NCOER Appeals: Myths and Facts

US Soldiers In action around the world in action!

THE MYTHS

1. There is a two year time limit on submitting an appeal
2. “You can’t appeal that part of the NCO-ER.”
3. Once an appeal has been processed and denied, it cannot be resubmitted.
4. An NCO-ER cannot be appealed while you are still in the organization in which the report was written.
5. Once the report is submitted nothing can be done

FACTS

• All NCOs need to be aware that the NCO-ER plays a tremendous part in the DA centralized promotion and school selection process. The NCO -ER is probably the single most important document on the Official Military Personnel File (OMPF) that is reviewed by selection boards and it clearly represents the NCO’s duty performance and potential to board members.
• Attention to detail in preparing the NCO-ER is a must. Far too many reports are submitted with incorrect Height/Weight, APFT, Duty Title, and other administrative errors. A problem that contributes to many of these errors is rating officials who do not complete NCO-ERs before their NCOs depart their units, installations, etc. and they do not get the chance to review the report for correctness. Command emphasis on ensuring that NCO-ERs are completed prior to the NCO’s departure can help reduce many of these errors.
• While we can reduce many administrative errors, we will probably not stop them all. NCOs who find that a NCO-ER filed on their OMPF contains an administrative error can correct it through the appeals process. AR 623-205 (chapter 4 and appendix F) contains all of the policies and procedures that need to be followed. Requests must contain, as a minimum, a memorandum from the NCO, a copy of the report in question, and supporting documentation. All documents submitted that are not on the NCO’s OMPF or are not an original copy, must be certified.
• NCOs who feel that a NCO-ER they are receiving is illegal, unjust, or in violation of regulations, should try to resolve the matter with the rating chain. If that is not successful, NCOs may request that a Commander’s Inquiry be conducted. The first commander in the grade of major or higher, above the allegation in the rating chain, should conduct the inquiry. This process could help avoid having to submit an appeal. AR 623-205, para 2-15, contains details.
• When a NCO feels that a NCO-ER filed on his or her OMPF is unfair, unjust, or contains other substantive errors, he or she should consider submitting a substantive appeal. First, the NCO must do an honest appraisal of his or her conduct and performance during the rating period. If the NCO-ER really does accurately reflect the conduct or performance, but the NCO just doesn’t like the rating, it will be hard to appeal. If the NCO truly believes that the report is incorrect, he or she should pursue the appeal. In today’s Army, one “bad” report might not result in QMP, but it could very well slow or stop promotion or school selection.
• All sections of the NCO-ER are subject to appeal. There are two types of appeals – administrative and substantive. Administrative appeals are processed by EREC and focus on administrative information shown on the report. Ninety-seven percent of all administrative appeals submitted are approved. Appeals alleging bias, prejudice, inaccuracies, or unjust ratings or any matter besides administrative errors are considered substantive appeals. These NCO-ER appeals are adjudicated by the ODCSPER Enlisted Special Review Board. During calendar year 1990, ninety-two percent of these appeals were disapproved.
• Appealing a report with substantive errors will not be easy. The NCO must present the case with documentation that clearly and convincingly supports the allegations (third party statements, inspection reports, investigations, etc.). Third party statements must not simply be opinion or state that the NCO is a good soldier. They must address the specific bullets, box marks, etc. that are being contested. Individuals writing statements should identify from what position they were able to observe firsthand, the interface between the NCO and the rating officials. Again, AR 623-205 (chapter 4 and appendix F) contains details on preparation and submission of appeals.
• The timeliness of any appeal is often critical to its success. There is no time limit for submission of an NCO-ER appeal. However, the sooner an appeal is submitted, the easier it is to document the case. This is just simply a matter of doing your business when all of the issues and facts are clearer and more readily accessible. Trying to obtain documents to support an appeal for a report is hard enough when the report is first submitted. NCOs who wait for a year or more to appeal reports normally find the task to be next to impossible. The less solid supporting documentation there is, the bigger the chance that the appeal will be denied. Substantive appeals for reports over five years old may only be sent in if they are accompanied with a reasonable compelling explanation for the delay in appealing.
• An appeal may be resubmitted whenever additional documentation can be provided. One soldier resubmitted his appeal ten times. He was eventually successful. Following his successful appeal, his records appeared before a series of promotion standby advisory boards. He was promoted from staff sergeant to master sergeant and received all back pay and allowances.

