IN THE CASE OF:	  

		BOARD DATE:	  7 January 2015

		DOCKET NUMBER:  AR20140018543 


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 removal of the Noncommissioned Officer Evaluation Report (NCOER) for the rating period 18 September 2009 through 15 December 2010 from his Official Military Personnel File (OMPF).  In the alternative, he requests transfer of this NCOER to the restricted folder of his OMPF.

2.  The applicant states this NCOER is unjust, inaccurate, and untrue.  It will negatively affect his career if it is not removed.  He contends:

* while his NCOER shows 8 rated months in Part Ii (Administrative Data - Rated Months), he fell under his rater for only 4 months because he was in the Ranger training pipeline
* he was told by his rater the reason he was given a "No" for Selfless Service (Part IVa(4) (Army Values/Attributes/Skills/Actions - Army Values - Selfless Service)) was because he (the applicant) had requested reassignment from the 75th Ranger Regiment
* Part IVb (Values/NCO Responsibilities), the rater placed an "X" in the "Needs Improvement (Some)" block, in part, because he failed to earn an Expert Infantryman Badge (EIB), but this was only because his attendance in Ranger School prevented him from completing weapons qualification
* also in Part IVb, the rater states the applicant lacked the ability to make sound and timely decisions and routinely performed below his potential; the applicant was never counseled on this
* Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Much)" block and states in comments the applicant had requested reassignment; he had only done so because he felt he was being singled-out and treated unfairly
* the last two bullets in Part IVd say he placed his needs before those of his men and fostered an environment of complacency and underachievement, but the report goes on to contradict these comments in Part IVe (Training) and Part IVf (Responsibility & Accountability) by stating he led his team during Fixed Wing Multi-Lateral Training Exercise, demanded his Soldiers maintain responsibility for their equipment, and aided in their growth and professional development
* Parts IVe and IVf showed ratings of "Excellence" and "Success," respectively
* Part Vb (Rater - List 3 positions in which the rated NCO could best serve the Army at his/her current or next higher grade), listed a position in which he had already been serving during the rated period
* senior rater comments in Part V (Overall Performance and Potential) are not consistent with the ratings of "Fair/4" in Part Vc (Overall Performance and Potential – Senior Rater – Overall Performance) and Part Vd (Overall Performance and Potential – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility)
* despite his concerns at the time about the report, he was told to "just sign the NCOER" and his rating would not matter because he was a sergeant/E-5; no one would ever see the report

3.  The applicant provides:

* contested NCOER
* 2 course completion diplomas
* 3 certificates of training
* 3 certifications of graduation
* 1 letter of support

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 July 2006 and held military occupational specialty 11B (Infantryman).  He served in a variety of assignments, including a combat deployment in Iraq, and he was/is:

* promoted to sergeant (SGT)/E-5 on 1 April 2009 
* promoted to staff sergeant/E-6 on 1 March 2012
* awarded 2 Army Commendation Medals, 6 Army Achievement Medals, the Combat Infantryman Badge, the Parachutist Badge, Ranger Tab, and Sapper Tab
* currently attending the Special Forces Qualification Course, U.S. Army John F. Kennedy Special Warfare Center, Fort Bragg, NC

2.  His records also show: 

* he graduated from Airborne training on 30 October 2009
* he successfully completed a series of training courses within the 75th Ranger Regiment between January 2010 and May 2010
* on 5 March 2010, he successfully completed the Ranger Assessment and Selection Program, Level One
* on or about 28 June 2010, he entered the Ranger School and graduated on 27 August 2010

3.  On 15 March 2011, he received the contested NCOER, a Change of Rater NCOER covering the rating period 18 September 2009 through 15 December 2010 for his duties as team leader while assigned to A Company, 3rd Battalion, 75th Ranger Regiment, Fort Benning. 

4.  This NCOER shows he was rated for 8 months and assigned the Code "S" for the non-rated time.  His rater was his squad leader, his senior rater was his platoon sergeant, and his reviewer was his platoon leader.  The NCOER shows the following entries:

	a.  In Part Iva(4) the rater placed an "X" in the "NO" block and entered the following bullet comments:

* displays good conduct both on and off duty
* totally honest in word and deed
* placed his needs before those of his men and unit

	b.  In Part IVb, the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments:

* did not earn the coveted EIB by failing to meet the prerequisites for testing
* lacks the ability to make sound and timely decisions
* routinely performed below his potential and peer group

	c.  In Part IVd, the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments:

* requested reassignment from the unit two months prior to a combat rotation to Operation Enduring Freedom
* placed his needs before the unit's mission and the welfare of his men
* fostered an environment of complacency and underachievement within his team

	d.  In Part IVe, the rater placed an "X" in the "Excellence" block and entered the following bullet comments:

* graduated the demanding United States Army Ranger School
* led his team during Fixed Wing Multi Lateral Training Exercise
* conducted duties as a Fast Rope Insertion and Extraction System (FRIES) Master during Rotary Wing training without incident

	e.  In Part IVf, the rater placed an "X" in "Success" block and entered the following bullet comments:

* demands that Soldiers maintain responsibility for equipment and holds them accountable
* aided in the growth and professional development of his men by conducting formal monthly counseling sessions
* accepts responsibility for his actions

	f.  In Part Va (Overall Performance and Potential - Rater), the rater placed an "X" in the "Marginal" block and in Part Vb, the rater listed the three duty positions as team leader, fire team leader, and battalion schools NCO.

	g.  In Parts Vc and Vd, the senior rater placed an "X" in the "Fair/4" block, and in Part Ve (Overall Performance and Potential – Senior Rater Bullet Comments) the senior rater entered the following bullet comments: "promote to staff sergeant with peers," "send to Advanced Leader Course (ALC) at earliest convenience," and “possesses limited potential to serve in positions of greater responsibility.”

