AR20160002223

IN THE CASE OF:

BOARD DATE: 1 March 2016

DOCKET NUMBER: AR20160002223

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 DAForm2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 25 February 2008 through 6 June 2008 (contested NCOER) from his official military personnel file (OMPF).

2. The applicant states the rater did not meet the minimum 90-day requirement to rate him as required by regulation. He asserts the senior rater was never in his platoon. The senior rater did not know what he was doing was wrong and he signed the NCOER without having worked with him, not even for one single day. What caused this injustice was lack of supervision from his chain of command. This contested NCOER is totally unjust, and on top of that, his rater, who was determined to give him a bad NCOER at any cost and who was supported by his company leadership, got the lieutenant from another platoon to sign it and purposely backdated the rating period start date to 25February 2008 to make it appear like he had enough time as his rater. In reality, his previous NCOER was dated through 25 March 2008. This injustice went all the way up to the U.S. Army Human Resources Command (HRC) and no administrator caught the irregularity. He is facing a Qualitative Management Program (QMP) board this year, so now this unjust NCOER has put his honorable military career in jeopardy.

3. The applicant provides:

* NCOER for the period from 19 June 2007 through 25 March 2008
* Contested NCOER
* Enlisted Record Brief

CONSIDERATION OF EVIDENCE:

1. With prior service in the Regular Army from 4 May 1998 to 5 April 2006 and after a break in service, the applicant enlisted in the Regular Army on 22May 2007 in the rank of sergeant/pay grade E-5. He holds military occupational specialty (MOS) 21B (Combat Engineer).

2. He served through a subsequent reenlistment (1 February 2009, 6 years), in a variety of assignments, including assignments in Korea, Iraq, and Afghanistan, and he attained the rank/grade of staff sergeant/E-6 in December 2007.

3. He received a change of rater NCOER for the rating period 19 June 2007 through 25 March 2008, covering 9 months of rated time, for his duties as a squad leader while assigned to E Company, 1st Battalion, 72nd Armor, Korea. (By regulation, his next NCOER should have started on 26 March 2008.)

4. During June 2008, he received a change of rater NCOER covering 3 months of rated time from 25 February 2008 through 6 June 2008 for his duties as a squad leader while assigned to E Company, 1st Battalion, 72nd Armor, Korea. His rater was Staff Sergeant BJP, the platoon sergeant; his senior rater was First Lieutenant DFT, the platoon leader; and his reviewer was Captain NJS, the company commander. This NCOER shows:

a. In Part IVa (Army Values), the rater placed an “X” in the “Yes” blocks for all values and entered his bullet comments.

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

* incapable of accomplishing tasks without direct supervision
* failed to qualify Bradley Fighting Vehicle during Level II Gunnery in this rated period
* not capable of training others due to his lack of knowledge in his occupational specialty

c. In Part IVc (Physical Fitness and Military Bearing) and Part IVf (Responsibility and Accountability), the rater placed an “X” in the “Success” block and entered his bullet comments.

d. In IVd (Leadership), the rater placed an “X” in the “Needs Improvement (Some)” block and entered the bullet comments
* displayed the ability to lead by example at times
* disobeyed instructions/orders of superiors on numerous occasions

e. In Part IVe (Training), the rater placed an “X” in the “Needs Improvement (Some)” block and entered the following bullet comments:

* directed by platoon sergeant to take squad during the Warrior 40/11 Task Testing; all Soldiers attained a first time GO
* conducted Sergeant’s Time Training numerous times
* participated in Iron Focus which helped his platoon accomplish its mission

f. 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.

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

* promote when all promotions to [sergeant first class] are exhausted
* send back to [Basic NCO Course] Phase I for further development
* lacked potential to perform under stressful situations
* needs more time in current position and grade to develop professionally

5. The NCOER shows the rater and senior rater authenticated the contested NCOER 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. The applicant also digitally signed this form.

6. On 21 December 2015, the applicant appealed the contested NCOER to HRC. On 29 December 2015, HRC informed him by letter that his appeal was not in compliance with regulatory guidance for it was received after the 3-year window for an appeal. He was advised to petition this Board.

7. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time prescribed the policies for completing evaluation reports that support the Evaluation Reporting System.

a. Paragraph 2-5 (Rules for designating a rater) states a rater will be an officer or NCO of the U.S. Armed Forces or an employee of a Department of Defense or U.S. Government agency (including non-appropriated fund rating officials). The rater will normally be the immediate supervisor for a minimum period of 90 consecutive days before rendering an evaluation.

b. Paragraph 2-10 (The rated individual) states the rated individual is the subject of the evaluation and has considerable responsibility in the evaluation process. Normally, to be eligible for an evaluation report, a Soldier will complete 90 calendar days in the same position under the same rater. Nonrated periods are not included in this 90-day period.

c. Paragraph 3-2i (Evaluation 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 3-39 (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.

6. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) prescribes the procedures for completing evaluation reports that support the Evaluation Reporting System. Table 3-1 states the “Period Covered” is the period extending from the day after the “Thru” date of the last report to the date of the event causing the report to be written. The rating period is that period within the “Period Covered” during which the rated NCO serves in the same position under the same rater who is writing the report. The “Period Covered” and the rating period always end on the same date (the “Thru” date of the report).

7. Army Regulation 600-8-104 (Army Military Human Resource Record Management) provides guidance for filing documents in the OMPF. The U.S. Army Human Resources Command, Army Personnel Records Division (APRD), updates the list of authorized documents for filing in the OMPF quarterly. According to this guidance this Board has the authority to remove official documents from the OMPF to include its own Record of Proceedings.

DISCUSSION AND CONCLUSIONS:

1. The applicant received a 9-month change of rater NCOER from 19 June 2007 through 25 March 2008. His next NCOER should have started on 26 March 2008. Instead, he received a 3-month NCOER from 25 February 2008 through 6June 2008. A change of rater NCOER requires a minimum of 90 days. Had the contested NCOER been administratively correct, it would have covered only 76 days. Under the regulatory guidance no report should have been rendered due to the rater not meeting the minimum number of days to render a report. Administratively, the contested NCOER inaccurately shows a rating period in excess of 90 days. As the start date of the contested NCOER is erroneous, the contested NCOER requires removal.

2. In the interest of justice, this Record of Proceedings should not be filed in the applicants OMPF as it could be prejudicial to future selection boards.

BOARD VOTE:

___x____ ___x____ ___x____ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 rating period 25 February 2008 through 6 June 2008 from his OMPF and placing a statement of non-rated time in his OMPF in lieu of this form. This Record of Proceedings will be retained by HRC and not filed in the applicants OMPF.

_________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) AR20160002223

3

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

1

ABCMR Record of Proceedings (cont) AR20160002223

6

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

1