AR20160002855

IN THE CASE OF:

BOARD DATE: 24 March 2016

DOCKET NUMBER: AR20160002855

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

____X___ ____X___ ____X___ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 24 March 2016

DOCKET NUMBER: AR20160002855

BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined the evidence presented is 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:

* issuing a statement of non-rated time to cover the period from 17March 2008 (one day after his last NCOER ended) through 18 February 2009 (the date he departed Korea)
* removing the defective annual NCOER from 17 March 2008 to 16 March 2009 from his OMPF
* issuing a statement of non-rated time for the period from 19 February 2009 (one day after his last period would have ended) to 25 January 2010 (the date he signed out on leave)
* administratively adjusting the beginning date of annual NCOER covering the rating period 16 February 2010 through 15 February 2011 to begin on 26 January 2010 (one day after he departed Fort Lewis) with the period from 26 January 2010 through 11 March 2011 (2 months) being non-rated time (Code E)

2. The Board further determined that the evidence presented is 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 his selection by the Qualitative Management Program.

_______ _ _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.

Enclosure1

IN THE CASE OF:

BOARD DATE: 24 March 2016

DOCKET NUMBER: AR20160002855

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 the DA Form 2166-8 (Noncommissioned Officer Evaluation Report) covering the rating period 20080317 through 20090316 (contested NCOER) be removed from his official military personnel file (OMPF) and his selection under the Qualitative Management Program (QMP) be dismissed.

2. The applicant states the contested NCOER was submitted illegally by the 24th Ordnance Company at Fort Stewart, GA. He was previously assigned to Korea from 2008 to 2009, then to Fort Lewis, WA, and did not leave Fort Lewis until April 2010. He received the contested NCOER some 3 years later at Fort Stewart due to negligence by his previous unit. His request to remove the contested NCOER is outside the 3-year window due to his lack of knowledge of the specific rules and regulations to appeal it. His current chain of command is assisting him in this process.

3. The applicant provides:

* Memorandum for Record from his current Battalion S-4
* Contested NCOER
* Permanent Change of Station (PCS) orders
* DA Form 31 (Request and Authority for Leave)
* Assignment Instructions
* Enlisted Record Brief
* Memorandum to the President of the QMP board

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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. Having had prior service, the applicant enlisted on 28 June 1998 and he holds military occupational specialties 89B (Ammunition Specialist) and 11B (Infantryman). He was promoted to staff sergeant (SSG)/E-6 on 1 July 2007.

3. He served through multiple reenlistments in a variety of stateside or overseas assignment, including Korea (multiple times) and Afghanistan. He was assigned to Headquarters, U.S. Army Troop Command, Korea, from 15 February 2007 to 15 February 2008.

4. His last NCOER prior to the contested one was an annual report covering the rating period 20070317 through 20080316 for his duties as Ammunition Manager, while assigned to U.S. Army Troop Command, Korea.

5. He remained assigned to U.S. Army Troop Command, Korea, from 15February 2008 to 15 February 2009. However, for unknown reasons, he did not receive an NCOER upon leaving Korea.

6. Following his Korea tour, he was assigned to the 472nd Combat Support Battalion (Theater Distribution) at Fort Lewis, WA from 14 April 2009 to around 10April 2010. Again, for unknown reasons, he did not receive an NCOER for his duties at Fort Lewis.

7. On 1 December 2009, the Installation Management Command, Fort Lewis, WA, published Orders 335-211 reassigning him on a PCS move from Fort Lewis, WA to the 24th Ordnance Company, Fort Stewart, GA, with a report date of 10 March 2010.

8. He signed out of his Fort Lewis unit on 45 days of leave on 25 January 2010 and signed in to his unit at Fort Stewart on 10 March 2010.
9. On 11 March 2010, Headquarters, 3rd Infantry Division, endorsed his PCS orders by further reassigning him from the Replacement Detachment to the 24th Ordnance Company, effective 11 March 2010.

10. During February 2011, his Fort Stewart chain of command rendered an annual NCOER covering 12 months of rated time from 20100216 through 20110215 for his duties as Section Sergeant while assigned to the 24th Ordnance Company. This NCOER was signed by his rating officials on 8 March 2011.

11. On 10 March 2011, in what appears to be an effort to cover the gap in his ratings, his Fort Stewart chain of command submitted an annual NCOER covering 12 months of rated time from 20080317 through 20090316 for his duties as Ammunition Sergeant, while assigned to the 24th Ordnance Company.

12. An official at the Special Troop Battalion, 3rd Sustainment Brigade, Fort Stewart provided a statement in March 2012 explaining that the applicant did not arrive at the unit until 21 April 2009 (i.e., 2010) and the intention of the unit was to cover for unrated time he had from previous duty station.

13. The contested NCOER shows his rater was Sergeant First Class SG, the platoon sergeant; his senior rater was First Lieutenant VP, the platoon leader; and his reviewer was Captain AN, the company commander. This NCOER does not show any counseling dates. It shows:

a. In Part IV (Army Values/Attributes/Skills/Actions), the rater placed an “X” in the “Yes” block for all values

b. In Parts IVb (Competence), IV(c) (Physical Fitness and Military Bearing), IVd (Leadership), IVe (Training), and IVf (Responsibility and Accountability), the rater placed an “X” in the “Success” block and entered bullets in each block.

c. In Part Va (Overall potential for promotion and/or service in positions of greater responsibility) the rater placed an “X” in the “Fully Capable” block.

d. In Part Vc (Senior Rater-Overall Performance( the senior rater placed an “X” in the “Fair/4” block and in Part IVd (Senior Rater-Overall Potential), the senior rater placed an “X” in the “Fair/4” block. The senior rater also entered in Part Ve (Senior Rater Bullet Comments) the entry “no formal counseling conducted during this rating period.,

14. The rater and senior rater signed this report on 10 March 2011 and the reviewer concurred by placing his signature on 10 March 2011. The applicant also authenticated this form with his signature on that date.

