BOARD DATE: 5 September 2017 DOCKET NUMBER: AR20170005656 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: 5 September 2017 DOCKET NUMBER: AR20170005656 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. ______________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: 5 September 2017 DOCKET NUMBER: AR20170005656 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 an amendment to his DA Form 2166-9-2 (Noncommissioned Officer Evaluation Report (NCOER) (Staff Sergeant (SSG) – First Sergeant/Master Sergeant)), covering the period 1 May 2015 through 30 July 2016 (hereinafter referred to as the contested NCOER), to reflect additional accomplishments. 2. The applicant states the contested NCOER was filed less than 3 months after both he and the rater were assigned to the same platoon; it did not capture a complete record of his accomplishments during that period. He appealed the contested NCOER to the U.S. Army Human Resources Command (HRC) but his appeal was denied. He has emails, certificates of achievement, and assignment orders that show many other accomplishments that were not captured. He was/still is in charge of the brigade gym/"FIT"/combatives facility, including all of the equipment. the water section [which he supervised] worked with Polish units to provide water for Operation Atlantic Resolve. He underwent successful deployment and redeployment operations and he was in charge of the company training room, key control, and security. 3. The applicant provides: * the contested NCOER, covering the period 1 May 2015 through 30 July 2016 * Enlisted Record Brief (ERB), dated 5 November 2016 * Memorandum, subject: Evaluation Report Appeal [Applicant], dated 7 November 2016 * Memorandum, subject: Appeal of NCO Evaluation Reports, 20150501-20160730 [Applicant], dated 21 November 2016 * Enlisted Special Review Board (ESRB) Record of Proceedings, dated 21 March 2017 * allied documents that include: * DA Form 4187 (Personnel Action), dated 5 August 2015 * DD Form 577 (Appointment/Termination Record – Authorized Signature), dated 30 November 2015 * an email titled "Water Parking Scheme and Proposed H2O Labratory [sic]," dated 13 February 2016 * email titled "Course Cancellation Verification: [Applicant], E6," dated 11 April 2016 * Certificate of Achievement, issued by the 127th Aviation Support Battalion on 15 June 2016 * a copy of an unsigned, mostly illegible view of what appears to be a unit rating scheme CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving in the Regular Army in the rank/grade of SSG/E-6. His date of rank is 1 February 2008. 2. The applicant received the contested NCOER, an extended annual NCOER covering 15 months of rated time from 1 May 2015 to 30 July 2016. His rater was Sergeant First Class (SFC) J__, his platoon sergeant (PSG); his senior rater was First Lieutenant (1LT) R__, his platoon leader; and his supplementary reviewer was Captain P__, his company commander. The contested NCOER shows he was counseled on 4 January 2016, 18 April 2016, and 14 July 2016. a. Part IV (Performance Evaluation, Professionalism, Attributes, and Competencies (Rater)) shows: (1) In Parts IVa. (APFT [Army Physical Fitness Test] Pass/Fail/Profile) and IVb. (Height/Weight), the rater indicated the applicant passed the APFT and met the Army height and weight standards, and entered the following comments: * motivated Soldiers to strive and give 100 % [percent] effort every session * maintained physically fit; looked like a Soldier (2) In Part IVc (Character), the rater placed an "X" in the "met standard" block and entered the following comments: * supported all Command Programs; Sexual Harassment and Assault Program and EO [Equal Opportunity]; fostered a healthy environment to work in * never hesitated to help Soldiers; prioritized Soldier and family issues (3) In Part IVd (Presence), the rater placed an "X" in the "met standard" block and entered the following comments: * motivated and pushed his Soldiers to improve their weak events during Army Physically Fitness Test; 2 Soldiers passed their test * adhere and followed the Total Soldier Concept and demanded the same from his section (4) In Part IVe (Intellect), the rater placed an "X" in the "did not meet standard" block and entered the following comments: * had difficulty following basic instructions from chain of command numerous times * failed to communicate with his NCOs in a concise manner and with relevant information (5) In Part IVf (Leads), the rater placed an "X" in the "did not meet standard" block and entered the following comments: * failed to be present for accountability formation numerous times; did not inform chain of command * became unreliable as a leader; others in section conducted his duties and responsibilities numerous times (6) In Part IVg (Develops), the rater placed an "X" in the "met standard" block and entered the following comments: * creatively shared personal experiences to enhance a productive working relationship with other NCOs in the unit * mentors Soldiers to strive for excellence; push them self [sic] and built confidence * instilled a mission focused attitude (7) In Part IVh (Achieves), the rater placed an "X" in the "met standard" block and entered the following comments: * displayed courage and confidence of an astute resilient Leader who carried himself as a professional Soldier 90% of the time * crossed trained 92W to conduct Forward Arming and Refueling Point (FARP) to successfully conduct 24 hour operations safely (8) In Part IVi (Rater Overall Performance), the rater placed an "X" in the "did not meet standard" block and entered the following comment: * lacked