ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		

		BOARD DATE:  23 May 2019

		DOCKET NUMBER:  AR20180015124


APPLICANT REQUESTS:  through counsel:

*	removal of the DA Form 2168-8 (Noncommissioned Officer Evaluation Report 
(NCOER)) covering the period 1 November 2006 through 31 October 2007 from 
his Army Military Human Resource Record (AMHRR)
*	consideration by Standby Advisory Boards for all sergeant first class (SFC)/E-7 
promotion boards, Fiscal Year 2008 through Fiscal Year 2015, for which he was 
eligible but was not selected while the unjust contested NCOER was in his 
records
*	any other relief deemed appropriate by the Army Board for Correction of Military 
Records (ABCMR)

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)
*	Letter, Midwest Military and Veterans Law, dated 20 September 2018, reference:  
ABCMR Application Materials for (Applicant)
*	Memorandum, Midwest Military and Veterans Law, dated 20 September 2018, 
with supporting documents from applicant's service record
*	Memorandum, 6th Military Police Group, Fort Lewis, WA, dated 31 October 
2003, subject:  Memorandum of Reprimand
*	DA Forms 2166-8 (NCOER) covering the periods 1 November 2006 through 
10 November 2015
*	Army Commendation Medal for Valor Certificate citing Permanent Order 
Number 088-3V, dated 28 March 2008
*	DA Form 1059 (Service School Academic Evaluation Report), dated 13 March 
2009
*	Meritorious Service Medal Certificate citing Permanent Order Number 149-009, 
undated
*	DA Form 2166-9-2 (NCOER (Staff Sergeant-First Sergeant/Master Sergeant) 
covering the period 11 November 2015 through 15 February 2017
*	Memorandum, U.S. Army Human Resources Command (HRC), Fort Knox, KY, 
dated 20 January 2016, subject:  Department of the Army Notification for 
Potential Denial of Continued Active Duty Service under the Qualitative 
Management Program (QMP) with applicant's response
*	Enlisted Record Brief, dated 6 July 2016
*	DA Form 4980-12 for period 1 November 2007 to 30 April 2017
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) for the 
period ending 30 April 2017
*	Memorandum, Mission Command Training Program, Fort Leavenworth, KS, 
dated 17 July 2017, subject:  Support for (Applicant)
*	Memorandum, Colonel (Retired) F____, dated 13 June 2018, subject:  
Memorandum of Support for (Applicant)
*	Memorandum, Headquarters and Headquarters Company 1st Special Forces 
Group, Joint Base Lewis-McChord, WA, dated 9 July 2018, subject:  
Memorandum of Support for (Applicant)
*	Memorandum, Master Sergeant (Retired) T____, dated 18 September 2018, 
subject:  Letter of Support for (Applicant)

FACTS:

1.  The applicant did not file within the 3-year time frame provided as 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.  Counsel states:

*	the applicant received an NCOER that contained unjust derogatory ratings and 
commentary
*	the applicant diligently worked to overcome the setback by amassing years of 
exemplary NCOERs
*	the contested NCOER was the basis for forced retirement via the Army QMP
*	the contested NCOER precluded his promotion to SFC/E-7 in the 8 years he was 
eligible

3.  Counsel further states:

	a.  The contested NCOER represents an error or injustice and must be removed.

	b.  The contested NCOER contained derogatory commentary that unfairly 
downgraded the applicant for not successfully completing the Raven Unmanned Aerial 
Vehicle (UAV) course.  Although the NCOER is accurate that the applicant did not 
complete the course, it was nonetheless manifestly unfair for his rater to downgrade his 
rating for that reason.

	c.  The contested NCOER contains inconsistencies and is overly vague and generic.

	d.  Principles of equity and fairness warrant removal of the NCOER and accordant 
relief.

	e.  The applicant's former superiors and fellow Soldiers support his request and 
corroborate his factual accounts.

	f.  The applicant was consistently and successfully performing SFC/E-7 duties while 
he was a staff sergeant (SSG)/E-6.

4.  On 31 October 2003, the applicant received a general officer memorandum of 
reprimand (GOMOR) for mishandling his duty weapon and making a false official 
statement to his chain of command regarding the accidental discharge of the weapon.  
The imposing officer directed placement of the GOMOR in the performance section of 
the applicant's OMPF.

5.  At the time of the contested NCOER covering the period 1 November 2006 through 
31 October 2007, the applicant was serving in the Regular Army in the rank/grade of 
SSG/E-6 with the principal duty title of intelligence sergeant.

6.  His Official Military Personnel File (OMPF) contains the contested NCOER covering 
the period 1 November 2006 through 31 October 2007.

	a.  Part IV(e) (Training) shows his rater rated him as "Needs Improvement (Some)" 
and entered the following bullet comments:

*	unable to complete the Raven UAV Operator's Course
*	unable to train others effectively due to his lack of experience in his 
occupational specialty

	b.  Part Va (Overall Potential for Promotion and/or Service in Positions of Greater 
Responsibility) shows his rater rated him as "Fully Capable."

	c.  Part V(c) (Senior Rater – Overall Performance) shows his senior rater rated him 
as "Fair/4."

	d.  Part V(d) (Senior Rater – Overall Potential for Promotion and/or Service in 
Positions of Greater Responsibility) shows his senior rater rated him as "Superior/3."

