IN THE CASE OF:	  

		BOARD DATE:	  13 October 2014

		DOCKET NUMBER:  AR20140016579 


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 his relief for cause noncommissioned officer evaluation report (NCOER) for the rating period February 2006 through May 2006 (hereinafter referred to as the contested NCOER) be removed from his Official Military Personnel File (OMPF).

2.  The applicant states he never received a relief for cause NCOER for the period covered by the contested NCOER.  Additionally, the signatures in Part II (Authentication), in item c (Rated NCO) and item d (Name of Reviewer) of the contested NCOER, are forgeries.  Neither he nor the listed reviewer signed the contested NCOER.

	a.  He discovered this NCOER was in his record in December 2010 when he was reviewing his promotion packet for the sergeant first class (SFC)/E-7 promotion board, scheduled to convene in February 2011 (Fiscal Year 2011 (FY11)).  He could not appeal the NCOER because it had been more than 
3 years.  Unfortunately, his promotion packet was submitted to the U.S. Army Human Resources Command (HRC) with the contested NCOER.  He was not selected for promotion.

	b.  In May 2014, he was selected to go to the Drill Sergeant Course.  However, while in the course, he was released because of unfavorable information in his OMPF.  He went to see legal and was informed he could still appeal the NCOER if he came to the Army Board for Correction of Military Records (ABCMR).  

3.  The applicant provides:

* Department of the Army (DA) Form 2166-8 (NCOER), for the rating period February 2006 through May 2006 (front only)
* Memorandum, dated 12 May 2014
* Information paper 
* Curriculum Vitae
* Letter, dated 11 June 2014
* Forensic Document Examination Report, dated 11 June 2014
* Statement, dated 27 August 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 March 2002 and has served through a series of reenlistments or extensions.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 1 January 2005 and the rank/grade of staff sergeant (SSG)/E-6 on 1 August 2008.  Additionally, he holds the primary military occupational specialty (PMOS) of 31B (Military Police).

2.  The contested NCOER for the rating period February 2006 through May 2006 shows in:

	a.  Part I (Administrative Data):

		(1)  Item g (Reason for Submission) was listed as "Relief for Cause."

		(2)  Item l (Rated NCO Copy (Check one and Date)) contains two block marks, block 1 (Given to NCO) and block 2 (Forwarded to NCO).  Blocks 1 or 2 were both left blank; however, the date was entered as 1 June 2006.

	b.  Part II (Authentication):

		(1)  Item a (Name of Rater/Social Security Number (SSN)/Signature/Rank, Primary MOS (PMOSC)-Branch, Organization, Duty Assignment) shows the rater's name listed as SSG BP.  The rater's signature appears to match his name.

		(2)  Item b (Name of Senior Rater/ SSN/Signature/Rank, PMOSC-Branch, Organization, Duty Assignment) shows the senior rater's name was listed as first lieutenant (1LT) GWS.  The senior rater's signature appears to match his name.  

		(3)  Item c (Rated NCO/Signature) contains a signature.  However, while this signature does match his name, it does not, after comparing the signature on the NCOER to the applicant's signature on other documents throughout his OMPF, appear to be the applicant’s signature/handwriting.  The documents reviewed include his:

* DA Forms 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 5 March 2002, 10 November 2004, 26 October 2009, 6 May 2011, and 19 October 2012
* NCOERs for the rating periods February 2005 through May 2005, June 2005 through January 2006, and 1 June 2006 through 31 May 2007

		(4)  Item b (Name of Reviewer/ SSN/Signature/Rank, PMOSC-Branch, Organization, Duty Assignment) shows the reviewer's name was listed as (executive officer (XO)) ZDK.  The reviewer's signature does not appear to match his name.  The applicant's senior rater, 1LT GWS, appears to have signed his name in the reviewer's signature block.  However, this signature is only slightly similar to the senior rater's signature in item b.  The documents reviewed include the applicant's NCOER for the rating period June 2005 through January 2006.

	c.  Part III (Duty Description) shows the applicant was serving as a Squad Leader.

	d.  Part IV (Values/NCO Responsibilities), item f (Responsibility and Accountability), shows his rater checked the "Needs Improvement (Some)" block and stated "rated NCO has been relieved for having two negligent discharges to his personally assigned weapon."

	e.  Part V (Overall Performance and Potential) shows in:

		(1) His rater indicated he was "Fully Capable" and recommended the applicant serve as a "Team Leader… Squad Leader… Recruiter."

