IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20160006340 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20160006340 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from his military record the currently filed Noncommissioned Officer Evaluation Report, for the rating period from 14 September 2008 through 13 September 2009, and replacing it with the copy showing he passed the Army Physical Fitness Test. _____________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: 2 June 2016 DOCKET NUMBER: AR20160006340 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 a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), hereafter referred to as the contested NCOER, for the rating period from 14 September 2008 through 13 September 2009, from his official military personnel file (OMPF). 2. The applicant states: a. The contested NCOER contains an Army Physical Fitness Test (APFT) failure. In Part IV (Values/NCO Responsibilities), sections c (Physical Fitness & Military Bearing) and d (Leadership), his rater placed an "X" in the "Needs Some Improvement" blocks. The correct input should be "Successful" ratings in each block. A memorandum from his senior rater (SR), the first sergeant (1SG), supports this information. The U.S. Army Human Resources Command (HRC) selected him for removal under the Qualitative Management Program (QMP) because of this NCOER. Correction of this NCOER is extremely important to him in order to remain in his job and to continue doing what he loves, serving his country and training Soldiers. The enclosed two Memoranda for Record will support his military bearing, along with the leadership, training, and responsibilities. b. The substantive error is an evaluation with incorrect information that has been uploaded into the integrated Personnel Electronic Records Management System (iPERMS). He was not aware that the contested NCOER was in his iPERMS. He knows it is the Soldier's responsibility to track and check his records. He was never involved in any negative situation along his civilian/military career. He never received any negative counseling statement or anything that would affect his career. He always did what was right legally and morally and what he had to do in order to be a good NCO at all times. His previous evaluations tell the type of Soldier he is. This is why he never noticed the negative evaluation in his records. He discovered the contested NCOER during the QMP process. He has so much to offer his organization. 3. The applicant provides copies of a corrected version of contested NCOER and two Memoranda for Record. 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 U.S. Army Reserve (USAR) on 29 June 1995. He entered on active duty for training (ADT) on 27 September 1995. He completed training and was awarded military occupational specialty (MOS) 62F (Crane Operator). He was released from ADT on 14 May 1996 and was transferred to a Reserve unit. 3. He served in: * Guatemala from 13 through 28 April 2001 * Germany from 1 through 15 June 2002 * Kuwait from 21 November 2004 through 9 February 2005 4. He reenlisted in the USAR on 17 January 2005. He was awarded MOS 21F (Heavy Construction Equipment Operator) on 28 July 2005. 5. His iPERMS record contain: a. A change of rater NCOER for the period from 13 December 2006 through 13 September 2007, for his duties as a Drill Sergeant in a USAR Training Center. He received ratings of "Successful" and "Fully Capable" and favorable bullets. b. An annual NCOER for the period from 14 September 2007 through 13 September 2008, for his duties as a Drill Sergeant for a Basic Combat Training Company. He received ratings of "Excellence," "Successful," and "Fully Capable" and favorable bullets. 6. He again entered active duty on 14 September 2007 in support of Operation Enduring Freedom. 7. Orders Number 08-004-00001, issued by Headquarters, 98th Division (Institutional Training) on 4 January 2008, promoted him to the rank/pay grade of staff sergeant (SSG)/E-6 effective 15 December 2007. 8. He was honorably released from active duty on 9 October 2008 and was transferred to a Reserve unit. He was credited with completing 1 year and 26 days of net active service. 9. He was awarded MOS 91B (Wheeled Vehicle Mechanic) on 23 March 2010. 