ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 MAY 2019 DOCKET NUMBER: AR20160017444 APPLICANT REQUESTS: * in effect, removal of the reviewer’s statement attached to his Noncommissioned Officer Evaluation Report (NCOER) for the rating period of September 2001 through November 2001 * in effect, promotion to master sergeant/E-8 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Enlisted Record Brief (ERB) * DA Form 2166-8 (NCO Evaluation Report) * Reviewer’s Nonconcurrence * Evaluation Report Appeal * Self-Authored Statement * Three Letters of Support * NCOER Appeal Decision * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he was unaware the appeal could be elevated to a higher level. He is not seeking to recover any funds; however, he believes he was not given a fair chance to be promoted to the next level. He also noted that if the reviewer’s note had not been attached, he is fairly certain he would have been promoted. 3. The applicant provides his ERB, dated 27 December 2001. He also provides: 1. a. A self-authored statement dated 18 June 2002 indicating he was unaware of the reviewer’s nonconcurrence statement until he noticed the attachment online. He had no knowledge of the comment until then and felt it was personal and not a professional evaluation of his performance. Due to the location of the motor pool, he was required to use resources outside of the battalion to maintain mission capabilities. He passed all battalion level and higher level inspections with a maintenance operational readiness rate of 90% or higher and has gone above the and beyond the call of duty. During the rating period, maintenance support personnel were deployed leaving the motor pool without direct support and during the reviewer’s two visits to the motor pool, she never indicated dissatisfaction. b. His NCOER for the rating period of September 2001 through November 2001 in which he was rated “among the best,” but the reviewer nonconcurred with the rater and/or senior rater. c. The reviewer’s non-concurrence statement dated 2 January 2002. The reviewer stated she did not feel [Applicant] performed to a standard that prepared him for promotion to master sergeant. The reviewer also noted that her concerns are based on his inability to use the resources at this disposal to accomplish his job and she felt he was ineffective in the role of Motor Sergeant. d. A memorandum to the appeal authority stating the basis for his appeal was substantive inaccuracy. He was never notified of any derogatory actions on his part by the reviewer. He requested the reviewer’s statement be removed from his Official Military Personnel File (OMPF). e. A letter of support from Mr. X (identified as a captain), dated 21 May 2002, which states he served as the Executive Officer of the unit and the applicant’s primary rater. He interacted with the applicant two to three times a day and heavily relied on him. He felt his performance as motor sergeant was more than successful and he was an effective leader that accomplished any mission given to him. He also stated that the rater and senior rater were in frequently observing the applicant, but the geographical separation of the company was over one hour driving distance from the reviewer which minimized her ability to observe him daily. The rater and senior rater could accurately assess his performance. f. A letter of support from Mr. X (identified as a captain) , dated 28 May 2002, which states he served as his Commander from August 2000 to February 2002. He wholeheartedly believed the nonconcurrence letter was unwarranted and unjustified, and supported the applicant’s request to have it removed from his OMPF. He observed the applicant in numerous positions and felt he had an excellent standpoint to evaluate his performance. The motor pool was undermanned and lacked experienced personnel which required the applicant to perform in many roles simultaneously. Despite the challenges of manning and geographical location, the amazing feat was possible due to the excellent leadership, skill, and expertise of the applicant. a. g. A letter of support from Mr. X (identified as a warrant officer) , dated 10 June 2002, which states he served as the Chief of the Maintenance Division from September 2001 through November 2001. He highly recommended the applicant be afforded the opportunity to be reconsidered and placed on the promotion list for master sergeant. He observed a high level of performance and had received praises from leadership at all levels on the applicant’s success at keeping readiness at an all-time high. With two property hand receipts valued at over 1 million dollars and minimal resources, the applicant had zero losses during the rating period, in addition to his exemplary readiness record. h. Three memoranda, dated 30 July 2002, 4 October 2002, and 29 October 2002, for consideration and a decision on the substantive evaluation report appeal. The first memorandum from the U.S. Army Enlisted Records and Evaluation Center, confirms the centralized promotion board did see the evaluation in question under the primary zone of consideration for the master sergeant board in February 2002. The second and third memoranda from the Army G-1 notified the applicant that his request was denied because the evidence did not justify altering or withdrawing the evaluation report. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 29 December 1980. He served through multiple reenlistments in a variety of assignments and he was promoted to sergeant first class (SFC)/E-7 in June 1997. b. His foreign/overseas service included: * Saudi Arabia from 28 August 1990 to 23 March 1991 * Kosovo from 30 June 1999 to 4 November 1999 * Three tours in Korea from 12 May 1981 to 7 May 1982, from 29 January 1985 to 24 January 1987, and from 25 January 1989 to 19 January 1990 * Germany from 30 May 1995 to August 2002. c. During December 2001, he received a Change of Rater NCOER covering the rating period September 2001 through November 2001 for his duties as Construction Equipment Repair Supervisor while assigned to A Company, 90th Engineer Battalion, Germany. His rater was the Executive Officer, his senior rater was the Company Commander, and his reviewer was the Battalion Commander. This NCOER shows: (1) In Part IVb (Competence), Part IVc (Physical Fitness and Military Bearing), Part IVd (Leadership), Part IVe (Training), and Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Success" blocks and entered supporting bullet comments. (1) (2) In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Among the Best" block. (3) In Part Vc (Senior Rater – Overall Performance), the senior rater assigned him a 2-1 rating. He placed an "X" in the "Successful/2" 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/1" block. In Part Ve (Senior Rater Bullet Comments) the senior rater entered supporting bullet