ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

		BOARD DATE:    2 May 2019

		DOCKET NUMBER:  AR20160019156


APPLICANT REQUESTS:  in effect, removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 21 August 2012 through 31 December 2012 from his Official Military Personnel File (OMPF) and replacement with the proposed DA Form 2166-8 he submitted with his application.

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)
* DA Forms 2166-8 covering the periods 21 January 2012 through 20 August 2012 and 21 August 2012 through 31 December 2012
* Proposed DA Form 2168-8 covering the period 21 January 2012 through 20 January 2013
* DA Form 705 (Army Physical Fitness Test (APFT) Scorecard), dated 1 October 2012
* Memorandum, U.S. Pacific Command, Camp H.M. Smith, HI, dated 31 May 2016, subject:  NCOER Appeal for 21 August 2012 through 31 December 2012 for (Applicant)

FACTS:

1.  The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(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:

* his NCOER covering the period of 21 August 2012 through 31 December 2012 needs to be corrected
* it is apparent that his former rater, Master Sergeant X____, never received the NCOER he drafted reflecting his achievements
* his performance during the rating period was inaccurately captured due to miscommunication and lack of Internet connectivity in Paraguay
* he completed his NCOER and sent it to his rater
* his rater never received it or did not receive it in a timely manner because the NCOER he drafted is not the same NCOER filed in his OMPF
* the NCOER in his OMPF incorrectly shows he had not taken the APFT during the rating period
* he completed the APFT on 1 October 2012 and achieved the maximum score of 300 points
* this substantive inaccuracy only allowed him to meet the standard instead of exceed the standard in the Physical Fitness and Military Bearing part of the NCOER
* the NCOER left out many important facts, such as a Sergeant Major's Award for Excellence, which warrants an "Excellence" rating instead of "Success" rating
* the NCOER he drafted is a direct reflection of his achievements during this rating period
* he believes his rater submitted what he thought was the best representation of his service, even though he was working in Virginia with another career counselor during that period

3.  He was promoted to sergeant first class effective 1 July 2012.

4.  At the time of the contested NCOER, he was serving in an Active Guard Reserve status as an Army Reserve Career Counselor.

5.  The APFT Scorecard he provided shows he completed the APFT on 1 October 2012 with the maximum passing score of 300 points.

6.  His OMPF contains the contested NCOER covering the period 21 August 2012 through 31 December 2012.

	a.  Part IV (Values/NCO Responsibilities) shows the rater marked "SUCCESS (Meets Standard)" in all five areas.

	b.  Part IV(c) (Physical Fitness and Military Bearing) shows his rater entered the comment "APFT for record not conducted due to schedule conflict."

	c.  Part V(a) (Rater – Overall Performance and Potential) shows his rater marked "FULLY CAPABLE."

	d.  Part V(c) (Senior Rater – Overall Performance) shows his senior rater marked "Successful/2."

	e.  Part V(d) (Senior Rater – Overall Potential) shows his senior rater marked "Superior/1."

	f.  Part V(e) (Senior Rater – Bullet Comments) shows his senior rater entered the following comments:

* promote, performs above contemporaries
* displayed sound judgement, and professionalism
* possesses unlimited potential and drive
* maintained the highest personal and professional standards
* Soldier not available for signature because his civilian job is out of the country

7.  The applicant provided a copy of the NCOER he drafted for his rater covering the period 21 January 2012 through 20 January 2013 wherein he proposed the following ratings:

* "EXCELLENCE" in Part IV(b) (Competence) and Part IV(c) (Physical Fitness and Military Bearing)
* Part IV(c) – APFT "PASS 20121001 [1 October 2012]"
* Part V(a) – "AMONG THE BEST"
* Part V(c) – "Successful/1"
* Part V(d) – "Superior/1"
* completely different bullet comments in all blocks

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 that the applicant failed to show that the submitted NCOER was not the proper and intended NCOER submitted by the rater and senior rater.  For that reason, the Board concluded there was no error or injustice which would warrant making a correction to the applicant’s service record.

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 the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-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 and tasks for the Army's Evaluation Reporting System.

	b.  Paragraph 3-39 stated 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 who meet the minimum time and grade qualifications, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.

	c.  Paragraph 6-7 stated an appeal will be supported by substantiated evidence.  An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered.

	d.  Paragraph 6-11 stated the burden of proof in the appeal process rests with the appellant.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources.

	e.  Paragraph 6-13 advised that appeals based on substantive inaccuracy must include the basis for the belief that the rating officials were not objective or had an erroneous perception of the performance.  A personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.

ABCMR Record of Proceedings (cont)	 AR20160019156



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