BOARD DATE: 18 February 2014 DOCKET NUMBER: AR20130015559 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 defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests correction or removal of the relief-for-cause DA Form  2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the rating period 19 June 2008 through 30 March 2009 (hereafter referred to as the contested NCOER) from the applicant's Army Military Human Resource Record (AMHRR). 2. Counsel submitted a 4-page supplemental statement wherein he essentially states: a. the NCOER contains unproven derogatory information prohibited by Army Regulation 623-3 (Evaluation Reporting System (ERS)). b. the NCOER was issued as a reprisal following the applicant's acquittal at a summary court-martial. c. the application should be given priority as the applicant had been non-selected for promotion in the primary zone of consideration once and his board file was recently considered by the fiscal year 2013 Qualitative Service Program which was held on 4 March 2013. d. the contested NCOER contains negative comments resulting from unlawful reprisal stemming from the applicant's former command's unsuccessful attempt to punish him via summary court-martial. e. on 4 June 2009, the applicant was acquitted of all charges at the summary court-martial hearing after turning down an Article 15 and demanding a trial by court-martial where he believed he would be entitled to a fair arbiter outside of his chain-of-command. f. counsel believed the applicant was afforded due process which resulted in one specification being dismissed and the applicant being found not guilty of the remaining charges. g. yet immediately following his acquittal the applicant's former first sergeant indicated they would get him on his NCOER. h. the applicant was issued a relief-for-cause NCOER in June 2009, for the 12 month rating period from 19 June 2008 to 18 June 2009 [sic 30 March 2009]. In addition, this was his first NCOER as a staff sergeant as he had only been promoted to staff sergeant on 1 November 2008. i. the NCOER contains the following administrative errors: (1) neither the rater nor the senior rater (SR) had ample time to evaluate the applicant prior to his transfer from his company to the battalion on 3 April 2009; (2) his rater was not assigned until 7 months into the rating period and only had 78 days to evaluate the applicant. Army Regulation 623-3, paragraph 2-5a states the rater will be the supervisor for a minimum period of 90 days. (3) his SR was not assigned until 8 months into the rating period and only had 52 days to evaluate the applicant. Army Regulation 623-3, paragraph 2-5a states the SR will be the immediate supervisor of the rater for a minimum period of 60 days. j. the applicant refused to sign the contested NCOER because it contained negative comments. 3. Counsel provides: * nine NCOERs rendered for various rating periods between 1 June 2006 to 6 August 2013 * a DD Form 2329 (Record of Trial by Summary Court-Martial) * three DA Forms 1059 (Service School Academic Evaluation Report) * two DA Forms 4980 (Army Commendation Medal Certificate) * two DA Forms 4187 (Personnel Action) * three memoranda * two emails 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 the applicant submitted his application, he was serving in the Regular Army in the rank of staff sergeant in military occupational specialty (MOS) 93Y3P (Supply Sergeant). 3. His record contains the contested NCOER which shows he was rated for duty as the Supply Sergeant in duty MOS 92Y3O (Supply) while he was assigned to A Company, 3d Battalion, 47th infantry Regiment, 192d Battalion, Fort Benning, GA, for the rating period 19 June 2008 through 30 Mach 2009. The form shows in: a. Part 1j (Rated Months) the entry "10"; b. Part 1j (Non-Rated Codes) the entry "Z"; c. Part Ig (Reason for Submission), the entry "Relief for Cause"; d. Part II, his rater was the company executive officer and his SR was the commander; e. Part IIIa, his principal duty shows Supply Sergeant; f. Part IIIc, his duty MOS shows 92Y20; g. Part IIIf (Counseling Dates), he was counseled on 12 December 2008 and 18 March 2009; and h. Part IVa (Army Values), "No" was selected for Parts IVa2 (Duty), IVa5 (Honor), IVa6 (Integrity), and IVa7 (Personal Courage). "Yes" was selected for all other values. i. Part IV (Army Values/Attributes/Skills/Actions), the bullet comment section contains the entries: * rarely accomplishes assigned tasks to standard and failed to report to assigned place of duty * questionable integrity, will attempt to deceive supervisors regarding status of assigned work * does not uphold the standard or the Army Values when unsupervised j. Part IVb (Competence) "Needs (Much) Improvement" was selected and contains the entries: * delayed completion of Change of Command inventories by three weeks due to lack of proper records accountability * had no sense of knowledge in supply tools such as ULLS severely lacking; required coaching and assistance to accomplish routine tasks in this system * demonstrated an outstanding knowledge of military rehabilitative systems and how to employ them as a counterpoint to administrative action k. Part IVc (Physical Fitness and Military Bearing) "Success (Meets Standard)" was selected. l. Part IVd (Leadership) "Needs (Much) Improvement" was selected and contains the entries: * consistently late or failed to report, as well as incompetence in key supply skills such as organization and record keeping set poor example for subordinate Soldiers * failed to establish or execute a physical training plan for Soldier scoring 91 points total on the Army Physical Fitness Test (APFT), his only military subordinate * does not lead by example, tasks subordinates to return to duty after hours to correct his mistakes m. Part IVe (Training) "Needs (Some) Improvement" was selected and contains the entries: * made no significant