BOARD DATE: February 20, 2018 DOCKET NUMBER: AR20160017319 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 BOARD DATE: February 20, 2018 DOCKET NUMBER: AR20160017319 BOARD DETERMINATION/RECOMMENDATION: 1. As for correction of his rating chain, administrative errors, APFT, weight/height entries, and bullet comments on his NCOER, 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 AR20160012060 on 30 August 2016. 2. As for the new issues that the rating is too harsh and is not in compliance with the regulation and, therefore, the NCOER should be expunged from the individual’s record, 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. BOARD DATE: February 20, 2018 DOCKET NUMBER: AR20160017319 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, reconsideration of his previous request for correction of his rating chain, administrative errors, weight/height entries, and bullet comments on his Non-Commissioned Officer Evaluation Report (NCOER) for the annual rating period 1 August 2010 through 31 July 2011 (hereafter called the contested NCOER). 2. As a new request or in the alternative, if the changes cannot be made, he requests the contested NCOER be expunged from his record. 3. The applicant states: a. He will be released under the Qualitative Management Program (QMP) on 1 November 2016. Therefore, he requests his appeal be given priority handling. b. The above rating is too harsh, it contains administrative errors, and it was not completed in accordance with Department of the Army Pamphlet (DA PAM) 623-3 (Evaluation Reporting System). c. The NCOER is not bad, but the Army Physical Fitness Test (APFT) and body mass information was not updated to show he had made progress. This made him look bad because the senior rater was required to address "Fair" ratings. Additionally: * The senior rater was not familiar enough with his performance to rate him effectively * According to DA PAM 623-3, senior raters are supposed to "use all reasonable means to become familiar with a rated Soldier's performance. * “Major (MAJ) G____ hardly knew him.” This is corroborated by (enclosure 7) * Chief Warrant Officer Five (CW5) Mark S____ should have been his senior rater, because he was the rater’s supervisor * He asked MAJ G____ about the NCOER and he said he would revise it (See Enclosure 10) * The QMP mentioned two NCOERs; the rating for the period 21 March 2014 through 20 March 2015 was removed from his record and non-rated time was entered for this period * MAJ G____, CW5 S____ and his rater agree the contested rating should have been 3/2 3. The applicant provides: * Contested NCOER (Enclosure 1) * U.S. Army Human Resources Command (HRC) QMP Memorandum for the applicant (Enclosure 2) * First page of a court order, dated 29 November 2011 (Enclosure 3) * DA PAM 623-3, page 45 (Enclosure 4) * DA PAM 623-3, page 46 (Enclosure 5) * DA PAM 623-3, page 47 (Enclosure 6) * Memorandum for the Board, from Sergeant Richard B. P____, dated 31 May 2016 (Enclosure 7) * NCOER for the period 16 December 2010 through 15 June 2011 (Enclosure 8) (This NCOER belong to the applicant’s rater) * Supporting Statement from CW5 Mark D. S____ (Enclosure 9) * Gmail message from MAJ G____, dated 1 October 2011 (Enclosure10) * Memorandum for Record, HRC, Appeals and Corrections Section, dated 15 August 2016 showing non-rated time (Enclosure 11) * Aviation Center Logistics Command (ACLC), Fort Rucker, AL Organization Chart (Enclosure 12) * Enlisted Record Brief (ERB) (Enclosure 13) 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 AR20160012060 on 30 August 2016. 2. The applicant provides new evidence and new arguments that warrant consideration by the Board. 3. The applicant received the contested NCOER as an annual evaluation covering 12 months of rated time from 1 August 2010 through 31 July 2011 for principal duty as a Quality Assurance Evaluator for 99 UH-60A/L helicopters and 28 UH-60 model helicopters. He was assigned to the Aviation Center Logistics Command (ACLC), Fort Rucker, AL. 4. Part II ?Authentication shows his rater was Sergeant First Class (SFC) P____, the NCO-in-Charge, ACLC, Lowe Field; his senior rater was Major (MAJ) G____, ACLC, Airfield Directorate; and his reviewer was the Commander, Colonel C____, ACLC. This NCOER shows he was counseled on 26 August 2010, 2 December 2010, 10 March 2011, and 15 July 2011. 5. Part II also shows the rater and senior rater signed the contested NCOER on 21 July 2011 and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place on 21 July 2011. The applicant signed the NCOER on 22 July 2011 and acknowledged in Part IIe: I understand my signature does not constitute agreement or disagreement with the evaluations of the rater and senior rater. I further understand my signature verifies the administrative data in Part I, the rating officials in Part II, the duty description to include the counseling dates in Part III, and the APFT and height/weight entries in Part IVc are correct. I have seen the completed report. I am aware of the appeals process of AR 623-3 (Evaluation Reporting System). 6. The contested NCOER also shows: a. The applicant was rated as “Success (Meets Standard)” in Part IVb (Competence), IVc (Leadership), IVd (Training), and IVe (Responsibility and Accountability). The rater entered supporting bullet comments in each case. b. In Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Needs Improvement (Some)" block, the APFT block contains the entry "FAIL, 20110412," and the Height/Weight block shows "68/220 NO." The rater also entered the following supporting comments: * failed to meet APFT standards for the 2-mile run with a total score of 181 * currently enrolled in the Army overweight program and shows a determination to work to meet the standards in the future c. In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Fully Capable" block. d. In Part Vc (Senior Rater – Overall Performance), an "X" is in the "Fair/4" block and in Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an "X" in the "Superior/2" block. e. In Part Ve (Senior Rater Bullet Comments) the senior rater entered the following comments: * promote when Army weight control standards are met * send to ALC when Army weight control standards are met * honest and hard-working; determined to achieve * well qualified and experienced in aviation maintenance; great candidate for instructor 7. There is no indication the applicant requested a commander's inquiry or appealed the contested NCOER through HRC to the Enlisted Special Review Board. 8. An HRC memorandum, dated 29 April 2016, notified the applicant the QMP Selection Board had identified him for denial of continued active service and the Director of Military Personnel Management had approved his involuntary separation no later than 1 November 2016. His options were listed, including his option to appeal. 