IN THE CASE OF:  	  

		BOARD DATE:  23 September 2014	  

		DOCKET NUMBER:  AR20140012935 


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 annual Noncommissioned Officer Evaluation Report (NCOER), covering the rating period 20100417 through 20110416, to show in:

* Part V(c) (Senior Rater - Overall Performance) – a rating of "Successful/2" instead of "Fair/4"
* Part V(d) (Senior Rater - Overall potential for promotion and/or service in positions of greater responsibility) – a rating of "Superior/2" instead of "Fair/4"

2.  The applicant states the senior rater bullet on the contested NCOER is not correct.  It currently shows 4/4 and he has documentation that shows the senior rater wanted to make it a 2/2, but was told to change it.  He previously petitioned the Enlisted Special Review Board (ESRB) and he was able to fix other parts of his NCOER; however, he now has new evidence from the senior rater.  When he received the new evidence from the senior rater he was already outside the       3-year time window for conducting another NCOER appeal.  As a result, the U.S. Army Human Resources Command (HRC) returned his appeal without action.  A person outside of the rating chain forced the rater to make ratings that the rater did not want to make.  This in turn forced the senior rater to mark a 4/4, which was not the original intent of the senior rater.  He was able to get the rater’s marks corrected so that the NCOER now shows a fully capable but with a senior rater rating of 4/4.  The senior rater originally wanted to give him a 2/2.  He has documentation showing that it was someone outside the rating chain who influenced the rater and senior rater’s bullets.
3.  The applicant provides:

* Letter from HRC
* Original administrative appeal to ESRB
* Memorandum for Record from senior rater
* Email traffic 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 7 February 2002 and he holds military occupational specialty 35F (Intelligence Analyst).  He served through a reenlistment and he attained the rank of staff sergeant/E-6 on 1 January 2006. 

2.  His Enlisted Record Brief (ERB), dated 11 July 2011, shows he was flagged for overweight as of 31 March 2011.  His height and weight are listed as            81 inches and 260 pounds. 

3.  During April 2011, he received an annual NCOER covering 12 months of rated time from 17 April 2010 through 16 April 2011 for his duties as Geospatial Intelligence Collection Manager while assigned to the U.S. Army Element (USAE), European Command (EUCOM), Molesworh, England.  His rater was the Team Chief (Department of the Army (DA) Civilian); his senior rater was the Collection Manager, also a DA Civilian; and his reviewer was Major (MAJ) RPS, USAE Commander.  The NCOER shows the following entries:

	a.  In Part IVa (Army Values), the rater placed an "X" in the "No" block for the "Duty" value and entered three bullet comments, one of which reads "failed the height/weight in accordance with (IAW) Army Regulation (AR) 600-9 (Army Weight Control Program." 

	b.  In Parts IVb (Competence), IVd (Leadership), IV(e) (Training), and IV(f) (Responsibility and Accountability), the rater placed an "X" in the "Excellence" or "Success" blocks and entered favorable bullet comments in each block.

	c.  In Part IVc (Physical Fitness and Military Bearing), the rater indicated the applicant passed the Army Physical Fitness Test (APFT) on 31 March 2011.  She (the rater) also listed the applicant's height/weight as 82/298 and placed a "No" to indicate the applicant was not in compliance.  She further placed an "X" in the "Needs Improvement (Some)" and entered the following negative bullet comment:  "failed the height/weight IAW 600-9; Soldier continues to make progress in unit PT program." 

	d.  In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Marginal" block.

	e.  In Parts Vc and Vd, the senior rater placed an "X" in the "Fair/4" blocks and in Part IVe (Senior Rater Bullet Comments), he (the senior rater) entered the following bullet comments:

* promote to sergeant first class and send to advanced leadership course when in compliance with AR 600-9
* great technical potential; capable of serving in assignments providing higher level collection requirements
* superior performance in collection while serving in a difficult position reserved for someone of a higher rank

4.  The NCOER shows the rater, senior rater, and applicant authenticated this form by placing their signatures in the appropriate places and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place.  

5.  On 12 March 2014, he submitted an appeal through HRC to the ESRB.  He requested: 

* The rater be allowed to place the correct ratings and values that she (the rater) felt the applicant earned during the rating period
* The rating marked in Part V(a) be changed from "Marginal" to "Fully Capable"
* The senior rater ratings be changed from Fair/4 and Fair/4 to Successful/2 and Superior/2

6.  On 15 May 2014, after careful consideration, the ESRB analyst determined: 

	a.  The applicant's contentions pertaining to the rater portion of the contested NCOER being influenced by a third party individual is supported by sufficient evidence.  

