IN THE CASE OF: 

		BOARD DATE:  22 October 2015

		DOCKET NUMBER:  AR20150014466


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 her Official Military Personnel File (OMPF) by removing a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 15 February through 29 July 2009.  She further requests promotion reconsideration to master sergeant, pay grade E-8 for fiscal year (FY) 2014 and FY 2015.

2.  The applicant states that the subject NCOER as filed in her OMPF was altered after she signed it.  She argues that the alterations have caused her non-selection for promotion by the FY 2014 and FY 2015 promotion selection boards.  The alterations consisted of the following:

	a.  Part 1h (Period covered):  Someone typed in the same beginning date in large numbers and left the through date blank.

	b.  Part IVd (Leadership):  Someone changed the evaluation from excellence to success and deleted the first of three bullets that stated, “handpicked by the CSM over ten other Sergeant First Class to work in the SPO Transportation and Integration as the NCOIC” and added a new bullet between the remaining two bullets that states: “worked tirelessly to ensure that all Soldiers in the section were completely competent in the use of Worldwide Port System and Single Mobility system”

	c.  Part IVe (Training):  Someone deleted the first bullet that stated, “trained twenty Soldiers in her section on the use of Worldwide Port system and Single Mobility System; ensured Soldiers were competent to perform their duties” and added a new bullet between the remaining two bullets that stated, “ensured Soldiers’ were crossed trained on unit and Army functions, enhancing the unit’s ability to accomplish mission”

	d.  Part Ve (Senior Rater Bullet Comments):  Someone added the bullet, “no formal counseling conducted during rated period”

4.  The applicant provides copies of:

* DA Form 2166-8 for the period 15 February to 29 July 2009 (Correct copy)
* DA Form 2166-8 for the period 15 February to 29 July 2009 (Altered copy)
* Memorandum, from the applicant to U.S. Army Enlisted Records and Evaluation Center, dated 3 June 2015
* Memorandum for Record, from rater shown on subject NCOER, dated
   3 June 2015
* Evaluation Reports Available By Individual Look Up

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  At the time of her application, the applicant was serving in the Regular Army in the rank of sergeant first class, pay grade E-7.

3.  A review of the subject NCOER filed in the applicant’s OMPF and the two related documents provided by the applicant shows that the two NCOERs are identical except for the differences noted by the applicant.

4.  A memorandum for record, electronically signed by the rater of the subject NCOER, dated 3 June 2015, states that the NCOER placed in the applicant’s OMPF for the rated period in question is not the same report he signed and submitted .  He further stated that the original NCOER was altered and changed and should be removed from the applicant’s OMPF and replaced with the original report.

5.  In a memorandum dated 3 August 2015, the Enlisted Special Review Board (ESRB) administratively closed the applicant’s appeal of the subject NCOER because the request was not submitted within 3 years of the report through date.  The ESRB stated that the issues presented by the applicant did not show an exceptional justification.

6.  Army Regulation 623-3 (Evaluation Reporting System):

	a.  This regulation prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, to include the NCOER.

	b.  Alleged errors, injustices, and illegalities in a rated Soldier's evaluation may be brought to the attention of the commander by the rated individual or anyone authorized access to the report.  The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.

	c.  NCOERs accepted for inclusion in the official record of a Soldier is presumed to be administratively correct, 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 the 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 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 applicant.

	d.  Because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible.  As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult.  Substantive appeals will be submitted within 3 years of an NCOER through date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant it.  Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  The likelihood of successfully appealing a report diminishes, as a general rule, with the passage of time.  Prompt submission is, therefore, recommended.

8.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  The NCOER is to be filed in the performance section of the OMPF.

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides that the Deputy Chief of Staff, G-1 (Personnel Officer) or designee may approve cases for referral to a Standby Advisory Board (STAB) for promotion consideration upon determining that a material error may have existed that could have reasonably caused the Soldier not to be selected for promotion.  STABs are convened to consider records of those Soldiers whose records were not reviewed by a regular board or were not properly constituted, due to material error, when reviewed by the regular board.  Reconsideration normally will be granted when an adverse NCOER reviewed by a board was subsequently declared invalid in whole or in part and was then determined to constitute a material error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her OMPF should be corrected by removing an NCOER for the period 15 February through 29 July 2009 and replacing it with the copy she claims to be the correct and original report.  She further contends that she should be granted promotion reconsideration to master sergeant, pay grade E-8 for FY 2014 and FY 2015.

2.  The applicant argues that the subject NCOER filed in her OMPF was altered after the rating officials and she signed it.  She further argues that the alterations caused her non-selection for promotion in FY 2014 and FY 2015.

3.  The available evidence shows that the two NCOERs in question are essentially the same report, with one having a few entries different from the other.

4.  The applicant and the rater of the original report assert that the subject NCOER on file in the applicant’s OMPF is not what the rater intended or signed.  They further assert that the report submitted with this application is the correct report that should be filed in her OMPF.
5.  A review of both versions of the subject NCOER shows that neither report is derogatory.  To justify removal of an NCOER from the OMPF, the applicant must produce clear and convincing evidence showing that the presumption of regularity should not be applied to the report.  In this case, the applicant’s argument and the rater’s supporting statement are sufficient evidence to warrant replacement of the subject NCOER in her OMPF with the NCOER claimed to be correct.

6.  Regarding that portion of this case concerning promotion reconsideration, the available evidence is insufficient to warrant granting a STAB because neither version of the subject NCOER is derogatory in any manner. There is no indication that the minor differences between the two NCOER would have been a basis for denying her selection for promotion.

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.  Deleting from her OMPF the NCOER for the period 15 February through 29 July 2009; and
   
   b.  Adding the NCOER for the same rating period claimed by the applicant to be correct.



2.  The Board further determined that the evidence presented was 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 placing her records before a special selection board for promotion reconsideration to master sergeant, pay grade E-8 under the FY 2014 and FY 2015 criteria.



      _____________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)                                         AR20120021023



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150014466



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1