IN THE CASE OF: 

                  BOARD DATE:      10 December 2014

                  DOCKET NUMBER: AR20140016386


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).

1. The applicant requests removal of his Relief for Cause DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 30 June 2012 through 30 July 2012 (hereafter referred to as the contested NCOER) from his Official Military Personnel File (OMPF).

2. The applicant states, in effect, the basis for his request is two departures from regulatory procedures prescribed in Army Regulation 623-3 (Evaluation Reporting System), effective 5 June 2012, and Department of the Army (DA) Pamphlet 623-3 (Evaluation Reporting System), effective 5 June 2012.

         a. The NCOER was rendered in error because the rater and senior rater did not have the minimum 30-day amount of time in his rating chain required to write the report.

b. The rating chain did not obtain a waiver for the 30-day minimum rating requirement from the first general officer in the chain of command prior to rendering the NCOER.

3. The applicant provides copies of the following documents:

•         an extract from Army Regulation 623-3
•         the contested NCOER
•         two Enlisted Record Briefs (ERB)
•         an article from the NCO Journal magazine
•         six NCOERs rendered for the period 1 September 2007 through 29 June 2012
•         a Final Decision-Order of Dismissal rendered by the Office of State Administrative Hearings, State of Georgia
•         an Assumption of Command memorandum
•         a DA Form 31 (Request and Authority for Leave)
•         extracts from two rating schemes
•         Unit inactivation orders
•         a Unit Personnel Accountability Report (UPAR)-AAA-162
•         email correspondence
•         a program for the Basic Combat Training graduation ceremony for Echo (E) Company, 2d Battalion, 47th Infantry Regiment, 192d Infantry Brigade
•         3 screenshots that he refers to as a "Federal Driving Report"
•         Enlisted Special Review Board (ESRB) Record of Proceedings, dated 18 April 2013

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the Army National Guard (ARNG) on 14 November 2002. On 28 April 2004, he was honorably discharged from the ARNG for the purpose of immediate enlistment in any component of the Armed Forces. He enlisted in the Regular Army (RA) on 29 April 2004. He was promoted to staff sergeant (SSG)/E-6 on 1 June 2010 in military occupational specialty 25U (Signal Support Systems Specialist).

2. The applicant provides:

         a. an Assumption of Command memorandum, dated 5 May 2011, which shows that Captain (CPT)/O-3 SLP assumed responsibilities as the Company Commander for E Company, 2d Battalion, 47th Infantry Regiment, 192d Infantry Brigade, Fort Benning, GA, effective 5 May 2011.

         b. an unverified extract from a rating scheme for E Company, 2d Battalion, 47th Infantry Regiment which shows the applicant's rating scheme for the period ending 29 June 2012 was designated as:

•         Rater - Sergeant First Class (SFC)/E-7 JRP, First Sergeant
•         Senior Rater - SFC JRP, First Sergeant
•         Reviewer - CPT SLP, Company Commander

         c. six NCOERs rendered for the period 1 September 2007 through 29 June 2012 which show he consistently received favorable ratings from both his raters and senior raters. The NCOER for the period ending 29 June 2012 shows he was assigned to E Company, 2nd Battalion, 47th Infantry Regiment and his rating chain was:

•         Rater - SSG CMP, Senior Drill Sergeant
•         Senior Rater - SFC JRP, First Sergeant
•         Reviewer - CPT SLP, Company Commander

         d. a UPAR, dated 2 July 2012, which shows the applicant, SSG CMP, SFC JRP, and CPT SLP were assigned to E Company, 2d Battalion, 47th Infantry Regiment, 192d Infantry Brigade.

         e. a program for the Basic Combat Training graduation ceremony for E Company, 2d Battalion, 47th Infantry Regiment, 192d Infantry Brigade which shows the applicant was one of three drill sergeants for 1st Platoon.

         f. an article published in the NCO Journal magazine which shows the applicant achieved his goal of graduating all 45 Soldiers in his basic training platoon on 3 July 2012.