basic understanding for simple instructions; NCO was ineffective in supervising subordinates, lacked responsibility of own actions and tasks during this rating period b. Part V (Senior Rater Overall Potential) shows the senior rater entered the following comment: * With detailed instruction and supervision Soldier can accomplish assigned tasks. Needs to work on his leadership and problem solving before executing duties of greater responsibility. NCO refuses to sign. 3. The applicant appealed the contested NCOER to HRC in memorandum dated 7 November 2016. He stated the following: a. His appeal is based on both administrative and substantive error. At the beginning of the rating period, April through August 2015, he was still assigned to Headquarters and Headquarters Company (HHC), Brigade (BDE). He was assigned as the company training/operations NCO and he was to be rated by the company first sergeant. His rater did not assume duties until late March 2016, while the contested NCOER was due April. b. He was never counseled or instructed on any standards except by a junior SSG (acting PSG). His rater was still in-processing when "she told me I am not going to be with the Platoon, will be reassigned/attached to Brigade Headquarters and I was to just help the unit get ready for deployment until my SLC [Senior Leaders Course] School." About a couple months later, while waiting for re-assignment papers, his SLC reservation was cancelled and he was given a 2-week notice to deploy to Operation Atlantic Resolve for 3 months. c. The contested NCOER does not capture numerous accomplishments within the 1st Armored Division Combat Aviation Brigade. For reasons mentioned above, among others, he requests all attempts to rate the given periods be removed and the report show the non-rated code of "Q" [lack of rater qualification]. 4. HRC Appeals and Corrections Section forwarded the applicant's contested NCOER appeal to the ESRB on 21 November 2016. The ESRB denied the applicant's NCOER appeal on 21 March 2017. The ESRB determined that the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice. Therefore, by unanimous vote, the ESRB determined the overall merits of the applicant's case did not warrant the requested relief. The ESRB also stated that the applicant's contentions would have been an appropriate reason upon which to request a Commander's Inquiry, which could have shed some light on his issues and provide a more complete assessment of the circumstances surrounding the preparation of the contested NCOER, as well as any irregularities or errors in the report. 5. The applicant provides: a. DA Form 4187 showing he was released from attachment to HHC, BDE, effective 5 August 2015 and reassigned to 127th Aviation Support Battalion. b. Email titled "Course Cancellation Verification: [Applicant], E6," dated 11 April 2016. This email shows the course that was cancelled was the Senior Leaders Course for the Petroleum and Water Specialist Course pertaining to the applicant. c. Certificate of Achievement, issued by the 127th Aviation Support Battalion on 15 June 2016, which he received in recognition of his expertise during Operation Atlantic Resolve. d. A copy of an unsigned, mostly illegible, view of what appears to be a unit rating scheme. This document shows that his rater was SFC J__ and his senior rater was 2LT R__ (the same rater shown on the contested NCOER). The document does not show the dates the rating officials assumed their role as the rating officials for the applicant. REFERENCES: Army Regulation 623-3 (Evaluation Reporting System), prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. a. Paragraph 1-9 (Assessments of performance and potential on evaluations) states Army evaluation reports are independent assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army's Officer Corps or NCO Corps within the period covered by the report. Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the Army Leadership Requirements Model, and responsibilities identified on evaluation reports and counseling support forms. b. Paragraph 2-2 (Fundamentals) states established rating chains will correspond as nearly as practicable to the chain of command or supervision within a unit or organization, regardless of component or geographical location. Rating schemes will identify the name of the rated Soldier and the effective date for each of the rating officials (date on which the rating official assumed his or her role as the rating official for the rated Soldier). Rating schemes will be published and made accessible, either manually or electronically, to each rated Soldier and each member of the rating chain. Any changes to a rating scheme will be published and distributed, as required. No changes may be retroactive. c. Paragraph 3-4 (The support form communication process) subparagraph 3-4g states although the support or counseling form is an official document covered by regulation, it will not become part of the official file used by selection boards or career managers. Failure to comply with any or all support or counseling form requirements will not constitute the sole grounds for appeal of an evaluation report. The senior rater will ensure that a completed support or counseling form is returned to the rated Soldier when the evaluation report is forwarded to Headquarters Department of the Army (HQDA). d. Paragraph 3-36 (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. Requests that a completed evaluation report filed in a Soldier's record be altered, withdrawn, or replaced with another evaluation report will not be honored if the request is based on, among other reasons, requests