		(2)  His senior rater indicated his overall performance was "2-Successful" and his overall potential for promotion and positions of greater responsibility was "1-Superior."

3.  His record contains a certificate for award of the Army Achievement Medal for meritorious service during the period of 9 December 2005 through 28 November 2006.

4.  His OMPF does not include any letters of reprimands (LOR), nonjudicial punishments (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), or any other allied documents or evidence referring to the entry in Part IVf of the contested NCOER, which indicated he was relieved for cause "…for having two negligent discharges to his personally assigned weapon."

5.  He was considered by the FY11 SFC Promotion Selection Board, which convened on 3 February 2011; however, he was not selected for promotion by this board.

6.  He provided a memorandum, dated 12 May 2014, showing he was being released from the Drill Sergeant Course, in effect, based on a Type II unfavorable report, or in effect, his contested NCOER.

7.  His record contains Orders 148-43, issued by Headquarters, U.S. Army Training Center, Fort Jackson, SC, on 28 May 2014, showing he was awarded the PMOS 31B3XP5YY (drill sergeant identifier) and withdrawing PMOS 31B3OP5YY, effective 11 June 2014.

8.  His record contains Orders 198-40, issued by Headquarters, U.S. Army Training Center, Fort Jackson, SC, on 17 July 2014, revoking his PMOS 31B3XP5YY.

9.  He provided a report, dated 11 June 2014, showing he had the handwriting in his signature block of the contested NCOER analyzed by a forensic document examiner who stated "there were numerous dissimilarities in the individual handwriting characteristics noted, such as -- combinations of features including but not limited to, letter designs, height ratios, alignment and line quality, and other nuances between the comparison signatures and the questioned signature… [The applicant] did not sign" the contested NCOER.

10.  He provided a statement from ZDK, dated 27 August 2014.  Mr. ZDK, who was listed as the reviewer on the contested NCOER, signed a notarized document stating, in effect, the signature listed in the reviewer’s signature block of the contested NCOER was not his signature. 

11.  Army Regulation 623–205 (Noncommissioned Officer Evaluation Reporting System (NCOERS)):

	a.  Paragraph 3–8, Part II (Authentication) states that Part II is for authentication by the rated NCO and rating officials after they have completed their portions of the form at the end of the rating period.  Parts IIa (Name of Rater), b (Name of Senior Rater), and d (Name of Reviewer) are self-explanatory.  In Part IIc., the rater will verify parts I and II.  The senior rater will obtain the rated NCO’s signature or enter the appropriate statement "NCO refuses to sign" or "NCO unavailable for signature."  The rated NCO’s signature verifies that he or she has seen the completed report (except part IId and e), the administrative data (part I) is correct (except Part Ik through o), the rating officials are proper (part II), the duty description is accurate (part III) and includes the counseling dates, the APFT and height/weight entries are correct (part IVc), and that the rated NCO is aware of the appeals process.  The reviewer has overall responsibility for ensuring the timely submission of an accurate DA Form 2166-8 in accordance with controls established by the commander.  In Part IIe (Concur with Rater and Senior Rater Evaluation/Nonconcur with Rater and/or Senior Rater Evaluation), the reviewer places a typewritten or handwritten (in black ink) "X" in the appropriate block, indicating concurrence or nonconcurrence.  NOTE: Nonconcurrence enclosure is mandatory.  Additionally, the reviewer will ensure the rated NCO is provided a copy of the nonconcurrence enclosure.

	b.  Paragraph 6-6 (Evaluation reports and appeals) states appeals based on claims of administrative error pertain to parts I, II, and IVc of the DA Form 
2166-8.  Administrative errors include deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the report period, and errors in the height/weight.  The rated NCO’s signature verifies the information in part I.  It also confirms that the rating officials named in part II are those established as the rating chain.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated NCO (parts I, II, and IVc) will be accepted only under the most unusual and compelling circumstances. The rated NCO’s signature also verifies the rated NCO has seen a completed NCOER minus parts IId and e.  Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation.  Appeals alleging bias, prejudice, inaccurate, or unjust ratings, or any matter other than administrative error are substantive and will be adjudicated by the Enlisted Special Review Board (ESRB).  Claims of inaccuracy of a substantive type pertain to parts III, IV, and V of the DA Form 2166-8.

	c.  Paragraph 6–8 (Processing and resolution) states an appeal may be approved in whole or in part, or may be denied, depending upon the merits of the case.  The result of a partially approved appeal may not be the result requested by the appellant.  When the board grants an appeal, either in whole or in part that results in the removal or substantive alteration of an evaluation report that has already been seen by one or more promotion boards that previously failed to select the appellant, the Board will make a determination whether promotion reconsideration by one or more special boards is justified.  

