IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140020677 


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 the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 10 July 2011 through 29 February 2012 (hereafter referred to as the contested NCOER) be removed from his Official Military Personnel File (OMPF).

2.  The applicant further requests that if the contested NCOER is not removed from his OMPF that it be masked or amended in:

* Part IVd (Leadership) and Part IVf (Responsibility & Accountability) to show the rater marked the "Success" blocks vice the "Needs Improvement" blocks
* Part Vc (Senior Rater - Overall Performance) to show the senior rater marked the "2 - Successful" block vice the "4 - Fair" block
* Part Vd (Senior Rater - Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) to show the senior rater marked the "2 - Superior" block vice the "4 - Fair" block 

3.  The applicant states:

	a.  In the Enlisted Special Review Board (ESRB) Record of Proceedings (ROP) it stated that he was not seen for [medical] treatment during the rating period of the contested NCOER.  However, he is providing documentation that shows he was seen and prescribed medication during that period.  The ESRB also determined that he voluntarily choose not to attend weekly individual or group sessions as recommended by psychologist and that his last contact with Behavioral Health (BH) was in 2011, a month before the beginning of the rating period.  However, he is providing documentation that shows he did not choose to not attend group therapy but was on permanent change of station (PCS) orders to the 224th Medical Detachment, Fort Hood, TX.

	b.  In addition, he was not properly counseled.  Although a DA Form 4856 (Developmental Counseling Form) is an effective tool to use when counseling corporals through command sergeants major (CSM), in accordance with Army Regulation 623-3 (Evaluation Reporting System) raters will mandatorily use the DA Form 2166-8-1 (NCOER Counseling and Support Form) to conduct and record performance counseling with the rated NCO.  In addition, during the rating period he was promoted to staff sergeant (SSG) which meant the monthly commander’s (CDR’s) report was circled yes to promoting him for 6 months by his senior rater.

	c.  Before his arrival at Fort Hood and prior to the rating period of the contested NCOER, he was diagnosed with insomnia and depression and medicated with Paxil and Trazodone.  He let his physician know the medication was too strong and he was instructed to cut the pills in half.  The medication had side effects that made it difficult for him to conduct day-to-day operations so he stopped taking it.  He started to have headaches, became ill, and had trouble concentrating and focusing on work.  He consulted a nurse hotline and was instructed on how to properly wean himself off the medication.  On 19 September 2011, at Fort Hood, he was issued new medication and took it in smaller and smaller amounts.  He attempted to make an appointment with BH but was unable to do so because of the tempo of the mission.  

	d.  After reading a Soldier Risk Assessment Form, he was confronted by his rater, Sergeant First Class (SFC) LDH, about some of the blocks he had checked.  He explained that he had been checking the blocks on depression since his assignment to the 224th Medical Detachment on 10 July 2011.  SFC LDH was the Detachment Sergeant and due to surgery and school she was unavailable to adequately evaluate him.  The only source of information she had for his NCOER was the counseling he received from the CDR on a DA Form 4856. This counseling was not properly closed out with a follow-up assessment.  If he had been counseled on a DA Form 2166-8-1, it would have given him very clear and specific tasks and/or objectives and left no doubt in his mind about expectations.

	e.  Given that SFC LDH was not physically present and he was not properly counseled, the contested NCOER was unfair and unjust.  The NCOER was sent to the U.S. Army Human Resources Command (HRC) four times due to changes. He was counseled by SFC LDH that he was getting a low rating so his next NCOER would show drastic improvements.  The NCOER he was counseled on was not a 4/4 in Part Vc but a 4/3.  He was called in off leave to sign the NCOER and had signed it three times prior to signing the final copy.  He had no idea he was rated by his senior rater as 4/4 and only discovered it in November 2013 while preparing for a board.

	f.  In Part IVd of the contested NCOER his rater marked the "Needs (Some) Improvement" block.  The bullet comment stated that he did not provide leadership during Sergeants Time Training (STT) and Army Warrior Training (AWT) as needed for subordinate Soldiers.  This comment was incorrect because he was not in charge of either task.  It was also stated that he lacked understanding of implied tasks during critical field training exercises (FTX) or situational training exercises (STX) and that he did not consider the welfare of subordinate Soldiers.  However, the unit did not have a standing operating procedures (SOP) in place and during the STX they were told the lunch menu would be Meals Ready to Eat (MRE).  He informed his Soldier, Specialist (SPC) JEV, of the meal option and he declined to eat the MRE and elected to eat later.  When asked if he had eaten by SFC LDH, SPC JEV said no and because of that, he was counseled.

