IN THE CASE OF:	  

		BOARD DATE:	  13 October 2015

		DOCKET NUMBER:  AR20150001245 


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 removal of a noncommissioned officer evaluation report (NCOER) (hereafter referred to as the contested NCOER), for the period 10 October 2011 through 3 June 2012, from his official military personnel file (OMPF).

2.  The applicant states, in effect:

* his appeal is based on substantive error; it has already been reviewed by the Enlisted Special Review Board (ESRB)
* he is providing additional information not considered by the ESRB which includes:

* Individual Master Military Pay Account (MMPA) for the period July 2011 through June 2012 showing no participation with the rating unit other than the period 19 February 2012 to 25 February 2012
* Retirement Points Detail for the period January 2011 through December 2012 which documents no retirement points being recorded other than for 19 February 2012 to 25 February 2012
* Order Number 029184, dated 15 February 2012, issued by 88th Regional Support Command (RSC), ordering him to annual training (AT) for 7 days starting 19 February 2012 (identified by the applicant alternately as both Army Specialized Training Program (ASTP) training and as military occupational specialty (MOS) sustainment training)

* the substantive error, he contends, is the unjust submission of the report; as evidenced in the findings of the investigation conducted under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers)
* he was categorized as a non-participant and did not attend any battle training assemblies (BTA) or rescheduled training (RST) sessions
* his participation with the 2nd Medical Brigade was limited to ASTP training in February 2012
* Army Regulation 623-3 (Evaluation Reporting System) [dated 5 June 2012], Appendix G (Managing U.S. Army Reserve (USAR) Evaluation Reports), section G-4 (Continuity of Rating Periods), subparagraph (d), states periods of non-participation will be documented as non-rated time
* he asserts, even if participation would have been characterized as the start date of the MOS sustainment training, the elapsed calendar days during the rated period would total 109 days, and the rater would not meet the qualifications outlined in Army Regulation 623-3 [dated 5 June 2012], chapter 2 (The Rating Chain), paragraph 2-5a(2) (Rules for Designating a Rater - NCOER) (the implication is the applicant is applying the requirement was 120 days as outlined in the 5 June 2012 iteration of the regulation)

3.  The applicant provides:

* MMPA for the period July 2011 through June 2012
* Retirement Points Detail for the period January 2011 through December 2012 
* Order Number 029184, dated 15 February 2012, issued by 88th RSC (ASTP Orders) 
* ASTP Travel Voucher (not available, but Order Number 029184 provides sufficient verification the applicant attended training)
* ASTP Travel Authorization (not available, but sufficiently verified by Order Number 029184)

CONSIDERATION OF EVIDENCE:

1.  According to the applicant's records, he enlisted in the USAR on 18 September 2000.  He was a Troop Program Unit (TPU) Soldier during the period October 2011 to June 2012.  He is currently assigned to a USAR unit and is serving in MOS 68W (Healthcare Specialist) in the rank/grade of sergeant first class (SFC)/E-7.

2.  The applicant's records contain a change of rater NCOER covering the rating period 7 December 2010 through 30 September 2011 .  He is shown as being assigned to Western Medical Area Readiness Support Group in San Pablo, CA.  His status is shown as TPU.  His rater was Master Sergeant (MSG) LJW, his senior rater was General Schedule (GS)-12 TGP, and the reviewer was Lieutenant Colonel (LTC) JJS.  His principal duty was Healthcare NCO.  This is a very favorable report.

	a.  Part IV (Rater) - Values/NCO Responsibilities, shows the rater checked "Excellence" for Competence, Leadership, and Training, and "Success" for Physical Fitness and Military Bearing, and Responsibility and Accountability.

	b.  Part V - Overall Performance and Potential shows the rater checked "Among the Best" for the block describing overall potential.  The senior rater rated his overall performance as "Successful/1" and overall potential as "Superior/1."

3.  Orders 11-346-00005, dated 12 December 2011, issued by Headquarters, USAR Command, shows the applicant was reassigned to the 2nd Medical Brigade, San Pablo, CA, effective 11 January 2012.

4.  Orders A-05-208865, dated 17 May 2012, issued by U.S. Army Human Resources Command (HRC) show the applicant was ordered to active duty with a reporting date of 4 June 2012 for a period of 365 days.  He was directed to report for duty at Fort Hood, TX.