		(1)  He provided a third party statement from the rater of the contested NCOER, attesting that her ratings and comments were influenced by the guidance of the NCOIC from the JAC Army Element.

		(2)  The ratings and comments reflected in the rater portion of the contested NCOER do not appear to be the comments of the rater of the report.  

		(3)  The rater provided her view of his conduct which should have been reflected in the contested NCOER.  

	b.  The applicant's contention that the SR’s bullet comments did not match the ratings that were provided; however, this contention is a matter of his opinion.  

		(1)  The Senior Rater provided an independent evaluation of the applicant on his portion of the evaluation form.

		(2)  The choice of what to enter on the NCOER is ultimately the Senior Rater's responsibility. 

		(3)  There is insufficient evidence that the Senior Rater comments on the report were anything other than his considered opinion.  The fact that the applicant desired to have the report reflect different verbiage and ratings is not sufficient to impeach the Senior Rater's assessment of his performance.

	c.  The applicant's contentions that he was never counseled during the rating period, and the rater being influenced by third party individuals would have been a basis to request a Commander's Inquiry to address these contentions.

		(1)  It does not appear that a Commander's Inquiry was requested which would have presented a more detailed view of his contentions.  

		(2)  In the absence of a Commander's Inquiry, there is insufficient evidence provided which invalidates the rating and comments reflected in the contested NCOER.

	d.  Based on the available evidence, the applicant has provided clear and convincing evidence which shows that the ratings in the rater portion of the contested report were in error.  However, there is insufficient evidence which invalidates the Senor Rater portion of the contested NCOER, or that the Senior Rater comments were not his considered opinion and objective judgments.  Therefore, the requested changes are partially recommended.

7.  The ESRB, by unanimous vote, determined that the evidence presented was sufficient to warrant partial relief.  As a result, the ESRB directed the following:

	a.  In Part IVa (Army Values) "Duty" change the "X" to reflect "Yes" and remove the bullet comment:  "failed the height/weight IAW AR 600-9."

	b.  In Part Va (Rater overall potential for promotion and/or service in positions of greater responsibility), change the "X" to reflect "Fully Capable." 
	c.  Annotate "corrected copy" on the contested report.

	d.  The ESRB further directed that the decision memorandum will be filed in his official military personnel file (OMPF) beside the appeal evaluation report and these proceedings and the appeal documentation be filed in the restricted section of his OMPF. 

8.  His records show officials at HRC implemented the unanimous decision by the ESRB regarding the contested NCOER by amending the rater's entry in the "Duty" value from "No" to "Yes" and the rater's entry in the "Overall Performance" from "Marginal" to "Fully Capable." 

9.  On 13 June 2014, he submitted another petition to HRC wherein he requested a change to the senior rater's ratings.  With his request, he submitted email traffic and a statement, dated 11 June 2014, from his former senior rater.  He stated: 

	a.  He was the Chief, EUCOM Collection Management office and applicant's senior rater at the time.  He originally rated the applicant as 2/2 and provided comments in support of a 2/2 rating.  However, a subsequent direction from the NCOIC representative at the U.S. Army Element was adamant that the rater's marks and comments in block IVc of the contested NCOER were required by DA policy.  He attempted to minimize the damage to the applicant through comments documenting his tremendous technical acumen and exceptional potential for positions of increased authority and responsibility.

	b.  However, DA rejected the NCOER because the markings used were inconsistent with the rater's markings.  Following this rejection, he was informed that DA policy required him to downgrade the rating to 4/4 in order to bring the ratings in line with those of the rater.  He was also instructed that the rater's markings are required in order to comply with Army policy regarding documentation of AR 600-9 height/weight issues.  Subsequent queries of the Army element left him with no information or basis to contest what he was being told, and with deep misgivings, as his comments on the NCOER indicate he complied and reduced his rating from 2/2 to 4/4. 

	c.  He is pleased to learn that the applicant's NCOER has been corrected to fully capable and he now would like to further restore the NCOER to its original rating of 2/2.  He also states that the interpretation of AR 600-9 issues was mistaken.  He has witnessed the applicant's determination and dedication to lose weight and comply with Army standards.  The fact that he lost weight, kept fit, and has not allowed that struggle to impact his performance is a testament to his qualities and strength of character.   

10.  Army Regulation 623-3 (Evaluation Reporting System), effective 10 September 2007, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  It prescribes the policy for completing the DA Form 2166-8 (NCOER) and associated DA Form 2166-8-1 (NCOER Counseling and Support Form) that are the basis for the Army's ERS.  