15. There is no indication the applicant appealed this NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board within the time allowed by the governing regulation.

REFERENCES:

1. Army Regulation 623-3 (Evaluation Reporting System) prescribes policies and tasks for the Army’s Evaluation Reporting System. The version in effect at the time (1 August 2007) governs the applicant’s contested NCOER.

a. Paragraph 1-4 states reports are prepared by the individuals named in the published rating chain. Rating chains correspond as nearly as practical to the chain of command and supervision, are drawn up by name, given effective dates, published, and made available to each rated Soldier and each member of the rating chain. Any changes to rating chains will also be published and distributed. No changes may be retroactive

b. Paragraph 2-3 states rating chain is established by commanders or commandants and maintained by rating officials to provide the best evaluation of an individual Soldiers performance and potential. A rating chain also ties rated individual performance to a specific senior and/or subordinate relationship. This allows for proper counseling to develop the rated Soldier accomplish the mission. These functions are best achieved in an organizations chain of command. Generally, the evaluation of Soldiers by persons not involved in the chain of command or supervision is inappropriate.

c. Paragraph 2-4 states the rater will normally be the immediate supervisor of the rated Soldier. The rater will normally be senior by grade or date of rank to the rated individual. Commanders will normally rate commanders. Civilian raters for NCOERs will be designated as official supervisor on the established rating scheme approved by the commander.

d. Paragraph 3-44 states a Change of Rater NCOER is mandatory when the rated NCO ceases to serve under the immediate supervision of the rater and minimum rating qualifications have been met.

e. Paragraph 3-45 states an annual NCOER is mandatory for a rated Soldier on completion of 1 calendar year of duty following the THRU date of the last OER or NCOER in the Soldiers OMPF. If 1 year has elapsed and the rated Soldier has not performed the same duty under the same rater for 90 calendar days, an extended annual report will be submitted.

2. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) prescribes the procedures for completing Army evaluation reports for officers and NCOs. The version in effect at the time (August 2007) governs the applicant’s contested NCOER.

a. Paragraph 1-9 states that performance evaluations are assessments on how well the rated Soldier meets their duty requirements and adheres to the professional standards established by the Army and Department of Defense. Rating chains evaluate performance by considering the results achieved, how well they are achieved, and how well the rated Soldier complied with professional standards.

b. Paragraph 1-10 states that, except to comply with this pamphlet and established in policy (Army Regulation 6233), no person may require changes be made to an evaluation report. While the evaluation processes at HQDA it belongs to the senior rater. Until completed and accepted by Headquarters, Department of the Army (HQDA) evaluations will only be changed by HQDA if reasonable, substantiated information or investigations, and in accordance with established HQDA regulations and procedures. Senior raters will notify rated Soldier of any changes made to a report, and review changes with the rated Soldier as applicable.

c. Table 3-3 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). The beginning date of the rating period may not be the same as that of that of the “Period Covered” (the “From” date).

d. Table 3-3 states Code E is used to account for non-rated time, which includes leave in excess of 30 days.

3. Various Military Personnel Messages provide guidance and procedures in support of the QMP. The purpose of this board is to identify selected NCOs for possible involuntary separation. Specifically those with a General Officer Memorandum of Reprimand, conviction by a court-martial or Article 15, Relief for cause NCOER, a “No” in the army values on an NCOER, a senior rating of “4” on an NCOER, and NCO Education System failures.

* Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.)
* Soldiers may appeal on the basis of a material error in their records when reviewed by the board. The chain of command, all the way to a general officer, must recommend approval or disapproval
* Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge; the Director of Military Personnel Management (DMPM) is the final authority for disposition of appeal

DISCUSSION:

1. The applicant served in Korea for an extended period of time, the last of which was from 15 February 2008 to 18 February 2009. His last NCOER from Korea was from 20070317 through 20080316. For unknown reasons, upon departure from Korea, he did not receive a change of rater NCOER. The period from 17March 2008 (one day after his last NCOER ended) through 18 February 2009 (the date he departed Korea) should be accounted for via a non-rated statement.

2. He served at Fort Lewis, WA from 14 April 2009 to 25 January 2010 when he signed out on leave. Upon departure, again, for unknown reasons, he did not receive a change of rater NCOER. The period from 19 February 2009 (one day after his last period would have ended) to 25 January 2010 (the date he signed out on leave) should also be accounted for via a non-rated statement.

3. He was assigned to the 24th Ordnance Company on 11 March 2010. His Fort Stewart chain of command attempted to cover the gap in his evaluations by rendering an annual NCOER from 17 March 2008 to 16 March 2009, even though he was in Korea during this period. This NCOER is defective and should be removed from his records.

4. He received an annual NCOER from his Fort Stewart chain of command for the rating period 16 February 2010 through 15 February 2011. This NCOER should have started on 26 January 2010 (one day after he departed Fort Lewis on leave) with the period from 26 January 2010 through 11 March 2011 being non-rated time (Code E).

5. Various QMP MILPER Messages outlined the criteria for consideration and the actions by those selected for non-retention. Aside from the contested NCOER, the applicant’s records contain other derogatory information (a letter of reprimand that is not the subject of his contention in this application). As a result, his records are subject to consideration by the QMP. In any case, appeal of a QMP decision rests with the DMPM, the final authority for disposition of appeal.
6. An appeal of the QMP is appropriate when there is a material error in the Soldier’s records when reviewed by the board. Cases with material error, newly-discovered evidence, or the removal of documents from the OMPF are eligible for a QMP appeal. This is not the case here.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings @#!CASENUMBER

Enclosure 2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160002855

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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