10. His iPERMS record also contain an annual NCOER (contested) for the period from 14 September 2008 through 13 September 2009 for his duties as a Drill Sergeant in a USAR Training Company. His rater was a SSG, senior drill sergeant; his SR was a 1SG; and his reviewer was a captain, battalion executive officer. The NCOER shows in: a. Part IIIf (Counseling Dates): Initial – 13 December 2008, Later – 14 March 2009, Later – 13 June 2009, and Later – 12 September 2009 b. Part IV (Army Values/Attributes/Skills/Actions), the rater placed an "X" in each "Yes" block and entered the bullets: * a team player; recognized the necessities of a mission and executes with clear motivation * puts the mission first at all times; lives up to Army Values c. Part IV: (1) Section b (Competence), the rater placed an "X" in the "Excellence" block and entered favorable bullets. (2) Section c, the entries: APFT Fail 13 September 2009 and Height/Weight 73/255 No; the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullets: * Soldier failed to meet the minimum of 60 points in the 2 mile run event * Soldier is enrolled in remedial training and has not made any progress * Soldier enrolled in the weight control program and has not made any progress (3) Section d, the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullets: * always volunteers to any upcoming mission, regardless of mission requirements or demandings * possesses good communication habits, always uses a proper two way communication and gives the Soldier the opportunity to provide input to any situation * did not pass the APFT in accordance with Army Regulation 600-9 (The Army Weight Management Program) (4) Section e (Training) the rater placed an "X" in the "Success" block and entered favorable bullets. (5) Section f (Responsibility & Accountability) the rater placed an "X" in the "Success" block and entered favorable bullets. d. Part V (Overall Performance and Potential): (1) Section a, the rater placed an "X" in the "Marginal" block and commented that the applicant could best serve the Army at his current grade or next higher grade as a Squad Leader, Recruiter, or Training NCO. (2) Section e (SR Bullet Comments), the SR entered the bullets: * will be sent to school upon meeting the Army height and weight standards and passes the APFT for his age group * be, know, and has to do to be a part of his daily routine, cannot lead Soldiers if he can perform his duties with professionalism * needs to improve his physical fitness and understand its importance in leading by example (3) Sections c (SR – Overall Performance) and d (SR – Overall Potential), the SR gave a rating of "Successful" and placed an "X" in the "3" block and a rating of "Fair" and placed an "X" in the "4" block, respectively. e. The NCOER was digitally signed by his rater, SR, and reviewer on 20 September 2009 and applicant on 18 October 2009. 11. He provides a copy of the corrected version of the contested NCOER which shows in: a. Part IV: (1) Section c, the entries: APFT PASS 12 September 2009 and Height/Weight 73/215 Yes; the rater placed an "X" in the "Success" block and entered the bullets: * remarkable performance in the last APFT with a comeback attitude after many personal issues * Soldier is an example of leadership and a want it attitude displaying mental stamina * infuses others with positive mental attitude despite long hours of training distractors (2) Section d, the rater placed an "X" in the "Success" block and entered the bullets: * always volunteering to any upcoming mission, regardless of mission requirements or demandings * possesses good communication habits, always uses a proper two way communication and gives the Soldier the opportunity to provide input to any situation * an example to many of overcoming situations to stay "Soldier focus" b. Part V: (1) Section a, the rater placed an "X" in the "Fully Capable" block and commented that the applicant could best serve the Army at his current grade or next higher grade as a Squad Leader, Recruiter, or Training NCO. (2) Section e, the SR entered the bullets: * send to NCOES as soon as eligible in the Order of Merit List * despite many personal situations, surpassed them and improved performance * Soldier will serve very well in further assignment positions (3) Sections c and d, the SR gave a rating of "Successful" and placed an "X" in the "2" block and a rating of "Superior" and placed an "X" in the "2" block, respectively. c. The NCOER was digitally signed by his rater, SR, and reviewer on 20 September 2009 and he signed it on 18 October 2009. 12. His iPERMS records further contain: a. An annual NCOER for the period from 14 September 2009 through 13 September 2010, for his duties as a Drill Sergeant in an USAR unit training company. He received ratings of "Successful" and "Fully Capable" and favorable bullets. The report shows he passed the APFT on 11 November 2009 and met height/weight (73/242) standards. b. An annual NCOER for the period from 14 September 2010 through 13 September 2011, for his duties as a Drill Sergeant in an USAR unit training company. He received ratings of "Successful, "Excellence," and "Among the Best" and favorable bullets. The report shows he passed the APFT on 2 April 2011 and met height/weight (73/240) standards. 