7.  On 13 February 2008, the applicant was awarded the Combat Action Badge for 
actively engaging or being engaged by the enemy in Iraq on 10 December 2007.

8.  On 10 March 2008, the applicant was awarded the Army Commendation Medal with 
"V" device for valorous actions during a sustained firefight in the village of Al-Hai, Diyala 
Province, Iraq on 10 December 2007.

9.  On 13 March 2009, the applicant completed the Intelligence Analyst Basic NCO 
Course.

10.  On 28 June 2013, the applicant was awarded the Meritorious Service Medal for 
meritorious service during the period 1 October 2011 to 10 July 2013.

11.  On 20 January 2016, HRC notified the applicant of his potential denial of continued 
active duty service under the QMP as the result of information received for permanent 
filing in his AMHRR; specifically, the NCOER through 31 October 2007 showing 
noncompliance with Noncommissioned Officer Education System (NCOES) completion 
standards.

12.  On 5 February 2016, the applicant responded to the notification of potential denial 
of continued active duty service under the QMP and stated:

*	he was unjustifiably given an unfavorable rating because he failed the Raven 
UAV Operator's Course
*	the course was not a requirement for his military occupational specialty nor was it 
an NCOES course
*	there were contradictory comments in the Training section of the NCOER 
compared to comments in the Leadership section
*	he has received all "Successful" or "Superior" ratings since that rating
*	he has received numerous awards, to include the Meritorious Service Medal and 
the Army Commendation Medal for valor

13.  Counsel states the QMP ultimately identified him for retention, but he elected to 
retire because he had over 20 years of active service creditable toward Regular 
retirement.

14.  On 17 February 2017, the applicant was awarded the Meritorious Service Medal for 
the period 1 November 2007 to 30 April 2017 for exceptionally meritorious service while 
serving as an intelligence NCO for over 20 years of active service.

15.  On 30 April 2017, the applicant retired from active duty.  His DD Form 214 shows 
narrative reason for separation as sufficient service for retirement.  He had 20 years and 
9 days of total active service.?
16.  He provided copies of the applicant's NCOERs received after his contested 
NCOER showing his senior raters provided positive comments and rated his overall 
performance as "Successful" and overall potential as "Superior."

17.  He provided four character-reference letters attesting to his dedicated service, 
being an exceptional role model, and was the epitome of a professional NCO.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that 
relief was not warranted.  After reviewing multiple NCOERs of the applicant, the Board 
concluded that the questioned NCOER was aligned with others received by the 
applicant throughout his career.  The Board also concluded there was insufficient 
evidence to show that there was an error or injustice on the questioned NCOER based 
upon the documentary evidence presented by the applicant or found within the service 
record.  For that reason, the Board recommended denying the applicant’s request for 
relief.

Based upon a lack of evidence to remove the questioned NCOER, the Board found 
insufficient justification to refer the record of the applicant to a Standby Advisory Board.

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 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 policies and 
tasks for the Army's Evaluation Reporting System.

	a.  Paragraph 4-7 states an evaluation report accepted inclusion in the official record 
of a rated Soldier's AMHRR is presumed to be administratively correct, to have been 
prepared by the proper rating officials, and represent the considered opinions and 
objective judgment of the rating officials at the time of preparation.

	b.  Paragraph 4-7(f) states 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.

	c.  Paragraph 4-11 states 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.

	d.  Paragraph 4-13 advises 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.

3.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 
prescribes policies and procedures for enlisted personnel separations.  Chapter 19 
(QMP) contains policies and procedures for voluntary and involuntary separation for the 
convenience of the Government of Regular Army NCOs under the QMP.  The QMP 
selection criteria include decline in efficiency and performance over a continuing period 
as reflected by NCOERs or failure of NCOES courses.

4.  Army Directive 2014-06 (Qualitative Management Program) revises Army policies for 
the QMP and is applicable to Soldiers in the Regular Army and U.S. Army Reserve 
Active Guard Reserve.  Army Regulation 635-200, chapter 19, is revised to include:  
HRC receives material from the permanent filing in the performance or restricted folder 
of the NCO's AMHRR, to include a rating from the senior rater of "Fair/4" or "Poor/5" for 
overall performance or potential in Part V, blocks c or d, of the DA Form 2166-8.

5.  Army Regulation 600-8-19 (Enlisted Promotion and Reductions) prescribes policies 
and procedures governing promotions and reductions of Army enlisted personnel.  The 
Deputy Chief of Staff, G-1, or designee may approve cases for referral to a Standby 
Advisory Board for consideration upon determining that a material error existed in a 
Soldier's AMHRR when the file was reviewed by a selection board.  Reconsideration 
normally will be granted when an adverse NCOER reviewed by a board was 
subsequently declared invalid, in whole or in part, and was determined by the Army 
Review Boards Agency to constitute a material error.
ABCMR Record of Proceedings (cont)	AR20180015124


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