IN THE CASE OF: BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20160012008 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: 27 September 2016 DOCKET NUMBER: AR20160012008 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: 27 September 2016 DOCKET NUMBER: AR20160012008 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 his noncommissioned officer evaluation report (NCOER) covering the period 1 September 2007 through 31 May 2008 from his Official Military Personnel File (OMPF). 2. The applicant states: a. He is being considered for denial of continued active duty service under the Qualitative Management Program (QMP) due to a negative NCOER covering the period 1 September 2007 through 31 May 2008. b. He received a rating of "Needs Improvement" by his rater in Part IVb (Competence), a rating of "Marginal" by his rater in Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), and ratings of "4/4" by his senior rater in Part V (Overall Performance and Potential) in the NCOER in question. There are no supporting documents to justify why he received these ratings. His OMPF does not contain a DA Form 4856 (Developmental Counseling Form) or a DA Form 2166-8-1 (NCOER Counseling and Support Form) showing he was counseled before receiving these ratings as required by Army Regulation 623-3 (Evaluation Reporting System). c. At the time of the NCOER, he lacked knowledge about Army Regulation  623-3 which governs the NCOER system. He also forgot he had received a poor evaluation, which he should have handled before now. All of his other NCOERs reflect "Success" and "2/2" ratings or better. He provided letters of recommendation from prior supervisors, to include one from the reviewer of the NCOER in question wherein his prior reviewer states the Army would be doing itself a disservice if he were separated. d. He was advised by the U.S. Army Human Resources Command (HRC) to notify them if his NCOER is removed from his records to enable them to take further action. 3. The applicant provides: * NCOER covering the period 1 September 2007 through 31 May 2008 * memorandum for record, dated 4 January 2016, subject: Recommendation for (Applicant) * memorandum for record, dated 5 January 2016, subject: Character statement for (Applicant) * HRC memorandum, dated 14 June 2016, subject: Appeal of Involuntary Separation under the QMP, (Applicant) 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 Regular Army on 31 July 2002 and is currently a staff sergeant stationed at Joint Base Myer-Henderson Hall. 3. In May 2008, his rater rendered an annual NCOER covering the period 1 September 2007 through 31 May 2008 for his duties as squad leader. a. Part II (Authentication) shows the rater and senior rater authenticated the form by digitally signing it on 21 May 2008 and 15 May 2008. The reviewer concurred with the rater and senior rater and authenticated the document with his digital signature on 30 May 2008. The applicant digitally signed the NCOER on 20 May 2008. b. In Part IVa (Army Values), the rater placed an "X" in the "Yes" block for all Army Values and entered appropriate bullet comments. c. In Part IVb (Competence), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments: * failed to show up for NCOES [Noncommissioned Officer Education System] school resulting in non-enrollment from class * lack of job knowledge resulting in failure to train subordinates to standard * had to be re-evaluated several times during Squad and Team live fire exercises d. In Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Success" block and entered appropriate bullet comments. e. In Part IVd (Leadership), the rater placed an "X" in the "Success" block and entered appropriate bullet comments. f. In Part IVe (Training), the rater placed an "X" in the "Success" block and entered appropriate bullet comments. g. In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Success" block and entered appropriate bullet comments. h. 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. He also entered three positions in which the applicant could best serve the Army at his current or next higher grade. i. In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Fair/4" block. j. 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. k. In Part Ve (Senior Rater Bullet Comments), the senior rater entered the following bullet comments: * send to BNCOC [Basic Noncommissioned Officer Course] * will make a great squad leader with more experience * highly recommend this Soldier to go to Ranger School for leadership values and job knowledge * newly promoted Staff Sergeant who needs more time as a Squad Leader to learn 4. This NCOER is filed in the performance folder of his OMPF. His OMPF does not contain a DA Form 2166-8-1 or a DA Form 4856 showing he was counseled pertaining to the ratings on this NCOER. 