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army NCO corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pam 623-3.  Consideration will be given to the following:  (a) the relative experience of the rated officer or NCO; (b) the efforts made by the rated officer or NCO; and, (c) the results that could be reasonably expected given the time and resources available.  Potential evaluations will be performance-based assessments of the rated officers or NCOs of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for DA. 

	b.  Paragraph 2-12i states the rater will provide an objective and comprehensive evaluation of the rated Soldier’s performance and potential on the DA Form 2166–8.

	c.  Paragraph 2-15 states the senior rater is the senior rating official in the military rating chain or as officially designated.  Senior raters use their position and experience to evaluate the rated Soldier from a broad organizational perspective, military program of instruction, or civilian academic course standards.  Senior raters will ensure support forms are provided to all rated Soldiers they senior rate at the beginning of and throughout the respective rating periods; use all reasonable means to become familiar with a rated Soldier's performance; assess the ability of the rated Soldier; ensure that rating officials counsel the rated Soldier individually and throughout the rating period on meeting their objectives and complying with the professional standards of the Army; consider the information on the applicable support forms when evaluating the rated individual; evaluate the rated Soldier's potential relative to their contemporaries; and ensure that all reports, which the senior rater and subordinates write, are complete and provide a realistic evaluation in compliance with procedures established in DA Pamphlet 623-3.

	d.  Paragraph 3-39 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.  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 administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	f.  Paragraph 3-39 states requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report or be included in the OMPF:  statements from rating officials that they underestimated the rated Soldier; statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did; requests that ratings be revised; statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential.  Therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the NCOER prior to signing that report; or a subsequent statement from a rating official that he/she rendered an inaccurate evaluation of a rated Soldier's performance or potential in order to preserve higher ratings for other officers (for example, those in a zone for consideration for promotion, command, or school selection) will not be a basis for appeal. 

	g.  Paragraphs 6-3 and 6-4 state, in pertinent part, that 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.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at DA.  However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  

	h.  Paragraph 6-11d states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, 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.  The results of a Commander's or CI may provide support for an appeal request.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received an NCOER covering the rating period 17 April 2010 through 16 April 2011.  The negative comments resulted from his inability to meet the height and weight standards of AR 600-9.  His current evaluation shows: 

* his rater listed his height/weight as 82/298 and placed a "No" to indicate he was not in compliance
* his rater placed an "X" in the "Needs Improvement (Some)" and entered the negative bullet comment "failed the height/weight IAW 600-9; Soldier continues to make progress in unit PT program" 
* his senior rater rated his overall performance as "Fair/4"
* his senior rater rated his overall potential as "Fair/4"

2.  Although the applicant failed the height/weight standards, he now provides a statement from his former Senior Rater who raises the issue of command influence and/or interference in the rating process.  It appears the Senior Rater was not familiar with the Army's evaluation process.  That probably explains why the Senior Rater changed the rating to "4" and "4" vice the original intended rating of "2" and "2.”  

3.  Generally speaking, a "1" rating represents the cream of the crop and is a recommendation for immediate promotion; a "2" rating represents a very good, solid performance and is a strong recommendation for promotion; and a "3" rating also represents a good performance and, should sufficient allocations be available, is a recommendation for promotion.  A rating of "Fair" represents NCOs who may require additional training/observation and should not be promoted at this time.  

4.  Values and NCO requirements/responsibilities are the sole focus for evaluation of performance in Part IV of the NCOER.  An NCO who fails the height and weight requirements is non-promotable and thus a rating of "Fair" is representative that he or she may require additional training/observation and should not be promoted at this time.  

5.  Nevertheless, the regulation governing the NCOER system does not prohibit or restrict the Senior Rater from assigning a rating of "1," "2," or "3," in the "Overall Performance" and/or the "Overall Potential."  The Senior Rater has indicated his intent to rate the applicant as a "2" and "2" in those areas.  Only interference from others prevented the Senior Rater from doing so.  

6.  Therefore, despite the applicant failing the height/weight requirements and consistent with the Senior Rater's statement, which is incidentally consistent with the Rater's previously-submitted statement, the contested NCOER should be amended to reflect a "2" and "2" ratings in Parts V(c) and V(d), respectively. 

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the contested NCOER covering the rating period 20100417 through 20110416, to show in:

* Part V(c) (Senior Rater - Overall Performance) – a rating of "Successful/2" instead of "Fair/4"
* Part V(d) (Senior Rater - Overall potential for promotion and/or service in positions of greater responsibility) – a rating of "Superior/2" instead of "Fair/4"


      _______ _  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)                                         AR20140012935





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140012935



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1