IN THE CASE OF: BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20160010820 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: 6 October 2016 DOCKET NUMBER: AR20160010820 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: 6 October 2016 DOCKET NUMBER: AR20160010820 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, removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 20 August 2011 through 6 May 2012 (hereafter referred to as the contested NCOER) from his official military personnel file (OMPF). 2. The applicant states: a. The contested NCOER contains numerous errors and is not an accurate depiction of his performance during the rated period. He was not properly counseled; however, the contested NCOER shows counseling dates which are false. He was counseled 2 November 2011 and not 9 September 2011. b. The governing regulation provides counseling will be conducted within 30 days after the beginning of the rating period and quarterly thereafter. His task and mission came directly from the reviewer. He was informed by first sergeant (1SG) B that he would be his rater because his rater was not available: however, he did not meet the minimum time required to be his rater and this was not indicated on the contested NCOER. c. The rated months and codes listed on the contested NCOER do not reflect the actual time he served with the 81st Civil Affairs Battalion. He arrived at the 81st Civil Affairs Battalion on 10 September 2011. Shortly after his initial counseling he went on emergency leave for 30 days. After returning from emergency leave, he attended the Advanced Leader's Course and returned back to the 81st Civil Affairs Division on 9 April 2012. He was then informed that he was being reassigned to A Company, 81st Civil Affairs Division. 3. The applicant provides orders, a DA Form 4856 (Developmental Counseling Form), DA Form 4187 (Personnel Action), DA Form 2166-8, personal statement, and a copy of his Enlisted Record Brief. CONSIDERATION OF EVIDENCE: 1. The applicant is a staff sergeant (SSG) currently serving on active duty. 2. He received the contested Change of Rater (COR) NCOER while assigned to Headquarters and Headquarters Company, 81st Civil Affairs Battalion, Fort Hood, Texas, as a supply sergeant. The contested NCOER covers the 20 August 2011 through 6 May 2012 rating period. 3. The contested NCOER shows the rater and senior rater authenticated this form on 27 June and 5 July 2012 by placing their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place on 5 July 2012. The applicant also digitally signed it on 5 July 2012. 4. There is no indication the applicant requested a Commander's Inquiry or appealed the contested NCOER through the U.S. Army Human Resources Command (HRC) to the Enlisted Special Review Board within the authorized timeframe. 5. The contested NCOER was accepted by HRC and filed in his records. REFERENCES: 1. 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. Paragraph 2-3f(2) states 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 SGM (CSM), or SGM in the direct line of supervision and senior in pay grade or date of rank to the senior rater. NCO rating chains will not include an intermediate rater. c. Paragraph 2-8b (NCOER reviewer eligibility and responsibility) states the reviewer will be a U.S. Army officer, 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. d. Every NCOER will be reviewed by the first sergeant, CSM, or SGM and signed by an official who meets the reviewer requirements of paragraph 2-8b. The reviewer is responsible for rating safeguard over watch and will: (1) Ensure that the proper rater and senior rater complete the report. (2) Examine the evaluations rendered by the rater and senior rater to ensure they are clear, consistent, and just, in accordance with known facts. Special care will be taken to ensure the specific bullet comments support the appropriate excellence, success, or needs improvement ratings in Part IVb-f. e. The reviewer will comment only when in disagreement with the rater and/or senior rater. f. An evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to: (1) Be administratively correct. (2) Have been prepared by the proper rating officials. (3) Represent the considered opinion and objective judgment of the rating officials at the time of preparation. g. Appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an NCOER will normally be returned without action unless accompanied by additional substantiating evidence. h. Appeals based on administrative error only will be adjudicated by the Headquarters, Department of the Army, Evaluation Appeals Branch (AHRC-PDV-EA) for active Army NCOERs. Claims of administrative error pertain to Parts I, II, and III of the NCOER (DA Form 2166-8). 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 report period, and errors in the height/weight. i. The rated Soldier’s authentication in Part II of a DA Form 2166-8 verifies the information in Part I. It also confirms that the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the Army physical fitness test (APFT) performance and height and weight data entries made by the rater. Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and IIIa) will be accepted only under the most unusual and compelling circumstances. The rated Soldier’s signature also verifies the rated Soldier has seen a completed evaluation report. Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report. Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier. j. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board (ASRB). Claims of inaccuracy of a substantive type pertain to Parts III, IV, and V of the DA Form 2166-8. These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials. k. 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 USAR or ARNG. l. 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. m. 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. 2. Army Regulation 600-8-104 (Army Military Human Resource Records (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. DISCUSSION: 1. The applicant contends the contested NCOER for the period 20 August 2011 through 6 May 2012 contains substantive errors; however, he has not provided any substantive evidence to support his contention. 2. He contends there are errors relating to his counseling dates and the lack of rater qualification time; however, his signature on the contested NCOER verified the rating officials in Part II (Authentication) and the counseling dates in Part III (Duty Description). It also indicates he was aware of the appeals process of Army Regulation 623-3. The evidence indicates the contested NCOER was prepared by the proper rating officials and that the administrative data is correct. 3. There is no indication the applicant requested a Commander's Inquiry or appealed the contested NCOER through HRC to the Enlisted Special Review Board (within the authorized timeframe). 4. The NCOER appears to be correct and represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question. The evidence does not demonstrate that the contested NCOER contains any administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies. Furthermore, the applicant has not shown evaluations rendered by the rating officials represented 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.. 5. The contested NCOER is properly filed in the performance folder of the applicant's OMPF. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160010820 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160010820 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2