5.  Records show the applicant received an initial draft of an NCOER in February 2013.  A second revised version was sent in March 2013.  The final version was sent in April/May 2013.  

6.  The contested NCOER is a change of rater report.  The period shown was 11 January 2012 through 3 June 2012 (it was later corrected by the ESRB to show 10 October 2011 through 3 June 2012).  The unit of assignment is 2nd Medical Brigade, San Pablo, CA.  The applicant's status is shown as TPU and his duty assignment is Plans Sergeant.  His rater is listed as MSG TER and his senior rater is Sergeant Major (SGM) LBD.  The reviewer is LTC CMBH.

	a.  Part IV shows "Success" for all categories and, under Leadership, there is a comment which states the rater is unable to assess leadership skills and capabilities.

	b.  In Part V, the rater has checked the block for "Fully Capable" and senior rater has marked "Successful/3" for overall performance and "Superior/3" for overall potential.  The senior rater comments include the remark "Soldier should attend published Battle Assemblies or approved RST's in order to effectively evaluate duty performance and potential."

7.  On 5 March 2013, the applicant requested a commander's inquiry (CI).  He cited both administrative and substantive errors in the contested NCOER, essentially contending:

* the start date for the report should have been 30 September 2011 instead of 11 January 2012 because his last report ended 29 September 2011 [sic, the report actually ended 30 September 2011]
* the period 30 September 2011 to 10 January 2012 should be reflected as non-rated time with a code "Z" (none of the above)
* the rater and senior rater were not listed on the Unit Manning Report (UMR) as being in his chain of command
* he was placed in a position other than the one shown on his promotion order
* the counseling listed on the NCOER did not occur
* he had received approval for absences due to hardship from his commander at the time (Captain (CPT) C, commander, Headquarters and Headquarters Company (HHC), 2nd Medical Brigade) (emphasis added)
* the substantive error was the overall fairness of the report
* as a result of the hardships for which he had received approved absences, he was unable to complete any RST prior to being ordered to active duty (emphasis added)
* he requested the entire period addressed in the NCOER be restated as non-rated time

8.  On 26 March 2013, CPT KLS, Commander, HHC, 2nd Medical Brigade (and apparent successor to CPT C) submitted the results of his CI to HRC.  He stated, in effect:

* the applicant was assigned to the unit on 11 January 2012, as such the rating period was valid and no non-rated time was required to be noted
* the rating scheme used for the contested NCOER was prepared in accordance with regulatory requirements
* the position [as stated on the applicant's promotion order] does not exist and, as a result, he was placed in a position which was more advantageous for the Soldier
* proper face-to-face counseling was not performed; the rater did counsel the applicant via emails
* the contested NCOER should be processed as written and filed in the applicant's OMPF

9.  On 23 May 2013, the applicant filed a complaint with the Inspector General (IG) of the 807th Medical Command (Deployment Support).  

	a.  In his complaint, the applicant alleged the contested NCOER was administratively incorrect, and, in his opinion, members of his unit had violated Articles 92 (Failure to Obey an Order or Regulation) and 132 (Frauds against the U.S.), Uniform Code of Military Justice (UCMJ).  

* the unit submitted an NCOER for a period during which he was a non-participant; this was in contravention of Army Regulation 623-3 and thus violated Article 92, UCMJ
* there were three versions of the NCOER submitted by his unit, with the last one being directed by the Commander, 2nd Medical Brigade
* the last version was fraudulent in that the members of the rating chain (specifically, the rater and senior rater) did not serve in the capacity shown for the period of time required to qualify as his rater and senior rater
* the members of his rating chain each signed the document and ultimately forwarded it for inclusion in his OMPF knowing they had not met the regulatory requirements to be his rater and senior rater; this, in his view, was a violation of Article 132, UCMJ

	b.  The applicant's record does not include any documentation showing the outcome of his IG complaint.

