ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20180000087 APPLICANT REQUESTS: * correction of a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER), for the period 2 December 2010 to 1 September 2011 * replacement of the contested NCOER with a non-rated time memorandum * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * Table of Contents listing 14 tabs (none was enclosed with his application) * Army Board for Correction of Military Records (ABCMR) letter FACTS: 1. The applicant states: a. He submitted his NCOER appeal to the U.S. Army Human Resources Command (HRC) on 28 August 2014. However, on 15 October 2014, HRC erroneously decided it was untimely. On 17 October 2014, he appealed to the ABCMR, which found that his appeal was timely. On 15 January 2016, his appeal was remanded to the Enlisted Special Review Board (ESRB). Despite his inquiries, he has not received any decisions from the ESRB since January 2016. b. On 30 September 2012, he discovered that his rater was medically evacuated between 27 and 28 August 2011 and he had neither a rater nor an intermediate rater; however the unit failed to follow Army Regulation (AR) 623-3 (Evaluation Reporting System). His rater experienced a breakdown and was undergoing treatment. This made him unfit to render a fair evaluation. His rating chain was incorrect as otherwise stated in his petition. The NCOER injustice occurred in Camp Zama, Japan, in September 2012. The NCOER appeal injustice occurred in October 2014. 2. He provides: a. DD Form 149, dated 17 October 2014, and the attached Table of Contents. b. Letter, dated 15 January 2016, wherein the ABCMR advised him of the following: * he had not exhausted all administrative remedies available to him * the ESRB (Enlisted Special Review Board) had the authority to remove the NCOER from his Official Military Personnel File (OMPF) * ABCMR administratively closed his case and forwarded his request to the ESRB * if ESRB denied his appeal, he could reapply to the ABCMR, and he should ensure he provided a copy of the ESRB’s denial of his appeal 3. Review of the applicant’s military record shows: a. He enlisted in the Regular Army (RA) on 16 March 2000. He served in Iraq from 31 August 2005 to 15 August 2006. He reenlisted in the RA on 11 April 2006 and on 28 January 2009. b. A change of rater NCOER, for the rating period 2 December 2010 to 1 September 2011, shows he served as a Regional Network Operations and Security Center (RNOSC) Shift Leader, 75th Signal Battalion, Camp Zama. His rater was the RNOSC Officer in Charge and the senior rater was the Battalion S3. The NCOER shows the following entries in: * Part IV(a) (Army Values), he received a “No” for “Duty” and the rater entered the bullets: * consistently failed his assigned and implied duties; failed in his duties to submit two Serious Incident Reports (SIR) during the rating period * demonstrated a lack of good judgement when prioritizing duties and tasks * always honest and fair regardless of the situation * Part IV (Values/NCO Responsibilities), block d (Leadership), the rater rated him as “Needs Improvement” and entered the bullets: * failed to counsel one rated NCO IAW (in accordance with) Army Regulations * did not supervise the timely process of Soldier actions; one Soldier’s promotion delayed for two months, and another was denied leave * failed to conduct himself as a professional NCO directly, and adversely, impacting section morale * Part IV, block f (Responsibility and Accountability), the rater rated him as “Needs Improvement” and entered the bullets: * did not report two serious incidents; compromised the health and safety of SOFA (Status of Forces Agreement) status personnel * failed to maintain 100% accountability of his assigned equipment * failed to accomplished 10 out of 13 tasks assigned in writing by DA Form 4856 (developmental Counseling Form) during the rating period * Part V (Senior Rater Overall Potential) the senior rater (SR) rated him as “Marginal” and entered the bullets: * do not promote * do not sent to 1SG (first sergeant) course * requires additional training and mentorship * demonstrates limited potential for higher responsibility and leadership * Part V, block c (SR Overall Performance) the SR rated him as “Successful” in the third block * Part V, block d (Overall Potential for promotion and/or service in positions of greater responsibility) the SR rated him as “Fair” c. His rater signed the NCOER on 1 November 2011. The SR, Reviewer, and the applicant signed the report on 2 November 2011. It was accepted by Headquarters, Department of the Army (HQDA) and filed in his official records. d. He served in Afghanistan from 1 December 2011 to 30 June 2012. e. He was honorably discharged from active duty on 27 January 2013, for completion of required active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 12 years, 10 months, and 12 days of net active service. f. He enlisted in the U.S. Army Reserve on 11 July 2014. g. A Physical Evaluation Board (PEB) convened on 13 June 2018 and found him physically unfit for Schizophrenia and Post-Traumatic Stress Disorder. The PEB recommended a rating of 70% and his permanent disability retirement. He concurred and waived his right to a formal hearing. The board was approved on 16 July 2018. h. He was honorably retired and placed on the Retired List effective 16 August 2018. 3. By regulations: a. AR 623-3, 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, an 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. b. AR 600-8-104, once placed in the OMPF, an evaluation report is 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. c. AR 15-185, applicant do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. Based upon the documentary evidence submitted by the applicant and found within the military service record, the Board determined there was insufficient evidence to show that an error or injustice was present which would warrant the removal of the NCOER from the applicant’s record. Based upon the available evidence, the Board found no irregularities in processing which would warrant a correction of the 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. Army Regulation (AR) 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. The regulation states in: a. Paragraph 3-2i (Evaluation requirements) – rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions. b. Paragraph 3-39 (Modification to previously submitted reports) – 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. 2. AR 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the Army Military Human Resource Record/Official Military Personnel File (OMPF). The regulation states in: a. Chapter 2 – detained guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Documents authorized for filing in the OMPF are kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and corrections to other parts of the OMPF. It also serves to protect the interests of the Soldier and the Army. 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 the ABCMR or other authorized agency. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20180000087 5 1