IN THE CASE OF:	  

		BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20150007024 


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 the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 11 February 2009 through 30 June 2009 from his official military personnel file (OMPF).

2.  The applicant states he submitted an NCOER appeal in 2011 to the Army Special Review Board (AR20110016753) based on both administrative and substantive errors.  The Enlisted Special Review Board (ESRB) denied the appeal due to a lack of evidence.  Before the submission of his appeal, an attorney from his legal office advised him to remove some of his exhibits and to scale the appeal down by one half due to the lack of time the U.S. Army Human Resources Command (HRC) has to review the information.  He is about to receive his second look for sergeant first class (SFC)/E-7 and he believes this "4/4 NCOER" is stopping him from getting promoted, which can in turn affect his retirement once he hits 18 years, as an un-promotable staff sergeant (SSG)/E-6. His Branch has denied his recruiter packet and a permanent change of station to Belgium, being that it is a North Atlantic Treaty Organization assignment.  In short, this unjust NCOER is hindering him and will eventually end his career.  He requests complete removal of this NCOER from his files because it is unjust and riddled throughout with factual inaccuracy.  

3.  The applicant provides:

* Unsigned draft of the contested NCOER
* Signed contested NCOER
* Verbal counseling memorandum
* Home Station Fund Code S-4 printout
* Deployed Station Fund Code S-4 Printout
* Sworn Statement from Sergeant (SGT) JEC
* Second verbal counseling form
* Sworn statement from First Lieutenant (1LT) CKB
* Extract of Fort Campbell Regulation 190-1 (Physical Security Program)
* Sworn statement from Captain (CPT) TGL
* DA Form 1687 (Notice of Delegation of Authority-Receipt for Supplies)
* Sworn statement from 1LT RK
* Sworn statement from Specialist (SPC) MR
* Command Supply Discipline Program (CSDP) Outbrief Results for 
B Troop, 1st Squadron, 33rd Cavalry

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 1 July 1999 and he holds military occupational specialty (MOS) 92Y (Unit Supply Specialist). 

2.  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Korea, Germany, Japan, Iraq, and Afghanistan, and he was promoted to SGT/E-5 on 1 April 2006 and SSG/E-6 on 1 October 2010. 

3.  At the time he received the contested NCOER, he was assigned to B Troop, 1st Squadron, 33rd Cavalry, 3rd Brigade Combat Team, Fort Campbell, KY.  

4.  During June 2009, he received a "Change of Rater" NCOER covering 5 months of rated time from 11 February 2009 through 30 June 2009 for his duties as Troop Supply Sergeant.  His rater was 1LT HLG, the Troop Executive Officer; his senior rater was CPT JDG, the Troop Commander; and his reviewer was Major TPP, the Squadron Executive Officer.   

5.  He provides an unsigned draft NCOER with ratings similar to the contested NCOER that is filed in his records.  He also provides a copy of, and his records contain, the contested NCOER.  This NCOER shows the following entries

	a.  In Part IVa (Army Values), the rater placed an "X" in "No" block for "Integrity" and entered the following comments:

* has the potential to learn how to manage a troop supply room
* knowingly purchased unauthorized merchandise
* strives to improve MOS knowledge and ability

	b.  In Part IVb (Competence), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments:

* failed to maintain an organized property book which resulted in equipment being unaccounted for
* misplaced hand-receipts and essential records such as monthly sensitive item inventories as a result of an unorganized filing system 
* displayed desire to perform duties well; often sought help from the S-4 NCOIC [NCO in Charge] when unclear how to proceed

	c.  In Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Success" block and entered appropriate comments.

	d.  In Part IVd (Leadership), the rater placed an "X" in the "Success" block and entered appropriate comments.

	e.  In Part IVe (Training), the rater placed an "X" in the "Success" block and entered appropriate comments.

	f.  In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following comments:

* misunderstood requirements for physical security of sensitive items and left over $1,000 worth of sensitive equipment unsecured on the supply room floor
* failed to inform the chain of command regarding purchases; as a result, spent thousands of dollars on low priority or non-essential items
* purchased unauthorized and prohibited items without the commander's knowledge 

	g.  In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Marginal" block.  He also entered three positions in which the applicant could best serve the Army at his current or next higher grade. 

	h.  In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Fair/4" block.

	i.  In Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an "X" in the "Fair/4" block.

	j.  In Part IVe (Senior Rater Bullet Comments) the senior rater entered the following bullet comments:

* do not promote at this time
* performed below standards expected of a Troop Supply Sergeant
* send to Advanced Leader Course (ALC) when eligible
* has the potential to become a competent supply sergeant with continued mentoring and training 

6.  The above NCOER shows the rater, senior rater, and applicant authenticated this form by placing their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place.

