IN THE CASE OF: BOARD DATE: 22 July 2022 DOCKET NUMBER: AR20220003151 APPLICANT REQUESTS: in effect, to have his Noncommissioned Officer Evaluation (NCO) Evaluation Report (NCOER) for period August 2003 through February 2004, (requested NCOER) added to his Army Military Human Resource Record (AMHRR) and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel brief, 23 November 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 23 April 2004 * DD Form 214, 7 February 1983 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), 1 August 1998 * NGB Form 22, 5 November 1984 * DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), August 2003 through February 2004 * Self-authored statement, 19 July 2021 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States 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's self-authored statement states he was notified by the U.S. Army Human Resources Command (HRC) on multiple occasions since 2004 that an NCOER, a copy of which is in his possession and is attached, was not forwarded by his former unit to be included in his Official Military Personnel File (OMPF). His last active-duty service was from on or around January 2003 through April 2004. Upon his departure from his last assignment at Firebase Gardez, under Operation Enduring Freedom (OEF), his chain of command completed an NCOER. a. He believes that the original NCOER was lost or misplaced. He is sure it was accidental since there were continuous movements of units entering and departing the area of operations. The unit he was assigned to, the chain of command and the support personnel were the absolute best, and he is thankful to have served our nation in Afghanistan. This was just a simple understandable oversight. b. There is an NCOER that did reach HRC which is now in his OMPF. It was a Change of Rater NCOER and covers part of his tour of duty under OEF. He provided a history of his attempts to correct the issue (available in documents). 3. His counsel respectfully requests that the applicant’s requested NCOER for the period August 2003 through February 2004 be added to his AMHRR. He has attempted to correct this issue several times including in 2004, 2008, 2011, and 2015. His attempts to correct this error were through his phone calls with HRC. He also attempted to work with National Guard units, Army units, and Special Forces Groups to correct this error. The requested missing NCOER in this petition was either not received or not uploaded into his AMHRR by Army HRC. As such, we now request that this error be remedied, something only this Honorable Board has the authority to correct. a. He was deployed to Afghanistan in support of OEF between 24 March 2003 to 26 February 2004 by orders number 01-400745, 20040128. He received two NCOERs during his deployment where one NCOER was received and uploaded by HRC. The second NCOER was not uploaded but is included in this petition. The applicant was assigned to Army Special Operations Command and his last assignment was at Firebase Gardez that saw continuous movement of units entering and exiting the area of operations. This is likely why the NCOER was not uploaded by HRC. b. He made numerous attempts to have his missing NCOER inputted to his AMHRR. His NCOER gap was never rectified. Counsel argues: * The contents of the NCOER affirm its authenticity * The NCOER is in the applicant’s possession that further provides evidence of authenticity * The Federal Rules of Evidence 901(b)(7) permits authentication of public records obtained from the public office where such papers are to be kept * He has had this NCO ER in his possession and made numerous attempts to correct his record c. The applicant has attempted to make the correction to his military records over several years. Every time he has attempted to include his NCOER in his record it was not successful. He is missing an NCOER during this period and that the NCOER is required. Counsel requests the NCOER in question be added into the applicant’s AMHRR. 4. The applicant enlisted in the District of Columbia Army National Guard on 4 October 1984. He held several positions within Army National Guard and Army Reserves throughout his career. 5. He was ordered to active duty on 25 February 2003, in support of Operation Enduring Freedom. 6. The applicant did not provide nor does his AMHRR contain a copy of an official rating scheme. 7. The applicant's record contains NCOERS of record that merit discussion in this case, in addition to the NCOER he provides. The three NCOERs all contain different rating chains. a. The Applicant's AMHRR contains a change of rater NCOER for the period February 2003 through August 2003. This NCOER contains the following information: (1) The applicant did not sign the NCOER, his signature block contains the entry, "NCO unavailable for signature. (2) The rating chain's signature are all dated 24 December 2003 (3) A copy of the NCOER was forwarded to the Applicant on 24 December 2003 b. The applicant's AMHRR contains a change of rater NCOER for the period September 2003 through November 2003. This NCOER is the last NCOER on file in the applicant's AMHRR and it contains the following information: (1) The applicant and his rating chain all affixed their signatures to this NCOER. (2) The Applicant and the rating chain's signature are all dated 4 December 2003. (3) A copy of the NCOER was given to the Applicant on 4 December 2003 c. The applicant provides a copy of the requested NCOER, a change of rater NCOER for the period August 2003 through February 2004, which is not filed in his AMHRR. (1) The applicant and his rating chain all affixed their signatures to this NCOER. (2) The Applicant and the rating chain's signature are all dated 24 March 2004. (3) A copy of the NCOER was given to the Applicant on an unknown date. 8. He was released from active duty on 23 April 2004, after completion of required active service. His DD Form 214 shows he completed 1 year, 1 month, and 29 days net active service this period. 