ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20160015418 APPLICANT REQUESTS: amendment of his DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period ending 2 April 2012 by removing the comment “failed to have the integrity to report to all BA’s” (battle assemblies). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * NCOER, for the period ending 2 April 2012 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states the unfavorable information listed in DA Form 2166-8, for the period ending 2 April 2012, specifically Part IV (Army Values/Attributes/Skills/Actions) (a) (Army Values) contradicts bullets found within Part IV (b) (Competence), (c) (Physical Fitness & Military Bearing), (d) (Leadership), (e) (Training), (f) (Responsibility & Accountability) of the same document. a. The DA Form 2166-8, Part IV(a) contains erroneous marks and bullets. Part IV (b-f) and Part V (Overall Performance and Potential) contradict these errors. The applicant relocated out of state during the rating period from GA to NC. Per Army Regulation (AR) 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), paragraph 4-18 (b) and paragraph 4-20, enlisted will be granted a 90-day authorized absence when relocating to outside commuting distance in order to locate a unit. Prior to the 90 days expiring, he attended BA with a unit in NC. He turned in his DA Form 1380 (Record of Individual Performance of Reserve Duty Training) to document the attendance while residing out of state and searching for a unit to transfer to. b. Subsequently, his BA was denied by the 3rd Battalion, 485th Infantry Regiment and listed as an unexcused absence, a direct violation of AR 135-91. In order to remain in good standing and not erroneously earn more unexcused absences, the applicant began to commute seven hours one way to BA between April 2012 and September 2013. This is a true example of selfless service. According to AR 135-91, a commute will not exceed three hours. 3. The applicant provides DA Form 2166-8, for the period ending 2 April 2012. The evaluation was an annual report for the period 3 April 2011 to 2 April 2012, with a total of 12 rated months. He served as a company supply sergeant rated by the first sergeant, senior rated by the commander, and reviewed by the battalion executive officer. The NCOER shows the following entries: a. In Part IV (a), he received a “Yes” for loyalty, “Yes” for duty, “Yes” for respect/EO/EEO, “No” for selfless service, “Yes” for honor, “No” for integrity, “Yes” for personal courage. b. The comments for Part IV read: * respectful NCO that treats all Soldiers with the utmost respect * puts own personnel needs ahead of company mission * failed to have the integrity to report to all BA’s c. In Part IV (b), he received a “Success” rating with the following comments: * demonstrated vast knowledge of the supply system and assisted the battalion supply sergeant with numerous missions * ensured that all company equipment was relocated to the new reserve center with little to no senior level supervision * completed all tasks and missions with 100% success d. In Part IV (c), he received a “Success” rating with the following comments: * maintained a solid physical fitness regime * displayed confidence and enthusiasm, both professionally and personally * consistently maintained a high level of military bearing and courtesy e. In Part IV (d), he received a “Success” rating with the following comments: * placed mission and Soldiers ahead of personal needs * ensured his Soldiers were informed and aware of all company issues and missions * showed potential to be a well-respected and sought after NCO f. Part IV (e), he received a “Success” rating with the following comments: * supporting the 2011 lieutenant colonel mission at Fort Knox as company supply sergeant * always willingly supported missions when asked to do so * completed all required training on time and accurately g. Part IV (f), he received a “Success” rating with the following comments: * maintained accountability of all company equipment with no losses * ensured that all company Soldiers received the correct equipment on time and that it was operational * accepted responsibility for his actions and the actions of his Soldiers without hesitation or excuses h. Part V (a) (Rater - Overall potential for promotion and/or service in positions of greater responsibility), he received a “Fully Capable” rating. i. Part V (b) (Rater - List 3 positions in which the rated NCO could best serve the Army at his/her current or next higher grade), the rater entered “company supply sergeant,” “squad leader,” and “battalion supply sergeant.” j. Part V (c) (Senior Rater – Overall performance), he received a “3” and Part V (d) (Senior Rater – Overall potential for promotion and/or service in positions of greater responsibility), he received a “3.” The senior rater placed the following comments in Part V (e) (Senior Rater Bullet Comments): * promote with peers * send to ALC (Advanced Leaders Course) when eligible to attend * place in positions that will develop his potential k. The rater and senior rater authenticated the form by placing their signatures in the appropriate places and the reviewer concurred with the rater and senior rater and authenticated the form by placing his signature in the appropriate place. The applicant signed the NCOER on 18 May 2012. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 18 June 1999. b. He served in Iraq from 25 September 2005 to 25 September 2006. c. He was released from active duty on 4 April 2009 and transferred to the U.S. Army Reserve. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 years, 9 months, and 17 days of active service. d. He entered active duty on 13 September 2013 and was honorably released on 15 June 2014. His DD Form 214 shows he completed 9 months and 3 days of active service. e. He was ordered to active duty in an active guard/reserve status (AGR) on 20 August 2014 for a period of 3 years. On 17 February 2017, his orders were extended until 4 April 2021. 5. There is no available evidence showing that the applicant requested a commander’s inquiry regarding the subject NCOER or filed an appeal through the U.S. Army Human Resources Command or the Enlisted Special Review Board. 6. By regulation, 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, an applicant 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 applicant. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board determined there was insufficient evidence to conclude an error or injustice was present which would warrant a correction to the record. For that reason, the Board recommended denying the applicant’s requested relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. ABCMR Record of Proceedings (cont) AR20160015418 5 1