IN THE CASE OF:	  

		BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20150003741 


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 correction of his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period covering 1 July 2010 through 24 December 2010 (hereafter referred to as the contested NCOER) to show in:

	a.  Part I, block g (Reason for Submission), the code and reason "03 Change of Rater" instead of "04 PCS [permanent change of station]"; and 

	b.  Part IV (Army Values/Attributes/Skills/Actions (Rater), block a(5) (Honor) the entry "Yes" instead of "No" due to lack of substantive bullet comments.

2.  The applicant states:

	a.  in accordance with Department of the Army (DA) Pamphlet 623-3 (Evaluation Reporting System (ERS)), table 3-6, there is an error in Part I, block g which reads "04 PCS" and should read "03 Change of Rater."

	b.  in Part IV, block a5, the "No" box was selected in the "Honor" value block without providing substantive bullet comments in the space provided.  

   c.  an additional substantive error is the fact that Part IV, block b through Part V, block e provide no indication of the purported lack of honor stated in Part IV, block a(5).  



3.  The applicant provides:

* Memorandum, subject:  Evaluation Report Appeal [Applicant], dated 
20 February 2015
* DA Form 2166-8 for the period ending 24 December 2010
* Orders WW-340-0095, dated 6 December 2010
* Orders 341-307, dated 7 December 2010
* Memorandum, subject:  Supporting Statement for Evaluation Report Appeal, dated 9 February 2015 [Applicant]

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 February 2006.  

2.  At the time he submitted his application he was serving on active duty in the rank of staff sergeant (SSG)/E-6 while assigned to the 3rd Battalion, 2nd Aviation Regiment, General Support Aviation Battalion, Camp Humphreys, Korea.

3.  He provided Orders WW-340-0095, dated 6 December 2010, which show he was deployed in a temporary change of station (TCS) status and assigned to Company C, 1st Battalion, 52nd Aviation Regiment for deployment in support of Operation Enduring Freedom (Afghanistan) with a proceed date of on or about 20 January 2011.

4.  He also provided Orders 341-307, dated 7 December 2010, which show he was ordered to proceed on a PCS to Fort Lewis, WA with temporary duty at Fort Campbell, KY to attend a training course with a reporting date of 8 February 2011.

5.  The applicant was given the contested NCOER for the period 1 July 2010 through 24 December 2010 which rated his performance as a Crew Chief.  

	a.  Part I (Administrative Data), block g, shows the reason for submission as "04 PCS."

	b.  Part II (Authentication) shows his rater as SSG KBC, his senior rater (SR) as Captain (CPT) MMA, and the reviewer as Major (MAJ) MSM.  The applicant electronically signed the contested NCOER on 22 December 2010.

	c.  Part IIIf (Counseling Dates) shows he received his initial counseling on 2 July 2010.

	d.  Part IVa(5) contains a "No" entry with the comment "Soldier failed to live up to the Army values during this rating period."  

	e.  Part IVb (Competence) shows he was rated as "Success (Meets Standard)" followed by the comment:

"flawlessly performed 14 annual maintenance inspections on High Performance Hoists allowing the unit to conduct over 200 hours of Hoist Operations"

   f.  Part IVc (Physical Fitness and Military Bearing) shows he was rated as "Success (Meets Standard)" followed by the comments:
   
* increased Army Physical Fitness Test score by 20 points
* led unit in organized unit physical fitness training while consistently encouraging others to excel
   
   g.  Part IVd (Leadership) shows he was rated as "Excellence (Exceeds 
Standard)" followed by the comments:
   
* selected as the NCOIC [Noncommissioned Officer-in-Charge] of four details, supervising over 40 Soldiers in support of the TF [Task Force] Denali deployment to Pakistan
* motivated two Soldiers to complete over 500 correspondence course hours and enroll in civilian education
* mentored one Soldier to win the Battalion Soldier of the Quarter board

	h.  Part IVe (Training) shows he was rated as "Excellence" followed by the comments:

* single-handedly stood up a Hoist Maintenance Program for the Company; mentored junior crew chiefs on hoist maintenance techniques and procedures
* trained 24 crewmembers on the proper completion of maintenance forms and records for the High Performance Rescue Hoist

	i.  Part IVf (Responsibility and Accountability) shows he was rated as "Success (Meets Standards)" followed by the comments:

* served as Ammo Detail NCOIC for two ranges, supervising 10 personnel; maintained 100% accountability of all range munitions
* his emphasis on safety and accountability has contributed to the zero work related loss time accident rate in the company
   j.  Part V (Overall Performance and Potential) shows the rater assessed his overall potential for promotion and/or service as "Fully Capable."  The SR listed his overall performance as "Successful – 3" and potential for promotion and/or service in positions of greater responsibility as "Superior – 1."  The SR recommended him for promotion to SSG with his peers and Advanced Leaders Course with peers.  In addition, the SR commented the applicant was successful at accomplishing the mission at hand and should be placed in positions to give him opportunity to be challenged.