         g. a DA Form 31 which shows he was assigned to E Company, 2d Battalion, 47th Infantry Regiment when he was granted a 10-day Drill Sergeant Wellness special pass for the period 4 to 13 July 2012. This request was approved by CPT SLP. This form does not show that the applicant actually took the pass.

         h. Permanent Orders 201-251, dated 19 July 2012, which show E Company, 2d Battalion, 47th Infantry Regiment, 192d Infantry Brigade was inactivated, effective 20 July 2012.

         i. a UPAR, dated 2 July 2012, which shows First Sergeant (1SG)/E-8 EGW and CPT NJW were assigned to Charlie (C) Company, 2d Battalion, 47th Infantry Regiment, 192d Infantry Brigade.

         j. an unverified copy of a rating scheme for C Company, 2d Battalion, 47th Infantry Regiment which shows 1SG EGW and CPT NJW were assigned to the unit and included in the rating scheme. The rating scheme shows 1SG EGW and CPT NJW were the designated rater and senior rater for several drill sergeants assigned to the company. The effective date of the rating scheme was 21 August 2012 and the applicant's name was not included on the document.

3. A review of the applicant's OMPF maintained in the Interactive Personnel Electronic Records Management System (iPERMS) revealed a General Officer Memorandum of Reprimand (GOMOR) that was issued to the applicant by Major General LVP, Commanding General (CG), Headquarters, U.S. Army Signal Center of Excellence and Fort Gordon, GA, on 10 August 2012. The CG reprimanded the applicant for misconduct on 21 July 2012, when he was apprehended by a Department of the Army (DA) police officer for operating a motor vehicle on Fort Gordon while under the influence (driving under the influence (DUI)) of alcohol. The applicant was attending the Senior Leader Course, Regimental NCO Academy, Fort Gordon, GA pursuant to military orders. A National Security Agency (NSA) police officer observed the applicant stop his vehicle, open the door and vomit. The NSA police officer initiated a traffic stop and upon making contact with the applicant, detected the odor of an alcoholic beverage emitting from him. A DA police officer arrived on the scene and the applicant was administered a series of field sobriety tests, which he failed. He was administered a breathalyzer test that resulted in a reading of 0.182 percent blood alcohol content (BAC) (exceeding the legal BAC limit of 0.08 grams per 210 liters). The CG advised the applicant that because of his misconduct, he could be subjected to additional administrative action and to nonjudicial or judicial punishment. The CG further advised the applicant that the GOMOR was imposed as an administrative measure and not as punishment under the UCMJ. The CG informed the applicant that in accordance with Army Regulation 600-37 (Unfavorable Information), paragraph 3-4, he intended to file this memorandum in the applicant's OMPF. However, prior to making his final decision, the CG would consider any matters that the applicant may decide to submit within ten calendar days from the receipt of the GOMOR.

4. Headquarters, U.S. Army Maneuver Center of Excellence (USAMCE), Fort Benning, GA, Orders 235-1, dated 22 August 2012, show the applicant's entitlement to Special Duty Assignment Pay was terminated on 30 July 2012 as a result of him being removed from Drill Sergeant status in accordance with Army Regulation 614-200 (Enlisted Assignments and Utilization Management), paragraph 8-17a(7) (Infractions of training policies or violations of the UCMJ). The orders were authenticated by the Adjutant General, USAMCE.

5. Headquarters, USAMCE, Orders 235-1, dated 22 August 2012, show the applicant's Skill Qualification Identifier (SQI) for Special Duty Assignment Pay was terminated on 30 July 2012 as a result of him being removed from Drill Sergeant status in accordance with Army Regulation 614-200, paragraph 8-17d(4) (Infractions of training policies or violations of the UCMJ). These orders also removed his authority to wear the Drill Sergeant Identification Badge in accordance with Army Regulation 600-8-22 (Military Awards), paragraph 8-42 (The badge may be revoked if the recipient is removed for cause, regardless of the amount of time the individual has served in the position in a satisfactory manner). These orders were authenticated by the Adjutant General, USAMCE.