attempts to further his own professional knowledge or career, desperately avoided any task to perform his duties as a proficient NCO * did not effectively counsel or develop Soldier under his leadership; did not conduct monthly counseling with Soldier * and shows desire to improve own skills, could benefit from mentorship from senior NCOs in supply MOS n. Part IVf (Responsibility and Accountability), "Needs (Much) Improvement)" was selected and contains the entries: * constantly used contrived violation of regulations to escape responsibility and additional work; always finds a reason not accomplish the mission * avoids responsibility for completion of duties by blaming actions of leadership for his failure * "the rated NCO has been notified of his relief" o. Part V (Overall Performance and Potential): (1) his rater rated him as marginal; (2) his SR rated his overall performance and potential for promotion and/or service in positions of greater responsibility as poor; and (3) Part Ve, his SR entered the following: (a) do not promote; do not send to BNCOC; (b) demonstrated complete lack of competence; (c) Soldier should not hold any positions of authority or responsibility; and (d) "NCO refuses sign NCOER due to reason for submission, NCO was informed what his signature represents in accordance with regulation." 4. The contested NCOER shows the rating officials authenticated it with their electronic signatures. The reviewer concurred with the rater and SR evaluations on 26 June 2009. 5. He submitted: a. eight NCOERs rendered for various rating periods between, 1 June 2006 and 6 August 2013 which basically show he received at least successful ratings and mostly favorable comments. b. three DA Forms 1059, which show he attended and completed the: (1) Primary Leadership Development Course from 12 February to 13 March 2012; (2) Basic NCO Course (Phase I) from 31 May to 15 June 2007; and (3) Unit Supply Specialist Advance Leadership Course from 19 April to 5 May 2011; c. two certificates showing he was awarded the Army Commendation Medal for: (1) exceptional performance while serving as a company supply sergeant during Operation Enduring Freedom (OEF) from 9 December 2009 to 20 November 2010 and (2) outstanding service while serving as a supply sergeant for Task Force Thunderbolts during OEF XII from 21 March to 15 September 2012. d. two DA Forms 4187, which show, effective: (1) 14 January 2009, his former rater was reassigned from Company A to Headquarters, 3d Battalion, 47th Infantry Regiment, Fort Benning, GA; and (2) 10 February 2009, his SR was reassigned from Headquarters Company to A Company, 3d Battalion, 47th Infantry Regiment, Fort Benning, GA. e. two emails dated: (1) 24 January 2009, to the applicant requesting he set up the change-of-command inventory for 3 February 2009; and (2) 26 January 2009, to numerous recipients, showing that in preparation for the Change-of-Command on 10 February 2009, a 100 percent inventory was scheduled to begin on 3 February 2009. f. a DD Form 2329, dated 4 June 2009, which shows the applicant plead not guilty and was found not guilty of three summary court-martial charges and had the fourth charge against him dismissed. 6. A review of the rater's AMHRR shows he was assigned to A Company, 3d Battalion, 47th Infantry Regiment, performing duties as the Executive Officer during the period 29 August 2008 to 28 August 2009. 7. Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the NCOERs. a. Paragraphs 1-4b(3) and (4) state commanders at all levels will ensure that 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 names, 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 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or NCO corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in Department of the Army Pamphlet 623-3. Consideration will be given to the following: (a) the relative experience of the rated officer or NCO; (b) the efforts made by the rated officer or NCO; and, (c) the results that could be reasonably expected given the time and resources available. Assessment of potential will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for Headquarters, Department of the Army (HQDA). c. Paragraph 2-6d states the rater will normally be the immediate supervisor for a minimum for a period of 90 consecutive days. d. Paragraph 2-7b(2) states the SR will be the immediate supervisor of the rater and designated as the rated Soldier's SR for a minimum period of 60 days. e. Paragraph 3-23 states no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA. If the rated individual is absolved, comments about the incident will not be included in the evaluation. This restriction is intended to prevent unverified derogatory information from being included in evaluation reports. It will also prevent unjustly prejudicial information from being permanently included in a Soldier's AMHRR, such as: (1) Charges that are later dropped. (2) Charges or incidents of which the rated individual may later be absolved. f. Any verified derogatory information may be entered on an evaluation. This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s use of verified derogatory information. g. Paragraph 3-37f states rated Soldiers will always be the last individual to sign the evaluation. The rated Soldier's signature will verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the APFT, and height and weight data; and that the rated Soldier has seen the completed report. This action increases administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data. In the event the rated Soldier is not available or refuses to sign, SRs will provide an explanation in their narrative or bullet comments. h. Paragraph 3-37j states SRs are responsible for ensuring reports are submitted in a timely manner and processed at HQDA to final completion in the Soldier's AMHRR in the desired sequence. A report failing to process in the sequence desired by the SR is not a basis for appealing the report. i. Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. j. Paragraph 3-59 states an NCOER report is required when an NCO is relieved for cause regardless of the rating period involved. (1) Relief-for-Cause is defined as the removal of an NCO from a rateable assignment based on a decision by a member of the NCOs chain of command or supervisory chain. A Relief-for-Cause occurs when the NCOs personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army. (2) If the relief does not occur on the date the NCO is removed from the duty position or responsibilities, the suspended period of time between the removal and the relief will be nonrated time included in the period of the relief report. The published rating chain at the time of the relief will render the report; no other report will be due on the rated NCO during this nonrated period. (3) Cases where the rated NCO has been suspended from duties pending an investigation will be resolved by the chain of command as expeditiously as possible to reduce the amount of non-rated time involved. The rating official directing the relief will clearly explain the reason for the relief in his/her portion of the NCOER. If the relief is directed by an official other than the rater or SR, the official directing the relief will describe the reasons for the relief in an enclosure to the report. k. The minimum rater and SR qualifications and the minimum rating period are 30 rated days. The fundamental purpose of this restriction is to allow the rated NCO a sufficient period to react to performance counseling during each rating period. Authority to waive this 30-day minimum rating period and rater and SR qualification period in cases of misconduct is granted to a general officer in the chain of command or an officer having general court-martial jurisdiction over the relieved NCO. The waiver approval will be in memorandum format and attached as an enclosure to the report. 8. Chapter 6 defines the Evaluation Redress Program and provides guidance regarding redress programs, including commander inquiries and appeals. a. Paragraph 6-8 states substantive appeals will be submitted within 3 years of an NCOER thru date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. b. Paragraph 6-11d states to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. c. Paragraph 6-11d further states that 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. Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. 9. Army Regulation 600-8-104 (Army Military Human Resources Record Management), chapter 2, governs the composition of the AMHRR and states the performance section is used for filing performance commendatory and disciplinary data. Once placed in the AMHRR, the document becomes a permanent part of that file. The document will not be removed from a section or moved to another part of the section unless directed by certain agencies, to include this Board. Evaluation reports are required to be filed in the permanent section of the performance section of the AMHRR. DISCUSSION AND CONCLUSIONS: 1. The applicant's request to have the contested report removed from his AMHRR was carefully considered; however, he failed to provide sufficient evidence which clearly shows a substantive error or injustice existed in the processing of his evaluation report. 2. Evidence shows that the rater was not assigned to the applicant's unit as the executive officer until 29 August 2008. As a result, he was not in position to rate the applicant between 19 June and 28 August 2008. Therefore, the applicant's record should be corrected to show the he was rated for 7 months vice 10 months and the rated code Q should be added to show lack of rater qualification for the nonrated period. 3. Evidence shows the SR was assigned to the applicant's unit as the commander on 10 February 2009. Therefore, he was in position for more than the 30 days required to render SR comments to the applicant's Relief-for-Cause NCOER. 4. Army Regulation 623-3 clearly states 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 this exception. There is no evidence the applicant requested a Commander's Inquiry. He fails to show why he had no time to craft an appeal. Therefore, his assertion is not supported by the available evidence. 5. By regulation, an NCOER that is accepted by HQDA and included in the official record of an NCO is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and it represents the considered opinions and objective judgment of the rating officials at the time of preparation. In order to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that this presumption of regularity should not be applied to the NCOER under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature. 6. In the absence of compelling evidence which clearly and convincingly shows that the presumption of regularity should not be applied to this report, or that it contains material error, is inaccurate, or unjust, there is no basis to grant removal of the NCOER. 7. The purpose of maintaining the AMHRR is to protect the interests of the Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority. 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 the following from the applicant's NCOER for the period 19 June 2008 through 30 March 2009 to: (1) Part Ii the entry "10"; and (2) Part Ij the entry "Z." b. adding the following to the applicant's NCOER for the period 19 June 2008 through 30 March 2009 to: (1) Part Ii the entry "7"; and (2) Part Ij the entry "Q, Z." 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 removing the NCOER for the period 19 June 2008 through 30 March 2009 from his records. _________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) AR20130015559 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130015559 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1