KEYS TO SUCCESS

Although ninety-two percent of the substantive appeals adjudicated during calendar year 1990 were disapproved, as many as sixty percent of these appeals might have been successful if the appellant had focused on the following:

1. Timeliness: The sooner the appeal is submitted, the better chance you have of being successful. Don’t wait until you receive a QMP notice or are nonselected for promotion or schooling to prepare an appeal. By that time, the fog of time has set in. The chain of command has disbursed. The facts and supporting documents are impossible to get at or have been destroyed in accordance with existing regulations.
2. Objectivity: Be objective in your documentation. Most appeals are lost because the appellant focuses on “a personality conflict” rather than on the facts of the case. Forget about the person who wrote the evaluation report being appealed and focus on what was said – attack the facts, not the author.
3. Document the discrepancies: The best way to document discrepancies between your opinion of your duty performance and that of your rater or senior rater is to get an objective third party. These must be presented in writing. For example, if your rater said that your poor supply management procedures resulted in the loss of property, perhaps the property book officer will give you a statement that supports your position that losses occurred as a result of some difficulty or deficiency not attributable to you or your management skills.
4. Statements: When you get statements, remember that those from subordinates and friends do not bear as much weight or are not as effective as those from your peers or superiors whom you have had official dealings with whom were in a position to have observed your duty performance, style of leadership, or technical competencies.
5. Don’t be emotional: Let me repeat that, “DON’T BE EMOTIONAL.” Literally every substantive appeal that is disapproved has as a common feature, a personality attack on one of the rating officials. Sorry, but that tactic is not effective.
6. Perseverance: If your appeal is not successful on the first attempt, use the Freedom of Information Act (FOIA) and request a copy of your case summary. This information can be valuable in helping to focus your efforts to better document your case.
7. Patience: It takes about three to six months for a substantive case to be completed. Promotion boards and QMP actions are not suspended waiting on your case to be processed.

Every unit owes its NCOs meaningful NCO-ER training. Officers, NCOs, and civilians must all be included.

Training should include the counseling process and communicating with the NCO (avoid surprises), writing meaningful duty descriptions, setting tough but realistic standards, as well as writing fair and accurate reports. Education on the available redress programs (commander’s inquiries and appeals) should also be included. Presently, 55% of all appeals are returned without action because the NCO did not follow the regulatory guidelines..

Individual NCOs must also ensure that they know the NCO-ER System and its effects on them. It’s your career!

The legal assistance office is available to help answer your questions or file an appeal.

SAMPLE APPEAL MEMORANDUM

DEPARTMENT OF THE ARMY

HEADQUARTERS FOURTH INFANTRY DIVISION (MECHANIZED)

FORT HOOD. TEXAS 76544-5200

AFVB-JA-LA (623-205)

MEMORANDUM FOR Commander, U.S. Army Enlisted Records and Evaluation Center, ATTN: PCRE-RE-A, Fort Benjamin Harrison, IN 46249-5301

SUBJECT: NCO Evaluation Report Appeal for June 199X thru March 199X [Rating period] for Bob Johnson [Name], SGM [Rank], 789-00-4000 [SSN], 77L [PMOS], (817) 556-5555 [Home phone #], 21 North Street, Killeen, Texas 76540 [Home mailing address],