6. A review of the applicant's OMPF maintained in iPERMS revealed a corrected copy of the contested NCOER is filed in the performance section of his OMPF as a result of the partial approval of an appeal that he submitted to the U.S. Army ESRB. It also shows in:

a. Part I (Administrative Data)

•         Unit: C Company, 2d Battalion, 47th Infantry Regiment, 192d Infantry Brigade
•         Reason for Submission: Relief for Cause
•         Period Covered: 30 June 2012 through 30 July 2012
•         Rated Months: 1

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

•         Rater:  1SG EGW, First Sergeant
•         Senior Rater:  CPT NJW, Company Commander
•         Reviewer:  Lieutenant Colonel (LTC)/O-5 KEF, Battalion Commander

c. Part IV, block a (Army Values), shows the entries for Selfless-Service, Honor, and Integrity were all marked "NO" by the rater and the bullet comments included:

•         "demonstrated a lack of judgement without consideration of results; failed to adhere Commander's Policy regarding drinking and driving
•         did not do what was legally right by violating the Uniform code [sic] of Military Justice (UCMJ)"

d. Part IV, block d (Leadership) shows the rater placed an "X" in the Needs Improvement (Much) block and the bullet comments included:

•         "displayed unwelcome lack of concern for Soldiers and Civilians well-being; charged for driving a motor vehicle while intoxicated
•         failed to live up to obligation as a Noncommissioned officer as well as a Drill Sergeant"

e. Part IV, block f (Responsibility and Accountability) shows the rater placed an "X" in the Needs Improvement (Much) block and the bullet comments included:

•         "rated NCO has been notified of the reason for the relief"

f. Part V (Overall Performance and Potential) shows in:
         (1) block a (Rater - Overall potential for promotion and/or service in positions of greater responsibility), the rater placed an "X" in the Marginal block.

                  (2) block c (Senior Rater - Overall performance), the senior rater placed an "X" in the Fair block.

                  (3) block d (Senior Rater - Overall potential for promotion and/or service in positions of greater responsibility), the senior rater placed an "X" in the Fair block.

                  (4) block e (Senior Rater Bullet Comments), the senior rater's bullet comments were as follows:

•         "do not promote to next rank at this time
•         send to SLC [Senior Leadership Course] only after much needed time of maturity
•         can still serve the Army in a Staff NCO capacity
•         potential is limited, Soldier is trainable
•         Soldier unavailable for signature"

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

h. The rater, senior rater, and reviewer digitally signed the NCOER on 23 August 2012.

7. On 21 September 2012, the applicant submitted a memorandum of rebuttal to the CG requesting that his GOMOR be filed on a local level as opposed to filing it in his OMPF. He apologized for his actions and acknowledged that they were unacceptable. He stated he had learned from this humbling experience and had become an advocate for discouraging impaired driving. He professed his love of the Army and provided a synopsis of his significant achievements during his period of service. He further stated that he was not defending his actions or taking them lightly and he took full responsibility for the decisions he had made. In conclusion, the applicant stated he had completed the Army Substance Abuse Program and had made a standard taxi card for his unit so no one else would end up on the same situation that he had placed himself in. He had also signed up to be a mentor at one of the elementary schools on Fort Benning so he could encourage youths to learn from the mistakes that they made.

8. On 26 October 2012, after carefully reviewing the applicant's GOMOR and his rebuttal, the CG directed that the GOMOR and related matters be filed in the applicant's OMPF. The CG noted that the GOMOR had been imposed as an administrative measure and not as punishment under Article 15, UCMJ. He also noted that Army Regulation 600-37 requires that a GOMOR filed in the OMPF be filed in the performance portion.

