IN THE CASE OF:  	  

		BOARD DATE:  6 October 2016

		DOCKET NUMBER:  AR20150010509


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 1 April 2006 through 
14 December 2006 from his official military personnel file (OMPF).

2.  The applicant states:

     a.  The NCOER is full of untruths, unproven defamatory and derogatory remarks, and unsubstantiated accusations unrelated to his duty performance and character.  

     b.  The NCOER is cluttered with errors and, according to regulation, should be error free; therefore, it should be removed from his OMPF.

     c.  The NCOER is now being used as a basis to involuntarily separate him from the service under the Qualitative Management Program.  He must have it removed from his records in order to continue to serve his country as a proud member of the United States Army.  

3.  The applicant provides:

* a memorandum from the applicant to the U.S. Army Human Resources Command – St. Louis (HRC–St. Louis), dated 9 April 2007, subject: Evaluation Report Appeal (Report Period 20060401-20061214)
* a memorandum from the applicant to Commander, Headquarters and Headquarters Company (HHC), 9th Regional Readiness Command (RRC), Fort Shafter Flats, Honolulu, HI, dated 20 February 2007, subject: Request for a Commander's Inquiry (CI)
* contested NCOER 
* a memorandum from HRC–St. Louis, dated 13 March 2008, subject: NCOER Appeal (060401-061214) 
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 28 October 2008

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 29 October 1988 and held military occupational specialty (MOS) 54B (Carpentry and Masonry Specialist).  He served through multiple extensions and/or reenlistments in a variety of assignments, including active service from 27 January 2003 to 27 February 2005. 

2.  He reentered active duty in the Active Guard/Reserve Program on 28 February 2005 and he was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 1 September 2006.  During this period, he was assigned to Headquarters, 9th RRC, at Fort Shafter, HI, in MOS 21H (Construction Engineer).  

3.  The applicant received the contested NCOER during the month of January 2007, a "Change of Rater" report covering 9 months of rated time from 1 April through 14 December 2006.  This NCOER, as filed in his OMPF with the typed comment "Corrected Copy per the Army Enlisted Review Board, 13 Mar 08." The NCOER shows in: 

     a.  Part IVa (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "No" blocks for "Respect/EO/EEO," "Selfless-Service," "Honor," and "Integrity" and entered the following comments:  

* substantiated complaints of assault
* violations of the Uniform Code of Military Justice
* does not respect laws and regulations of the Army 

     b.  Part IVb (Competence), the rater placed an "X" in "Needs Improvement (Much)" with the following comments:

* Soldier shows undisciplined initiative to learn the required tasks for his advanced positon
* Solider missed or ignored a substantial portion of suspenses due from his section
     c.  Part IVd (Leadership), the rater placed an "X" in "Needs Improvement (Some)" with the following comments: 

* significant credibility loss due to poor judgment demonstrated toward service members and civilians inside/outside of this command
* intermittent focus on mission requirements
* requires direct supervision to ensure duties at his senior grade are completed

     d.  Part IVe (Training), the rater placed an "X" in "Needs Improvement (Some)" with the following comments:

* has a difficult time arranging and managing a project
* Soldier has to be constantly reminded of his duty requirements
* does not possess the skills required for his grade and position in current career field 

     e.  Part IVf (Responsibility and Accountability), the rater placed an "X" in "Needs Improvement (Some)" with the following comments:

* removed as GPC card Purchasing Authority for buying unauthorized items
* GPC inspection from 9th RRC, GPC Agency Program Coordinator showed a lack of accounting documentation in the GPC ledger as Approving Official

     f.  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. 

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

     h.  Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments:

* performance during the rating period has been substandard 
* Soldier has not demonstrated the initiative and discipline required to be successful in this position
* needs to concentrate on performance of duty and respect for others 
* Soldier is capable of improved performance, but needs a high degree of change to reach his potential 

4.  The NCOER shows the rater, senior rater, and applicant authenticated this form by their signatures in the appropriate places and the reviewer concurred with the rater and senior rater.

5.  On 20 February 2007, he requested a CI regarding this NCOER.  He stated the following as the main reasons for his inquiry:

* it was not fair or in compliance with Army Regulation 623-3 (Evaluation Reporting System) and not an accurate evaluation of his job performance
* he questioned all sections of the NCOER as most of the comments were inappropriate and unsubstantiated  
* he was concerned about the regulatory compliance with Army Regulation 623-3 and Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System)

The results of the CI are not available for review in this case.

6.  He appealed the contested NCOER to HRC-St. Louis on 9 April 2007, based on what he alleged were substantive inaccuracies and violations of the regulation and requested the report be removed from his official files.  His appeal was specifically focused on the following:

     a.  Part IVa, in that the three bullets were prohibited in accordance with Army Regulation 623-205, paragraph 3-18b, because they were: "substantiated complaints of assault," "violations of the Uniform Code of Military Justice," and "does not respect laws and regulations of the Army."

     b.  Part IVb, in that the statement "Soldier received UCMJ under Articles 92 and 128 during this period" was prohibited in accordance with Army Regulation 623-205 paragraph 3-18b.

     c.  Part IVd, in that the statement "significant credibility loss due to poor judgment demonstrated toward service members and civilians inside/outside of this command" was an unproven remark.

     d.  Part IVe, in that the statement "does not possess the skills required for his grade and position in current career field" was an unproven and derogatory statement.