that ratings be revised. e. Paragraph 3-42 ("Extended Annual" report) provides that there are two types of extended annual reports; one is mandatory to cover nonrated periods since the previous evaluation when one calendar year has elapsed, the other is optional and used only in exceptional situations. A mandatory code 10, "Extended Annual" report will be prepared when any nonrated time periods have occurred since the "THRU" date of the previous NCOER (for example, prior to the establishment of a new rating relationship between the rated Soldier and the rater). The "FROM" date of the period covered on the "Extended Annual" report will be the day after the "THRU" date of the last NCOER. The rating period begins the day the Soldier is assigned under an established rating chain (for example, the day a Soldier arrives at a new unit or the day the Soldier assumes their new duty position). The "THRU" date will be 12 "rated months" (365 rated days) after the arrival or assignment date while performing the same duties under the same rating officials during this rating period. There is no required length or type of nonrated time between the "THRU" date of the last NCOER and the establishment of a new rating relationship in order to render an "Extended Annual" report. The "period covered" on the "Extended Annual" report will be longer than one calendar year, but the rating period or "rated months" (period covered minus nonrated time) will be no more than 12 months (365 rated days). f. Section II (Commander's or Commandant's Inquiry) paragraph 4-3 (Applicability) states commanders are required to look into alleged errors, injustices, and illegalities in evaluation reports. g. Paragraph 4-4 (Purpose) states: (1) Alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander's attention by the rated Soldier or anyone authorized access to report. (2) 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. (3) A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA. However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record provides restrictions on modifications to previously submitted reports already accepted by HQDA. h. Section III (Evaluation Appeals) paragraph 4-7 (Policies), subparagraph 4-7h(2) states that claims based on deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the report period, and errors in the APFT and/or height and weight entries, will be adjudicated by HRC as administrative appeals. i. Paragraph 4-11 (Burden of proof and type of evidence) states that 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. j. Paragraph 4-13 (Appeals based on substantive inaccuracy), subparagraph 4-13c(1) states the evidence must support the allegation. The appellant needs to remember that the case will be reviewed by impartial board members who will be influenced only by the available evidence. Their decision will be based on their best judgment of the evidence provided. DISCUSSION: 1. The applicant is requesting an amendment to his contested NCOER, covering the rating period 1 May 2015 through 30 July 2016, to reflect additional accomplishments. Essentially, he is requesting a revision of the ratings he received. However, the governing Army regulation stipulates that requests for alteration of a completed evaluation report filed in a Soldier's record will not be honored if the request is based on a revision of the ratings given. 2. The applicant's contentions essentially address his dissatisfaction with the ratings he received and his belief that he received an unfair assessment of his performance. However, it appears he did not provide sufficient evidence establishing clearly and convincingly that the presumption of administrative regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. . 3. It is noted that the contested NCOER is an "Extended Annual" report, which suggests the report period was extended past the normal 12-month annual reporting period to allow a member of the rating chain sufficient time to meet the minimum qualifications to render a rating. The subject report covers 15 months of rated time. In accordance with the governing Army regulation, the number of rated months should be 12 months or less and a corresponding non-rated code should have been entered to clarify the reason the period covered exceeded 12 months. It appears the contested NCOER contains incorrect entries in Part I, blocks k and l; however, these omissions, by themselves, do not invalidate the report. Nor do they put the applicant at a competitive disadvantage as he is being evaluated in the course of normal personnel management considerations. 4. The applicant contends his rater did not assume her duties until late March 2016, while the NCOER was due in April. He further contends the contested NCOER was filed less than 3 months after both he and the rater were assigned to the same platoon. It appears the applicant is implying that the rater was not qualified to rate him. However, the contested NCOER shows the report period was extended past the normal 12 month period; presumably, to allow the rater sufficient time to meet the minimum qualifications to render a rating. 5. There is no evidence the contested report contains any substantive deficiencies. The applicant has not provided evidence showing the rating officials' evaluations represent anything other than their objective judgment and their considered opinions at the time they prepared the contested report, or that shows they exercised faulty judgment //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170005656 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170005656 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2