10.  On 17 July 2013, the Commander, 807th Medical Command (Deployment Support) appointed Brigadier General WSL to conduct an investigation under the provisions of Army Regulation 15-6.  The purpose of the investigation was to determine if there were errors, injustices, or illegalities committed in the completion of the contested NCOER.  

	a.  The investigation found:

* the contested NCOER should not have been rendered for the period 11 January 2012 through 3 June 2012 (citing Appendix G, Section G-4, Army Regulation 623-3, dated 5 June 2012, regarding periods of non-participation)
* the applicant was categorized as a non-participant during the rated period and did not attend either BTAs or RSTs; his participation was limited to ASTP training conducted in February 2012
* the CI was not conducted in accordance with regulatory requirements in that it was not completed by the commander above the designated rating chain and the errors alleged by the applicant were not addressed
* there was inaccurate guidance provided to the 2nd Medical Brigade by the 807th Medical Command
* counseling dates shown on the contested NCOER were erroneous
* the rating chains used in the first and second versions of the contested NCOER were incorrect; the last version had the correct rating chain
* the 2nd Medical Brigade's S-1 provided correct guidance, stating the applicant should be served a memorandum of non-rated time for his period of assignment to the 2nd Medical Brigade
* the final version of the contested NCOER showed an incorrect period; it should have been from 1 October 2011 through 3 June 2012, with 1 October 2011 through 10 January 2012 listed as non-rated time

	b.  Recommendations:

* provide a copy of the Army Regulation 15-6 results to the applicant for inclusion with his appeal to the ESRB
* written admonitions were recommended for five Soldiers and oral admonitions were recommended for another three

11.  On 18 September 2013, the Commander, 807th Medical Command approved the findings of the Army Regulation 15-6 investigation.  He also approved all recommendation except those which involved the administration of written admonitions.  He chose instead to give verbal admonitions to those Soldiers.

12.  The applicant received an annual NCOER for the period 4 June 2012 through 3 June 2013.  He is shown as being assigned to Company C, 1st Battalion, Warrior Transition Brigade, Fort Hood, TX.  His status is shown as TPU/MOB.  His rater was First Sergeant STM, his senior rater was CPT MRC, and the reviewer was LTC CWC.  His principal duty was Platoon Sergeant.  The report is favorable.  

	a.  Part IV shows the rater checked "Excellence" for Competence, Leadership, and for Responsibility and Accountability, and "Success" for Physical Fitness and Training.

	b.  Part V shows the rater checked "Among the Best" for the block describing overall potential.  The senior rater rated his overall performance as "Successful/1" and overall potential as "Superior/1."

13.  On 27 March 2014, the applicant filed an appeal with the ESRB.  On 20 November 2014, the ESRB granted partial relief by amending the start date of the contested NCOER from 11 January 2012 to 10 October 2011, and changing the number of rated months to "4." [sic, the Analyst's Discussion and Recommendations portion of the ESRB's Record of Proceedings (ROP) stated the start date of the NCOER was to be corrected to 1 October 2011; the correction, currently shown as 10 October 2011, was apparently a mistake]

	a.  The board did not find sufficient evidence to support removal of the contested NCOER.  

	b.  As to the applicant's contention that his participation with the 2nd Medical Brigade was limited to the ASTP training in February 2012, the board cited a document which showed the applicant's drill activities from 6 February 2012 to 10 September 2012 (TL History).  

* based on this document, the board stated the applicant's participation warranted evaluation
* the TL History shows him with a Pay/Non-Pay Code of "S" (authorized absence; Soldier scheduled to perform RST) between 6 February 2012 to 15 April 2012
* the Pay/Non-Pay Code changed to "U" (unauthorized absence) for 5 May 2012 and 6 May 2012
* the Pay/Non-Pay Code then shows as being "A" (authorized absence; commander has released from requirement to perform RST) from 2 June 2012 to 9 September 2012

	c.  Included in the evidence reviewed by the ESRB were the following emails provided by the applicant:

		(1) In response to an email from SGM LBD (senior rater on the contested NCOER), dated 23 October 2012, the applicant, who at that point was mobilized and stationed at Fort Hood, TX, stated he thought he was due an NCOER.  When the SGM answered, it was apparent he is unaware an NCOER was required.

		(2) The applicant contacted MSG TER (rater on the contested NCOER) in an email dated 7 November 2012.  He stated his reasons for doing so were based on guidance given by SGM LBD, and as a result of his current unit showing he required an NCOER for the period during which he was assigned to the 2nd Medical Brigade.  In an email response dated 14 November 2012, MSG TER expressed the concern she had never met the applicant in person and requested information as to whether he had ever participated in a unit drill or had completed any RSTs with another unit.

		(3) In an email dated 4 December 2012, the applicant responded to the email from MSG TER by stating he had not yet made up any RSTs prior to beginning his active duty (emphasis added).  

