IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20160010523 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: 28 July 2016 DOCKET NUMBER: AR20160010523 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: 28 July 2016 DOCKET NUMBER: AR20160010523 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, the removal of the annual DA Form 2166-8 (Non-commissioned Officer Evaluation Report (NCOER)) for the rating period ending 30 January 2009 (contested NCOER) from his official military personnel file (OMPF). 2. The applicant states he believes his records are in error because he was not counseled eight different times during this rating period. He brought this to the attention of his senior rater that he was counseled three times on paper and was told that verbal counseling counted. He received this NCOER when he was mobilized as a Reservist. His application to active duty was processed through his senior rater and it was approved. He was back in the Regular Army (RA) just shy of 4 months after this evaluation. He received a memorandum, dated 23 May 2016, from the Department of the Army Qualitative Management Program (QMP) "for this NCOER 01/30/2009." Furthermore, when his reenlistment window was opened in 2012, he was able to reenlist indefinitely. Army Directive 2012-03 states effective 1 March 2012, staff sergeants (SSGs) will not be allowed to reenlist indefinitely if they received a 4 or 5 in Part V (Overall Performance and Potential) of the NCOER. He reenlisted indefinitely in May of 2012. The Army approved his reenlistment and the Battalion Retention NCO assured him that he was able to reenlist because the NCOER had no bearing prior to his enlistment and that it occurred when he was in the Reserves. He should not be looked at for QMP because of the system's failure. This is double jeopardy and injustice. 3. The applicant does not provide any 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. Having had prior service in the Regular Army (12 February 2002 to 11 February 2005), the applicant enlisted in the U.S. Army Reserve (USAR) on 7 March 2006. He held military occupational specialty 42A (Human Resources Specialist). 3. He entered active duty on 8 May 2005 and served in a variety of positions. He was advanced to SSG on 1 October 2007. He was assigned to the 1st Battalion, 364th Regiment, 191st Infantry Brigade, Fort Lewis, WA. 4. He received an annual NCOER covering 12 months of rated time from 31 January 2008 through 30 January 2009 for his duties as an administrative sergeant. His rater was Sergeant First Class (SFC) TSM, the Opposing Force (OPFOR) Observer Controller; his senior rater was SFC TEH, the Senior Service Personnel Sergeant; and his reviewer was Captain TLL, the Company Commander. This NCOER shows he was counseled on 7 March 2008, 18 August 2008, and 14 November 2008. It also shows in: a. Part IVa (Army Values), the rater placed an "X" in the "Yes" block for all Army Values and entered supporting bullet comments. b. Part IVb (Competence), the rater placed an "X" in the "Success" block and entered supporting bullet comments c. Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Needs Improvement (Much)" block and entered supporting bullet comments that read: * physically fit and confident Soldier; always passed the [Army Physical Fitness Test] * counseled Soldier eight different times; needs to work on military bearing d. Part IVd (Leadership), the rater placed an "X" in the "Success" block and entered supporting bullet comments. e. Part IVe (Training), the rater placed an "X" in the "Success" block and entered supporting bullet comments. f. Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Some)" block and entered supporting bullet comments that read: * always perceived professional development counseling as negative instead of positive * maintained personal equipment in a high state of readiness * stressed safety in all aspects of training g. 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 "Superior/3" block. i. In Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * do not promote at this time * Soldier has potential with supervision * does not respond well to constructive guidance 5. The NCOER shows the rater and senior rater signed the NCOER on 10 February 2009 and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place also on 10 February 2009. The applicant signed it on 12 February 2009. 6. There is no indication the applicant requested a Commander's Inquiry or appealed the contested NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board. 7. He executed a 4-year reenlistment in the RA on 27 May 2009 and an indefinite reenlistment in the RA on 10 May 2012. He is currently serving in the RA. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time the contested NCOER was rendered, states in: a. Chapter 1, 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, 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, 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 (rating officials) 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. * Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.) * 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. * Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge. * The Director of Military Personnel Management is the final authority for disposition of appeal DISCUSSION: The applicant received an annual NCOER covering 12 months of rated time from 31 January 2008 through 30 January 2009. 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 2009 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 performed to standard in all areas. b. The contested NCOER contains three counseling dates. Nevertheless, this did not preclude his supervisors and/or rating official from commenting on additional counseling conducted during the rating period. c. The available evidence does not show the contested NCOER contains any administrative or substantive deficiencies or that it is not in compliance with applicable regulations and policies. d. The applicant has not shown evaluations rendered by the rating officials represent 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) AR20160010523 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160010523 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2