IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20160007438 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: 9 June 2016 DOCKET NUMBER: AR20160007438 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: 9 June 2016 DOCKET NUMBER: AR20160007438 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 the annual DA Form 2166-8 (Non-commissioned Officer Evaluation Report (NCOER)) for the rating period ending 16 May 2010 (contested NCOER) from his official military personnel file (OMPF). 2. The applicant states: * the date he signed the contested report, he requested an explanation for why the bullet points in all blocks on this document did not equal the Senior Rater’s (SR) “4” block ratings given in his overall performance * he asked the battalion commander and battalion command sergeant major to investigate the SR’s evaluation shown on the contested report and never received a response * he was not counseled in accordance with the applicable regulation prior to receiving the contested NCOER * he was notified and selected for non-continuance on active duty under the Army’s Qualitative Management Program (QMP) as a result of the contested report * although he informed his chain of command he was going through a hard divorce and having trouble with his kids not attending school during the period of the contested report, no one ever mentioned his attendance or work performance could place him in jeopardy or lead to his receipt of an NCOER that would cause his release from active duty (REFRAD) * two out of the three evaluators listed on the contested report rated him on a more favorable NCOER the following year thereby showing an improvement in his performance 3. The applicant provides the contested NCOER along with 17 additional NCOERs he received throughout his military service. 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 United States Army Reserve (USAR) on 17 June 1988. Upon completion of initial entry training he was awarded military occupational specialty 19D (Cavalry Scout). 3. He served through periods of reenlistment in a variety of assignments, mostly in Lexington, Kentucky. He attained the rank of staff sergeant (SSG)/E-6 on 1 October 2001. 4. During October 2010, he received a change of rater NCOER covering 8 months of rated time from 21 September 2009 through 16 May 2010 for his duties as Battalion Training/Intelligence NCO while assigned to 2nd Headquarters Brigade, 397th Basic Combat Training (BCT) Battalion, 95th Training Division (Initial Entry Training (IET)). His rater was Captain MNM, the Assistant Operations Officer (AOO); his senior rater was Major (MAJ) APG, the Operations Officer; and his reviewer was Lieutenant Colonel (LTC) RNH, the Battalion Commander. This NCOER shows he was counseled on 15 October 2009, 10 January 2010, and 15 March 2010. It also shows: a. In Part IVa (Army Values), the rater placed an ""X" in the "Yes" blocks for all values and entered his bullet comments. b. In Part IVb (Competence), the rater placed an "X" in the "Needs Improvement (Some)" block and entered supporting bullet comments that read: * inability to provide appropriate time management affected maximizing section’s capabilities; required daily guidance on tasks and areas of concentration * routinely missed suspenses for requests for information, training schedule submissions and administrative actions related to training and unit readiness * did not display understanding of overall concept of operations or sub-tasks necessary to accomplish mission/training planning and execution; lacked managerial skills c. Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Success" block and entered corresponding bullet comments that read: * takes pride in personal appearance and looks like a Soldier * displays confidence and positive attitude that Soldiers appreciate * committed to succeeding and seeks improvement d. Part IVd (Leadership), the rater placed an "X" in the “Success” block and entered his corresponding bullet comments that read: * coordinated with External Unit Support Services, Fort Knox for contracts and reservations required for multiple training events * worked with Operations NCO and Company Training NCOs to accomplish mission * dedicated to helping team and working with subordinates to accomplish tasks e. In Part IVe (Training), the rater placed an "X" in the “Success” block and entered supporting bullet comments that read: * takes time to help Soldiers and places them first * developed and provided training to battalion staff during training conference * processed 108 school requests resulting in 73 Soldiers increasing skills and knowledge f. In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Some)" block and entered supporting bullet comments that read: * attendance and accountability of time requires improvement; personal issues affected attendance; leave and pass procedures were not consistently followed * counseled by Battalion Commander and Command Sergeant Major concerning attendance and professional/personal priorities * responsible for access and control of weapons vault for battalion g. In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Marginal" block. h. In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Fair/4" block and in Part Vd (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. i. In Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * fully capable of completing assigned work * a competent Soldier who works well with individual tasks * needs direction on priority of work; mentor and train into current position * needs to work with senior level battalion NCOs to learn overall responsibility 5. The NCOER shows the rater and senior rater signed the NCOER on 7 and 18 July 2010, respectively. The reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place also on 2 August 2010. The applicant signed the NCOER on 8 October 2010. 6. There is no indication the applicant: * requested a Commander's Inquiry * appealed the contested NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board 7. On 1 May 2016, the applicant was discharged by reason of “non-retention on active duty.” He completed 13 years, 2 months, and 27 days of creditable active service. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time the contested NCOER was rendered, states in: a. Chapter 1 that evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer 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 DA Pamphlet 623-3 (Evaluation Reporting System). b. Chapter 1 that when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or by a member of a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The commander’s inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policies and procedures established by Headquarters, Department of the Army (HQDA) and the conduct of the rated Soldier and members of the rating chain. The results of the Commander’s Inquiry may be provided to the rating chain and the rated Soldier at the appointing official’s discretion. c. Chapter 3 that an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. Requests that an evaluation report in a Soldier’s OMPF be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report or be included in the rated individual’s OMPF: statements from rating officials that they underestimated the rated Soldier; statements from rating officials that they did not intend to rate the rated Soldier as they did; requests that ratings be revised; statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential; and/or a subsequent statement from a rating official that he/she rendered an inaccurate evaluation of a rated Soldier’s performance or potential in order to preserve higher ratings for another. 2. Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) governs the composition of the AMHRR (which includes the OMPF) and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. Table B-1 covers authorized documents and states NCOERs are filed in the performance section of the OMPF. 3. Several Military Personnel (MILPER) Messages provide guidance and procedures in support of the QMP. The purpose of the QMP 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. a. Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.). b. 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. c. Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge. d. The Director of Military Personnel Management is the final authority for disposition of appeal. DISCUSSION: The applicant received a change of rater NCOER covering 8 months of rated time from 21 September 2009 through 16 May 2010. a. An NCOER is an assessment of a Soldier's performance and potential during a period of time. The complete facts and circumstances of what occurred in 2010 are not available for review. Much time passed since the applicant received this NCOER. What is known is that during the period covered by the NCOER, the applicant did not appear to have fully performed to standards. b. The applicant claims his chain of command did not explain or investigate why the senior rater’s evaluation/rating did not equal the other bullets on the contested report, given his overall performance. However, the rater also determined the applicant’s overall performance and potential was marginal. In addition, there is no evidence of record and he did not provide any evidence to show his commander refused to conduct an inquiry to ascertain the validity of his allegations and if the contested report was illegal, unjust, or otherwise in violation of the applicable regulation. c. The applicant admits he experienced personal family difficulties during this rating period in question, but states his performance improved the following year. He further alludes to missing time from work but claims no one ever informed him his attendance and work performance could lead to an NCOER that would jeopardize his military career or result. These admissions support the evaluation he received. d. The contested NCOER contains three counseling dates: 15 October 2009, which was within 30 days of the beginning date of this report, and 10 January and 15 March 2010, which were quarterly counseling. The three dates cast doubt on his statement that he did not receive counseling in accordance with the applicable regulation. e. There is insufficient evidence to show the contested NCOER contains any administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies. f. The applicant has not shown evaluations rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time they prepared the NCOER or that they exercised faulty judgment in evaluating him as they did. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007438 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160007438 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2