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides the Army's enlisted promotion policy.  Chapter 4 contains guidance on the centralized promotion process for promotion to SFC.  It states, in part, that Soldiers will be selected for promotion to SFC by a centralized DA Promotion Selection Board, based on the best qualified as determined through the collective best judgment of the promotion board members.  Chapter 4 also provides guidance on the processing of Standby Advisory Board (STAB) requests.  It states, in part, that STABs are convened to consider records of those Soldiers whose records were not reviewed by a regular board, or whose records were not properly constituted, due to material error, when reviewed by the regular board. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested NCOER should be removed from his record because he never received a copy, had not seen the NCOER until 2010, he did not sign the NOCER, his signature is a forgery, and his reviewer did not sign his NCOER.

2.  The contested NCOER contains several errors and inconsistencies, some of which cannot be simply or clearly classified as administrative in nature.

	a.  The absence of a block mark indicating that the contested NCOER was given or forwarded to the applicant lends weight to the argument that he never received a copy of the NCOER or saw the NCOER in any capacity prior to his records review in preparation for the E-7 board.  However, this error is the only purely administrative error.

	b.  His senior rater's signature appears in two blocks, that of the senior rater and that of the reviewer.  However, the senior rater's signature in the reviewer's block appears "similar."  Upon close inspection, the second signature in the reviewer's block, contains significant differences and the argument could be made that someone other than the senior rater affixed the senior rater's signature to the reviewers signature block.  

	c.  Regardless of whether or not the senior rater's second signature was authentic, it is clear that the reviewer did not sign or review this document. Furthermore, since he did not sign the document, it is also clear that he did not review the document or have the opportunity to either concur or nonconcur with the rater or senior rater evaluations and, therefore, could not have checked a block indicating that he concurred with the evaluations.  As such, the reviewer's signature and the block mark indicating he did concur is invalid.

3.  A forensic document examiner/handwriting examiner reviewed several samples of the applicant's signature and based on his examination concluded that the signature affixed in the rated NCO signature block, was not the applicant’s signature.  More plainly, the applicant did not sign the contested NCOER; someone else forged his signature.  Furthermore, after a close examination of several documents included in the applicant’s OMPF, the analyst of record concurs with the forensic examiner's assessment.

4.  The errors in the contested NCOER are of a substantive nature because neither the rated NCO nor the reviewer saw or signed the evaluation prior to it being filed and neither of them signed the document.  Furthermore, his records do not contain any other evidence, such as NJP or a letter of reprimand, referring to the incident that resulted in his relief for cause NCOER.  The absence of other documentation calls the entire NCOER into question.  The type of errors in this NCOER are not accidental; they appear to have been perpetrated with the intent to deceive. As such, this NCOER should be removed from his OMPF in its entirety and replaced with a statement of nonrated time.

5.  The applicant was considered by the FY11 and subsequent SFC Promotion Selection Boards; however, he was not selected for promotion by these boards.  The evidence shows the contested NCOER was present in his OMPF for each of these boards, and its presence constituted a material error.  Accordingly, he is entitled to reconsideration for promotion to SFC by a STAB for FY11 and each subsequent promotion board for which he was considered but not selected.

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:

	a.  removing the NCOER for the rating period February 2006 through May 2006 from his OMPF and replacing it with a statement of nonrated time.

	b.  submitting his corrected record to a duly-constituted Standby Advisory Board for promotion consideration to sergeant first class under the criteria followed by the FY11 and any subsequent promotion selection board(s) that previously considered but did not select him for promotion to SFC.
		(1)  If he is selected for promotion by the Standby Advisory Board and he is otherwise qualified, his record should be corrected by establishing his sergeant first class promotion effective date and date of rank as if he had been originally selected under the earlier criteria identified by the Standby Advisory Board, and by providing him all back pay and allowances due as a result.  

		(2)  If he is not selected for promotion by the Standby Advisory Board, he should be so notified by the appropriate U.S. Army Human Resources Command promotion officials.  



      _______ _   _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)                                         AR20140016579





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ABCMR Record of Proceedings (cont)                                         AR20140016579



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