7.  There is no available evidence showing the applicant requested a Commander's Inquiry regarding the subject NCOER.  

8.  On 26 July 2011, he appealed this NCOER through HRC to the ESRB.  He presented a similar argument and provided similar documents as submitted here. On 9 February 2012, the ESRB determined the evidence submitted did not substantiate a material error, inaccuracy, or injustice.  By unanimous vote, the ESRB denied his appeal. 

9.  He provided the following evidence in support of his application:

	a.  A verbal counseling memorandum, dated 12 May 2009, with printouts of the home station and deployed fund codes/budget.  This counseling shows his rater, 1LT HLG, conducted a verbal counseling regarding the applicant entering the wrong fund codes.  His rater/supervisor provided him with a corrective course of action.

	b.  A sworn statement, dated 28 November 2010, from SGT JDC showing he answered several questions regarding a work order the applicant had submitted.  
	c.  A verbal counseling memorandum, dated 20 May 2009, shows his rater, 1LT HLG, conducted a verbal counseling regarding missing equipment, the applicant's failure to notify the chain of command that he drew equipment, and finding equipment unsecure on the floor of a supply room. 

	d.  A sworn statement, dated 29 November 2010, from 1LT CKB, indicating that there had been numerous issues related to the troop signing for the entire squadron's equipment and then distributing it out.  

	e.  A sworn statement, dated 21 November 2010, from CPT TGL indicating there was no illegal activity on behalf of the applicant; however, the applicant did act irresponsibly and displayed poor judgment when ordering supplies.  

	f.  A sworn statement, dated 21 November 2010, from 1LT RK (the S-4) answering "YES" regarding questions as to whether the commander, CPT M, gave an example of a previous supply sergeant destroying Government property for turn-in in efforts to conceal missing property and whether the applicant was removed from his position. 

	g.  Sworn statement, dated 28 November 2010, from SPC MR, a supply specialist with B Troop who stated the applicant ordered essential supply items, trained him, and had 100 percent accountability of his equipment. 

	h.  Memorandum, dated 23 March 2009, subject: CSDP Outbrief for B Troop, which shows the Troop received a "Go" rating in 4 out of five areas (Property Authorization Document, Property Responsibility, Inventories, and Adjustment Documents), but a "No Go" rating was received in OCIE (Organizational Clothing and Individual Equipment). 

10.  Army Regulation 623-3 (Evaluation Reporting System), effective 10 September 2007, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.

	a.  Paragraph 1-11 (Commander's Inquiry) states that 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 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 3-2i (Evaluation Report Requirements) 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 his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions.

	c.  Paragraph 3-23 (Unproven Derogatory Information) states that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA.  If the rated individual is absolved, comments about the incident will not be included in the evaluation.

	d.  Paragraph 3-24 (Prohibited Comments) states a thorough evaluation of the Soldier is required.

	e.  Paragraph 3-39 (Modification to Previously Submitted Reports) states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the 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 appellant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested NCOER should be removed from his records.

2.  The available evidence shows the applicant, an NCO serving as a troop supply sergeant, appears to have performed below standard.  He received a change of rater NCOER that covered 6 months of rated time.  His rating officials believed he did not perform to standards in multiple areas of NCO values and/or responsibilities.  

3.  The applicant focuses his argument around the denial of his previous appeal by the ESRB.  This NCOER encompasses various failures by the applicant during the rating period.  For example: 

* the rater commented that the applicant knowingly purchased unauthorized merchandise and the verbal counseling memorandum by his supervisor confirms this issue
* in "Competence," the rater commented that the applicant failed to maintain an organized property book resulting in equipment being unaccounted for; again the verbal counseling memorandum by his supervisor confirms this issue 
* in "Responsibility and Accountability," the rater commented that the applicant misunderstood requirements for physical security of sensitive items, left sensitive equipment unsecured on the supply room floor, and failed to inform the chain of command regarding purchases; the counseling and the witness statements confirm his failure

4.  The applicant's NCOER reflects the objective judgment of his rating officials during the rating period.  This Board should not substitute its own evaluation of the applicant for that rendered by his rating officials as the Board is not privy to his performance during the rating period.  There is no evidence he requested a Commander's Inquiry or other investigation.  

5.  There is insufficient evidence to show the contested report contains any administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies.  Furthermore, the applicant has not shown the evaluation rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time the NCOER was prepared or that they exercised faulty judgment in evaluating him as they did.  He has the burden of providing proof.
 
6.  In view of the foregoing evidence, there is insufficient evidence to grant him 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 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)                                         AR20150007024



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ABCMR Record of Proceedings (cont)                                         AR20150007024



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