AR20160006478

IN THE CASE OF:

BOARD DATE: 26 May 2016

DOCKET NUMBER: AR20160006478

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

____X___ ____X___ ____X___ DENY APPLICATION

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

IN THE CASE OF:

BOARD DATE: 26 May 2016

DOCKET NUMBER: AR20160006478

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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.

IN THE CASE OF:

BOARD DATE: 26 May 2016

DOCKET NUMBER: AR20160006478

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, correction of his noncommissioned officer evaluation report (NCOER) covering the period 4April 2011 through 3April 2012.

2. The applicant states:

* he is currently being considered for denial of continued active duty service under the Qualitative Management Program (QMP) due to a negative NCOER covering the period 4April 2011 through 3April 2012
* he received unfair ratings of “4/4” (by his senior rater in PartV (Overall Performance and Potential))
* he would like these ratings replaced with more accurate ratings which reflect his true performance and potential
* he received the “4/4” ratings solely due to an Army Physical Fitness Test (APFT) failure
* his rating chain at the time of the NCOER fully supports an upgrade and are willing to write letters stating such
* his performance on the APFT, although poor during the rating period, did not reflect his overall job performance for which he received excellence ratings
* the “4/4” ratings are the only portions of this one NCOER which are being noticed and are unjustly flagging him for QMP consideration
* at the time of his NCOER, his chain of command’s policy was that any APFT failure justified senior rater ratings of “4/4” in the NCOER
* he did not sign his NCOER until July 2012 as he did not agree with the rating
* he was finally informed this was an acceptable rating for his overall performance
* following his APFT failure, he received needed care to fix an ongoing medical issue and he has passed all APFTs since
* he was only recently informed of the NCOER appeals process and sought the support of his chain of command
* his company commander and first sergeant both support reevaluation of his NCOER to accurately reflect his overall performance

3. The applicant provides:

* timeline of events
* multiple medical documents pertaining to left ankle surgery in September 2002
* DAForm3349 (Physical Profile), dated 11June 2004
* medical documentation pertaining to left ankle hardware removal in September 2012
* NCOER covering the period 4April 2011 through 3April 2012
* NCOER covering the period 4April 2012 through 3April 2013
* NCOER covering the period 4April 2014 through 3April 2014
* U.S.Army Human Resources Command memorandum, dated 8December 2015, subject: Department of the Army (DA) Notification for Potential Denial of Continued Active Duty Service under the QMP
* U.S.Army Human Resources Command memorandum, dated 21December 2015, subject: Soldier Acknowledgement DA Notification for Potential Denial of Continued Active Duty Service under the QMP
* two memoranda of endorsement, dated 29January 2016 and 4February 2016
* self-authored memorandum of mitigation, dated 3February 2016
* Enlisted Record Brief

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. The applicant enlisted in the Regular Army on 4October 2001, and is currently a staffsergeant stationed at FortBragg, NC.

3. On 17September 2002, he underwent open reduction (realignment of bone fracture into normal position) and internal fixation (implementation of implants such as steel rods, screws, or plates to keep the bone fracture stable) surgery to correct a left ankle fracture dislocation.

4. The DAForm3349, dated 11June 2004, shows he was given a permanent physical profile rating of 2 for his left ankle fracture. The physical profile prohibited him from participating in airborne operations and marching with standard field gear except a rucksack beyond 6miles, but he was not limited in any regard to performing the events on the APFT.

5. In April 2012, his rater prepared an annual NCOER covering the period 4April 2011 through 3April 2012 for his duties as the signals intelligence sergeant.

a. PartII (Authentication) shows the rater and senior rater authenticated the form by digitally signing it on 26July 2012. The reviewer concurred with the rater and senior rater and authenticated the document with his digital signature on 26July 2012. The applicant digitally signed the NCOER on 26July 2012. This is 114days after the “THRU” date of the NCOER.

b. In PartIVa (Army Values), the rater placed an “X” in the “Yes” block for all Army Values and entered appropriate bullet comments.

c. In PartIVb (Competence), the rater placed an “X” in the “Excellence” block and entered appropriate bullet comments.

d. In PartIVc (Physical Fitness and Military Bearing), the rater placed an “X” in the “Needs Improvement (Much)” block, annotated the applicant’s APFT failure on 17January 2012, and entered the following bullet comments:

* failed the APFT; failed the APFT run with a score of 4points

* failed to manage his weight effectively resulting in constant placement on the Army Weight Control Program
* continues making progress toward fitness goals

e. In PartIVd (Leadership), the rater placed an “X” in the “Success” block and entered appropriate bullet comments.

f. In PartIVe (Training), the rater placed an “X” in the “Success” block and entered appropriate bullet comments.

