date is 31 March 2016.  

3.  He provides documents identified in a list of enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 6 March 1990 to 6 April 2003.  On 7 April 2003, he entered active duty as a member of the U.S. Army Reserve, and he continues to serve in that status.  He was promoted to SFC/E-7 effective 1 December 2006.  He has served on active duty for over 23 years. 

2.  The contested NCOER is filed in the performance section of his OMPF.  It covers the period 1 February through 1 September 2010, and it shows he was evaluated for his principal duty as a Senior Human Resources Sergeant assigned to Headquarters and Headquarters Company, 200th MP Command, Fort Meade, MD.  On 16 August 2011, the rater (a captain/O-3), senior rater (a lieutenant colonel/O-5), and reviewer (a colonel/O-6) signed the NCOER.  The reviewer concurred with the rater and senior rater evaluations.  On 17 August 2011, the applicant signed the NCOER.  It shows in:

	a.  Part IV (Values/NCO Responsibilities), items b through f, his rater marked the boxes for "Success" or "Excellence" for all items except item IVc (Physical Fitness and Military Bearing), where the rater marked the box for "Needs Improvement (Some)."  Item IVc shows he failed the APFT on 10 July 2010.  The rater stated the applicant "failed to meet APFT standards for the 2-mile run" and "presented a professional, Soldierly appearance at all times."  

	b.  Part Va (Rater - Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), his rater marked the box for "Fully Capable."

	c.  Part Vc (Senior Rater - Overall Performance), his senior rater marked the box for "3" rating him as "Successful."

	d.  Part Vd (Senior Rater - Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), his senior rater marked the box for "4" rating him as "Fair."

	e.  Part Ve (Senior Rater Bullet Comments), his senior rater entered the following comments – 

* relied upon to ensure all MPC mobilization requirements were met on time, without error
* needs to maintain focus, since he has the potential to be a top-level performer
* undiagnosed medical condition led to APFT failure; Soldier understands the importance of being physically fit

3.  Effective 3 October 2011, he was reassigned to a unit in Tampa, FL.  

4.  He provides a page from the Interactive Web Response System (IWRS), printed on 16 June 2012, showing the status of several of his NCOERs.  The contested NCOER's status is shown as "Needs Correction."  The administrative notes column shows the following entries made on 23 August 2011:

* Missing bullet comment addressing making progress (or not making progress) in physical fitness standards (Department of the Army Pamphlet 623-3, Table 3-4)
* Part Va (Rater) and Vd (Senior Rater) – inconsistent rating.  Rater's markings indicate "promote" and senior rater's markings indicate "do not promote"
* Reviewer did not non-concur and issue a statement (Army Regulation 623-3, paragraph 2-17, and Department of the Army Pamphlet 623-3, Table 3-5)

5.  An IWRS printout of his evaluation history, dated 22 October 2014, shows the status of the NCOER in question as "Completed."  The administrative notes column contains no comments on the contested NCOER.

6.  On 24 June 2014, HRC returned his appeal of the contested NCOER without action because the appeal had not been submitted within 3 years of the NCOER's "Thru" date.

7.  He provides four memoranda bearing dates in April and May 2013 addressed to the QMP Board President.  Each recommends his retention and commends his duty performance.  None of the memoranda are from anyone in the rating chain for the contested NCOER.  

8.  He also provides a memorandum from the Chief, Transition Branch, HRC, dated 9 July 2013, showing the QMP Selection Board recommendation to retain him was approved and that, unless new derogatory information was posted to his OMPF, he would not be subject to a future QMP Board.  

9.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  

	a.  Paragraph 2-12 provides requirements for raters and states, in part, that the rater will verify the rated Soldier’s APFT results.  The rater must provide comments for an APFT failure.  The rater will provide an objective and comprehensive evaluation of the rated Soldier’s performance and potential on the evaluation report.

	b.  Paragraph 2-14 prescribes the role of the senior rater.  It states senior raters use their position and experience to evaluate the rated Soldier’s performance and/or potential within a broad organizational perspective.  The senior rater’s evaluation is the link between the day-to-day observation of the rated Soldier and the longer-term evaluation of the rated Soldier’s potential by Headquarters, Department of the Army (HQDA), selection boards.  The senior rater assesses and evaluates the abilities and/or potential of the rated Soldier relative to his or her contemporaries.

	c.  Chapter 2, Section IV, prescribes the requirements for evaluation report reviews.  For NCOERs, the review is conducted by a designated individual in the rating chain.  An additional, yet undocumented, review of completed NCOERs should be done by the senior NCO in the organization to ensure oversight of NCOs’ performance.  In some instances, the reviewer may need to document nonconcurrence with a report and/or inconsistencies between the rater’s and senior rater’s evaluations of a rated NCO.  

	d.  Paragraph 2-18 (formerly paragraph 2-17) states that, in addition to review by the designated reviewer, every NCOER should be reviewed by the first sergeant, sergeant major, or command sergeant major.  The reviewer will – 

		(1) Ensure that the proper rater and senior rater complete the report.