9. The HRC Soldier Management System contain an entry dated 27 May 2004, indicating that HRC received the requested NCOER for the period August 2003 through February 2004. This NCOER was returned to the for correction for two reasons: first, the through dates of this report overlapped with the through dates of another NCOER filed in the applicant's AMHRR; and second, the bullet comments in the report were in error because they exceeded two lines. 10. The applicant was assigned to the Retired Reserve effective 27 December 2007, but subsequently reassigned to a Reserve unit on 27 June 2008. 11. On 6 December 2011, he was again assigned to the Retired Reserve. 12. Orders C08-697215, issued by HRC, Fort Knox, KY on 3 August 2004, shows he was placed on the retired list on 25 August 2016 in the rank of master sergeant. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Evidence of record shows that he and his rating chain authenticated with their signatures, a NCOER covering a rating period that was included into the contested NCOER. Based upon a preponderance of the evidence, the Board agreed HRC properly declined to add the contested report to his OMPF, and there is insufficient evidence to grant relief. 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, United States 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 (AR) 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. Appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) of AR 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. 4. AR 623-205 (Noncommissioned Officer Evaluation Reporting System) in effect at the time, establishes policy and procedures governing the Noncommissioned Officers Evaluation Reporting System (NCOERS). Paragraph 1-5 of this regulation states that the purpose of the NCOERS is to: (1) strengthen the ability of the NCO Corps to meet the professional challenges of the future through the inculcation of Army values and basic NCO responsibilities; (2) Ensure the selection of the best qualified NCO’s to serve in positions of increasing responsibility by providing rating chain review of performance and potential for use in centralized selection, assignment and other enlisted personnel management decisions; and (3) Contribute to Army-wide improved performance and professional development by increased emphasis on performance counseling. a. Section Ill (Policy), paragraph 1-12 (Rating chain) and Chapter 2 paragraph 2-3 (Rating chain) both state the rating chains must correspond as nearly as practicable to the chain of command and supervision within an organization, regardless of component or geographical location. Except for ARNGUS, the rating scheme will be established by name, given effective dates, published, and distributed to each rated NCO and each member of the chain. Any changes to rating chains will also be published and distributed as they occur. Changes will not be retroactive. b. Paragraph 3-7, Part I, Administrative Data states Part I is for administrative data, which includes identifying the rated NCO, the period of the report, and the reason for submitting the report. (1) Part 1h. FROM date. Enter the beginning date in the boxes, using a four-digit numerical identifier for year and a two digit numerical identifier for month (for example, 2001 12). The beginning month is always the month following the ending month of the last report, except for reports rendered in the following situations, in pertinent part, for USAR TPU Soldiers, the first report period will begin on the effective date of promotion to sergeant, or the effective month assigned/attached to a troop program unit (TPU), whichever occurs later. (2) Part 1h THRU date. Enter the ending date in the same manner as the beginning date (for example, 2002 06). The ending month is always the month of the event generating the report, regardless of when the event occurs during that month (for example, 1st day, l0th day, or 28th day). Enter the same THRU date in the header of page two of the NCO-ER in the same format (2002 06). The THRU date upon retirement/separation is the month the NCO starts transition leave/out-processing. c. Paragraph 3-8, Part II, Authentication states, in pertinent part that Part II is for authentication by the rated NCO and rating officials after they have completed their portions of the form at the end of the rating period. The senior rater will obtain the rated NCO's signature or enter the appropriate statement "NCO refuses to sign" or "NCO unavailable for signature." The rated NCO's signature verifies the following: That he or she has seen the completed report, the administrative data (part I) is correct, the rating officials are proper (part II). d. Paragraph 4-2 states that an evaluation report accepted for inclusion in the official record of an NCO is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. Appeals based solely on statements from rating officials claiming administrative oversight or typographical error will normally be returned without action unless accompanied by additional substantiating evidence. e. Paragraph 4-3 states substantive appeals must be submitted within 5 years of the NCO-ER's completion date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exemption, e.g., extended hospitalization. f. Paragraph 4-7 states the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that - (1) The presumption of regularity referred to in paragraph 4-2 should not be applied to the report under consideration. (2) Action is warranted to correct a material error, inaccuracy, or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003151 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1