	g.  In Part IVf, his rater marked the "Needs (Some) Improvement" block and commented that he did not take adequate responsibility for STT preparation and required constant follow-up to complete assigned tasks.  These comments are incorrect because he was not informed of the STT and always kept his chain of command informed.  There are no NCO support forms to support the information.

	h.  In Part Va (Overall Performance and Potential – Rater) the "Marginal" block was checked.  Based on his performance counseling assessment plan of action, the NCO in charge (NCOIC) stated his area had improved and that he was performing as expected.  In Part Vc and Part Vd, his senior rater marked the "4 – Fair" blocks; however, he should have marked the "3 – Superior" blocks.

3.  The applicant provides:

* DA Form 2166-8, for the rated period 10 July 2011 through 29 February 2012
* DA Form 4856
* nine pages of medical records, dated between 22 December 2010 and 24 February 2012
* two orders, dated 14 April 2011 and 2 December 2011
* three pages of email, dated between 6 and 7 March 2012
* two memoranda to HRC, dated 12 September and 3 December 2013 
* an ESRB ROP, dated 10 July 2014
* a memorandum of record to the Department of the Army Centralized Promotion Board, dated 18 August 2014

CONSIDERATION OF EVIDENCE:

1.  Having had prior Reserve service, the applicant enlisted in the Regular Army on 17 May 2001 in the rank/grade of SPC/E-4 and he held military occupational specialty 68S (Preventive Medicine Specialist).  In July 2011, he was assigned to the 224th Medical Detachment, Fort Hood, TX.  

2.  The applicant provides a DA Form 4856, dated 19 September 2011, wherein he was counseled by the detachment CDR, Major PDL.  MAJ PDL stated, in part:

	a.  He was being counseled as an initial assessment to ensure he understood his (MAJ PDL) expectations of him as a team leader and NCO in the unit.  Up to that point, he had not been performing as expected and there were areas that needed to be improved on.

	b.  Although he was on profile, he continued to only marginally push himself during physical training (PT) and even the junior Soldiers had noticed.  On multiple occasions during the previous STX, he did not plan for his Soldiers to eat and his team was weakest team during the STX.  His Soldier’s room was not up to standard when it had been inspected and he (the applicant) should have caught it the week prior on his walk-through of the room.  He was a team leader and management of the Soldiers on his team was his top priority.  He needed to know the standards and ensure his Soldiers were meeting standards.

	c.  He had been disrespectful to NCOs senior to him in rank multiple times and it had been noticed by multiple individuals in the unit.  Customs and courtesy would be adhered to at all times to those senior to him in rank.  Tasks given to him by the executive officer and other individuals had to be constantly followed up on to ensure they were being tracked.  He had a lack of personal responsibility and anytime an issue was raised, he had an excuse.  He needed to take personal responsibility for his actions in order to improve.

3.  The applicant provides, in part, medical records that show he was seen on:

* 22 December 2010 at the Psychology Clinic, Tuttle Army Hospital Clinic, Hunter Army Airfield, GA, for psychological testing
* 14 and 20 March 2011 and 8 June 2011, at the Behavior Health Clinic, Winn Army Community Hospital, Fort Stewart, GA, for a Personnel Assessment Inventory, screening for mental/developmental disorders, and medication refill, respectively
4.  On 1 December 2011, he was promoted to the rank/grade of SSG/E-6.

5.  The applicant provides a Standard Form 600 (Chronological Record of Care), dated 24 February 2012, wherein it shows he was seen at the Physical Examination Clinic, Darnall Army Medical Center, Fort Hood, for a Physical Health Assessment.

