IN THE CASE OF:	  

		BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140003877


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 Noncommissioned Officer Evaluation Report (NCOER), for the period 1 March 2009 through 28 February 2010, from his Official Military Personnel File (OMPF).

2.  The applicant states:

* His NCOER rating for the period 1 March 2009 through 28 February 2010 states he was convicted of a felony
* He has never been convicted of a felony
* The NCOER was written by a person other than his rater
* There is no way that person would have been his rater because he was the battalion communications trainer and the person who rated him was the "FDC" trainer
* He had a first line supervisor that was his rater

3.  The applicant provides:

* U.S. Army Human Resources Command (HRC) Memorandum written to the applicant, dated 18 October 2013
* Self-authored Memorandum for Commander, Enlisted Record and Evaluation Center (EREC), dated 26 July 2013
* NCOER Appeals Instructions
* Memorandum for Commander, EREC, dated 9 September 2013
* DA Form 2166-8 (NCOER Evaluation Report) for the period 1 March 2009 through 28 February 2010
* Memorandum for Commander, HRC, dated 6 April 2010
* Memorandum for Commander, HRC, dated 29 June 2010
* Pages from "WOLF" Team Standing Operating Procedures (SOP)
* Five Memoranda of Support, dated 7 September, 15 September, 20 September, and 22 September 2010
* Two Standby Advisory Board Letters of Support, dated 24 March and 25 March 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 May 1989.

2.  A Military Police Report, dated 27 August 2009, shows that on 24 August 2009 the applicant, who worked part time at the main exchange, walked out of the Army and Air Force Exchange Service (AAFES) with a Dell Inspiron Mini Notebook without rendering proper payment.  The Military Police Report states the applicant was asked to return to the station on 29 August 2009 and he was advised of his rights.  He waived his rights and he admitted to the offense.  However, when verifying his written statement, the applicant said that he returned the computer the same night.  Video recordings show him returning the computer on 26 August 2009 while he was working at AAFES.

3.  On 14 January 2010, the applicant accepted nonjudicial punishment (NJP) for stealing a Dell Inspiron Mini Notebook of a value greater than $350.00, the property of AAFES.  He elected not to appeal the NJP and after consideration of all evidence, his commander directed that it be filed in the performance section of his Official Military Personnel File.

4.  On 28 April 2010, the applicant received an NCOER for the period 1 March 2009 through 28 February 2010.  In Part IVa (Army Values) his rater checked "NO" in block 6 (Integrity:  Does what is right – legally and morally).  In the "Bullet comments" the rater stated "integrity compromised due to a lack of judgement."

5.  In Part IVf (Responsibility & Accountability) the applicant's rater marked the block "Needs Improvement" and he commented "displayed poor decision making when he committed a criminal offense resulting in his conviction on charges of larceny – accepted responsibility for his actions."

6.  In Part V (Overall Performance and Potential) the applicant's rater marked the block "Fully Capable" in the block (Overall potential for promotion and/or service in position of greater responsibility.)  In Part Ve (Senior Rater Bullet Comments) the senior rater stated "Personnel actions did not exhibit the highest standard of integrity and judgement."  He was rated by his senior rater as "Fair" in overall performance and "Superior" in overall potential.

7.  The applicant provides a self-authored memorandum stating that the individual who rated him on the NCOER for the period 1 March 2009 through 28 February 2010 did not fall within his rating scheme.  He also states:

* He has never been convicted of any crimes
* There was an incident where upon completion of the investigation all charges were dropped
* The medicine he was placed on for positive tuberculosis caused black outs
* In his 24 years in the military he never knowingly did anything that would question his Army values

8.  He also provides a statement from his previous senior rater stating that the person who rated the applicant for the period 1 March 2009 through 28 February 2010 should not have been his rater.  The applicant's previous senior rater stated that it was brought to his attention that the unjust NCOER was placed into the applicant's record after his entire military record had disappeared.  He stated there was one incident that occurred in which all charges were dropped after an investigation stated the medicine the applicant was taking for testing positive for tuberculosis was the cause of his memory lost in his situation.  He stated that no charges of misconduct were brought before him or any other members in the chain of command against the applicant.  He stated he wished to correct the wrong of the rating period to ensure the applicant's performance is not judged negatively.

9.  The applicant provides memoranda from former coworkers attesting to his professionalism, exemplary conduct, outstanding technical proficiency, achievements, and calm demeanor.  He also provides inserts and appendixes from "WOLF Team SOP" as proof of his rating scheme.

10.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System.

     a.  Paragraph 1-11 states when it is brought to the attention of a commander that a report rendered by one of their subordinates or subordinate commands may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter.  The Commander’s Inquiry 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 (HQDA), 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 2-3 states a rating chain is established by the commander, commandant, or leader of an organization and maintained by rating officials to provide the best evaluation of an individual Soldier’s performance and potential.  A rating chain also ties the rated Soldier’s performance to a specific senior or subordinate relationship.  This allows for proper counseling to develop the rated Soldier and accomplish the mission.  These functions are normally best achieved within an organization’s chain of command or supervision.  Generally, the evaluation of Soldiers by persons not involved in the chain of command or chain of supervision is inappropriate.

     c.  Paragraph 3-36 states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.

     d.  Paragraph 4-11 states the burden of proof in an appeal of an NCOER rests with the applicant.  Accordingly, to 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 and that action is warranted to correct a material error, inaccuracy, or injustice.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  However, the NCOER ending on 28 February 2010 does not state he was convicted of a felony.  The NCOER states that he displayed poor decision making when he committed a criminal offense resulting in his conviction on charges of larceny – accepted responsibility for his actions.  Although it appears that there were no official court proceedings, he admitted to committing larceny when he accepted the Article 15, which is a criminal offense and by doing so he accepted responsibility for his actions.

3.  The applicant provides inserts and appendixes from "WOLF Team SOP" as proof of his rating scheme.  These documents are insufficient evidence to support his contention that the rater shown on the NCOER for the period ending on 28 February 2010 was not in his chain of command and unauthorized to rate him.  A rating chain is established by the commander, commandant, or leader of an organization and maintained by rating officials to provide the best evaluation of an individual Soldier’s performance and potential.  

4.  According to the applicable regulation, an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and represent the considered opinions and objective judgment of the rating officials at the time of preparation. 

5.  The applicant has failed to present sufficient justification for removing the NCOER ending on 28 February 2010 from his OMPF.  In view of the foregoing, his request should be denied.

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)                                         AR20140003877



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ABCMR Record of Proceedings (cont)                                         AR20140003877



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