	k.  The rater listed three positions in which the applicant could best serve the Army at his current or next higher grade as:

* Phase Team Leader
* UH-60 Section Sergeant
* UH-60 Technical Inspector

6.  A review of the interactive Personnel Electronic Records Management System (iPERMS) revealed the contested NCOER was filed in the performance section of his Official Military Personnel Record (OMPF).  IPERMS does not indicate he received any disciplinary actions during this rating period.

7.  In a memorandum, dated 9 February 2015, a Chief Warrant Officer Five (CW5) gave his support for the applicant's decision to appeal the contested NCOER and stated:

   a.  He served as the 1st Battalion, 52nd Aviation Battalion Material Officer during the applicant's rating period July 2010 through December 2010.  In that position, he observed the applicant and his duty performance as a UH-60 Crew Chief and the sole steward of the company High Performance Hoist program.
   
	b.  The applicant's dedication to the training of maintainers and the maintenance of this key piece of equipment was exemplary and critical to the medical evacuation (MEDEVAC) mission.

	c.  He worked with the applicant on a weekly basis to ensure that his logistics and maintenance requirements were being met.  

	d.  He was very familiar with the applicant's rater and SR as he had been assigned to Company C for three previous years immediately preceding his move to the battalion.

	e.  He was deployed with the applicant in support of Operation Iraqi Freedom 09-10.  The applicant performed his duties above expectation and he always went above and beyond to ensure that the Soldier's welfare was the priority.  

   f.  The applicant received the contested NCOER due to his selection and PCS to the 160th Special Operations Regiment (SOAR) in order to achieve his goal of improving his personal life and professional career.  In regard to the applicant's NCOER rating of "Honor," the CW5 believes that the applicant received this particular rating as he was perceived as not being a team player for the MEDEVAC.  The climate in today's Army makes it difficult to retain experienced trained personnel.  The applicant was selected by one of the most elite Aviation units in the world and served them with distinction.  His departure from the MEDEVAC, while potentially untimely for the unit, is not a reflection of his previous or subsequent performance as addressed in his NCOERs.  

	g.  He has flown countless real world MEDEVAC and training missions with the applicant and was honored to have him on his crew.  The applicant had always kept with the Army Values, set the example for junior Soldiers to emulate, and displayed the appropriate level of respect and tireless selfless service.

8.  Army Regulation 623-3 (ERS), in effect at the time, prescribed the policies for completing evaluation reports that support the ERS.  This includes the DA Form 2166-8.

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or NCO Corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pamphlet 623-3.  Consideration will be given to the following:  (a) the relative experience of the rated officer or NCO, (b) the efforts made by the rated officer or NCO, and (c) the results that could be reasonably expected given the time and resources available.  Potential evaluations will be performance-based assessments of the rated officers or NCO's of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers and NCO's, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for Headquarters DA (HQDA).

	b.  Paragraph 3-2f states rating officials will prepare reports that are accurate and as complete as possible within the space limitations of the form.  This responsibility is vital to the long-range success of the Army's mission.  With due regard for the rated individual's current grade, experience, and military schooling, evaluations will cover failures as well as achievements.  Evaluations will normally not be based on a few isolated minor incidents.

	c.  Paragraph 3-2i states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for their achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, HQDA selection boards, and career managers can make intelligent decisions.

	d.  Paragraph 4-11d states evidence will include statements from third parties, rating officials, or other documents from official sources (see DA Pamphlet 623-3) for a claim of inaccuracy or injustice of a substantive type.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  The results of a Commander's or Commandant's Inquiry may provide support for an appeal request.

	e.  Paragraph 6-11a states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice.  The evidence presented must be of a clear and convincing and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

9.  DA Pamphlet 623-3 (ERS) outlines the procedures, tasks, and steps pertaining to the completion of each evaluation report.  Paragraph 3-6 states Army Values/NCO Responsibilities is completed by the rater.  Part IVa contains a listing of the Army values that define professionalism for the Army NCO.  These Army values are needed to maintain public trust and confidence as well as the qualities of leadership and management needed to maintain an effective NCO Corps.  These values are listed on DA Form 2166-8 to emphasize and reinforce professionalism.  They will be considered in the evaluation of the performance of all NCOs.  

10.  Table 3-1 (Administrative Data for DA Form 2166-8), Part I, block g-Reason for Submission directs to enter the appropriate NCOER code (left block) and reason (right block) that identify why the NCOER is being prepared for submission.  

