IN THE CASE OF:  	  

		BOARD DATE:  19 February 2015	  

		DOCKET NUMBER:  AR20140017940 


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 18 August 2008 (hereafter called the contested NCOER) be removed from his Official Military Personnel File (OMPF).

2.  The applicant states:

* he requests that the NCOER be removed from his OMPF due to the findings of the Department of the Army Inspector General (DAIG) investigation that concluded in May 2014
* the investigation concluded the NCOER was an incorrect characterization of his performance and potential and it was in violation of Army Regulation 623-3 (Evaluation Reporting System) 
* the NCOER should be removed so that it will not impact future consideration for sensitive positions
* the NCOER was an incorrect characterization of performance and only done through abuse of authority to tarnish an otherwise excellent military career due to conflicting personalities
* upon discovery of the incident/errors he filed an official complaint
* he was advised that until the investigation was concluded the record must stand until it was determined it was done erroneously or incorrectly

3.  The applicant provides the contested NCOER and a DAIG report, conclusions, and findings. 

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the Regular Army, the applicant enlisted in the U.S. Army Reserve (USAR) on 1 April 2006.  On 26 April 2012, he was ordered to active duty in an Active Guard Reserve status.  He is currently serving in an active duty status and in the rank of sergeant first class (SFC)/pay grade E-7.  

2.  The contested NCOER is filed in the performance section of his OMPF.  It covers the period 1 December 2007 through 18 August 2008, and it shows he was evaluated for his principal duty as an Operations NCO assigned to the 418th Military Police Detachment, Orlando, FL.  He was a staff sergeant/pay grade E-6 during the rating period.  On 16 August 2011, the rater (an SFC), senior rater (a master sergeant/pay grade E-8), and reviewer (a lieutenant colonel/O-5) signed the NCOER.  The reviewer concurred with the rater and senior rater evaluations.  The applicant did not sign the NCOER.  It shows in:

	a.  Part IVa (Army Values/Attributes/Skills/Actions his rater checked "Yes" for all items except "Duty," where the rater checked "No.“  In part IVb (Values/NCO Responsibilities), items c and d, his rater marked the boxes for "Success."  For items e and f his rater marked the boxes for "Needs Improvement," Item IVf shows he failed to attend 22 of 36 multiple unit training assemblies (MUTA) and his lack of involvement as Operations NCO and Training NCO did not set the unit up for success.  

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

	c.  Part Vc (Senior Rater - Overall Performance), his senior rater marked the box for "4" rating him as "Fair."

	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 – 

* Soldier failed to understand the importance of the Operations NCO position relying on others to perform his duties
* difficult to judge Soldier’s performance due to limited attendance at battle assemblies
* Soldier is not a good candidate at this time for advanced schooling
* Soldier is not available for signature due to unit transfer

3.  Upon completion of the investigation into the events and circumstances surrounding the applicant’s allegation of reprisal, the DAIG approved a Report of Investigation Inquiry (ROII).  The ROII found the allegations to be unsubstantiated.  It recommended:

* approval of the ROII and amendment and close the case
* that the applicant coordinate with his servicing Human Resource office to provide a true, certified copy of his NCOER (thru date of 20071130) for processing by the U.S. Army Human Resources Command Evaluations Branch
* no follow-up action be taken
* he use the ABCMR redress process regarding the unfavorable NCOER 

4.  On 30 May 2014, the DAIG office advised him of the results its ROII into his reprisal allegations conducted under Title 10, U.S. Code, Section 1034 (Military Whistleblower Protection Act).  The report found:

     a.  His allegations of reprisal were not substantiated.

     b.  The report stated that the IG, Department of Defense (DOD), conducted a thorough review of their inquiry and agreed with their conclusions.  It stated that they had closed his case from further consideration under the Whistleblower Protection Act.  It noted that his NCOER was an incorrect characterization of performance and potential and the report was not processed in accordance with Army Regulation 623-3.  Specifically:

Sub-paragraph 1-11 states that "command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.”  The rater and the senior rater based their NCOER comments solely on his lack of attendance the 418th MP Detachment training assemblies and that he did not complete any work for them.  The RMOs did not contact the higher headquarters of his new unit, Detachment 6 CENTCOM J2, even though it was located in the building next door to the 418th MP Detachment.  Neither the rater nor senior rater provided any written, event oriented, or performance counseling to him concerning his performance or lack thereof, during the rating period.  Therefore they did not conduct his NCOER counseling in accordance with AR 623-3.  Finally, the NCOER was not prepared and submitted to HRC within the prescribed timeframe of 90 days following the thru date of the rating period.  

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

	a.  Paragraph 3-7b(2)(c) states the rater will assess the performance and potential of the rated NCO using all reasonable means to prepare a fair and correct report that accurately reflects an evaluation of the NCO’s duty performance, values, NCO responsibilities, and potential.  

	b.  Paragraph 3-9b(3)(a) states the senior rater will prepare an honest, fair, and correct report evaluating the NCO’s duty performance and potential.

	c.  Paragraph 3-10 states the reviewer has the overarching role of validating the accuracy of NCOERs and instilling fairness within the evaluation process.  The reviewer will ensure that evaluations are rendered by the proper rater and senior rater (in accordance with the established rating scheme) and they are clear, consistent, and just, based on known facts.

	d.  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.  

		(5) Paragraph 4-13 states a decision to appeal an evaluation report will not be made lightly.  The prospective appellant will note, in part, that pleas for relief citing past or subsequent performance or assumed future value to the Army are rarely successful.  

DISCUSSION AND CONCLUSIONS:

1.  An NCOER accepted for inclusion in the official record of a Soldier 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 rating officials at the time of preparation.

2.  Although the U.S. Army Human Resources Command accepted and filed the contested NCOER, the governing regulation requires that the rater and senior rater assess the performance and potential of the rated NCO using all reasonable means to prepare a fair and correct report that accurately reflects an evaluation of the NCO’s duty performance, values, NCO responsibilities, and potential.  

3.  The evidence shows the applicant filed a complaint under the Whistleblower Protection Act.  An investigation found his allegations to be unsubstantiated.  However, the investigation did find that his NCOER was an incorrect characterization of performance and potential and the report was not processed in accordance with the governing regulation.  

4.  The applicant should not be penalized for his rating officials' failure to follow guidelines as prescribed by the governing regulation.  As a result, it is only fair that the contested NCOER be removed from his OMPF and replaced with a statement reflecting this period as non-rated.





BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 removing the NCOER for the period 1 December 2007 through 18 August 2008 from his OMPF and placing a statement of non-rated time in his OMPF.



      _______ _   _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)                                         AR20140017940



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ABCMR Record of Proceedings (cont)                                         AR20140017940



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