g. In PartIVf (Responsibility and Accountability), the rater placed an “X” in the “Success” block and entered appropriate bullet comments.

h. In PartVa (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.

i. In PartVc (Senior Rater Overall Performance), the senior rater placed an “X” in the “Fair/4” block.

j. In PartVd (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.

k. In PartVe (Senior Rater Bullet Comments), the senior rater entered the following bullet comments:

* do not promote to SergeantFirstClass until standards are met
* do not send to Advance Leaders Course until standards are met and slot is available
* capable leader and knowledgeable instructor; will rise to any challenge
* demonstrated potential to overcome challenges; continue to place in positions of increased responsibility

6. This NCOER is filed in the performance folder of his official military personnel file (OMPF).

7. On 27September 2012, he underwent surgery to remove the hardware in his left ankle. He claims in his timeline of events to have received a permanent physical profile subsequent to this surgery prohibiting him from running. A copy of this physical profile is not in his available records and he did not provide a copy.

8. He provided copies of two subsequent NCOERs covering the periods 4April 2012 through 3April 2013 and 4April 2014 through 3April 2014. In neither of these NCOERs was he rated “Needs Improvement” in any category nor was he rated “Marginal” by his rater or “Fair/4” by his senior rater.

9. U.S.Army Human Resources Command memorandum, dated 8December 2015, subject: DA Notification for Potential Denial of Continued Active Duty Service under the QMP, shows a DA QMP Board was scheduled to convene on 1March 2016 to consider the applicant for separation as a result of information received for permanent filing in his Army Military Human Resource Record, also referred to as the OMPF. He was advised he could submit matters of mitigation or extenuation for consideration by the president of the board or seek removal of an unfavorable document from his record by petitioning the DA Suitability Evaluation Board or the ABCMR.

10. On 21December 2015, he acknowledged receipt of the notification memorandum and indicated he would submit matters of extenuation or mitigation to the board president.

11. On 29January 2016, CaptainM____E____, the reviewing official for the NCOER in question, provided the applicant with a memorandum of endorsement wherein he stated the NCOER in question was unjustly written and does not accurately reflect the applicant’s performance during the rating period. The NCOER was poorly written and the product of many failures for which he was responsible as the company commander. It was completed and signed nearly 4months after the “THRU” date, which is not in accordance with DAPamphlet623-3 (Evaluation Reporting System). He saw concurrence between the rater and the senior rater and therefore signed as the reviewer. It was not until over 1year after the “THRU” date that he learned the rater and the detachment firstsergeant wrote the entire evaluation together and almost entirely excluded the senior rater from adding original input. He was the company commander for 2years and can unequivocally state the applicant was the best staffsergeant with whom he served, going on to become the best platoon sergeant in the company and to serve as firstsergeant for a period of over 5months. The applicant demonstrated he has the aptitude, competence, and potential to perform at the firstsergeant level.

12. The applicant wrote a memorandum, dated 3February 2016, wherein he stated he received the NCOER in question after failing a record APFT on 17January 2012. At the time the NCOER was written, medical issues prior to and during the rating period directly contributed to his poor APFT performance and were not taken into consideration. Prior to his APFT failure, he was actively seeking medical care for back and ankle pain that was causing decreased physical stamina and performance. He was not able to seek long-term chiropractic care until he arrived at his duty station in April 2011. The chiropractic care he received provided temporary relief for the pain in his back, but did not address the issues with his ankle. After failing his APFT, he discussed his issues with his primary care manager, who referred him to an orthopedic surgeon. He then underwent surgery in September 2012 to remove hardware in his leg and ankle, after which he experienced reduced pain and passed all subsequent APFTs.

13. On 4February 2016, ColonelS____S____, Chief of Staff, Headquarters, XVIIIAirborne Corps and FortBragg, provided a letter of endorsement for the applicant wherein he stated the applicant worked as his executive assistant for the past 6months and his performance was absolutely phenomenal. His selection for the QMP is not indicative of his committed service to our nation and our Army. His demonstrated knowledge and potential for continued military service is unsurpassed and he steadfastly demonstrates the capacity to perform at an extremely high level despite the fast-paced and fluid environment of a corps command group. He has passed every APFT since his surgery and he can be observed conducting challenging physical training 5days per week.

14. There is no evidence of record the applicant submitted an appeal of his NCOER to the U.S.Army Human Resources Command within 3years of his evaluation report “THRU” date.

REFERENCES:

1. Army Regulation600-8-104 (Army Military Human Resource Records Management), table2-1 (Interactive Personnel Electronic Records Management System Access Guidelines), states an NCOER will be filed in the performance folder of the OMPF.

