BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150011357 


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, in effect, that a DA Form 2166-8 (NCO (Noncommissioned Officer) Evaluation Report) (NCOER) for the period 1 August 2010 - 31 July 2011 (hereafter referred to as the contested NCOER) removed from his official military personnel file (OMPF).

2.  The applicant states the reviewer was an E-7 and the regulation states the reviewer must be a sergeant major (SGM) or higher.  The contested NCOER was poorly written with the intent to end his military career.  There were never any counselings to support the "No" blocks being checked on the front.  When his first sergeant (1SG) at the time said his platoon sergeant submitted the contested NCOER while the SGM was gone, a new NCOER was written but was rejected by U.S. Army Human Resources Command as a duplicate.  The contested NCOER was written based on a personal vendetta, not actual facts.

3.  He has been unable to get solid answers on how the appeals process works.  He has read the regulation and been to JAG (Judge Advocate General Corps) several times but to no avail.  He wants to serve no less than 20 years on active duty.  The contested NCOER will hinder any further career development.  More often than not, he had become too caught up in his work and more focused on his Soldiers, often forgetting to keep digging into the appeals process.

4.  The applicant provides no additional evidence in support of his application. 



CONSIDERATION OF EVIDENCE:

1.  He previously served 4 years and 9 days in the Missouri Army National Guard.  On 19 May 2008, he enlisted in the Regular Army for 3 years.  On 
1 August 2009, he was promoted to sergeant/pay grade E-5.  

2.  On 22 August 2011, the applicant received and signed the contested NCOER, as an annual NCOER, that covered 12 months of rated time from 1 August 2010 - 31 July 2011.  His signature verified the administrative data in Part I (Administrative Data), the rating officials in Part II (Authentication), and the duty description to include the counseling dates in Part III (Duty Description).  He also indicated he was aware of the appeals process in Army Regulation 623-3 (Evaluation Reporting System).

3.  Part II - Authentication shows:

* Staff Sergeant (SSG) G, Senior Boat Operator as his rater
* SSG O, Section Leader as his senior rater
* Sergeant First Class C, Platoon Sergeant as his reviewer

4.  Part IIIa (Principle Duty Title) shows his principle duty as "BOAT OPERATOR."  

5.  Part IIIf (Counseling Dates) shows he was initially counseled on 26 August 2010 with later counseling on 26 November 2010, 26 February 2011, and 26 May 2011.

6.  The contested NCOER shows the following additional entries:

	a.  In Part IVa (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "No" block for Duty (Fulfills their obligations) and Selfless-service (Puts the welfare of the nation, the Army, and subordinates before their own).  The rater placed an "X" in the "Yes" block for the remaining five values.  The following bullet comments were entered:

* displays selfish behavior and forsakes his leadership responsibilities
* demonstrated the lack of loyalty to superiors, peers, and subordinates
* put the needs of his Soldiers above his own

	b.  In Part IVd (Leadership) the rater placed an "X" in the "Some" block of "Needs Improvement."  This block contained the following bullet comments:

* compromised his leadership position; pursued and engaged in an               inappropriate relationship with a subordinate Soldier in the unit 
* coached and mentored a Soldier to the promotion board scoring 145         out of 150, and being recommended for promotion
* displayed a genuine concern for Soldiers through effective counseling       and mentoring; resulting in zero motor vehicle and drug related                  incidents

    c.  In Block IVf (Responsibility & Accountability) the rater placed an "X" in the "Some" block of "Needs Improvement."  This block contained the following bullet comments:

* undermined the good order and discipline of the unit and exhibited             conduct that was unbecoming of an NCO
* maintained 100% accountability of all assigned equipment, worth                $325,000 
* enforced safety by implementing Composite Risk Management on all         operations, which resulted in zero accidents

   d.  In Part Va (Rater.  Overall potential for promotion and/or service in positions of greater responsibility), the rater placed an "X" in the "Fully Capable" block.

   e.  In Part Vc (Senior Rater. Overall performance) the senior rater placed an "X" in the "3 - Successful" block and in Part Vd (Senior Rater. Overall potential for promotion and/or service in positions of greater responsibility) he placed an "X" in the "2 - Superior" block.

	f.  In part Ve (Senior Rater bullet comments) the senior rater entered the following comments:

* retain in current grade; displayed lack of judgment and poor decision          making; misused his grade and position to obtain personal pleasure
* continue to educate through NCOES; prepare for future assignments
* an adaptable NCO who sought self-improvement and encouraged             Soldiers to do the same throughout rating period
* continue to assign this NCO to current position so to further develop          his potential

7.  On 1 May 2013, he was promoted to SSG.  On 9 April 2014, he immediately reenlisted for 6 years.  He is currently serving with the 60th Engineer Company at Fort Benning, GA.

