IN THE CASE OF:  	  

		BOARD DATE:  23 July 2015	  

		DOCKET NUMBER:  AR20150006457 


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 his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 10 March 2012 through 15 June 2012 (hereafter referred to as the contested NCOER) from his records.

2.  The applicant states:

* he challenged the contested NCOER on the grounds that the minimum rating days had not been met
* he appealed the contested NCOER and his appeal was denied
* Department of the Army Pamphlet 623-3 (Evaluation Reporting System) is inconsistent with Army Regulation 623-3 (Evaluation Reporting System)
* Army Regulation 623-3 indicates a minimum of 90 calendar days for an evaluation
* the Enlisted Special Review Board (ESRB) noted in its findings that 20 days of rated time should have been coded "P" as non-rated time due to medical care and convalescent leave
* the rated time would have been 77 days had the code been applied
* the contested NCOER referred to a physical profile during the rating period and the comments pertaining to the profile were inappropriate
* an NCOER is not the outlet for the command to express frustration with the Soldier's physical profile – the remedy is to seek reconsideration of the physical profile from the treating physician
* referring to a necessary physical profile punishes the Soldier for circumstances out of his or her control and is inappropriate

3.  The applicant provides:

* ESRB Record of Proceedings, dated 1 May 2014
* NCOER appeal package, dated 26 July 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 August 2004.

2.  The contested NCOER shows the applicant was assigned to Headquarters and Headquarters Detachment, Military Information Support Operations Command (Airborne) (Provisional), during the period 10 March 2012 through 15 June 2012.

3.  The contested NCOER shows the applicant received his initial counseling on 15 March 2012.

	a.  Part I (Administrative Data), item j (Non-rated Codes), is blank,

   b.  Part IV (Rater – Values/NCO Responsibilities):

		(1)  item b (Competence), shows the rater checked "NEEDS IMPROVEMENT" and entered the comment, "Allowed Soldiers to improperly pack personnel [sic] parachutes while performing his duties";

		(2)  item c (Physical Fitness and Military Bearing), shows the rater checked "Success" and provided the comment, "Soldiers [sic] profile hindered his duty performance on a daily basis."  This block also shows "PROFILE" for the Army Physical Fitness Test;

		(3)  item d (Leadership), shows the rater checked "SUCCESS" and provided the comment, "Soldier ensured his personal needs were taken care of prior to his Soldiers";

		(4)  item e (Training), shows the rater checked "SUCCESS" and provided the comment, "Needs training in all aspects of the rigger field before leading Soldiers during any kind of training"; and

		(5)  item f (Responsibility and Accountability), shows the rater checked "SUCCESS" and provided the comment, "ensured safety standards and procedures were followed."

	c.  Part V (Rater – Overall Performance and Potential) shows the rater checked "MARGINAL" and provided the following comments:

		(1)  "Do not send to the promotion board at this time."

		(2)  "Select for Advanced Leadership Course with his peers."

		(3)  "Soldier needs to be monitored during his leadership development."

	d.  Part V, item d (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) is checked "4 – Fair."

4.  On 21 March 2012, the applicant was admitted to Womack Army Medical Center, Fort Bragg, NC.  Operative reports show:

	a.  On 21 March 2012, he had a major operation for incision and drainage of his left lateral calf abscess.

	b.  On 23 March 2012, he had a major operation for left leg wound debridement, washout, and wound vacuum-assisted closure placement.

5.  On 26 March 2012, he was discharged from the medical center.  His discharge/release document shows:

* 14 days of convalescent leave was recommended
* no heavy lifting, less than 20 pounds, or strenuous activity for 4 weeks
* a prescription of Percocet and clindamycin

6.  On 26 March 2012, he was issued a temporary physical profile until 25 April 2012.  On 3 April 2012, he was issued a temporary physical profile until 18 May 2012.  His temporary physical profiles show he was:

* restricted him from performing Army Physical Fitness Testing
* directed to return to the surgery clinic 2-3 times weekly for dressing changes

7.  The contested NCOER was authenticated on the following dates:

* rater – 31 July 2012
* senior rater – 2 August 2012
* reviewer – 2 August 2012
* applicant – 27 July 2012

8.  The contested NCOER was accepted by the U.S. Army Human Resources Command (HRC) and filed in his records on 18 October 2012.

