Posted on May 9, 2016
Has anybody successfully submitted an appeal against a falsified NCOER?
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This question was brought to me recently. A concerned peer is just now finding out about the NCOER appeal process. Their concern is the counseling dates were falsified giving the individual no time to rehabilitate from a 4/4 rating. Also, to clarify it's not just the counseling dates in question. What is the level of proof needed etc.? I personally have not dealt with this type of situation, but want to help them out the best I can without just sending them to the HRC website.
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NCOER
Edited >1 y ago
Posted >1 y ago
Responses: 130
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It would seem the NCO is appealing based off of an unjust rating or underlying evidence to support such rating. It's a heavy burden to overcome since an NCOER is essentially deemed "correct" upon its filing. To overcome this, you generally need pretty clear cut evidence to support your claim, such as findings from a 15-6. Depending on the situation, an Article 138 complaint could kick start this process, if needed.
Otherwise, the biggest problem will be sending an appeal up the Army Special Review Board. The appeal needs to be clear, precise, and well laid out. Even then, they will likely deny it unless it's glaringly unjust. After that, it's the ABCMR, which is again very hesitant to overturn an evaluation minus clear cut error or injustice. It's definitely a difficult process, but it's one of those situations where there isn't normally any downside to pursuing the appeal since the worst case scenario is it leaves you in no better position than you started.
Otherwise, the biggest problem will be sending an appeal up the Army Special Review Board. The appeal needs to be clear, precise, and well laid out. Even then, they will likely deny it unless it's glaringly unjust. After that, it's the ABCMR, which is again very hesitant to overturn an evaluation minus clear cut error or injustice. It's definitely a difficult process, but it's one of those situations where there isn't normally any downside to pursuing the appeal since the worst case scenario is it leaves you in no better position than you started.
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SPC Paul Jennings, J.D.
MAJ Carl Ballinger - Article 138 can apply to initiate an investigation, if the action taken was pursuant to a commander's orders.You're right though, it won't undo the NCOER, you would still need to appeal that separately.
So what could occur is the soldier files an Art. 138 complaint, in regards to counseling or other derogatory info that forms basis for bad NCOER. This kicks off a 15-6, which finds that there was some sort of error or wrongdoing-hopefully. The 15-6 investigation now serves as a good basis on which to appeal the NCOER. Now none of this is required prior to appealing the NCOER, but depending on the situation it could help bolster one's claim. Ironically though, even if the 15-6 clearly shows that the NCOER was in error, the ASRB could still decide to take no action. The presumption of regularity is very difficult to overcome.
So what could occur is the soldier files an Art. 138 complaint, in regards to counseling or other derogatory info that forms basis for bad NCOER. This kicks off a 15-6, which finds that there was some sort of error or wrongdoing-hopefully. The 15-6 investigation now serves as a good basis on which to appeal the NCOER. Now none of this is required prior to appealing the NCOER, but depending on the situation it could help bolster one's claim. Ironically though, even if the 15-6 clearly shows that the NCOER was in error, the ASRB could still decide to take no action. The presumption of regularity is very difficult to overcome.
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SPC Paul Jennings, J.D.
MAJ Carl Ballinger - Hypothetical situations are always difficult to evaluate!
In a case such as this though I would wager the counseling dates are the least concern. Essentially, you would need to disprove the derogatory bullets, which is difficult, but not impossible. It's dependent on how the information substantiating these comments was "verified," a standard that does require more than a mere allegation. Unfortunately, this standard isn't spelt out in the regulation and I'd wager not many people are familiar with how this standard recently came about.
In a case such as this though I would wager the counseling dates are the least concern. Essentially, you would need to disprove the derogatory bullets, which is difficult, but not impossible. It's dependent on how the information substantiating these comments was "verified," a standard that does require more than a mere allegation. Unfortunately, this standard isn't spelt out in the regulation and I'd wager not many people are familiar with how this standard recently came about.
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SPC Paul Jennings, J.D.
MAJ Carl Ballinger - correct, and likely if you're trying to bring forth anything substantial it's going to have to go to the ABCMR or courts. Average timeframe for that is anywhere from 1-3 years. One of our retired JAG colonels referred to these as "20 year appeals" because the best outcome is you win the appeal and try to eek your way to 20 years and retire.
As others have mentioned, this does make sense. The majority of evaluations are correct, and no one has a "right" to remain in the military, absent certain mandated safe zones. However, there are always outliers and it is a shame if a good soldier is separated or passed over for unsubstantiated reasons.
As others have mentioned, this does make sense. The majority of evaluations are correct, and no one has a "right" to remain in the military, absent certain mandated safe zones. However, there are always outliers and it is a shame if a good soldier is separated or passed over for unsubstantiated reasons.