		(4) CPT KLS, Commander, HHC, 2nd Medical Brigade, sent an email to the applicant on 26 March 2013, wherein he provided the applicant the results of his CI.  He states the applicant needed to make up his RSTs within 60 days of the BTA and all of the RST for which he (the applicant) was approved were now being shown as "U" (unexcused absence).  CPT KLS went on to say that he noting this as an observation and did not intend to act on this information.

		(5) Command Sergeant Major (CSM) RAW, CSM for the 2nd Medical Brigade, responded to an email from the applicant wherein he expressed concerns regarding the proper reflection of non-rated time due to non-participation.  CSM RAW observed, by the applicant's own admission, his absences while assigned to the 2nd Medical Brigade were deemed as RST, not excused absences, and cited the applicant's email to MSG TER in which he wrote he had not made up the RSTs prior to beginning his period of active duty.  While his unit had not coded him as an unsatisfactory participant, he essentially did not have an otherwise valid reason for showing that period as non-rated time. Thus a rating was required. 

14.  Army Regulation 623-3, dated 10 August 2007, in effect during the period covered by the contested NCOER, prescribed policies and procedures with regard to NCOERs.  This iteration of the regulation did not include an Appendix G and did not contain language which required periods of non-participation to be documented as non-rated time.  Additionally, it stated the minimum time required to be qualified as a rater was 90 days.

	a.  Section VII (Mandatory Reports) states NCOER reports in this section are required if the rated NCO has completed at least 90 days in the same position under the same rater during the same rating period.  One of the reports identified as being mandatory is a change of rater report when the rated NCO ceases to serve under the immediate supervision of the rater and the minimum rating qualifications have been met.

	b.  Chapter 4 (USAR Evaluations) modifies policies and procedures to meet the unique characteristics of the USAR.  Soldiers in a TPU status are covered by this chapter.  

	c.  Paragraph 4-4 (Designating rating officials and rater qualification) states in subparagraph f(1)(a) a rater will be the immediate supervisor of the rated NCO for a minimum period of 90 days (emphasis added) if the rated NCO is a member of a TPU.

	d.  Paragraph 4-15 states the guidance found in chapter 6 will be used for appeals. 

	e.  Paragraph 6-1 states that the Evaluation Report Redress Program consists of several elements at various command levels.  The program is both preventive and corrective, in that it is based upon principles structured to prevent, and provide a remedy for, alleged injustices or regulatory violations, as well as to correct them once they have occurred.

	f.  Paragraph 6-2 states that an NCOER may have administrative errors or may not accurately record the rated Soldier's potential or the manner in which he or she performed his or her duties.  The Redress Program protects the Army's interests and ensures fairness to the evaluated NCO.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. A Cl is a separate and distinct action from an appeal of the NCOER.  Rated Soldiers may seek an initial means of redress through a Cl; however, a Cl is not a prerequisite for the submission of an appeal.

	g.  Paragraph 6-7h stipulates that appeals based on administrative error only will be adjudicated by the Evaluation Appeals Branch within HRC for active Army
and USAR NCOERs.  Such claims may include, but are not limited to, deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the report period, and errors in the Army Physical Fitness Test and/or height and weight entries.

	h.  Paragraph 6-11 states, in pertinent part, that evaluation reports accepted for inclusion in the Soldier's OMPF 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 which clearly and convincingly establishes 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.

15.  Army Regulation 623-3, dated 5 June 2012, added an Appendix G, modified time requirements for raters, and included language regarding non-participation.  

	a.  Paragraph 2-5a(2) includes a note which requires the raters for TPU Soldiers to have served as the rated NCO's supervisor for 120 calendar days.

	b.  Paragraph G-3 (Designation and qualification of rating officials) states in subparagraph c (Rating Schemes for Soldiers assigned or attached to organizations for indefinite periods) that the rater will have served in that capacity for 120 days.

	c.  In paragraph G-4 it states reports rendered on Individual Ready Reserve (IRR) or Individual Mobilization Augmentation (IMA) Soldiers may cause interruptions or gaps in a Soldier's evaluation report history.  Periods of non-participation will be documented as non-rated time on evaluation reports (non-rated code "Z" in accordance with Department of the Army Pamphlet 623-3).  It does not identify this rule as applying to TPU Soldiers.

16.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes policies and procedures for the types of activities which qualify for retirement points, recording retirement point credits, and includes basic guidance for unit strength accountability.  In Table D-1 (Drill Attendance and Credit Symbols), it defines codes for noting participation or non-participation in drills.

