BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150016007 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 reconsideration of his earlier request to remove the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period 1 August 2010 through 31 July 2011 authenticated on 22 August 2011 from his Official Military Personnel File (OMPF) and replace it with the DA Form 2166-8 he authenticated on 15 March 2013. 2. The applicant states: * the contested NCOER was written based on personal bias * the reviewer was a sergeant first class (SFC)/E-7 and the regulation states the reviewer must be a sergeant major (SGM)/E-9 or higher * he was not able to get formal help with the appeals process * he is providing a copy of the NCOER that was written by First Sergeant A____ * this NCOER was submitted to replace the contested NCOER * he signed the contested NCOER because he was a fairly new sergeant and he was being threatened and intimidated by the three NCOs listed on the form * he was told if he didn't sign it right away it would be submitted showing he refused to sign it 3. The applicant provides the DA Form 2166-8 for the period 1 August 2010 through 31 July 2011 that he authenticated on 15 March 2013. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150011357 on 15 September 2015. 2. The applicant provides an annual NCOER for the period 1 August 2010 through 31 July 2011 authenticated on 15 March 2013. This NCOER is new evidence that warrants consideration by the Board at this time. 3. Having prior service in the Missouri Army National Guard, he enlisted in the Regular Army on 19 May 2008 for a period of 3 years. On 1 August 2009, he was promoted to sergeant. 4. The contested annual NCOER covers the period 1 August 2010 through 31 July 2011 for duties as a boat operator. His rank is shown as sergeant. The rater, senior rater, reviewer (SFC), and applicant signed the form on 22 August 2011. He indicated he was aware of the appeals process. 5. Part IIIf (Counseling Dates) of the form shows he was initially counseled on 26 August 2010 with later counseling on 26 November 2010, 26 February 2011, and 26 May 2011. 6. The contested NCOER shows the following additional entries: a. In Part IVa (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "No" block for Duty (Fulfills Their Obligations) and Selfless-service (Puts the Welfare of the Nation, the Army, and Subordinates before Their Own). The rater placed an "X" in the "Yes" block for the remaining five values. The following bullet comments were entered: * displays selfish behavior and forsakes his leadership responsibilities * demonstrated the lack of loyalty to superiors, peers, and subordinates * put the needs of his Soldiers above his own b. He was rated "Needs Improvement (Some)" for Leadership by the rater with the following bullet comments: * compromised his leadership position; pursued and engaged in an inappropriate relationship with a subordinate Soldier in the unit * coached and mentored a Soldier to the promotion board scoring 145 out of 150, and being recommended for promotion * displayed a genuine concern for Soldiers through effective counseling and mentoring; resulting in zero motor vehicle and drug related incidents c. He was rated "Needs Improvement (Some)" for Responsibility and Accountability by the rater with the following bullet comments: * undermined the good order and discipline of the unit and exhibited conduct that was unbecoming of an NCO * maintained 100% accountability of all assigned equipment, worth $325,000 * enforced safety by implementing Composite Risk Management on all operations, which resulted in zero accidents d. He was rated "Fully Capable" by his rater for his overall potential for promotion and/or service in positions of greater responsibility. e. He was rated "Successful-3" by his senior rater for overall performance and he was rated "Superior-2" by his senior rater for overall potential for promotion and/or service in positions of greater responsibility with the following bullet comments: * retain in current grade; displayed lack of judgment and poor decision making; misused his grade and position to obtain personal pleasure * continue to educate through NCOES; prepare for future assignments * an adaptable NCO who sought self-improvement and encouraged Soldiers to do the same throughout rating period * continue to assign this NCO to current position so to further develop his potential 7. The applicant provided an alternate annual NCOER for the period 1 August 2010 through 31 July 2011. His rank is shown as corporal. The form was signed by the: * rater on 29 August 2012 * senior rater on 4 September 2012 * reviewer (first lieutenant) on 4 September 2012 * applicant on 15 March 2013 8. He was rated by his rater as: * "Excellence" for Values/NCO Responsibilities * "Success" for Physical Fitness and Military Bearing * "Excellence" for Leadership * "Success" for Training * "Success" for Responsibility and Accountability 9. He was rated "Fully Capable" by his rater for his overall potential for promotion and/or service in positions of greater responsibility. 10. He was rated "Successful-2" by his senior rater for overall performance and he was rated "Superior-1" by his senior rater for overall potential for promotion and/or service in positions of greater responsibility. 11. On 1 May 2013, he was promoted to SSG. On 9 April 2014, he immediately reenlisted for 6 years. 12. There is no evidence the applicant appealed the contested NCOER to the Army Special Review Board (ASRB) within the allowable 3-year period. 13. A review of the applicant's performance folder of his OMPF in the interactive Personnel Electronic Records Management System revealed a copy of the contested NCOER. 14. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF. Appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System), states NCOERs will be filed in the performance and service folders of the OMPF. 15. Army Regulation 623-3, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. This includes the DA Form 2166-8. a. Rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On one hand, this evaluation will give full credit to the rated Soldier for their achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army Selection Boards and career managers can make intelligent decisions. b. The rating chain will consist of the rated NCO, the rater, the senior rater, and the reviewer. The reviewer will be a commissioned officer, warrant officer, command sergeant major (CSM), or SGM in the direct line of supervision and senior in pay grade or date of rank to the senior rater. Promotable master sergeants may serve as reviewers, provided they are working in an authorized CSM or SGM position. NCO rating chains will not include an intermediate rater. c. The rated Soldier's signature will verify the accuracy of the administrative data, confirming the name and social security number on the evaluation report, rank and date of rank, branch or military occupational specialty data, period covered and nonrated time, and the rating officials. This increases the administrative accuracy of the evaluation report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data. d. An evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to: * be administratively correct * have been prepared by the proper rating officials * represent the considered opinion and objective judgment of the rating officials at the time of preparation e. Requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored. f. Substantive appeals will be submitted within 3 years of an NCOER "THRU" date. Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR. The ASRB will not accept appeals that are over 3 years old or appeals from Soldiers who are no longer on active duty or part of the U.S. Army Reserve or Army National Guard. g. Appeals for Active Army NCOERs based on administrative error only will be adjudicated by the Headquarters, Department of the Army, Evaluation Appeals Branch (AHRC-PDV-EA). Claims of administrative error pertain to Parts I, II, and III of the NCOER. Such claims may include, but are not limited to, deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the reporting period, and errors in the height/weight data. h. Administrative appeals will be considered regardless of the time that has elapsed since the period of the report and a decision will be made in view of the regulation in effect at the time the evaluation report was rendered. The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is therefore recommended. i. A personality conflict between the applicant and a rating official does not constitute grounds for a favorable appeal. j. 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 an administrative error or factual inaccuracy. The burden of proof rests with the appellant. DISCUSSION AND CONCLUSIONS: 1. Although the applicant claims the contested NCOER was written based on personal bias, the NCOER he provided to replace the contested NCOER was prepared by the same rater and senior rater. In addition, the regulation states a personality conflict with a rating official does not constitute grounds for a favorable appeal. 2. Although he contends he was unable to get formal help with the appeals process, there is no evidence to support this contention. He acknowledged he was aware of the appeals process in the contested NCOER. 3. He contends he provided a new NCOER written by First Sergeant A____; however, he provided an NCOER written by the same two staff sergeants as in the contested NCOER. The reviewer for the revised report was a first lieutenant. 4. His contention the revised NCOER was submitted to replace the contested NCOER was noted. However, the governing regulation states that requests that an evaluation report in a Soldier's OMPF be replaced with another report will not be honored. 5. His contention that the reviewer in the contested NCOER was an SFC/E-7 and the regulation states the reviewer must be a sergeant major or higher appears to have merit. Although the reviewer in the contested NCOER was an SFC/E-7, the applicant verified the accuracy of the administrative data, including the rating officials, when the report was rendered on 22 August 2011. This will normally preclude an appeal by the rated Soldier based on inaccurate administrative data. 6. The revised NCOER he provided was prepared more than a year after the end of the rating period and suggests retrospective thinking on the part of the rating officials. This is not sufficient to demonstrate the contested NCOER did not represent the considered opinions and objective judgment of the rating officials at the time the original report was prepared. 7. The governing regulation states NCOERs will be filed in the performance folder of the OMPF. The NCOER in question is properly filed in his military records in accordance with the governing regulation. 8. In order to justify removal of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that: * the presumption of regularity should not be applied to the report under consideration * action is warranted to correct a material error, inaccuracy, or injustice 9. Based on the foregoing evidence, there is an insufficient basis for granting the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X_____ __X______ __X__ DENY APPLICATION 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 to amend the decision of the ABCMR set forth in Docket Number AR20150011357, dated 15 September 2015. __________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. ABCMR Record of Proceedings (cont) AR20150016007 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150016007 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1