BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140021004 


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 a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period 22 April 2013 through 1 October 2013 from his Official Military Personnel File (OMPF).

2.  The applicant states:

	a.  An appeal was filed with the Enlisted Special Review Board (ESRB).  The ESRB decision was unanimous that the NCOER should be removed and the period counted as non-rated time.  However, the Deputy Assistant Secretary of the Army (Review Boards) rejected the ESRB decision.  A board of his seniors all perceived the errors within the report and now the ESRB's decision is overturned by one person.

	b.  His rater rated him a "1 over 1" just 5 months prior and has rendered this poor report to save her career.  The rater also filled this report with inaccurate claims.  An example is that she stated he required assistance to prepare memoranda.  Any human resources Soldier with as much time in service as he has knows there are examples of almost every memorandum you would need in Army Regulation 25-50 (Preparing and Managing Correspondence).  The rater also claimed that he required assistance processing promotions and NCOERs.  As a prior promotions clerk, he is well educated on the enlisted promotions system and how to set up a battalion promotion board.

	c.  As far as NCOERs, he has managed the NCOERs for battalions in the past with ease.  The battalion command sergeant major designated an NCO prior to his arrival to work specifically on NCOERs.

	d.  This report has slowed his career progression as he cannot attend any schools at this time.  Leaving it in his records further endangers his career because he believes it is a discriminating factor for the Qualitative Management Program.

3.  The applicant provides:

* ESRB Proceedings
* NCOERs covering the period 2006 to 2014
* NCOER appeal packet
* Deputy Assistant Secretary of the Army memorandum 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 31 July 1998 and trained as a human resources specialist.  He has remained on active duty through continuous reenlistments.  He was promoted to staff sergeant effective 1 March 2009.
  
2.  He provided favorable NCOERs covering the period 2006 to April 2013 which show he was rated "Fully Capable" and "Among the Best" by his senior raters.

3.  The contested relief-for-cause (RFC) NCOER covers the period 22 April 2013 through 1 October 2013.  He was rated as "Needs Improvement (Some)" for "Values/NCO Responsibilities" by his rater with the following bullet comments:

* required substantial assistance from multiple people completing routine administrative tasks such as an NCOER, memorandum, and awards
* struggles with following up with tasks given to him by his first-line supervisor
* unable to qualify in key tasks and limited the readiness of the entire team

4.  He was rated as "Needs Improvement (Much)" for "Leadership" by his rater with the following bullet comments:

* demonstrated a lack of leadership skills; lacks the confidence, managerial skills, and ability to make immediate decisions without supervisor's guidance
* sometimes does not understand the importance of his position; leadership and managerial skills need improvement to qualify for next rank

* received several verbal and written counselings for incomplete tasks and missed suspenses due to dereliction of duty

5.  He was rated as "Needs Improvement (Some)" for "Training" by his rater with the following bullet comments:

* does not utilize his free time to improve his knowledge to become a more efficient and better leader
* failure to plan ahead or manage current training requirements significantly reduced readiness resulting in missed administrative and higher echelon suspenses
* his performance was average and is in immediate need of retraining and mentorship

6.  He was rated as "Needs Improvement (Much)" for "Responsibility and Accountability" by his rater with the following bullet comments:  

* current level of responsibility is too great
* needs to realize the importance of performing daily tasks and the effects of ignoring them
* the rated NCO has been notified of the reason for the relief

7.  He was rated "Marginal" by his rater for his overall potential for promotion and/or service in positions of greater responsibility.

8.  He was rated "Fair-4" by his senior rater for overall performance and he was rated "Fair-4" by his senior rater for overall potential for promotion and/or service in positions of greater responsibility with bullet comments:

* promote at the convenience of the Army
* needs to develop his technical skills before advancing to the next grade with duties of greater responsibility

9.  He provided an NCOER covering the period 2 October 2013 through 25 May 2014 which shows he was rated "Fully Capable" by his senior rater.

10.  A review of the applicant's performance folder of his OMPF on the Interactive Personnel Electronic Records Management System revealed a copy of the RFC NCOER.

11.  On 2 October 2014, the ESRB, by unanimous vote, recommended removal of the RFC NCOER from the applicant's OMPF and that the period be counted as non-rated time.

12.  On 14 November 2014, the Deputy Assistant Secretary of the Army (Review Boards) rejected the ESRB's decision to remove the NCOER and retain it in the performance section of his OMPF.  It was her judgment that clear and convincing evidence did not exist showing the bullet comments on the NCOER were unsubstantiated and untrue or were in error or not the considered opinions and objective judgments of the rating officials at the time the report was rendered.  Absent this showing, she was unable to find a basis for removal of the NCOER.

13.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF.  Appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System), states NCOERs will be filed in the performance and service folders of the OMPF.

14.  Army Regulation 623-3 (Evaluation Reporting System) states that an evaluation report accepted for inclusion in the official record of a rated Soldier'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 regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the rater placed inaccurate claims in the RFC NCOER.  However, he has provided no evidence that shows the NCOER is inaccurate.

2.  In order to justify removal of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that:

* the presumption of regularity should not be applied to the report under consideration
* action is warranted to correct a material error, inaccuracy, or injustice

3.  There is no evidence that the information contained in the NCOER does not represent the considered opinion and objective judgment of the rating officials at the time of preparation.

4.  The governing regulation states NCOERs will be filed in the performance folder of the OMPF.  The NCOER in question is properly filed in his military records in accordance with the governing regulation.

5.  Based on the foregoing, there is an insufficient basis for granting 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 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)                                         AR20140021004



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ABCMR Record of Proceedings (cont)                                         AR20140021004



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