2. Army Regulation623-3 (Evaluation Reporting System), prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.

a. Paragraph2-14 states senior raters or reviewing officials use their positions and experiences to evaluate the rated Soldier’s performance and/or potential within a broad organizational perspective, military program of instruction, or civilian academic standards. The senior rater’s evaluation is the link between the day-to-day observation of the rated Soldier and the longer-term evaluation of the rated Soldier’s potential by Headquarters, Department of the Army (HQDA), selection boards. Normally, senior raters or reviewing officials control the accurate preparation and timely submission of evaluation reports. Senior raters evaluate performance in perspective by considering the rated Soldier’s experience; the relative risk associated with the performance; the difficulty of the organization’s mission; the prudence and results of action taken; the adequacy of resources; the overall efficiency of the organization; and when applicable, adherence to established military course or academic standards established by the civilian educational, medical, or industrial institution.

b. Paragraph3-33 states evaluation reports will be forwarded error-free to reach HQDA no later than 90days after the “THRU” date of the evaluation report. The senior rater is responsible for ensuring the timely submission of NCOERs to HQDA.

c. Paragraph3-36 states an evaluation report accepted by HQDA and 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 represent the considered opinions and objective judgment of the rating officials at the time of preparation.

d. Paragraph4-7 states an appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered.

e. Paragraph4-11 states the burden of proof in the appeals process rests with the appellant. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources.

f. Paragraph4-13 advises that appeals based on substantive inaccuracy must include the basis for the belief that the rating officials were not objective or had an erroneous perception of the performance. Note that a personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.

3. DAPamphlet623-3 prescribes the procedures for completing Army evaluation reports for officers and noncommissioned officers.
a. Table3-4 (Army Values/Attributes/Skills/Actions NCOER Instructions) defines the ratings of Excellence, Success, and Needs Improvement. The following definitions will be used in partsIVb-f:

* Excellence

* exceeds standards demonstrated by specific examples and measurable results
* special and unusual
* achieved by only a few
* clearly better than most others

* Success

* meets all standards
* majority of ratings are in this category
* fully competitive for schooling and promotion
* the goal of counseling is to bring all NCOs to this level

* Needs Improvement missed meeting some standards

b. Table3-5 (Overall Performance NCOER Instructions) defines the ratings of Among the Best, Fully Capable, and Marginal. NCOs receiving one or more “Needs Improvement” ratings in PartIVb-f cannot receive a rating of “Among the Best.” The following definitions will be used in PartVa:

* Among the Best NCOs who demonstrated a very good, solid performance and a strong recommendation for promotion and/or service in positions of greater responsibility
* Fully Capable NCOs who demonstrated a good performance and strong recommendation for promotion should sufficient allocations be available
* Marginal NCOs who demonstrated poor performance and should not be promoted at this time

c. Table3-5 states the senior rater provides an independent evaluation of the rated Soldier on his or her portion of the evaluation form. The senior rater uses the information provided on the DAForm2166-8-1 (NCOER Counseling and Support Form), as well as any information he or she receives through direct or indirect contact with the rated individual. The following definitions will be used when completing PartsVc and Vd:

* Successful/Superior

* a “1” represents the cream of the crop and recommendation for immediate promotion
* a “2” represents a very good, performance and strong recommendation for promotion
* a “3” represents a good performance and promotion recommendation based on allocations

* Fair a “4” rating represents NCOs who may require additional training/observation and should not be promoted at this time

* Poor

* a “5” rating represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas
* do not promote and consider for DA-imposed bar to reenlistment under the QMP

DISCUSSION:

1. The applicant’s request for correction of his NCOER covering the period 4April 2011 through 3April 2012 was carefully considered.

2. The evidence of record shows he failed his APFT during the rating period for the NCOER in question. Although he claims medical issues were mitigating factors contributing to his APFT failure, he did not have a physical profile limiting him from participating in any APFT events.

3. As a result of his APFT failure, he received a rating of “Fair/4” from his senior rater in PartsVc and Vd, which was consistent with his rater’s evaluation of his overall potential for promotion and/or service in positions of greater responsibility as “Marginal.” The applicant acknowledges it was unit command policy to rate Soldiers failing the APFT as “Fair/4” at the time of the NCOER in question.

4. The reviewer concurred with the rater and senior rater and authenticated the NCOER by signing it on 26July 2012. The fact that he believes the NCOER was unjustly written nearly 4years after the “THRU” date and that the NCOER did not accurately reflect the applicant’s performance during the rating period demonstrates retrospective thinking.

5. Notwithstanding the nearly 1month tardiness in submission of the NCOER, the applicant did not provide clear and compelling evidence showing the ratings in the contested NCOER were in error or were not the considered opinions and objective judgment of the rating officials at the time the reports were rendered. The NCOER is properly filed in the performance folder of his OMPF.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160006478

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160006478

10

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2