		(2) Examine the evaluations rendered by the rater and senior rater to ensure they are clear, consistent, and just in accordance with known facts.  Special care will be taken to ensure the specific bullet comments support the appropriate “Excellence” or “Success” or “Needs Improvement” ratings.  

	e.  Paragraph 2-18c states the reviewer will comment only when in disagreement with the rater and/or senior rater.  The reviewer indicates concurrence or nonconcurrence with the rater and/or senior rater by checking the appropriate box in part II and adding an enclosure.  

		(1) When the reviewer determines that the rater and/or senior rater have not evaluated the rated NCO in a clear, consistent, or just manner based on known facts, the reviewer’s first responsibility will be to consult with one or both rating officials to determine the basis for the apparent discrepancy.

		(2) If the rater and/or senior rater acknowledge the discrepancy and revise the NCOER so that the reviewer agrees with the evaluation, the reviewer will check the concur box in part II.

		(3) If the rater and/or senior rater fail to acknowledge a discrepancy and indicate that the evaluation is their honest opinion, the reviewer will check the nonconcur box in part II.  The reviewer then will add an enclosure that clarifies the situation and renders his or her opinion regarding the rated NCO’s performance and potential.  

		(4) The reviewer may not direct that the rater and/or senior rater change an evaluation believed to be honest.

		(5) In cases where neither the rater nor the senior rater is an NCO, the reviewer will get additional informal input from the senior NCO subordinate to the reviewer.

		(6) The reviewer will notify the rating chain and rated NCO of nonconcurrence with the report to ensure that the rating chain and the rated NCO are informed of the completed report and may allow for a possible request for a Commander's Inquiry or appeal, if desired.

		(7) When applicable, the reviewer will submit an NCOER nonconcurrence memorandum as an enclosure to the completed DA Form 2166–8.

	f.  Chapter 4 defines the Evaluation Report Redress Program. 

		(1) Paragraph 4-7 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  

		(2) Paragraph 4-8 states substantive appeals will be submitted within 3 years of an NCOER "Thru" date.  Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the Army Board for Correction of Military Records.  

		(3) Paragraph 4-11 states to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration and that 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 of 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.

		(4) Paragraph 4-11d states that for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  

10.  Department of the Army Pamphlet 623-3 provides procedural guidance for completing and submitting to Headquarters, Department of the Army (HQDA), evaluation reports and associated support forms that are the basis for the Army’s ERS.

	a.  Table 3-2 provides instructions for completing Part II (Authentication) of the NCOER.  It instructs the reviewer to place an "X" in the appropriate box indicating either "Concur with Rater and Senior Rater Evaluations" or "Nonconcur with Rater and Senior Rater Evaluations."  The reviewer ensures the accuracy of the NCOER and consistency of the rater’s and senior rater’s evaluation of a rated NCO.  A nonconcurrence memorandum as an enclosure to the NCOER is mandatory.  Enclosures will not be used to add an additional concurrence to the NCOER.  The reviewer will ensure the rated NCO is provided a copy of the nonconcurrence memorandum if applicable.

	b.  Table 3-4 provides instructions for completing Part IV of the NCOER.  It states for item IVc, in part, that the rater will address a “FAIL” entry for APFT in block c. Bullet comments for “FAIL” entries may include the reason(s) for failure and/or note any progress toward meeting physical fitness standards.

	c.  Table 3-5 provides instructions for completing Part V (Overall Performance and Potential) of the NCOER.  It states:

		(1)  For item Va, the rater places an “X” in the appropriate box.  NCOs receiving one or more “Needs Improvement” ratings in part IV, items b through f cannot receive a rating of “Among the Best.”  The following definitions will be used when completing item Va – 

* Among the Best.  NCOs who demonstrated a very good, solid performance and a strong recommendation for promotion and/or service in positions of greater responsibility.
* Fully Capable.  NCOs who have demonstrated a good performance and strong recommendation for promotion should sufficient allocations be available.
* Marginal.  NCOs who demonstrated poor performance and should not be promoted at this time.

