IN THE CASE OF: BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150002811 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 a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for relief for cause covering the period 1 May 2009 through 19 November 2009 from his official military personnel file (OMPF). 2. The applicant states: a. the rater and senior rater did not meet requirements to evaluate his performance in accordance with Army Regulation 623-3, paragraph 3-55(b) (f); b. there was no 30-day waiver authorized by the first general officer in the chain of command or an officer having general court-martial jurisdiction over the relieved noncommissioned officer (NCO); c. the contested report is an unfair evaluation and should be removed from his OMPF. 3. The applicant provides: * two Memorandums for Record (MFR) * two Memorandums of Support CONSIDERATION OF EVIDENCE: 1. The applicant's record shows he enlisted in the Regular Army on 25 August 1999. At the time of his application, he was serving on active duty in the rank of sergeant first class as an intelligence sergeant for an Airborne Field Artillery Battalion at Joint Base Elmendorf-Richardson, Alaska. 2. The applicant's record shows he received the contested NCOER covering the period 1 May 2009 through 19 November 2009 in which he was evaluated as the senior drill sergeant in military occupational specialty 13D (Field Artillery Automated Tactical Data System Specialist). Part II (Authentication) includes the rater, senior rater, and reviewer's digital signatures. 3. In Part IVa (Army Values/Attributes/Skills/Actions (Rater)) the rater responded "NO" to questions 2 (Duty: Fulfills Their Obligations), 3 (Respect/EO/EEO: Treats People as They Should be Treated), 5 (Honor – Lives Up to All the Army Values) and 6 (Integrity: Does What is Right – Legally and Morally), and provided following the comments: * "failed to fulfill his duties and responsibilities as a Senor Drill Sergeant and Noncommissioned Officer" * "dishonored the uniform and the Drill Sergeant Badge by displaying unprofessional conduct" * "neglected to treat Soldiers as they should be treated" 4. In Part IV (Values/NCO Responsibilities (Rater)), the rater gave the applicant a "Needs Improvement (Some)" rating in the following two blocks and supported these ratings with the following comments: * Part IVd (Leadership) – "failed to set the example as a NCO in an initial entry training (IET) environment” and “misused authority during absence of command presence" * Part IVf (Responsibility and Accountability) – "rated NCO has been notified of the reason for the relief” and “failed to follow established procedures for the care of subordinates” 5. In Part V (Overall Performance and Potential), the rater gave the applicant a "Marginal" rating. The senior rater placed the applicant in the "4 (Fair)" block in Part Vc (Overall Performance) and Part Vd (Overall Potential). He provided the following supporting comments: * continue to groom at current grade * lacked the maturity and displayed poor judgment * failed to take responsibility for his actions * had the ability to perform but failed to do so * Soldier refused to sign 6. The applicant provides a statement from the rater listed on the contested report, dated 9 January 2015. The rater indicates he was frocked to the rank of first sergeant (1SG) on 1 August 2009, and assigned to the applicant’s unit on 9 August 2009. The applicant was suspended from the Drill Sergeant Program on 28 August 2009, at which time he only served 20 days in his position as the applicant’s rater. Due to a pending investigation, the applicant was removed from the unit and at no time thereafter was he in a position to serve as a qualified rater for the applicant and that he is aware he did not meet the regulatory requirements to serve as a qualified rater for the applicant. 7. The applicant provides a statement from the senior rater listed on the contested report dated 28 January 2015. The senior rater indicates he assumed command of the applicant’s unit on 4 September 2009, at which time the applicant had previously been suspended from the Drill Sergeant Program and removed from the unit. He is aware he did not meet the regulatory requirements to serve as the applicant’s senior rater. 8. A review of the rater’s NCOER during the period in question shows he served as 1SG of the applicant’s unit from 1 May 2009 through 6 February 2010. A review of the senior rater’s DA Form 67-9 (Officer Evaluation Report (OER)) during the period in question shows he served as the applicant’s unit's company commander from 18 June 2009 through 17 June 2010. 9. Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies for completing evaluation reports that support the ERS and provides guidance regarding redress programs, including commander inquiries and appeals. Chapter 6 contains guidance on NCOER appeals. a. Paragraph 3-55 provides for “Relief for Cause” evaluation reports (DA Form 2166-8). An NCO can be relieved for cause regardless of the rating period involved; however, a waiver is required to render “Relief for Cause” NCOERs covering a period of less than 30 days. Relief for cause is defined as the removal of an NCO from a specific duty or 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. b. Paragraph 3-55f states that the minimum rater and senior rater 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 of time to react to performance counseling during each rating period. Authority to waive this 30-day minimum rating period and rater and senior rater qualification period in cases of misconduct is granted to the first 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 NCOER. c. Paragraph 6-7 stipulates that a report accepted for filing in an NCO’s record is 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. d. Paragraph 6-11 contains guidance on the burden of proof necessary for a successful appeal of an NCOER that has already been accepted for filing in the OMPF. It states that in order to justify amendment or deletion of a report, clear and convincing evidence must be provided to show that the presumption of regularity attached to reports accepted for filing by Department of the Army should not be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice. DISCUSSION AND CONCLUSIONS: 1. The applicant contends the contested report should be removed from his OMPF because his rater and senior rater in question did not rate him for at least 30 days and therefore did not satisfy regulatory minimum rater and senior rater qualifications and the minimum rating period are 30 rated days. There is insufficient evidence to support this claim. 2. Contrary to the most recent claims made by the rater and the senior rater indicating they were unqualified to rate the applicant because they did not serve in their respective rater and senior rater positions for at least 30 days, the evidence of record shows these officials authenticated the contested report with their signatures thereby confirming they evaluated the applicant for 7 months from 1 May 2009 through 19 November 2009. In addition, the rater received an NCOER encompassing the same period that evaluated him as the 1SG of the applicant’s unit beginning from 1 May 2009 to 6 February 2010. Likewise, the senior rater received an OER confirming his position as the company commander of the applicant’s unit from 18 June 2009 through 17 June 2010. Accordingly, even after the applicant was suspended from drill sergeant duty on 28 August 2009, these individuals still had oversight of the applicant and exceeded the minimum 30 days required by regulation to evaluate and rate the applicant. 3. In view of the forgoing, there is no basis upon which to grant the requested relief in this case. The contested report in question should remain as filed. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20150002811 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002811 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1