9. In support of his current request the applicant submitted 13 enclosures. a. Enclosures 1 and 2 are the contested NCOER and the QMP notification. b. Enclosure 3 is a civil court order, dated 29 November 2011, involving the custody of his son. The case was filed on 8 September 2011 and finalized on 29 November 2011. The applicant submitted this document to substantiate and help mitigate his claim that he was involved with personal problems and failed to file earlier than 2016. c. Enclosures 4 and 5 are excerpts from DA Pam 623-3, which describe the entries that are required to be entered on the NCOER for APFT and height/weight. This includes provisions for addressing progress in bullet comments on the NCOER. d. Enclosure 6, also extracted from DA Pam 623-3, shows the requirement for the senior rater to address a "Fair" rating in block Vc. e. Enclosure 7 is a memorandum of support, dated 31 May 2016, from the applicant’s rater SFC P____, at the time of the issuance of the NCOER, which states he does not remember whether the applicant passed an APFT or height/weight test after April 2011. He relates the applicant was working hard on his APFT and weight issues. He also agrees with the applicant that MAJ G____ did not know the applicant well enough to senior rate him properly. f. Enclosure 8 is the first page of an NCOER for the period from 16 December 2010 through 15 June 2011 for SFC P____ (the applicant’s rater). g. Enclosure 9 is a memorandum, dated 19 October 2016, from CW5 Mark D. S____ who states he was the applicant's rater after from 1 August 2010 through 3 June 2011, which was after SFC P_____ retired. MAJ G____ worked on the other side of the airfield and did not interact with the applicant on a daily basis. CW5 S____ believes "a rating of 4 may be too harsh for this NCO during that rating period." h. Enclosure 10 is a 31 October 2016 email from MAJ G____ that states, "A lawyer contacted me and I provided him a letter stating a [sic] would revise the NCOER to a 3/2 several months ago. I can provide those emails." i. Enclosure 11 is an HRC Memorandum for Record, dated 15 August 2016, showing the applicant's change of rater NCOER for the period from 21 March 2014 through 20 March 2015 was voided and the period was declared nonrated. This statement documents the action that took place. j. Enclosure 12 is the organization chart for the ACLC, Fort Rucker, updated on 8 September 2011, which was updated after the issuance of the contested NCOER. k. Enclosure 13 is the applicant's 21 October 2016 ERB. 10. The applicant’s previous ABCMR ROP shows, at that time, the applicant provided a statement, dated 27 May 2016, from MAJ G____ indicating the applicant passed the APFT and met height/weight requirements subsequent to the failed APFT (on 12 April 2011 as shown on the contested NCOER). No official results were attached nor was any information provided to indicate why the information was not available to the applicant's rater at the time the contested NCOER was being completed. 11. The available records contain no official evidence corroborating the contention that he passed the APFT and that his height/weight were in compliance prior to the issuance of the contested NCOER. 12. The applicant was discharged effective 1 November 2016. REFERENCES: 1. Army Regulation 623-3 prescribes the policies and tasks for completing evaluation reports that support the Army’s Evaluation Reporting System, to include the NCOER. It further states: a. Alleged errors, injustices, and illegalities in a rated Soldier's evaluation may be brought to the attention of the commander by the rated individual or anyone authorized access to the report. The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. b. NCOERs accepted for inclusion in the official record of a Soldier is presumed to be administratively correct, 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 the 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 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. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides that all personnel information recorded under the authority of this regulation is the property of the United States Government. Once recorded, it will not be removed except as provided by law or this regulation. Types of authorized military personnel files include the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another folder of the OMPF unless directed by one or more of the following: (1) The ABCMR; (2) The Department of the Army Suitability Evaluation Board; (3) Army appeal boards; (4) Chief, Appeals and Corrections Branch, HRC (5) The OMPF custodian when documents have been improperly filed; (6) Commander, HRC, as an approved policy change to this regulation; (7) Chief, Appeals Branch, National Guard Personnel Center. Documents designated for transfer from the performance folder will be put on the restricted folder, if authorized. DISCUSSION: 1. The regulation provides that the APFT is listed on the NCOER as “Pass or Fail,” and height/weight are listed and “Yes or No,” to indicate whether or not an individual is in compliance with the regulation. There is no official documentation (e.g., an APFT score card) showing show he passed the APFT and met height/weight requirements prior to the issuance of the contested NCOER. 2. The available evidence does not clearly and convincingly indicate the contested NCOER contains administrative or substantive errors or deficiencies or was not prepared in compliance with applicable regulations and policies. 3. The applicant contends his senior rater was not familiar enough with his performance to rate him effectively. He believes his rater’s rater should have been his senior rater. The applicant was serving in the rank/grade of SSG/E-6, if he believed his rating chain was incorrect it was his responsibility to address this with his chain of command. It was his responsibility to ensure his rating chain was aware of his duties and performance and to ensure the correct information was made available to his raters for preparation of his NCOER. 5. If the applicant believed there were substantive errors involving his NCOER, he had the option of a commander's inquiry or the appeals process. 6. The applicant’s NCOER contains only one “Needs improvement (some)” in the physical fitness and military bearing value, and the bullet comments clearly address the reason for this entry as failure of the APFT and that he was enrolled in the weight program because he was not in compliance with Army standards. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160017319 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160017319 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2