ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20180006987 APPLICANT REQUESTS: removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 2 October 2012 through 22 July 2013 from his Army Military Human Resources Record (AMHRR). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DA Forms 4856 (Developmental Counseling Form), dated 26 April 2013 (4) * DA Form 4856, dated 2 May 2013 * DA Forms 2166-8 covering the period July 2013 through 22 July 2013 * DA Forms 2166-8 covering the periods 2 October 2012 through April 2015 (4) * DA Form 2166-9-2 (NCO Evaluation Report (Staff Sergeant-First Sergeant/ Master Sergeant (SSG-1SG/MSG)), dated 2 April 2015 through 11 July 2016 * Email, U.S. Army Human Resources Command, Fort Knox, KY, dated 23 April 2018,subject: NCOER Appeal Process Question 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: a. He received a poor rating without receiving quarterly counseling sessions to establish expectations. b. The counseling sessions he did receive were given with the intent of progressing in the Explosive Ordnance Disposal (EOD) team leader certification process, but nothing was established if he failed the objectives. c. EOD team leaders are given 18 months to certify once promoted to SSG and 10 months were afforded to complete certifications before being assigned a new position in operations prior to deployment to Afghanistan. d. After being evaluated in company operations, he was placed in a team leader position under the same rating scheme as before and received favorable remarks. e. The NCOER in question for the period 2 October 2012 through 22 July 2013 does not accurately reflect his potential as shown in subsequent evaluations. f. If the NCOER in question is not removed, he will not be given an opportunity to progress within the EOD career field with prohibition of an assignment as an instructor. 3. On 26 April 2013, he received four written developmental counseling statements from his platoon sergeant as indicated below. a. The professional development/team leader counseling noted the following key points of discussion: (1) EOD: he and his team are expected to be 100-percent qualified and he was making progress with team cohesion, (2) Counseling and NCOERS: * he received after action comments on his counseling packets for improvements and was instructed to ensure he followed up and adjusted his counseling packets * he was advised the platoon sergeant could assist if needed (3) Additional duties: * he was removed from the training section for recurring issues * they could move past this and use the time for training (4) Knowledge: * his success was a priority * he was advised the platoon sergeant would do everything he could to make that happen (5) Physical Training/Weapons: it was important not to let his physical training slip, especially for upcoming deployments; (6) Appearance/Military Bearing: continue to look and act professional; (7) Off Duty: * keep the platoon sergeant award of all issues * continue to follow the chain of command * route any issues through the platoon sergeant and the platoon sergeant or platoon leader will bring it to the attention of the commander (8) Ongoing Goals and Directives: * continue to train toward reaching team leader certification * ensure your team is knowledgeable on all team gear * his team should be prepared to demonstrate their skills at any time * an ongoing plan of action from Hell Weeks will be addressed in follow-up counseling b. The event-oriented indirect fire scenario counseling for hell week noted the following key points of discussion: (1) The overall mission was a success. (2) Areas of improvement were: * situational awareness * decision making skills * team cohesion * sense of urgency c. The event-oriented counseling for Hell Week noted the following key points of discussion: (1) He performed well in his remote pulls, all equipment was being maintained, and his communications ran smoothly. (2) The areas in which he needed improvement were: * situational awareness – realizing the area, time, and situation he was in and making the decisions accordingly * decision making skills – the ability to take the situation and apply logical courses of action to the problem * team cohesion – know each other's every thought * sense of urgency – train as you fight d. Event-oriented multi-ordnance counseling noted the following key points of discussion: (1) He performed well in following a logical process for the entire problem, all his equipment was well maintained, and his team appeared to work better together than during previous outings. (2) The areas in which he needed improvement were: * situational awareness – ensure he was conducting good pre-combat checks and pre-combat inspections to ensure his team stayed safe and members need to wear personal protective equipment at all times when preparing explosive-driven tools * decision making skills – he needs to be able to take a situation and apply logical courses of action to the problem * sense of urgency – train as you fight (3) The platoon sergeant wanted him to be a team leader and wanted him to follow the above listed courses of action. Each area listed in the key points would be reevaluated upon the completion of each scenario. (4) The platoon sergeant stated he cared for his safety and success during the deployment and would respond accordingly based on his performance. 4. On 2 May 2013, received written event-oriented and follow-on counseling for Hell Week from his platoon sergeant as indicated below. a. Overall, the mission was rated as success. b. Areas in which he performed well were his briefing skills to the operations section chief and his team and his time management. c. Areas in which he needed improvement were: * situational awareness – the mission was to make the scene safe and return to normal * decision making skills – do not put himself at more risk than needed when using a remote was a more viable option and the circuit had not been disrupted * team cohesion – his team was fully aware of what they were doing and were tasked appropriately * sense of urgency – has improved by completing tasks better 5. He received a change-of-rater NCOER as an EOD team leader covering the period 2 October 2012 through 22 July 2013. a. Part IVb (Competence) shows his rater marked the "Needs Improvement (Some)" block and entered the following bullet comment: "replaced as Team Leader due to lack of readiness in spite of a comprehensive training regiment [regimen] tailored for his individual operational deficiencies." b. Part IVd (Leadership) shows his rater marked the "Needs Improvement (Some)" block and entered the following bullet comment: "required retraining on six basic EOD Team Leader tasks; consistently lacking the decision making and situational awareness skills to operate safely." c. Part Va (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows he was rated "Marginal" by his rater. d. Part Vc (Overall Performance) shows he was rated "Fair/4" by his senior rater. e. Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows he was rated "Fair/4" by his senior rater. 