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SSG (Join to see)
Sounds like we need to talk off line if your familiar with the process. Im currently starting my process and some things seem hard to prove...
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Always nice when a rater can add insult to injury out of spite... even worse when the rater's friend (who is new to the command team) backs him up without actually even knowing the rated NCO.
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I had a similar issue I did a commanders inquiry it came back favorable on me for administrative errors forbiddened narratives unproven derogatory statements etc. it got submitted the inquiry which proved the ncoer was invalid and the board saw it and gave me a personal call about it. Bad part is the wait if you aren't a priority 1
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Heres the truth: ncoers are largely "subjective" (see the reg)
That means no documentation of any counseling is required despite what the reg says. Counseling is often skipped and any period of time can be considered your one shot at rehabiltation (example: you get your ass handed to you and are forced to do a made up job, then the command does a counseling form 30 days later stating you've had a chance to improve and you failed so its time to eliminate you)
Now, if you request it your appeal is assisted by trial defense, you assemble the supporting letters and docs and send the appeal. I promise you it will be returned denied in your case. The appeals board with cite the "subjective" blurb and that your witnesses "didnt have knowledge of the event or your duties" (despite the statements you have stating they do) and even with TD writing a letter to point out the errors, remember the reg says lack of counseling wont help you. Basically you need to wait until its time to leave that job and start fresh somewhere else. Sorry to burst anyone's balloons but that's real world scenario.
That means no documentation of any counseling is required despite what the reg says. Counseling is often skipped and any period of time can be considered your one shot at rehabiltation (example: you get your ass handed to you and are forced to do a made up job, then the command does a counseling form 30 days later stating you've had a chance to improve and you failed so its time to eliminate you)
Now, if you request it your appeal is assisted by trial defense, you assemble the supporting letters and docs and send the appeal. I promise you it will be returned denied in your case. The appeals board with cite the "subjective" blurb and that your witnesses "didnt have knowledge of the event or your duties" (despite the statements you have stating they do) and even with TD writing a letter to point out the errors, remember the reg says lack of counseling wont help you. Basically you need to wait until its time to leave that job and start fresh somewhere else. Sorry to burst anyone's balloons but that's real world scenario.
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I had a 1SG attempt to write a bad NCOER for me, pretty simple when the NCOER was sent to me for review prior to signature I pulled out the regulations and went block by block making notes of errors or areas of concern, (to start with my SSN, Status and MOS were incorrect) There were also errors were he attempted to make a statement about me losing organizational equipment as the supply NCO (no equipment was lost and all equipment was physically accounted for by the commander and my supply clerk - the regulation also states that for this issue no statement maybe placed in the NCOER until the investigation is completed (there was no investigation). Once this was done I sent it back to the personal who sent it to me (the BN S-1 OIC and the BN Commander (senior reviewer). Got called to battalion headquarters, discussed the areas of concern and errors with the same people and the 1SG had to make the correction.
MY ADVICE - pull out the regulation ; go block by block - make your notes and present it to the S-1. - Be nice about it - do your research - make sure you understand what is there and why.
MY ADVICE - pull out the regulation ; go block by block - make your notes and present it to the S-1. - Be nice about it - do your research - make sure you understand what is there and why.
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It's funny that someone would Bring up the NCOER it's been a pain in my side for a wile, if you don't set up your schedule for your people and yourself to do great work for your company your writing and NCOER will reflect that, so the key to solve that is staying true to training and volunteer your people for every thing that would promote them. As for the NCOER, I believe that the format should be changed, ask the same question but it should be don in letter format for all question, because for most people the question don't reflect there jobs and what they do and or the things that they do for that year. counseling is key every month.
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The best way to get an NCO ER that properly reflects performance is for that person to draft their own NCO ER.
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SSG (Join to see)
So true. Especially when your junior NCO expects better. Great idea until they realize what they've done or have not done. Thank YOu...
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There should be quantitative data supporting this NCO's accomplishments. There is nothing specific and it is very short. Should not make it through first line leader.
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Something similar happened to my as a young E-5. I arrived in Germany to meet up with my new BMS. Almost immediately we we butting heads. For the three years he had it out for me. Before I got to the unit, my previous unit wrote true and honest ERs. With this BMS I was made to look like trash. I'm not a quitter, so I fought on. Things got worse. Soon the Warrant Officer, BMT, got involved. My immediate boss, an E-6 never lifted a finger but instead gave in to the BMS pressure. These bad ERs almost destroyed my career. Through proper channels, this was all resolved. Regardless if your the writer of of receiver of a ER, be honest. If you feel the ER is unjust, stand up for yourself.
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