8.  There is no evidence the applicant appealed the contested NCOER to the Army Special Review Board (ASRB) within the 3-year period from the "THRU" date of the contested NCOER.

9.  Army Regulation 623-3, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the 
DA Form 2166-8.  

   a.  Rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On one hand, this evaluation will give full credit to the rated Soldier 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, Department of the Army Selection Boards and career managers can make intelligent decisions.  

   b.  Paragraph 2-3f(2) states the rating chain will consist of the rated NCO, the rater, the senior rater, and the reviewer.  The reviewer will be a commissioned officer, warrant officer, command SGM (CSM), or SGM in the direct line of supervision and senior in pay grade or date of rank to the senior rater.  NCO rating chains will not include an intermediate rater.

   c.  Paragraph 2-8b (NCOER reviewer eligibility and responsibility) states the reviewer will be a U.S. Army officer, CSM, or SGM in the direct line of supervision and senior in pay grade or date of rank to the senior rater. Promotable master sergeants may serve as reviewers, provided they are working in an authorized CSM or SGM position.
   
   d.  Every NCOER will be reviewed by the first sergeant, CSM, or SGM and signed by an official who meets the reviewer requirements of paragraph 2-8b. The reviewer is responsible for rating safeguard over watch and will:

   (1)  Ensure that the proper rater and senior rater complete the report.

   (2)  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.

   e. The reviewer will comment only when in disagreement with the rater and/or senior rater. 
   
   f.  An evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to:

  (1)  Be administratively correct.

   (2)  Have been prepared by the proper rating officials.

     (3)  Represent the considered opinion and objective judgment of the rating officials at the time of preparation.

   g.  Appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an NCOER will normally be returned without action unless accompanied by additional substantiating evidence.

   h.  Appeals based on administrative error only will be adjudicated by the Headquarters, Department of the Army, Evaluation Appeals Branch (AHRC-PDV-EA) for active Army NCOERs.  Claims of administrative error pertain to Parts I, II, and III of the NCOER (DA Form 2166-8).  Such claims may include but are not limited to deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the report period, and errors in the height/weight.

   i.  The rated Soldier’s authentication in Part II of a DA Form 2166-8 verifies the information in Part I.  It also confirms that the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the Army physical fitness test (APFT) performance and height and weight data entries made by the rater.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and IIIa) will be accepted only under the most unusual and compelling circumstances.  The rated Soldier’s signature also verifies the rated Soldier has seen a completed evaluation report.  Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report.  Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier.
   
   j.  Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board (ASRB).  Claims of inaccuracy of a substantive type pertain to Parts III, IV, and V of the DA Form 2166-8.  These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials.
   k.  Substantive appeals will be submitted within 3 years of an NCOER "THRU" date.  Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR.  The ASRB will not accept appeals that are over 3 years old or appeals from Soldiers who are no longer on active duty or part of the USAR or ARNG.
   
   l.  Administrative appeals will be considered regardless of the time that has elapsed since the period of the report and a decision will be made in view of the regulation in effect at the time the evaluation report was rendered.  The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is, therefore, recommended.
   
   m.  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 an administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

DISCUSSION AND CONCLUSIONS:

1.  His signature on the contested NCOER verified the rating officials in Part II (Authentication) and the duty description to include the counseling dates in 
Part III (Duty Description).  It also indicates he was aware of the appeals process of Army Regulation 623-3.

2.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and IIIa) will be accepted only under the most unusual and compelling circumstances.  

3.  He did not provide a copy of his rating chain in effect at the time of the contested NCOER.  

4.  He contends the contested NCOER was written based on a personal vendetta, not actual facts.  However, he has not provided any substantive evidence to support his contention.  He contends a new NCOER was written, but he did not provide a copy of the NCOER. 

5.  The contested NCOER appears to be correct and represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question.  There is no evidence and the applicant has not provided any evidence to show his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  More importantly, the applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOER or that they exercised faulty judgment in evaluating him as they did.

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)                                         AR20150011357





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ABCMR Record of Proceedings (cont)                                         AR20150011357



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