6. He received a change-of-rater NCOER as an operations sergeant covering the period 23 July 2013 through 20 March 2014. a. Parts IVb, c, and d show he was rated "Success" by his rater. b. Part Va shows he was rated "Fully Capable" by his rater. c. Parts Vc and d show he was rated "Successful/2" and "Superior/2" by his senior rater. 7. He received a permanent change-of-station NCOER as an EOD team leader covering the period 21 March 2014 through 14 July 2014 under the same rater and senior rater as the NCOER covering the period 2 October 2012 through 22 July 2013. a. Parts IVb, c, and d show he was rated "Success" by his rater. b. Part Va shows he was rated "Fully Capable" by his rater. c. In Parts Vc and d show he was rated "Successful/2" and "Superior/2" by his senior rater. 8. The next two NCOERs as an EOD team leader covering the periods 15 July 2014 through 1 April 2015 and 2 April 2015 through 11 July 2016 were rendered by different raters and senior raters. a. In both NCOERs, he received ratings of "Excellence" and "Success" by his rater in Parts IVb, c, and d. b. In the NCOER covering the period 15 July 2014 through 1 April 2015, he was rated "Among the Best" by his rater. c. In the NCOER covering the period 15 July 2014 through 1 April 2015, he received ratings of "Successful/1" and "Superior/1" by his senior rater. d. In the NCOER covering the period 2 April 2015 through 11 July 2016, he was rated "Far Exceeded Standard" by his rater. 9. On 23 April 2018, a representative of the U.S. Army Human Resources Command Evaluations Appeals Branch responded to his inquiry via email and advised him that Army Regulation 623-3 (Evaluation Reporting System) places a time restriction on the submission of substantive appeals and he had to submit an application to the ABCMR since the evaluation report he was interested in appealing had a through date of 2013. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the contested NCOER, the developmental counseling forms and the NCOERs that followed the one he contests. The Board found that the comments on the NCOER were consistent with the counseling forms. The applicant provided insufficient evidence for the Board to determine that the comments on the NCOER were not the accurate assessments by the rating officials and that removal or modification was required. Based on a preponderance of evidence, the Board determined that the applicant’s contested NCOER was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): not applicable. 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 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) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 4-7a (Policies) states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to: (1) be administratively correct, (2) have been prepared by the proper rating officials, and (3) represent the considered opinion and objective judgment of the rating officials at the time of preparation. b. Paragraph 4-7b states appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an NCOER will normally be returned without action unless accompanied by additional substantiating evidence. c. Paragraph 4-7c states the rated Soldier or other interested parties who know the circumstances of a rating may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation. 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. The determination regarding adequacy of evidence may be made by the Headquarters, Department of the Army, Evaluation Appeals Branch. d. Paragraph 4-8 (Timeliness) states because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous evaluation 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 evaluation report "THRU" date. Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR, in accordance with Army Regulation 15-185. e. Paragraph 4-11 (Burden of Proof and Type of Evidence) states the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice. f. Paragraph 4-11b states 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. Paragraph 4-11d states 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. Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the evaluation report was rendered. The results of a Commander's or Commandant's Inquiry may provide support for an appeal request. h. Paragraph 4-11e states no appeal may be filed solely because the information on a support form or counseling form was omitted from an evaluation, or because the comments of rating officials on the evaluation report are not identical to those in the applicable support form or counseling form. While there will be consistency between a rating official's comments on both forms, there may be factors other than those listed on a support form or counseling form to be considered when evaluating a rated Soldier. In addition, no appeal may be filed solely based on the contention that the appellant was never counseled. i. Paragraph 4-13a (Appeals Based on Substantive Inaccuracy) states a decision to appeal an evaluation report will not be made lightly. Before deciding whether or not to appeal, the prospective appellant will analyze the case dispassionately. This is difficult, but unless it is done, the chances of a successful appeal are reduced. The prospective appellant will note that: (1) pleas for relief citing past or subsequent performance or assumed future value to the Army are rarely successful and (2) limited support is provided by statements from people who observed the appellant's performance before or after the period in question (unless performing the same duty in the same unit under similar circumstances); letters of commendation or appreciation for specific but unrelated instances of outstanding performance; or citations for awards, inclusive of the same period. j. Paragraph 4-13b states once the decision has been made to appeal an evaluation report, the appellant will state succinctly what is being appealed and the basis for the appeal. For example, the appellant will state: (1) whether the entire evaluation report is contested or only a specific part or comment and (2) the basis for the belief that the rating officials were not objective or had an erroneous perception of their performance. Note that 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. 3. Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. a. Paragraph 1 (Purpose) states the intent is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely or incomplete is not filed in the individual official personnel files and to ensure the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. b. Paragraph 3-2 (Policies) states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These traits must be identified early and shown in permanent official personnel records that are available to personnel managers and selection board members for use in making decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others. Other unfavorable character traits of a permanent nature should be similarly recorded. c. Paragraph 7-2 (Policies and Standards) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. d. Paragraph 7-6 (Correction of Military Records) states Army Regulation 15-185 contains policy and procedures for applying to the ABCMR and for correcting military records by the Secretary of the Army. Applications should be sent to the ABCMR to correct an error or remove an injustice only after all means of administrative appeal have been exhausted. ABCMR Record of Proceedings (cont) AR20180006987 8 1