IN THE CASE OF:  

		BOARD DATE:  29 January 2015

		DOCKET NUMBER:  AR20140021699 


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 (NCO) Evaluation Report (NCOER) for the period 31 October 2011 through 10 February 2012, from his official military personnel file (OMPF).  Hereafter, this NCOER will be referred to as the contested NCOER.

2.  The applicant states that he was on convalescent leave for 30 days from
10 November to 9 December 2011 due to surgery on his left foot.  Therefore, the rater did not have enough time to be his rater.  The NCOER was written as an act of reprisal for questioning the 198th Infantry Brigade's grooming standards.  The NCOER was submitted to his official file without his review.  

3.  The applicant provides copies of:

* DA Form 31 (Request and Authority for Leave) with supporting memoranda from the hospital and his Battalion Commander
* DA Form 3349 (Physical Profile)
* DA Form 4856 (Developmental Counseling Form)
* Assistant Inspector General memorandum
* Contested NCOER
* Commander's Inquiry (CI) memorandum
* Enlisted Special Review Board (ESRB) memorandum


CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army sergeant first class (SFC)/E-7, with approximately 10 years of service at the time of the contested NCOER.

2.  The applicant received an annual NCOER for the period 31 October 2010 through 30 October 2011.  The rater was 1SG M_____.

3.  A DA Form 31, dated 27 October 2011, shows he was granted convalescent leave from 10 November to 9 December 2011.  

4.  A DA Form 4856 shows he was counseled by First Sergeant (1SG) M_______ on 23 January 2012 for failure to comply with "Brave and Bold Standards and Discipline" by disobeying orders and standards given by the chain of command concerning shaving and haircuts and for failing to follow 1SG M_____ instructions to shave his sideburns in accordance with the "Brave and Bold" standards.

5.  A Headquarters, U.S. Army Maneuver Center of Excellence, Fort Benning, Georgia, memorandum, dated 14 June 2012, shows the applicant contacted the Assistant Inspector General concerning issues related to his unit.  The Assistant Inspector General visited the Brigade Command Team in addressing the command's internal policies that were inconsistent with Army regulations.

6.  The applicant received a change of rater NCOER which covered 3 months of rated time from 31 October 2011 through 10 February 2012 for his duties as a Senior Drill Sergeant.  His rater was 1SG M_____, his senior rater was the Company Commander, and his Reviewer was the Battalion Commander.  The NCOER shows the following entries:

	a.  In Part III (Duty Description), Item F (Counseling Dates) 1 November 2011 is shown for the Initial and 9 February 2012 is shown as a later counseling;

	b.  In Part IV, sub-section a. the rater placed a checkmark in the "No" block pertaining to "Duty", indicating he was deficient in this rated area, and made the following comments –

	     (1)  "removed from Senior Drill Sergeant position by the Brigade Commander based on lack of trust"; and

	     (2)  loyalty to the Army was never in question but loyalty to the unit was. 

	

	c.  In Part IV, sub-section d. (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullets –

	     (1)  does not understand as an NCO he must lead by example in character, competence, and actions at all times; failed to Be Know Do as an NCO; and

	     (2)  would voice his disagreement with unit standards in front of subordinates, chose not to fully support the Battalion and Company leadership.

	d.  In Part V (Overall Performance and Potential), sub-section a. (Rater), the rater placed an "X" in the "Fully Capable" block;

	e.  In Part V, sub-section c. (Senior Rater – Overall Performance) the Senior Rater placed an "X" in the "3-Successful" block and in sub-section d. (Senior Rater – Overall Potential), the senior rater placed an "X" in the "2-Superior" block and entered the bullets –

	     (1)  do not send to NCOES or promote at this time; with further mentorship and training the NCO may be ready for greater responsibility; NCO refused to sign NCOER;

	     (2)  strong potential to excel but needs to perform to the best of his abilities; and not allow his personal concerns and opinions to affect his efforts; and

	     (3)  combative attitude was counter-productive and a liability to this command; lacks maturity, at times displays poor judgment, needs further development.

7.  The NCOER shows the rater and senior rater authenticated the contested NCOER by placing their signatures in the appropriate places, and the Reviewer concurred with the rater and senior rater and authenticated this form by placing his signature in the appropriate place.  The applicant did not sign the report.

8.  In a Headquarters, 198th Infantry Brigade, Fort Benning, Georgia, memorandum, dated 11 July 2012, the Brigade Commander indicates a CI was conducted concerning the contested report.  The Brigade Commander indicated the contested report was inconsistent with the regulatory requirements and lacked objectivity and fairness.  The applicant was not afforded the opportunity to review or sign the report.  The officer who conducted the CI recommended the 
3-month NCOER submitted to the U.S. Army Human Resources Command (HRC) be retrieved from the applicant's permanent file and either replaced with a 3-month report that meets the requirements of a change of rater report; or the required enclosure of a Relief for Cause report be filed with an official Relief-for-Cause report; or the report be removed completely.  The Brigade Commander recommended the applicant appeal the contested report. 

9.  The applicant's appeal of the contested report was denied by the ESRB on 
14 August 2013. 

10.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  The regulation states in:

	a.  Paragraph 1-11 (CI) states when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter.  The CI will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by Headquarters, Department of the Army, and the conduct of the rated Soldier and members of the rating chain.  The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.  

	b.  Paragraph 3-39 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.  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 applicant.

	c.  Paragraph 3-40 states that a Change of Rater NCOER is mandatory when
the rated NCO ceases to serve under the immediate supervision of the rater and minimum rating qualifications (90 calendar days) have been met.

	d.  Table 3-7 (Reason Codes for nonrated time on DA Form 2166-8) states that leave for 30 or more consecutive days is considered nonrated time. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his NCOER for the period 31 October 2011 through 10 February 2012 should be removed from this official file because he was on convalescent leave for 30 days from 10 November to 9 December 2011.  Additionally, the NCOER was written as an act of reprisal for questioning the 198th Infantry Brigade's grooming standards.  The NCOER was submitted to his official file without his review.  

2.  It is noted that the applicant was on convalescent leave for 30 days during the rating period; however, he remained in the same unit and he had the same rater on the previous annual NCOER.  His Rater was well aware of the applicant's duty performance.

3.  Although the NCOER does not show the applicant's signature the senior rater indicated the applicant refused to sign the report.   

4.  The applicant has not shown that the rating officials’ evaluations represented anything other than their objective judgment and considered opinions at the time the contested NCOER was prepared.  There is no evidence his rating officials' exercised faulty judgment in evaluating him as they did.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20130016644



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ABCMR Record of Proceedings (cont)                                         AR20140021699



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