ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

		BOARD DATE:    11 April 2019

		DOCKET NUMBER:  AR20160015420


APPLICANT REQUESTS:  effect, removal of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the rating period 1 November 2008 through 2 October 2009 from his Official Military Personal File (OMPF), hereafter referred to as the contested NCOER.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Forms 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552)
* International Evaluation Report covering the period 17 March 2009 through 17 September 2009
* Contested NCOER covering the period 1 November 2008 through 2 October 2009
* Unsigned NCOER covering the period 1 November 2008 through 31 October 2009

FACTS:

1.  The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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:

* he received two evaluations prior to returning from his deployment to Kosovo – one from his international supervisor and one from the unit he was attached to without signatures
* he requested signatures and was advised they would send them to his unit at a later date
* the unit he was attached to rewrote his evaluation after he left the country with signatures and changed the reason for submission without his knowledge
* he was approved to leave country early to attend son's graduation from basic training

3.  At the time of the applicant's contested NCOER, he was a mobilized U.S. Army Reserve Soldier deployed to Kosovo as the chief quartermaster NCO in charge of the North Atlantic Treaty Organization National Training Center.

4.  He submitted a copy of his International Evaluation Report from the Kosovo Forces Headquarters covering the period 17 March 2009 through 17 September 2009.  The rater, a member of the Allied Forces, rated the applicant's overall performance as "Outstanding."  The reviewer, also a member of the Allied Forces, agreed with the rating without comment.

5.  The contested NCOER in the applicant's OMPF covering the period 1 November 2008 through 2 October 2009 shows the reason for submission as "Change of Rater."  The NCOER was signed by the rater and senior rater on 20 October 2009, but was not signed by the applicant.

	a.  Part IV (Army Values/Attributes/Skills/Actions) shows his rater checked the "NO" blocks for "Respect," "Selfless Service," and "Integrity," and entered the following bullet comments:

* total disregard in respecting Superior NCOs and Officers
* places self needs before subordinates and the mission
* chooses only to follow rules/regulations which benefit himself

	b.  Part IVd (Leadership) shows his rater checked the "Needs Improvement (Some)" block and entered the following bullet comments:

* was verbally counseled by the Battalion Commander for the importance of supporting the team
* formally counseled by the OIC [Officer in Charge} and NCOIC [NCO in Charge] on this matter, without improvement

	c.  Part IVf (Responsibility and Accountability) shows his rater checked the "Needs Improvement (Some)" block and entered the following bullet comments:

* has difficulty accepting responsibility for actions, tries to shift focus to what someone else has done
* due to inability to integrate with into the team, soldier was redeployed prior to End of Tour

	d.  The rater rated the applicant "Marginal" and the senior rater rated the applicant's overall performance as "Fair-4" and overall potential for promotion as "Fair-4" and entered the following bullet comments:

* needs time to mature at current rank
* potential to become a good Senior NCO with proper guidance
* soldier need to understand Army Values and not be out only for himself
* Soldier unavailable for signature

6.  He submitted an NCOER covering the period 1 November 2008 through 31 October 2009 showing the reason for submission as "Annual."  This NCOER was not signed by the rater or senior rater.  The NCOER shows positive comments.  The rater rated the applicant "Fully Capable" and the senior rater rated the applicant's overall performance as "Successful-2" and overall potential for promotion as "Superior-2."

7.  He was released from active duty to the control of his U.S. Army Reserve unit on 24 October 2009.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was ordered to active duty in support of Operation Enduring Freedom and served in Kosovo from 30 November 2008 through 5 October 2009.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  Based upon a lack of corroborating evidence to support the statements of the applicant concerning the processing of the NCOER, the Board concluded that relief was not appropriate.  

 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, 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 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 1-9 provided that Army evaluation reports are assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or NCO Corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in Department of the Army Pamphlet 623-3 (Evaluation Reporting System).

	b.  Paragraph 2-5 provided that a rater will be the person (immediate supervisor) in the rating chain that directs and is most responsible for the rated Soldier's performance.  The rater will be the immediate supervisor that monitors/observes the day-to-day performance of the rated individual and directly guides the rated Soldier's participation in the organization's mission.  On a DA Form 2166-8, a rater will be an officer or NCO of the U.S. Armed Forces or an employee of a Department of Defense or U.S. Government agency.  Members of Allied Forces will not be authorized to serve as raters.

	c.  Paragraph 2-17 provided that every NCOER will be reviewed by the first sergeant, command sergeant major, or sergeant major and will be signed by an official who meets the reviewer requirements of paragraph 2-8b.  The reviewer is responsible for providing safeguard over watch and will ensure that the proper rater and senior rater complete the report and 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 Parts IVb-f.

	d.  Paragraph 3-37(2) provided that rated Soldiers would always be the last individual to sign the evaluation.  The rated Soldier's signature would verify the accuracy of the administrative data in Part I (to include nonrated time), the rating officials in Part II, the APFT and weight data, and that the rated Soldier had seen the completed report.  This action increases administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data.

	e.  Paragraph 3-39 provided that an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

	f.  Chapter 6 defined the Evaluation Redress Program and provided guidance regarding redress programs, including commanders' inquiries and appeals.

	g.  Paragraph 6-8 stated substantive appeals will be submitted within 3 years of an NCOER through date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.

	h.  Paragraph 6-11 provided that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity.  The evidence presented must be of a clear and convincing, and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

3.  Army Regulation 600-37 (Unfavorable Information), in effect at the time, provided that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

4.  Army Regulation 600-8-104 (Army Military Human Resource Records Management), in effect at the time, governed the composition of the OMPF and provides 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 and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.


ABCMR Record of Proceedings (cont)	 AR20160015420
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