11.  Table 3-6 shows the code "04" means change of duty, retirement, or discharge; reassignment to a U.S. Army Reserve Control Group.  The reason for code "03" is Change of Rater.

12.  Paragraph 3-6a states Army Values and NCO responsibilities/requirements are the sole focus for performance evaluation in part IV of the NCOER.  Box checks and bullet comments are used throughout the evaluation.  Bullet comments are mandatory regardless of the ratings given (at least one bullet will be entered in each block of a through f).  Standardized rules apply to bullet comments on DA Form 2166-8.  Bullet comments will be short, concise, to the point.  Bullets will not be longer than two lines, preferably one; and no more than one bullet to a line.

13.  Paragraph 3-6, table 3-4, states the rater will check either "Yes" or "No" in each of the Army values blocks.  Mandatory specific bullet comments are required for all "No" entries.  Base each entry on whether the rated NCO "meets" or "does not meet" the standard for each particular value.  Quantitative and substantiated bullet comments are used to explain any area where the rated NCO is particularly strong or needs improvement.  A list of the values and their definitions can be found in paragraph 3-6 and in Field Manual 6-22 (Army Leadership).

14.  Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management) prescribes the policies governing the AMHRR, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the ABCMR; DASEB; Army Appeals Board; Chief of Appeals and Corrections Branch, U.S. Army Human Resources Command; AMHRR custodian (when documents have been improperly filed); and Chief of the Appeals Branch of the National Guard Personnel Center.

15.  Army Regulation 600-8-104, table 2-1, states an NCOER will be filed in the performance section of the AMHRR.

16.  Field Manual 6-22, Table 6-1 (Framing the Army Values, empathy, Warrior/Service ethos, and discipline) describes the standard for Army Values as consistently demonstrates: loyalty, duty, respect, selfless service, honor, integrity, and personal courage.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was given an NCOER for the period 1 July 2010 through 24 December 2010.  

2.  The applicant contends that the reason for submission recorded in Part I, block g of the contested report is in error based on DA Pamphlet 623-3.  He claims the entry should read "03 Change of Rater" instead of "04 PCS."  

3.  The applicant's service record is void of evidence which indicates there were any changes in his rating chain.  He received both TCS and PCS orders dated in December 2010 and the CW5 stated in his letter that the applicant received the contested NCOER due to his selection and PCS to the 160th SOAR.  Therefore, there is an insufficient basis for which to amend Part I, block g to reflect the code and reason "03 Change of Rater."

4.  The applicant's contention that the "No" box was selected in the "Honor" value block without providing substantive bullet comments in the space provided was carefully reviewed and determined to have merit.  

5.  A thorough review was conducted of the applicant's official record in conjunction with this appeal.  Based on the available evidence, he has provided evidence of a convincing nature that the contested NCOER contains a substantive inaccuracy.

	a.  The evidence of record shows that the applicant received a "No" rating in Part IVa for "Honor" and by regulation was required to have a specific bullet comment to address the "No" rating.  The rater entered the comment "Soldier failed to live up to the Army values during this rating period."  

   b.  The Army value "Honor" is defined as living up to all the Army Values.  His service record is void of evidence which shows he received any counseling or documentation that would substantiate that he failed to live up to the Army values as documented in Part IVa(5).
   
   c.  The rater's responsibility is to prepare reports that are accurate and as complete as possible within the space limitations of the form.  This responsibility is vital to the long-range success of the Army's mission with regard to the rated individual's current grade, experience, and military schooling.
   
   d.  The applicant held the rank/pay grade of SGT/E-5 during the rating period with less than 6 months' time in grade.  
   
   e.  The contested report was the applicant's first report in the rank of SGT/E-5 and he received only one initial counseling on 2 July 2010.  There is no evidence to indicate he received any counseling or documentation that would validate any derogatory conduct as documented in Part IVa(5) of the contested report.

6.  Absent any evidence to substantiate the rater's bullet comment that the applicant failed to live up to the Army values during this rating period, it would be equitable to:

   a.  amend Part IVa(5) by deleting the "X" from the "No" block and enter a "X" in the "Yes" block.
   
   b.  delete the bullet comment "Soldier failed to live up to the Army values during this rating period."  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending Part IVa(5) of the contested NCOER by deleting the "X" from the "No" block and entering a "X" in the "Yes" block and 

	b.  deleting from the contested NCOER the bullet comment "Soldier failed to live up to the Army values during this rating period."  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending Part I, block g of the contested NCOER to show the code and reason of "03 Change of Rater."



      ________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)                                         AR20150003741





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