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

6.  There is no available evidence that shows the applicant requested a Commander's Inquiry into the contested NCOER.  Similarly, there is no indication the applicant appealed the contested NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board.

7.  His OMPF contains each of his NCOER's.  With the exception of the contested NCOER, all other reports are favorable.  With regard to the other four reports contained in his OMPF, he was assigned to units other than the one to which he was assigned to during the period covered by the contested NCOER.  

8.  All four of the remaining reports show a "Yes" for selfless service under Army Values.  In two of these four reports, he received "Excellence" ratings for leadership, with a rating of "Success" in the other two.  In three reports, he received a rating of "Among the Best" for the rater's evaluation of overall potential for promotion and/or service in positions of greater responsibility; the remaining report shows "Fully Capable."  Two reports show the senior rater's evaluation of his overall performance was "Successful/2" and the other two show "Successful/1."  All four reports show the senior rater rating for overall potential for promotion and/or service in positions of greater responsibility as "Superior/1."

9.  The applicant provides 1 letter of support, which essentially states:

* he was a fellow team leader with the applicant during the period in question and the applicant came into a high-tempo environment with little or no guidance from his superiors
* the applicant showed himself to be a competent leader who made safe and proficient decisions
* he was unable to earn the EIB because he was not given the chance to complete weapons qualification
* the applicant was never complacent; rather he constantly strove to improve himself, then pass on what he had learned to his subordinates
* he asked to leave the unit 2 months before combat deployment because he knew, given the command climate, he would not be treated fairly
* guidance for the applicant was insufficient and never handled professionally; instead it was more like hazing
* he never observed the applicant receiving either a negative counseling or corrective training; instead of being set up for success, he was set up for failure

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.

	a.  Paragraph 1-9 provides that evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the 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 Pamphlet 623-3 (Evaluation Reporting System).  Consideration will be given to the relative experience of the rated NCO, the efforts made by the rated NCO, and the results that could be reasonably expected given the time and resources available.

	b.  Paragraph 2-10 (The rated individual) states normally, to be eligible for an evaluation report, the Soldier must complete 90 calendar days in the same position under the same rater.

	c.  Paragraph 3-2i (Evaluation Report Requirements) states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On the one hand, this evaluation will give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions.

	d.  Paragraph 3-39 (Modification to Previously Submitted Reports) states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the 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.

	e.  Chapter 6 contains guidance pertaining to the Evaluation Redress Program.

	f.  Paragraph 6-7 provides that evaluation reports accepted for inclusion in a Soldier's official record 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.

	g.  The rated Soldier or other interested parties who know the circumstances of a rating may appeal any report they believe is incorrect, inaccurate, or in violation of the intent of this regulation.  An appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.

	h.  Paragraph 6-8b states substantive appeals will be submitted within 3 years of the NCOER THRU date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.

	i.  Paragraph 6-11a provides that the burden of proof rests with the appellant. 
Accordingly, to justify deletion or amendment of a report, the appellant will 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.

	j.  Paragraph 6-11b provides that clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

	k.  Paragraph 6-11d provides 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 Soldier or rating officials who have knowledge of the rated Soldier'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 first-hand 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested NCOER was unjust, untrue and inaccurate based upon:

	a.  The number of rated months appears to have been inaccurately shown; however, the minimum 90 calendar day requirement for an evaluation report was nonetheless met.  The code "S" was properly assigned to indicate his attendance at service schools. 

	b.  The rating of "No" for selfless service in Part IVa(4), according to what he was told by his rater, did not only result from his request for reassignment which is mentioned in Part IVd; the rater also stated the applicant placed his needs before those of his men in the unit.  This bullet supports a "No" rating for the Selfless-Service value. 
	c.  Part IVb states in the comments he failed to earn the EIB by not meeting prerequisite, and the applicant maintains this was only because his attendance at Ranger School prevented him from completing requirement; however, there is insufficient evidence to confirm this.

	d.  He maintains he was not counseled on the comments in Part IVb; however, the NCOER shows two counseling sessions took place (1 September 2010 and 30 November 2010) prior to the THRU date of the NCOER; no record of either counseling, however, is available to validate what was or was not discussed.

	e.  He identifies inconsistencies in the comments found in Part IVd and Part IVe/Part IVf; and while the comments do appear somewhat inconsistent, this appearance does not provide sufficient evidence upon which to base the removal of the NCOER 

2.  Paragraph 6-7, Army Regulation 623-3, provides evaluation reports accepted for inclusion in a Soldier's official record are presumed to administratively correct and to reflect the considered opinion and objective judgment of rating officials at the time of the rating.  In order justify deletion or amendment of a report, the applicant 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 applicant.

3.  The governing regulation states evidence should include statements from third parties, rating officials, or other documents from official sources.  Third parties are persons other than the rated Soldier or rating officials who have knowledge of the rated Soldier'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 first-hand the appellant's performance as well as interactions with rating officials.  The applicant provides 1 letter of support which essentially confirms his contentions.  It is insufficient to meet the standard of clear and convincing evidence of a strong and compelling nature.

4.  While arguably the report could be seen as colored by the applicant's efforts to be reassigned from his unit, absent are third-party statements having knowledge of the applicant's performance during the rating period.  Absent this, as well as the foregoing lack of clear and convincing evidence, there are insufficient grounds upon which to grant either the removal of the NCOER, or its transfer to the restricted file of his OMPF.

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)                                         AR20140018543





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ABCMR Record of Proceedings (cont)                                         AR20140018543



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