IN THE CASE OF: BOARD DATE: 30 March 2017 DOCKET NUMBER: AR20150015968 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 March 2017 DOCKET NUMBER: AR20150015968 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: 30 March 2017 DOCKET NUMBER: AR20150015968 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, removal from his official military personnel file (OMPF) of a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 1 July 2007 through 23 May 2008 (hereafter referred to as the contested NCOER). 2. The applicant states: a. He believes that he was unjustly considered for separation from the Army due to a single NCOER. Throughout the course of his 27-year career, his records and performance reflect a commitment to the Army Values. In 2005, he volunteered for recruiting duty expecting to augment the Army's accession mission. He believes that he had the necessary competence to be successful in recruiting. He arrived at his duty station as a sergeant first class (SFC) and made an immediate impact on his mission. He received his third Gold Star and was named the best new recruiter of the battalion within his first year. b. He maintained the same consistency during his second year of recruiting. It was during his third and final year that he experienced unfair treatment by his station commander. During each of his 3 years of recruiting, he had a different station commander. He was senior to all of the station commanders by time in grade; however, he was subordinate to all. Upon arrival at the station, he embraced that custom realizing he was an Active Guard/Reserve (AGR) in an active component command, in addition to his inexperience in recruiting. c. Between placement of the second and third station commanders, he was appointed by the first sergeant (1SG) as an interim station commander. He assumed that position for 4 months until the third station commander arrived. He shared the recruiting tactics they were using to be consistent with the new station commander. However, the new station commander was not considerate of the practices that were in place. From that point, he began to experience indifference from the new station commander. He received duties that were uncommon to a recruiter. d. He was sent to locations to prospect, realizing the market was ineffective. His questions concerning the new station commander’s decisions were ignored. He attempted to seek guidance from their equal opportunity representative and the battalion inspector general with no benefit. The 1SG discovered his attempts to seek guidance and he received further retribution. e. Due to the remote location of their recruiting station, the station commander provided input to the 1SG for his NCOER. Given his struggles with receiving guidance, he elected to move forward without contesting the NCOER. He believed that his military performance before and what was to come would outshine that single NCOER. Since the promotion board would constantly address the countless inflated NCOERs, he believed a single derogatory NCOER surrounded by stellar NCOERs would prove his commitment to the Army Values. 3. The applicant provides no additional evidence. 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. The applicant enlisted in the U.S. Army Reserve (USAR) on 11 December 1987. He held military occupational specialties (MOS) 68W (Health Care Specialist) and 79V (Retention NCO). 3. Orders Number R-11-006744, issued by the USAR Personnel Command on 1 November 2000, ordered him to active duty in an AGR status with a reporting date of 12 February 2001. 4. He entered AD on 7 January 2001. He was promoted to SFC on 1 August 2002 and he reenlisted in the USAR on 11 December 2003 for an indefinite period. 5. His records contain the following ratings: a. An "Annual" NCOER, for the period 1 July 2006 through 30 June 2007, for his duties in MOS 79V as a USAR Recruiter, U.S. Army Recruiting Command (USAREC), Portland, OR. He received ratings of "Excellent," "Successful," and "Fully Capable." b. The contested NCOER, a "Change of Rater" report, covering 11 months of rated time was from 1 July 2007 through 23 May 2008, for duties in MOS 79V as a USAR Recruiter, USAREC, Honolulu, HI. His rater was the 1SG; his senior rater (SR) was a captain, the company commander; and his reviewer was a lieutenant colonel, the battalion commander. The NCOER shows in: (1) Part IIIf (Duty Description - Counseling Dates): initial counseling on 10 July 2007, later on 1 October 2007, and later on 15 January 2008. (2) Part IV (Army Values/Attributes/Skills/Actions) – the rater placed an "X" in the "No" blocks for "Duty," Selfless-Service," and "Honor" and entered the bullet comments: * refused to do his job as a field recruiter * refused to put the Army and subordinates before himself * refused to accept responsibility for this actions (3) Part IVb (Values/NCO Responsibilities) (Competence) – the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comments: * earned 3rd Gold Sapphire during this rating period * displayed a limited level of concern towards improving duty performance * displayed a lack of commitment to duty, resulting in zero enlistments for four consecutive months during rated period (4) Part IVc (Physical Fitness & Military Bearing) – the rater placed an "X" in the "Success" block and entered the bullet comments: * maintained a high level of physical fitness * military appearance projects a positive image * not able to handle stressful situations with success (5) Part IVd (Leadership) – the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comments: * displayed a lack of initiative * tends to put blame on others for own shortcomings (6) Part IVe (Training) – the rater placed an "X" in the "Excellence" block and entered favorable bullet comments. (7) Part IVf (Responsibility & Accountability) – the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comments: * operated his assigned government vehicle with great attention to detail, resulting in zero accidents * failed to take full responsibility for his actions * cannot be relied upon to complete any task without constant supervision (8) Part Va and Vb (Overall Performance and Potential) – the rater placed an "X" in the "Marginal" block and commented that the applicant could best serve the Army at his current grade or next higher grade as a Retention NCO, Career Counselor, or Operations NCO. (9) Part Vc (SR – Overall Performance) contains the entry "SR does not meet the minimum qualifications" and no ratings were assigned in Parts Vd (SR – Overall Potential) and Ve (SR Bullet Comments). (10) The NCOER was digitally signed by the applicant’s rater on 20 July 2008, the SR and reviewer on 18 August 2008, and the applicant on 21 August 2008. c. An "Annual" NCOER, for the period 24 May 2008 through 23 May 2009, for his duties in MOS 79V as an Accession Career Counselor. He received ratings of "Successful," "Excellent," and "Fully Capable." 6. The available evidence does not indicate that he: * requested a Commander's Inquiry * appealed the contested NCOER to the U.S. Army Human Resources Command within the regulatory timeframe 7. He was honorably discharged on 1 November 2015, by reason of “non-retention on active duty.” His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with completing 14 years, 9 months, and 25 days of active service this period. He also completed 4 months and 12 days of prior active service and 12 years, 8 months, and 14 days of prior inactive service. REFERENCES: 1. Army Regulation (AR) 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policies for completing evaluation reports that support the Evaluation Reporting System. The regulation stated in: a. Paragraph 3-23d – any verified derogatory information could be entered on an evaluation. b. Paragraph 6-4 – alleged error, injustices, and illegalities in a rated Soldier's evaluation report could be brought to the commander's or commandant's attention by the rated individual or anyone authorized access to the report. c. Paragraph 6-7 – 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. 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. 2. AR 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF and its composition. This regulation states that once a document is placed in the OMPF it becomes a permanent part of that record and will not be removed from or moved to another folder unless directed by the proper authorities listed in the regulation. DISCUSSION: 1. The available evidence shows the applicant's rating officials assessed his performance as substandard and in need of improvement during the rating period in question. His rater evaluated his competence, leadership, and responsibility and accountability as "Needs Improvement (Some)." The report also shows he was counseled three times during the rating period. 2. The contested report appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question. There is no evidence the contested report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy. 3. He also has not shown the evaluation rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time the contested NCOER was prepared or that faulty judgment was exercised in evaluating the applicant. 4. By regulation, in order to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015968 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015968 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2