comments: (4) The contested NCOER shows the rater, senior rater, and applicant signed the NCOER on 26 December 2001. The reviewer did not concur with the rater and senior rater and attached comments that read: As the reviewer during the period in question, I nonconcur with the senior rater's evaluation of [Applicant]. I submit the following to clarify the situation and indicate what I consider to be the proper evaluation of performance and/or potential. I [Reviewer's Name], do not feel that [Applicant] has performed to a standard that makes him prepared to be promoted to Master Sergeant. Furthermore, I believe he should be rated as Fair for performance and Superior 3 or 2 for potential. My rationale for this evaluation for [Applicant's] performance and potential is not based on matters of indiscipline; His appearance, fitness and conduct is adequate. I base my concerns on his inability to use the resources at his disposal to accomplish his job. He is ineffective at performing the job of Motor Sergeant. [Applicant's] unit maintenance program is not in keeping with basic Army standards. d. The applicant retired on 30 April 2004. His DD Form 214 shows he retired in the rank/grade of SFC/E-7. He was credited with 23 years, 4 months, and 2 days of active service. e. There is no indication he requested a Commander's Inquiry or appealed this NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board within 3 years of the thru date. 5. By regulation: a. Evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer 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, and counseling forms. b. 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 a. correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. Requests that an evaluation report in a Soldier’s OMPF be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report or be included in the rated individual’s OMPF: * statements from rating officials that they underestimated the rated Soldier * statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did * requests that ratings be revised * statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential; it is imperative that rating officials ensure that these evaluations are accurately recorded on the NCOER prior to signing that report c. The reviewer is responsible for rating safeguard over-watch. He or she may comment only when in disagreement with the rater and/or senior rater. When the reviewer disagrees with the rater and/or senior rater and marks the “nonconcur” block in part IIe of the NCOER, an explanation is required. The bullet comments rules governing the completion of the DA Form 2166-8 itself do not apply. The reviewer is required to notify the rater, senior rater, and rated NCO of nonconcurrence before the report is forwarded. 6. By regulation, reconsideration by a Standby Advisory Board (STAB) will normally be granted when an adverse NCOER reviewed by a board was subsequently declared invalid in whole or in part, and was determined by the ESRB to constitute a material error. No material error was found here. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence to show there was an error or injustice which would warrant removing the derogatory information from the applicant’s record. The Board found that the applicant was afforded an opportunity to appeal the NCOER and failed to do so. The Board notes that the applicant states he was unaware of the reviewer’s submitted statement. However, regulatory guidance shows that when a reviewer non-concurs with a rater and senior rater, a statement is required. The Board found that based upon the years of experience of the applicant, he should have known of such regulatory guidance. For that reason, the Board recommended denying the applicant’s request for 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. 5/21/2019 X CHAIRPERSON Signed by: 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 623-205 (NCO Evaluation Report System) and Army Regulation 623-3 (Evaluation Reporting System) covers the NCO evaluation program. a. Evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer 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 DA Pamphlet 623-3 (Evaluation Reporting System). b. When it is brought to the attention of a commander or commandant that a report rendered by a subordinate or by a member of a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The commander’s inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policies and procedures established by Headquarters, Department of the Army (HQDA) and the conduct of the rated Soldier and members of the rating chain. The results of the Commander’s Inquiry may be provided to the rating chain and the rated Soldier at the appointing official’s discretion. c. An evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. Requests that an evaluation report in a Soldier’s OMPF be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report or be included in the rated individual’s OMPF: * statements from rating officials that they underestimated the rated Soldier * statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did * requests that ratings be revised * statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential; it is imperative that rating officials * ensure that these evaluations are accurately recorded on the NCOER prior to signing that report d. Because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. Substantive appeals will be submitted within 3 years of an NCOER thru date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered. The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is therefore recommended. e. 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 (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice. f. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. g. The reviewer is responsible for rating safeguard over-watch. He or she may comment only when in disagreement with the rater and/or senior rater. When the the reviewer disagrees with the rater and/or senior rater and marks the “nonconcur” block in part IIe of the NCOER, an explanation is required. The bullet comments rules governing the completion of the DA Form 2166-8 itself do not apply. The reviewer is required to notify the rater, senior rater, and rated NCO of nonconcurrence before the report is forwarded. 3. AR 600-8-104 (Army Military Human Resource Record (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. Table B-1 covers authorized documents and states NCOERs and attached statements are filed in the performance section of the OMPF. 1. 4. AR 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, states that reconsideration by a Standby Advisory Board will normally be granted when an adverse NCOER reviewed by a board was subsequently declared invalid in whole or in part, and was determined by the Enlisted Standby Review Board to constitute a material error.