6.  During the month of March 2012, he received a change of rater NCOER that covered 8 months of rated time from 10 July 2011 through 29 February 2012 for his duties while serving as the Preventive Medicine NCO for the 224th Medical Detachment.  His rater was SFC LDH, his senior rater was MAJ PDL, and the reviewer was Lieutenant Colonel (LTC) KLM.  The NCOER shows:

	a.  In Part IVa (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all of the seven values.  This block contained the following comments:

* believed highly in the team spirit
* motivated Soldier with potential to improve over time
* required more experience applying daily Soldier leadership skills

	b.  In Part IV (Values/NCO Responsibilities), the rater placed an "X" in the "Success" blocks of IVb (Competence), IVc (Physical Fitness & Military Bearing), and IVe (Training).  These blocks, in part, contained the following comments:

* promoted to SSG during rated period
* completed 8 semester hours toward associates degree in business management
* conducted PT in accordance with Technical Circular 3-22-20 (Army Physical Readiness Training) for 12 Soldiers
* served as range safety NCO qualifying over 150 Soldiers in the battalion

	c.  In Part IVd, the rater placed an "X" in the "Needs (Some) Improvement" block.  This block contained the following comments:

* did not provide leadership during STT and AWT as needed for junior subordinates
* lacked understanding of implied tasks during critical FTX and STX training events
* failed to consider welfare of subordinate Soldiers during training events

	d.  In Part IVf, the rater placed an "X" in the "Needs (Some) Improvement" block.  This block contained the following comments:

* did not take adequate responsibility for STT preparation as noted in training meetings
* lost confidence of junior subordinates to provide guidance and direction as needed
* required constant follow-up to complete assigned tasks

	e.  In Part Va, the rater placed an "X" in the "Marginal" block.  

	f.  In Part Vc, the senior rater placed an "X" in the "4 - Fair" block and in Part Vd he placed an "X" in the "3 - Superior" block.  

	g.  In Part Ve (Senior Rater Bullet Comments), the senior rater entered the following comments:

* promote as slots are available to SFC
* select for Senior Leaders Course now
* motivated NCO with potential to improve
* needs to fill developmental gaps to be an effective leader

   h.  In Part IIIf (Counseling Dates), it shows the applicant had been counseled on 12 August 2011, 19 September 2011, 31 January 2012, and 22 February 2012 (emphasis added).

7.  This NCOER was signed by his rater on 29 February 2012 and senior rater on 23 April 2012.  The reviewer concurred with the rating officials’ evaluations and signed the NCOER on 24 April 2012.  The applicant signed the NCOER on 25 April 2012 and it is currently filed in the performance folder of his OMPF.

8.  The applicant subsequently submitted an appeal through HRC requesting the contested NCOER be removed from his OMPF.  On 10 July 2014, his request was denied by the ESRB.

9.  Army Regulation 623-3, in effect at the time, prescribed the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the DA Form 2166-8.  

	a.  Paragraph 2-10 stated the rated Soldier is the subject of the evaluation and has considerable responsibility in the evaluation process.  The rated Soldier

will participate in counseling and provide and discuss with the rating chain the duty description and performance objectives including objectives for fostering a climate of dignity and respect.  Counseling will occur within 30 days after the beginning of a new rating period and at least quarterly thereafter.

	b.  Paragraph 3-2f stated rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On one hand, this evaluation will give full credit to the rated Soldier for their achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army selection boards and career managers can make intelligent decisions.  

	c.  Paragraph 3-36 stated 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.  

	d.  Paragraph 4-11 stated 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 an administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

DISCUSSION AND CONCLUSIONS:

1.  The governing Army regulation clearly states an evaluation report included in the official record of a rated Soldier is presumed to be administratively correct; to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

2.  The contested NCOER appears to be correct and appears to represent a balanced, fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question.  There is insufficient evidence, and the applicant has not provided sufficient evidence, to show his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  More importantly, he has not

shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOER or that they exercised faulty judgment in evaluating him as they did.

3.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.

4.  The applicant's contention that he wasn’t properly counseled and should have been rated differently by his rater and senior rater on some on parts of the contested NCOER is noted.  However, the NCOER shows he was counseled on four different dates and his signature on the NCOER indicated he was verifying the administrative data, to include the counseling dates, were correct.  These contentions and the additional arguments he provides in this case appears to address his dissatisfaction with the rating.

5.  The applicant did not provide sufficient evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  

6.  In view of the foregoing, there is insufficient evidence to grant him the requested relief.

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)                                         AR20140020677





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ABCMR Record of Proceedings (cont)                                         AR20140020677



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