7.  His appeal was considered by the Army Enlisted Special Review Board (ESRB) on 13 March 2008, and he was granted partial relief in that the ESRB modified a portion of this NCOER.  

8.  A review of this NCOER reveals the partial relief was the modification of Part IVb and the deletion of the statement "Soldier received UCMJ under Articles 92 and 128 during this period."  The rest of the NCOER was deemed in compliance with applicable regulations.  The ESRB refrained from ordering its removal from his records.

9.  He was honorably released from active service on 28 October 2008.

10.  After a short break in service, he enlisted in the Regular Army on 24 February 2009, in the rank/grade of SFC/E-7, and he executed an indefinite reenlistment on 27 January 2015. 

11.  Army Regulation 623-3, 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 2-17 (Review of NCOERs): 

		(1)  Every NCOER will be reviewed by the first sergeant, command sergeant major or sergeant major and signed by an official who meets the reviewer requirements of paragraph 2–8b.  The reviewer is responsible for rating safeguard overwatch and will ensure that the proper rater and senior rater complete the report and examine the evaluations rendered by the rater and senior rater to ensure they are clear, consistent, and just, in accordance with known facts.  Special care will be taken to ensure the specific bullet comments support the appropriate excellence, success, or needs improvement ratings in Part IVb-f. 

		(2)  The reviewer will comment only when in disagreement with the rater and/or senior rater.  The reviewer indicates concurrence or non-concurrence with rater and/or senior rater by annotating the appropriate box with a typewritten or handwritten “X “ in Part II and adding an enclosure (not to exceed one page).  When the reviewer determines that the rater and or senior rater have not evaluated the rated NCO in a clear, consistent or just manner based on known facts, the reviewer’s first responsibility will be to consult with one or both rating officials to determine the basis for the apparent discrepancy.  If the rater and/or senior rater acknowledge the discrepancy and revise the NCOER so that the reviewer agrees with the evaluation, the reviewer will check the concur box in Part II.  If the rater and/or senior rater fail to acknowledge a discrepancy and indicate that the evaluation is their honest opinion, the reviewer will check the nonconcur box in Part II.  The reviewer then will add an enclosure that clarifies the situation and renders his/her opinion regarding the rated NCO’s performance and potential.  The reviewer may not direct that the rater and/or senior rater change an evaluation believed to be honest.  In cases where neither the rater nor the senior rater is an NCO, the reviewer will get additional informal input from the senior NCO subordinate to the reviewer.  The reviewer’s enclosure will be submitted along with the completed DA Form 2166–8 and is limited to one page. The reviewer will notify the rating chain and rated NCO of non-concurrence with the report.  This will ensure that the rating chain and the rated NCO are informed of the completed report and may allow for a possible request for a Commander’s Inquiry or appeal if desired.  The reviewer’s enclosure will not be used as a third, reworded agreement with evaluations by the rater and senior rater.

	c.  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.

	d.  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.
	
   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.

12.  Army Regulation 623-205 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  Evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  

     a.  Paragraph 3-18 (Prohibited Comments) stipulates, in relevant part, that no mention will be made of any punitive or administrative action taken (or planned) against a rated NCO.  This does not preclude mentioning the rated NCO's underlying misconduct that served as the basis for the action (emphasis added).

     b.  Paragraph 6-10 (Burden of Proof) states, in relevant part, 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's request for the removal of his NCOER for the rating period 
1 April 2006 through 14 December 2006 was carefully considered. 

2.  The governing Army regulation clearly states an evaluation report included in the official record of a rated Soldier is presumed to be administratively correct; to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

3.  The available evidence shows the applicant filed an appeal related to his contested NCOER that was considered by the ESRB on 9 April 2007.  The ESRB granted partial relief and modified a portion of this NCOER in Part IVb.  However, the board found the rest of the NCOER to be in compliance with the applicable regulations and appropriately refrained from ordering its removal from his records.

4.  He also contends that the contested NCOER contains prohibited comments in Part IVa, consisting of:

* substantiated complaints of assault
* violations of the Uniform Code of Military Justice
* does not respect laws and regulations of the Army

5.  The governing regulation does not preclude mentioning the rated NCO's underlying misconduct that served as the basis for the action.  

6.  There is insufficient evidence that shows the contested report contains any administrative or substantive deficiencies or inaccuracies or that it was not prepared in compliance with applicable regulations and policies, other than that portion the ESRB determined needed correcting.  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.  

7.  The applicant's arguments provided in this case address his dissatisfaction with his rating and his belief that it was an unfair assessment.  However, he did not provide any evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  

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)                                         AR20150008466



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ABCMR Record of Proceedings (cont)                                         AR20150010509



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