9.  On 1 May 2014, the ESRB denied the applicant's appeal of the contested NCOER.

10.  The applicant provided a copy of his NCOER appeal package and a copy of the ESRB decision.  Included in his NCOER appeal package were:

	a.  a sworn statement from his company commander who stated the applicant took 14 days of convalescent leave during the period 26 March 2012 through 8 April 2012;

	b.  a sworn statement from Sergeant R____ D. B____ who stated the applicant was his sponsor and he worked alongside him.  He also stated the applicant had a squad of four Soldiers and he:

* always placed the squad first and he showed a great deal of leadership in taking care of his squad
* he came to work early to ensure the Soldiers got started early and he released them early so they could have time off
* he worked after duty hours to help them with any issues needing correcting and he always placed their needs above his own
* he held them to standard, he ensured packing was done right and they had proper military bearing
* he stood out during physical training by volunteering to conduct training among the detachment
* he was vigorous and tough and he always made sure training was to standard

	c.  a sworn statement from Sergeant M____ A. M____ who stated she became the applicant's supervisor in December 2012.  She stated he was one of the unit's most mature Soldiers and he never had to be told what his job was or to be reminded to do something.  He was one of the unit's best troops and she would not hesitate to recommend him for retention and promotion; and

	d.  a sworn statement from Staff Sergeant J____ W. B____ who stated he had been working with the applicant since August 2012.  He stated the applicant demonstrated a "can do" attitude, he was a good motivator, he was responsible for the health and welfare of five Soldiers, and he placed his Soldiers and the mission first.

11.  He also provided a copy of his convalescent leave form for the period 26 March 2012 through 8 April 2012.

12.  Army Regulation 623-3, in effect at the time, prescribed the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System.

	a.  Paragraph 2-5a(2) stated the rater will be the supervisor for a minimum period of 90 calendar days.

	b.  Paragraph 3-40 stated a change-of-rater NCOER is mandatory when the rated NCO ceases to serve under the immediate supervision of the rater and the minimum rating qualifications have been met.

	c.  A change-of-rater report will be prepared for a rater's subordinate when there is a loss of a rater as a rating chain member.  The "thru" date in these reports will be the date of the incident when the rater proceeds on permanent change of station, dies, is declared missing, is relieved, or becomes incapacitated to such an extent that the commander, with the advice of the medical authorities, when necessary, believes the rater is unable to submit an accurate evaluation.

	d.  Paragraph 2-12h stated to verify the rated Soldier's APFT results, if taken, and height and weight data for entry on the evaluation report.  The rater must provide comments for an APFT failure, a "No" entry for height and weight compliance, or the absence of APFT or height and weight data.  Provide an objective and comprehensive evaluation of the rated Soldier's performance.

	e.  Paragraph 4-7 stated 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.

13.  Department of the Army Pamphlet 623-3, in effect at the time, prescribed the policies for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System.  It stated:

	a.  The number of rated months is computed by dividing the number of days in the rating period by 30.  Subtract all nonrated time.  If 15 or more days are left after dividing the rating period by 30, they will be counted as a whole month (for example, 130 days is 4 months and 10 days and is entered as 4 months; 140 days is 4 months and 20 days and is entered as 5 months).

	b.  Table 3-4, Part IV, block c, stated a comment on profile entries will be made only if the rated NCO's ability to perform his or her assigned duties is affected.

	c.  Table 3-7 (Reason Codes for Nonrated Time for NCOERs) shows code "P" would be applied for patients under doctor's care and the Soldier is unable to perform assigned duties and when on convalescent leave.

14.  Nonrated time periods are when Soldiers cannot be evaluated by the rating officials.  Such time periods include, but are not limited to, school attendance, in-transit travel, hospitalization or patient status, convalescent leave, leave periods of 30 days or more, and periods when the rater has not met minimum qualifications.

DISCUSSION AND CONCLUSIONS:

1.  The contested NCOER covered the period 10 March through 15 June 2012 for a total of 3 months.  The applicant was hospitalized during the period 21 March through 26 March 2012 and he had 14 days of convalescent leave.  He had a total of 20 days of nonrated time during the period covering the contested NCOER.

2.  Although the applicant argues the reference to his temporary physical profile was inappropriate, the governing pamphlet directs entering comments on the NCOER if a Soldier's performance of duties is affected.

3.  NCOER's 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.

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.  Sufficient evidence has been presented showing the applicant's nonrated time was improperly included in the overall calculation for the period covering the contested NCOER.  Had the nonrated time been properly subtracted, the rater would not have met the minimum required time to render an evaluation.

5.  In view of the above, the contested NCOER should be removed from the applicant's records.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* removing the NCOER for the period 10 March 2012 through 15 June 2012 from his records
* placing a statement of nonrated time in his records in lieu of this report



      _______ _   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)                                         AR20150006457



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ABCMR Record of Proceedings (cont)                                         AR20150006457



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