		(2)  For item Vc, the senior rater evaluates overall performance by placing an “X” in the appropriate box.  The senior rater’s box marks are independent of the rater’s.  There is no specific box mark rating required of the senior rater based on box marks made by the rater.  The following definitions will be used when completing item Vc –  

* Successful/Superior.  A “1” rating represents the cream of the crop/top performance.  A “2” rating represents an exceptional performance.  A “3” rating represents a solid performance.
* Fair.  A “4” rating represents NCOs who may require additional training.
* Poor.  A “5” rating represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas.  Consider for DA imposed bar to reenlistment under the QMP. 

		(3)  For item Vd, the senior rater evaluates overall potential by placing an “X” in the appropriate box.  The senior rater’s box marks are independent of the rater’s.  There is no specific box mark rating required of the senior rater based on box marks made by the rater.  The following definitions will be used when completing block d – 

* Successful/Superior.  A “1” rating represents the cream of the crop and is a recommendation for immediate promotion.  A “2” rating represents a very good, strong recommendation for promotion.  A “3” rating also represents a recommendation for promotion should sufficient allocations be available.
* Fair.  A “4” rating represents NCOs who may require additional training and/or observation and should not be promoted at this time.
* Poor.  A “5” rating represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas.  Do not promote and consider for DA imposed bar to reenlistment under the QMP.

		(4)  In item Ve, the senior rater must address any “Fair” or “Poor” ratings.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for removal of the contested NCOER from his OMPF.

2.  The applicant's contention that his career has suffered is noted; however, this is not evidence of a material error, inaccuracy, or injustice in the contested NCOER.

3.  His rater noted that he had failed the APFT and commented on the APFT failure as required.  Although the rater chose not to identify the underlying reason for the APFT failure, the reason was identified by the senior rater in his comments.  The governing regulation does not require the rater to comment specifically on whether or not the rated NCO is making progress in physical fitness standards.  With regard to comments on his APFT failure, the NCOER appears to meet the intent of the regulation.  

4.  He contends that the rater's and senior rater's ratings of his promotion potential were inconsistent, which should have resulted in a nonconcurrence memorandum from the reviewer.  He also contends that the senior rater's "4" rating for promotion potential is inconsistent with his comment that the applicant "has the potential to be a top performer."  

	a.  His rater rated his overall potential for promotion as "Fully Capable," but his senior rater rated his overall potential for promotion as "4" (Fair).  Department of the Army Pamphlet 623-3 states a rater's "Fully Capable" rating is a "strong recommendation for promotion" but a senior rater's rating of "4" indicates the NCO "should not be promoted at this time."  

	b.  The senior rater's "4" rating for promotion potential is not inconsistent with his comment that the applicant "needs to maintain focus, since he has the potential to be a top-level performer" (emphasis added).  The full comment, in the context of the other senior rater comments, is not inconsistent with a "4" rating for promotion potential.  

	c.  The decision to concur or nonconcur with an NCOER rests with the reviewer.  Although the governing regulation and pamphlet encourage reviewers to nonconcur and enclose a nonconcurrence memorandum in cases where an inconsistency exists between the rater's and senior rater's assessment, the reviewer may still concur with the NCOER as written.  In this case, it appears the reviewer did not believe the inconsistency between the "Fully Capable" and "Fair" ratings for promotion potential required any further comment.  

	d.  The evidence shows HRC identified an inconsistency, and it appears a request for correction was sent to the applicant's unit.  There is no evidence indicating that any action was taken, and the record shows the contested NCOER was accepted and filed in his OMPF.  There is no documentary evidence supporting his statement that the NCOER was accepted and filed based on an ETP.  

5.  The applicant states he has been nonselected for promotion to MSG and the record shows a QMP Board recommended his retention.  This is not evidence of a material error, inaccuracy, or injustice in the contested NCOER.  

6.  The supporting statements he provides commending his duty performance are noted; however, these statements are insufficient to show that the contested NCOER is anything but the considered opinion and objective judgment of the rating officials.

7.  Evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  The available evidence does not constitute evidence of a strong and compelling nature establishing clearly and convincingly that the presumption of regularity should not be applied to the contested NCOER.  Therefore, there is an insufficient basis upon which to grant 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)                                         AR20140012601





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ABCMR Record of Proceedings (cont)                                         AR20140012601



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