9. The applicant provides an ERB, dated 29 August 2012, which shows he was assigned as a Drill Sergeant to Company E, 2d Battalion, 47th infantry Regiment, 192d Infantry Brigade from 10 October 2010 to 19 July 2012 and to Company C, 2d Battalion, 47th infantry Regiment, 192d Infantry Brigade from 20 July 2012 to present.

10. The applicant provides an ERB, dated 28 July 2014, which shows he was assigned as a Drill Sergeant to Company E, 2d Battalion, 47th infantry Regiment, 192d Infantry Brigade from 30 June 2010 to 29 June 2012 and to Company C, 2d Battalion, 47th infantry Regiment, 192d Infantry Brigade from 30 June 2012 to 3 October 2012.

11. The applicant provides email correspondence exchanged between himself and Sergeant Major (SGM) RMD, Command Sergeant Major, 2d Battalion, 47th Infantry Regiment, 192d Infantry Brigade from 28 August through 24 September 2012. These emails show the applicant solicited the SGM's support in having his Relief for Cause NCOER changed to a Change of Rater report and to have two of the block checks upgraded from "4 Fair" to "3 Successful." When that request was denied, he refused to sign the NCOER. The applicant informed the SGM that he'd gone to court the day prior and that his DUI had been thrown out by the Judge. He asked the SGM if he would get his (Drill Sergeant) badge back as a result of the charge being dismissed and the SGM advised him to speak to a lawyer because he had still violated Army rules and regulations. He questioned the reason why he was receiving a GOMOR from Fort Gordon when he had been told that he should be getting a GOMOR from Fort Benning instead of Fort Gordon and that he did not have to worry about submitting a rebuttal right away.
The applicant also asked the SGM to write a letter of recommendation in support of his GOMOR rebuttal and an explanation for why his rebuttal was being submitted late.

12. The applicant provides a Final Decision-Order of Dismissal rendered by the Office of State Administrative Hearings, State of Georgia, dated 13 September 2012. This document shows the applicant's DUI charge was dismissed as a result of the arresting officer's failure to appear in court. Accordingly, the decision to suspend the applicant's driver's license, permit or privilege to operate a motor vehicle or commercial vehicle in the state of Georgia was rescinded.

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13. The applicant provides 3 screenshots that he refers to as a "Federal Driving Report," printed on 18 December 2012, which indicate that he had no active suspensions at the time.

14. The applicant submitted an appeal to the ESRB for removal of the contested NCOER from his OMPF. He cited several administrative and substantive errors as the bases of his request. ESRB Record of Proceedings, dated 18 April 2013, Docket Number AR20120018886, shows the President, ESRB, approved the unanimous vote of the ESRB to partially approve the applicant's NCOER appeal.
As a result, the ESRB directed the following:

         a. The NCOER should be modified as follows:

                  (1) In Part IVc (Physical Fitness & Military Bearing), change the report to reflect "APFT: Pass 20120625 Height/Weight 65/135 Yes";

                  (2) In Part IVc, change the first bullet to read "scored 274 on most recent APFT"; and

                  (3) Add "corrected copy" to the NCOER.

         b. Promotion reconsideration is not warranted as a result of this action.

         c. The ESRB further directed that the decision memorandum will be filed in the appellant's OMPF beside the appeal evaluation report, and these proceedings and the appeal documentation be filed in the restricted section of the appellant's OMPF.

15. Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management) provides policies, operating tasks, and steps governing the AMHRR. The naming convention AMHRR is an umbrella term encompassing human resource (HR) records for Soldiers, retirees, veterans, and deceased personnel. The AMHRR includes, but is not limited to, the OMPF, finance related documents, and non-service related documents deemed necessary to store by the Army.

         a. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file.

