BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160015374 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 BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160015374 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. BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160015374 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 DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 30 September 2010 through 29 September 2011 (the contested NCOER) from his official military personnel file (OMPF). 2. The applicant states the basis of this appeal is the evaluation was not in compliance with the provisions of Army Regulation (AR) 623-3 (Evaluation Reporting System) as well as substantive inaccuracies based on the fact that he was not afforded due process based on the following: * he was not counseled during the rated period * the contested NCOER was not completed before he left the organization * it was sent to him via email 132 days after the through date and only after his current chain of command pressured his former chain of command to complete the NCOER * he was not afforded NCOER counseling by his rater or senior rater and had no opportunity to discuss the content of the NCOER * the third bullet comment in the leadership block is in violation of AR 623-3, paragraph 3-23, as it eludes to two AR 15-6 (Procedures for Investigating Officers and Board of Officers) investigations conducted during the rating period in which he was cleared of any wrongdoing * the contested NCOER was signed by the reviewer before it was signed by the senior rater, a violation of paragraph 3-16 of AR 623-3 3. The applicant provides the contested NCOER. 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 5 August 1998. He has served through multiple reenlistments in a variety of assignments. He holds military occupational specialty (MOS) 13F (Field Artillery NCO). He was promoted to sergeant first class (SFC)/E-7 on 1 November 2008. 3. He received an Annual NCOER covering 12 months of rated time from 30 September 2010 through 29 September 2011 for his duties as Effects NCO, while assigned to Headquarters and Headquarters Troop, 1st Squadron, 61st Cavalry, Fort Campbell, KY. His rater was Captain ARM, the Fire Support Officer; his senior rater was Major MDF, the Operations Officer; and his reviewer was Lieutenant Colonel WBJ, the Squadron Commander. This NCOER shows: a. In Part IIIf (Duty Description - Counseling dates), the rater placed the dates of counseling as "20101015," "20110105," "20110423," and "20110720." b. In Part IVa (Army Values), the rater placed an "X" in the "Yes" blocks for all values and entered his bullet comments. c. In Part IVb (Competence), Part IVc (Physical Fitness and Military Bearing), Part IVd (Leadership), and Part IVe (Training), the rater placed an "X" in the "Success" blocks and entered his bullet comments. The bullets for the "Leadership" block states: * mentored two Soldiers who were significantly overweight and Army Physical Fitness Test (APFT) failures to get within the Army weight control standards and pass the APFT * was selected by the First Sergeant to serve as ECP NCOIC * always ensures his Soldiers adhered to standards which resulted in his section being found not at fault for two firing incidents d. In IVf (Responsibility and Accountability), the rater placed an "X" in the "Excellence" block and entered his bullet comments. e. In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Fully Capable" block. f. In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Successful/3" 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/2" block. g. In Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * promote to Master Sergeant with peers * send to Senior Leader's Course * capable and competent NCO, performed duties to standard despite being on profile * has potential to make an impact on any unit 4. The NCOER shows the rater digitally signed it on 30 January 2012; the senior rater signed it on 7 February 2012, and the reviewer signed it on 31 January 2012. The applicant signed it on 8 February 2012. 5. On 12 August 2016, the U.S. Army Human Resources Command returned his appeal without action because substantive appeals must be submitted within 3 years of the "Thru" date. REFERENCE: 1. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time prescribed the policies for completing evaluation reports that support the Evaluation Reporting System. a. Paragraph 3-2i (Evaluation requirements) states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions. b. Paragraph 3-39 (Modification to previously submitted reports) states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the 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. Army Regulation 600-8-104 (Army Military Human Resource Record Management) provides guidance for filing documents in the OMPF. The U.S. Army Human Resources Command, Army Personnel Records Division, updates the list of authorized documents for filing in the OMPF quarterly. NCOERs are filed in the performance folder of the OMPF. DISCUSSION AND CONCLUSIONS: 1. The available evidence shows the applicant, an NCO serving in a leadership position, appears to have performed to standard. He received a successful annual NCOER that covered 12 months of rated time. His rating officials believed he performed to standards, and thus he received "Success/Excellence" and "Fully Capable" rating from his rater and "Successful/Superior" rating from his senior rater. 2. The contested NCOER reflects his counseling dates and he authenticated this report with his signature indicating the administrative data, including the counseling dates are correct. But even if he had not been counseled (as he claims), as a senior NCO, he had an equal responsibility in the counseling process between himself and his rating officials. 3. The reviewer's signature is clearly before the senior rater's. However, this appears to be an administrative oversight and does not invalidate the contested report. 4. The evidence does not show the evaluations rendered by his rating officials represented anything other than their objective judgment and considered opinions at the time the contested NCOER was prepared 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) AR20160015374 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160015374 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2