* S - Soldier is authorized absence from Unit Training Assemblies (UTA)/Multiple Unit Training Assemblies (MUTA) and is scheduled to perform RST (emphasis added)
* U - Soldier who is on unauthorized absence from UTA/MUTA, (ET), or individual assembly 
* A - Assigned Soldier is authorized absence from UTA/MUTA, RST, or individual assembly; not authorized pay or retirement points; used for Soldiers who are excused by their commander for circumstances beyond their control (emphasis added)

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of the contested NCOER from his OMPF.  He bases his request on the contention the entire period he was assigned to the 2nd Medical Brigade should be shown as non-rated time because he was a non-participant.  He supports this contention with documentary evidence showing he did not receive pay or receive retirement credit for any period he was assigned to the 2nd Medical Brigade except for when he attended ASTP training.
2.  While the preponderance of the evidence supports that he was not paid nor received retirement credits, there is insufficient basis to maintain the contention that his non-participation should be counted entirely as non-rated time.

	a.  The unit's TL History shows Pay/Non-Pay Codes of "S" for the period 6 February 2012 to 15 April 2012.  This code suggests unit records showed the applicant was excused, but expected to complete an RST.

	b.  The unit's TL History further shows he was listed with a Pay/Non-Pay Code of "U" indicating his absence was not authorized.

	c.  For the period during which he had been ordered to active duty, the unit's TL History reflects a Pay/Non-Pay Code of "A" which is used when Soldiers are excused by their commander and not expected to complete an RST.

3.  There is evidence the applicant was aware he was expected to complete RSTs for those periods he was absent, but stated he was unable to do so.

	a.  In an email dated 4 December 2012, the applicant responded to the email from MSG TER (rater on the contested NCOER) by stating he had not yet made up any RSTs prior to beginning his active duty.

	b.  In his request for a CI, he asserted he had received approval for absences due to hardship from his then-commander (CPT C, commander, HHC, 2nd Medical Brigade).  He further acknowledged, as a result of the hardships for which he had received approved absences, he was unable to complete any RST prior to being ordered to active duty.

4.  The applicant cites Appendix G of Army Regulation 623-3 as a basis for counting the period for which he was a non-participant as non-rated time.  Additionally, the applicant contends, even if participation would have been characterized as the start date of the ASTP training, the elapsed calendar days during the rated period would total 109 days, and the rater would not meet the qualifications outlined in Army Regulation 623-3.  This guidance, however, did not exist during the evaluated period covered by the contested NCOER, and did not become effective until shortly after the end-date of the NCOER.  

	a.  The regulation in effect during the rated period did not require periods of non-participation to be stated as non-rated time.  It is also worth noting the context of this requirement in the 5 June 2012 iteration of Army Regulation 623-3 was applied to Soldiers in the IRR and IMA.  TPU Soldiers were not explicitly included.
	b.  The time requirement for raters of TPU Soldiers was 90 days during the rated period.  The stipulation of 120 days did not become effective until the publishing of the 5 June 2012 version of Army Regulation 623-3.

5.  Based upon the foregoing, the preponderance of the evidence does not appear to support the removal of the contested NCOER from the applicant's OMPF.

6.  An apparent error was made when the ESRB corrected the start-date for the contested NCOER.  

	a.  The Analyst's Discussion and Recommendations indicated the date should be corrected to 1 October 2011 (the day following the end-date of the prior report).  

	b.  The ESRB's Board Determination and Directed Action stated the start-date should be amended to show 10 October 2011.  

	c.  While ample evidence supports the start-date being changed to 1 October 2011, there is nothing to suggest 10 October 2011 would be the correct start-date.  An administrative correction can be made by the Army Review Boards Agency (ARBA) Case Management Division (CMD).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that administrative errors in the records of the individual concerned should be corrected.  The Board requests that the ARBA CMD administratively correct the records of the former service member concerned by amending the applicant's DA Form 2166-8 (NCO Evaluation Report), as corrected by the Enlisted Special Review Board, for the period covering 10 October 2011 through 3 June 2012 as follows:  delete the entry in
Part I (Administrative Data), subparagraph h (FROM - YEAR MONTH DAY) which shows "20111010" and replace it with "20111001."




      _______ _   _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)                                         AR20150001245





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ABCMR Record of Proceedings (cont)                                         AR20150001245



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