IN THE CASE OF:	   

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20150003575 


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 reconsideration of his previous request for the removal of a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rated period 31 October 2011 through 10 February 2012 (hereafter referred to as the contested NCOER) from the applicant's Official Military Personnel Record (OMPF).

2.  The applicant states, in effect, he is providing new evidence that was not previously considered.  

3.  The applicant provides a memorandum.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140021699, on 29 January 2015.

2.  As new evidence the applicant provides a Memorandum of Support addressed to the U.S. Army Human Resources Command (HRC), dated 4 January 2015, wherein Captain L___ stated, in part, he was the applicant's senior rater at the time of the contested NCOER.  Leading up to the evaluation, the battalion command sergeant major and the applicant had a discussion that he was not present for that led to the applicant's relief by the battalion command team.  During his tenure as the company commander, at no time did he personally witness any lack of Army Values, potential, or satisfactory performance.

3.  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.

4.  He received an annual NCOER for the period 31 October 2010 through 30 October 2011.  The rater was First Sergeant (1SG) M______.

5.  He provided a DA Form 31 (Request and Authority for Leave), dated 27 October 2011, which shows he was granted convalescent leave from 10 November to 9 December 2011.  

6.  The applicant received the contested NCOER, 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, First Lieutenant L___, 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" (emphasis added); 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.  The contested NCOER is filed in the performance folder of his OMPF.

8.  In a Headquarters, 198th Infantry Brigade, Fort Benning, Georgia, memorandum, dated 11 July 2012, the brigade commander indicated a command inquiry (CI) was conducted concerning the contested report.  The 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 NCOER submitted to the HRC be retrieved from the applicant's OMPF and either be replaced with a 3-month report that met the requirements of a change of rater report; or the required enclosure of a Relief for Cause (RFC) report be filed with an official RFC; or the report be removed completely.  The brigade commander recommended the applicant appeal the contested report. 

9.  On 14 August 2013, the applicant's appeal of the contested NCOER was denied by the Enlisted Special Review Board.

10.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  The version of the regulation in effect at the time stated, in part:

	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. 

	e.  An NCOER report is required when an NCO is relieved for cause regardless of the rating period involved.  The published rating chain at the time of the relief will render the report.  RFC is defined as the removal of an NCO from a rateable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain.  An RFC occurs when the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the Army.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his NCOER for the period 31 October 2011 through 10 February 2012 should be removed from this OMPF.  

2.  While he may have been on convalescent leave for 30 days of the rated period, he remained in the same unit and he had the same rater on the previous annual NCOER.  His rater was well aware of his duty performance.  In addition, it appears the contested NCOER should have been a relief for cause NCOER which does not require a 90-day rating period.  Although this may be an administrative irregularity, it does not negate the validity of the report.  The evidence of record confirms the applicant refused to sign the report.   

3.  The fact that almost 3 years after the date of the contested NCOER, his senior rater stated that during his tenure as the company commander he never witnessed any lack of Army Values, potential, or satisfactory performance on the part of the applicant does not make the contested NCOER untrue or unjust.

4.  By regulation, in order 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 action is warranted to correct a material error, inaccuracy, or injustice.

5.  In this case, the preponderance of evidence does not show that the ratings in the contested NCOER were rendered in error or that they were not the considered opinions and objective judgments of all the rating officials at the time the report was rendered.  The available evidence does not show the contested NCOER was inaccurate, unjust, or otherwise flawed to a degree that would warrant its removal from the applicant's record.  Therefore, 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140021699, dated 29 January 2015.



      ____________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)                                         AR20150003575





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150003575



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1