13. He also provides copies of: a. A Memorandum for Record, dated 21 December 2015, in which his former SR confirmed the applicant's contested NCOER that contained an APFT failure was uploaded in iPERMS through no fault of the Soldier. The applicant passed the APFT during the rating period. The corrected evaluation was not loaded to his records through no fault of his or the rating chain. During that rated period he was the Company 1SG. The applicant displayed professional military bearing and physical stamina at all times. b. A Memorandum for Record, dated 1 March 2016, in which the Deputy Chief of Staff, Engineer, Civil Affairs and Psychological Operations Command (Airborne), Fort Bragg, NC, recommended the board members retain the applicant in the Active Guard Reserve program. He stated: (1) The applicant was a role model NCO and respected member of the unit that they were together in, the 699th Engineer and 448th Engineer Battalion and later the 108th Training Division. He was well respected in the Drill Sergeant Community and USAR. (2) He personally knew the applicant for more than 14 years and witnessed his performance first hand in combat and training. He hand selected and screened the applicant's record for becoming part of the very few selected Soldiers of the USAR who became a drill sergeant. The applicant performed an outstanding job during his assignment with the 108th Training Division. (3) The applicant was an exceptionally knowledgeable NCO. He learned very well from excellent NCOs and currently he strived to become an outstanding mentor and train junior NCOs and Soldiers every single day. He epitomized the Be, Know, Do mentally expected of outstanding NCOs. His current unit and the USAR, as a whole, would be greater degraded by the loss of an outstanding Soldier. c. An Appeal of Involuntary Separation under the QMP memorandum, dated 3 March 2016, in which the Chief, Force Alignment Division, HRC, advised him that his appeal did not meet criteria set forth in Army Regulation 635-200, paragraph 9-11, and therefore it was returned without action. 14. Orders Number C-05-606249, issued by HRC on 13 May 2016, reassigned him for separation processing with a scheduled date of 1 July 2016. 15. There is no indication the applicant appealed this NCOER to HRC within the allowed time. REFERENCES: 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. The regulation stated in: a. Paragraph 3-23d – any verified derogatory information could be entered on an evaluation. b. Paragraph 6-4 – alleged error, injustices, and illegalities in a rated Soldier's evaluation report could be brought to the commander's or commandant's attention by the rated individual or anyone authorized access to the report. c. Paragraph 6-7 – evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of 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 Records Management) prescribes the policies governing the OMPF and its composition. This regulation states that once a document is placed in the OMPF it becomes a permanent part of that record and will not be removed from or moved to another folder unless directed by the proper authorities listed in the regulation. 3. Military Personnel (MILPER) Message 14-134 (Procedures for the Fiscal Year 2015 QMP), dated 23 October 2014 provides guidance and procedures in support of the QMP. The purpose of this board is to identify selected NCOs for possible involuntary separation. Specifically those with a GOMOR, 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. The messages states: 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. The Director of Military Personnel Management is the final authority for disposition of appeal. DISCUSSION: 1. The applicant's iPERMS record contains the contested NCOER showing his APFT failure and unfavorable ratings and bullets for physical fitness & military bearing and leadership. He provides a copy of a corrected version of this NCOER that shows he passed the APFT and received favorable ratings and bullets for physical fitness & military bearing and leadership. The SR for the contested NCOER confirmed the applicant passed the APFT during the rating period. Through no fault of the applicant the corrected NCOER was not uploaded into iPERMS. The SR also confirmed and the applicant's records and ratings support he displayed professional military bearing and physical stamina at all times. 2. By regulation, in order to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. 3. There is sufficient evidence to support the removal of this NCOER from his military records. 4. The QMP MILPER Message outlined the criteria for consideration and the actions by those selected for non-retention. His records contain one NCOER with a senior rating of "4." As a result, the QMP selected him for non-retention. 5. An appeal of the QMP is appropriate when there is a material error in the Soldier's records when reviewed by the board. Cases with material error, newly-discovered evidence, or the removal of documents from the OMPF are eligible for a QMP appeal. Removal of the contested NCOER is sufficient ground for him to appeal his QMP. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006340 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006340 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2