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

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16. Army Regulation 623-3 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. Paragraph 1-9 states, in relevant part, Army evaluation reports are independent assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army's Officer Corps or NCO Corps within the period covered by the report. Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the Army Values, the Army's leadership framework, and responsibilities identified on evaluation report forms and counseling forms. Potential evaluations will be performance-based assessments of rated officers' or NCOs' ability to perform in positions of greater responsibility and/or higher grades/ranks compared to others of the same rank. These assessments will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades, and will ignore such factors as impending retirement or release from active duty; potential evaluations continually change and are ultimately reserved for HQDA.

         b. Paragraph 2-2 states that commanders, commandants, and organization leaders will establish rating chains and publish rating schemes within their units or organizations in accordance with locally developed procedures and Army regulations. Established rating chains will correspond as nearly as practicable to the chain of command or supervision within a unit or organization, regardless of component or geographical location. Rating schemes will identify the name of the rated Soldier and the effective date for each of the rating officials (date on which the rating official assumed his or her role as the rating official for the rated Soldier). Rating schemes will be published and made accessible, either manually or electronically, to each rated Soldier and each member of the rating chain. Any changes to a rating scheme will be published and distributed, as required. No changes may be retroactive.

         c. Paragraph 2-5a(2), in part, stipulates that a rater will be an officer or NCO of the U.S. Armed Forces, U.S. Coast Guard, or an employee of a DOD or U.S. Government agency. The rater will be the supervisor for a minimum period of 90 calendar days.

         d. Paragraph 2-7b states, in part, a senior rater will be an officer or NCO of the U.S. Armed Forces, U.S Coast Guard, or a DOD civilian who is senior to the rater either in pay grade or date of rank and in the direct line of supervision of the rated NCO. The senior rater will be the immediate supervisor of the rater and designated as the rated NCO's senior rater for a minimum period of 60 calendar days.

         e. Paragraph 3-33k states the rated Soldier will always be the last individual to sign the evaluation report. The rated Soldier's signature will verify the accuracy of the administrative data in Part I, including the accuracy of the name and SSN on the evaluation report, rank and date of rank, branch or MOS data, period covered and nonrated time; the rating officials in part II; APFT and height and weight entries. This procedure ensures that the rated Soldier has seen the completed report. It also increases the administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data. In the event the rated Soldier is not available or refuses to sign, senior raters will provide an explanation in their narrative or bullet comments.

         f. Paragraph 3-55 states that a code 05, "Relief for Cause" NCOER, is required when an NCO is relieved for cause. An NCO can be relieved for cause regardless of the rating period involved; however, a waiver is required to render "Relief for Cause" NCOERs covering a period of less than 30 days. Relief for cause is defined as the removal of an NCO from a specific duty or assignment based on a decision by a member of the NCO's chain of command or supervisory chain. A relief for cause occurs when the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army. Some additional considerations for the "Relief for Cause" NCOER are described below.

                  (1) If the relief does not occur on the date the NCO is removed from the duty position or responsibilities, the suspended period of time between the removal and the relief will be nonrated time included in the period of the "Relief for Cause" NCOER. The suspended NCO will not render NCOERs and AERs or receive NCOERs until his or her status (and, thus, his or her ability to serve as a rating official) is decided. The published rating chain at the time of the relief will render the "Relief for Cause" NCOER; no other NCOER will be due on the rated NCO during this nonrated period.

                  (2) Cases where the rated NCO has been suspended from duties pending an investigation will be resolved by the chain of command as expeditiously as possible to reduce the amount of nonrated time involved. Every effort will be made to retain the established rating chain, with the NCO performing alternate duties under that rating chain, until the investigation is resolved. If the rated NCO is suspended and subsequently relieved, the period of suspension is nonrated time. If the rated NCO is suspended and subsequently placed back to duty (not relieved), the period of suspension is recorded as evaluated time on the next NCOER.