5. There is no evidence of record he submitted an appeal of his NCOER to HRC within 3 years of his evaluation report "THRU" date. 6. On 4 January 2016, Major B____ M____, the reviewing official for the NCOER in question, provided the applicant with a memorandum of recommendation wherein he strongly recommended the applicant be retained in the Army. He stated he was the reviewer for an NCOER where the applicant received a "Needs Improvement" rating for in "Competence." Since that NCOER, he vastly improved his performance in that area and was selected to teach at the Warrior Leader Course. He can attest to that vast improvement because the applicant served as his S-3 platoon sergeant in 2012, where he became one of the most proficient and well-rounded NCOs in the battalion. His current ratings of "1/1" illustrate he has unlimited potential for promotion. His excellent work habits, experience, and positive attitude are what the Army needs. He is technically and tactically proficient, extraordinarily physically fit, and mentally tough. He would be a great loss to the Army. 7. On 5 January 2016, Major A____ H____ provided the applicant with a memorandum of recommendation wherein he requested the applicant be granted the opportunity to continue to serve in the U.S. Army as an NCO and not be recommended for separation by the QMP. He stated he served as the applicant's battalion operations officer for the last 6 months and can attest to his superb military bearing, professionalism, and tactical acumen. Although he does not know the circumstances surrounding the NCOER in 2008, he believes the applicant is one of the top three NCOs he has served with in 14 years of service. The applicant's reputation as a capable and adaptive leader within the battalion and brigade combat team is well known and it would be a huge loss not to allow him to continue to lead and mentor the next generation of warriors. 8. HRC memorandum, dated 14 June 2016, subject: Appeal of Involuntary Separation under the QMP, (Applicant), states Army policy identifies only cases with material error, newly discovered evidence, or the subsequent removal of documents from the Soldier's OMPF are eligible for QMP appeal. He was advised his QMP appeal did not meet the criteria and was returned without action. He was also advised to notify HRC if he is still serving on active duty when he receives the final results of his appeal to remove his NCOER before the ABCMR so HRC might take appropriate action. REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resource Records Management), table 2-1 (Interactive Personnel Electronic Records Management System Access Guidelines), states an NCOER will be filed in the performance folder of the OMPF. 2. Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. The 10 August 2007 version of this publication was in effect at the time. a. Paragraph 2-12 stated raters will provide their support forms, along with the senior rater's support forms, to the rated Soldier at the beginning of the rating period. Raters will use the DA Form 2166-8-1 for the required initial and quarterly NCO counseling, professional development throughout the rating period, and when preparing the final evaluation. Raters will assess the performance of the rated Soldier using all reasonable means, to include personal contact, records and reports, and the information on DA Form 2166-8-1. b. Paragraph 2-15 stated senior raters or reviewing officials use their positions and experiences to evaluate the rated Soldier's performance and/or potential within a broad organizational perspective, military program of instruction, or civilian academic standards. The senior rater's evaluation is the link between the day-to-day observation of the rated Soldier and the longer-term evaluation of the rated Soldier's potential by Headquarters, Department of the Army (HQDA), selection boards. Normally, senior raters or reviewing officials control the accurate preparation and timely submission of evaluation reports. Senior raters evaluate performance in perspective by considering the rated Soldier's experience; the relative risk associated with the performance; the difficulty of the organization's mission; the prudence and results of action taken; the adequacy of resources; the overall efficiency of the organization; and when applicable, adherence to established military course or academic standards established by the civilian educational, medical, or industrial institution. The senior rater will review and initial the first DA Form 2166-8-1 and review the final DA Form 2166-8-1 in use in the evaluation. c. Paragraph 3-4 stated the DA Form 2166-8-1 provides an opportunity for the rated individual, rater, intermediate rater (if applicable) and senior rater to communicate. The rater will use the support form for input on the evaluation and forward the support form to the next person in the rating chain. The senior rater will use the support form to complete an evaluation of the rated individual and forward the completed evaluation and support form to the reviewer, if applicable, and then back to the rated individual. Although the support form is an official document covered by regulation, it will not be part of an official file used by selection boards or career managers. Failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report. The senior rater will ensure that a completed DA Form 2166-8-1 is returned to the rated individual when the evaluation is forwarded to HQDA. d. Paragraph 3-39 stated an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and represent the considered opinions and objective judgment of the rating officials at the time of preparation. e. Paragraph 6-7 stated an appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. f. Paragraph 6-11 stated the burden of proof in the appeal process rests with the appellant. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 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. g. Paragraph 6-13 advised that appeals based on substantive inaccuracy must include the basis for the belief that the rating officials were not objective or had an erroneous perception of the performance. A personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. 3. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) prescribes the procedures for completing Army evaluation reports for officers and noncommissioned officers. a. Table 3-4 (Army Values/Attributes/Skills/Actions NCOER Instructions) defines the ratings of "Excellence," "Success," and "Needs Improvement." The following definitions will be used in parts IVb-f: * Excellence – * exceeds standards demonstrated by specific examples and measurable results * special and unusual * achieved by only a few * clearly better than most others * Success – * meets all standards * majority of ratings are in this category * fully competitive for schooling and promotion * the goal of counseling is to bring all NCOs to this level * Needs Improvement – missed meeting some standards b. Table 3-5 (Overall Performance NCOER Instructions) defines the ratings of "Among the Best," "Fully Capable," and "Marginal." NCOs receiving one or more "Needs Improvement" ratings in Parts IVb-f cannot receive a rating of "Among the Best." The following definitions will be used in Part Va: * Among the Best – NCOs who demonstrated a very good, solid performance and a strong recommendation for promotion and/or service in positions of greater responsibility * Fully Capable – NCOs who demonstrated a good performance and strong recommendation for promotion should sufficient allocations be available * Marginal – NCOs who demonstrated poor performance and should not be promoted at this time c. Table 3-5 states the senior rater provides an independent evaluation of the rated Soldier in his or her portion of the evaluation form. The senior rater uses the information provided on the DA Form 2166-8-1, as well as any information he or she receives through direct or indirect contact with the rated individual. The following definitions will be used when completing Parts Vc and Vd: * Successful/Superior – * a "1" represents the cream of the crop and recommendation for immediate promotion * a "2" represents a very good performance and strong recommendation for promotion * a "3" represents a good performance and promotion recommendation based on allocations * Fair – a "4" rating represents NCOs who may require additional training/observation and should not be promoted at this time * Poor – * a "5" rating represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas * do not promote and consider for Department of the Army-imposed bar to reenlistment under the QMP DISCUSSION: 1. The applicant's request for removal of his NCOER covering the period 1 September 2007 through 31 May 2008 from his OMPF was carefully considered. 2. He received a rating of "Needs Improvement (Some)" from his rater in Part IVb (Competence) for failing to show up for Noncommissioned Officer Education System school, lack of job knowledge resulting in failure to train subordinates to standard, and needing to be re-evaluated several times during squad and team live fire exercises. 3. He received a rating of "Fair/4" from his senior rater in Parts Vc and Vd, which was consistent with his rater's evaluation of his overall potential for promotion and/or service in positions of greater responsibility as "Marginal." 4. The reviewer concurred with the rater and senior rater and authenticated the NCOER by signing it on 30 May 2008. The fact that he provided a memorandum recommending the applicant's retention in the Army nearly 4 years after the "THRU" date of the NCOER due to his demonstrated improvement and potential does not in any fashion substantiate the NCOER is incorrect, inaccurate, or unjust. 5. The applicant claims he was never formally counseled on the poor performance reflected in his contested NCOER and he provides as proof that neither a DA Form 2166-8-1 nor a DA Form 4856 are filed in his OMPF. However, regulatory guidance specifically states that although the support form is an official document covered by regulation, it will not be made a part of a Soldier's official file. Failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an NCOER. 6. He did not provide clear and compelling evidence showing the ratings in the contested NCOER were in error or were not the considered opinions and objective judgment of the rating officials at the time the reports were rendered. The NCOER is properly filed in the performance folder of his OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012008 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012008 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2