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                  (3) The minimum rater and senior rater qualifications and the minimum rating period are 30 rated days. The fundamental purpose of this restriction is to allow the rated NCO a sufficient period of time to react to performance counseling during each rating period. Authority to waive this 30-day minimum rating period and rater and senior rater qualification period in cases of misconduct is granted to the first general officer in the chain of command or an officer having general court-martial jurisdiction over the relieved NCO. The waiver approval will be in memorandum format and attached as an enclosure to the NCOER (see paragraph 3-35 and figure 3-5). Figure 3-5 of Army Regulation 623-3, dated 5 June 2012, is entitled "Sample format for a 30-day minimum waiver for 'Relief for Cause' NCOER," but depicts a sample memorandum for a "Relief for Cause Evaluation Report Directed by an Official Other than Rater or Senior Rater." The actual sample format for a 30-day minimum waiver for "Relief for Cause" NCOER" is located at figure 3-3 which is entitled "Sample format for a 'Relief for Cause' directed by nonrating official memorandum."

         g. Paragraph 4-2 states that an NCOER may have administrative errors or may not accurately record the rated Soldier's potential or the manner in which he or she performed his or her duties. The Redress Program protects the Army's interests and ensures fairness to the evaluated NCO. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause.
A Commander's Inquiry (CI) and an evaluation report appeal are separate and distinct actions. Rated Soldiers may seek an initial means of redress through a CI; however, a CI is not a prerequisite for the submission of an appeal.

         h. 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.

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DISCUSSION AND CONCLUSIONS:

1. The applicant contends the contested NCOER should be removed from his OMPF because the rater and senior rater did not have the minimum 30-day amount of time in his rating chain required to write the report and the rating chain did not obtain a waiver for the 30-day minimum rating requirement from the first general officer in the chain of command prior to rendering the NCOER.

2. Evidence shows the applicant was initially assigned to E Company, 2d Battalion, 47th Infantry Regiment, 192d Infantry Brigade, Fort Benning, in 2010.

3. Permanent orders show that E Company, 2d Battalion, 47th Infantry Regiment, 192d Infantry Brigade was inactivated effective 20 July 2012.

4. The evidence of record shows the applicant was issued a GOMOR by the CG, Headquarters, U.S. Army Signal Center of Excellence and Fort Gordon, on 10 August 2012. The CG reprimanded the applicant for misconduct on 21 July 2012, when he was apprehended for DUI on Fort Gordon while on temporary duty attending the Senior Leader Course. The standard name line of the GOMOR shows the applicant was assigned to C Company, 2d Battalion, 47th Infantry Regiment, 192d Infantry Brigade on the date the GOMOR was rendered.

5. The applicant's ERBs, dated 29 August 2012 and 28 July 2014, each show he was assigned to C Company, 2d Battalion, 47th Infantry Regiment, 192d Infantry Brigade on the date of his misconduct. Therefore, it appears that in anticipation of the inactivation of E Company, 2d Battalion, 47th Infantry Regiment, the applicant was reassigned to C Company within the same battalion.

6. The fact that the applicant did not work for his rater and senior rater for at least 30 days and it appears no waiver was granted for this procedural requirement is duly noted. It is also acknowledged that the applicant's civil court case was dismissed based upon the technicality that the arresting officer failed to appear in court on the scheduled date. However, neither of these technicalities is sufficiently mitigating to warrant eradicating the applicant's misconduct.

7. Evidence clearly shows he committed an offense for which he was reprimanded by a General Officer. Evidence also shows the applicant's misconduct was the catalyst for the termination of his status as a Drill Sergeant, the termination of his SDAP, removal of his SQI, and the revocation of his authority to wear the Drill Sergeant Identification Badge in accordance with Army policies. The fact that the orders for these actions were authenticated by the Adjutant General, USAMCE indicates the CG was well aware of the applicant's case.
8. In view of the foregoing, a Relief for Cause NCOER was required to properly document the applicant's removal from Drill Sergeant status. The inactivation of his previous unit was the cause for the change in his rating chain.

9. The contested NCOER was rendered for the 30-day period of 30 June to 30 July 2012 and signed by the C Company rating chain on 23 August 2012.

10. The contested NCOER is properly filed in the performance section of the applicant's OMPF.

11. There is no evidence of record that shows the applicant took timely action to request a CI 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.

12. 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.

13. 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 folder 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

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.