1. Under the provisions of AR 623-205 Chapter 4 [note that appeal in under Chapter 4], I respectfully appeal the above-noted NCOER. The basis of this appeal is administrative error and substantive inaccuracy [basis of appeal]. The appeals processing priority of this appeal is third priority per chapter 4-6 [processing priority]. I have enclosed supporting documents at Tabs A-X [reference supporting documents].
2. [Summary of case]. The NCOER in dispute is for the period of June 194X thru March 199X. This NCOER is found at TAB A. I believe that the negative comments in this NCOER resulted from an Equal Opportunity Sexual Harassment Complaint I filed against my senior rater.
3. [Facts]. On certain occasions during February and March of 199X, she made unwanted sexual advances towards me. As a result, I filed a complaint with my equal opportunity representative on March l99X. The complaint is enclosed as TAB B. The retaliatory response was swift, and I received ten counseling statements in a single day (31 March 199X), one of which was immediately thrown out by my brigade commander. She even had me removed from the promotion list, and the battalion adjutant had to contact the Department of the Army to reinstate me While the investigation did not produce sufficient evidence to substantiate my complaint (which was resolved on 199X), the investigation resulted in additional equal opportunity training being taught to the unit.
4. [Analysis]. When I first saw this NCOER on May 199X, the signature of my rater had already been signed on it. Although she had signed the document, there was no date beside her signature (please see the original copy of the NCOER at TAB C). In fact, she bad left for First Sergeant School on April 199X, and did not return until May 199X. The fact that she signed the NCOER before leaving for school constitutes a clear violation of paragraph 2-8 of AR 623-205, which states that a “[change of rater report may not be signed before the date the change occurs.” It also suggests that Parts III and IV of the NCOER were actually completed by my senior rater, against whom I had filed the equal opportunity complaint, rather than by my rater. This act violates paragraphs 6-11a. and
5. [Conclusion]. [Finish your memorandum with a short synopsis]. I have worked very hard for the Army; my awards and skills reflect the time and dedication I have given to the Army for the past 18 years. My performance . . . .

[Your Name]

[Rank], [U.S. Army]

[List Enclosures]

PRIVACY ACT REQUEST

If an appeal is denied soldiers should always request to see a copy of their file to make sure that the appeal was sent forward properly and that no errors were made that might warrant another review by the appeals board. Include: Name, Rank, Social Security Number, Date, What was appealed, Day phone number, Home mailing address, and a request for the Case Summary. The address is: Headquarters, Department of the Army, ATTN: DA PA-ZXI-IC, ODCS PER, 300 Army Pentagon, Washington, D.C. 20310-0300

• Evaluation Report Appeals (Foward)
• What should I appeal?
• When should I appeal? (The Army Redress System)
• What are my chances of successfully appealing an evaluation report?
• Preparing to Appeal
• Preparation of your Appeal
• Type of Evidence needed
• Submission
• Processing and Disposition of Appeals
• Summary Checklist for the Appellant
  • Your Letter
  • Evidence
  • Copies
  • Mailing
  • Follow up
  • Mailing Addressees/Pertinent POCs

Evaluation Report Appeals

The purpose of this document is to provide information intended to assist the soldier in preparation of an evaluation report appeal. It should serve as a ready reference in deciding when and what to appeal and the steps / procedures involved in gathering evidence to support an appeal. AR 623-205, Personnel Evaluations, 17 Dec 01, Chapter 6 and Appendix F outline the appeals process.

What should I Appeal?

If you receive an evaluation report which you firmly believe is an inaccurate or unjust evaluation of your performance and potential or one that contains administrative errors, that report may be a candidate for an appeal. A report that was not rendered in accordance with the Army regulations in effect at the time of preparation may also be considered for appeal.

If you are just dissatisfied with receiving a report because you believe it should be better, it’s very difficult to successfully challenge the judgment of your rating officials. Clear and convincing evidence is necessary to prove you deserve better. Even if successful, the relief granted could be to remove only the portions proven inaccurate or unjust, rather than raising the evaluation rating.

In deciding what to appeal, you must consider early on whether you can gather useful evidence in support of an appeal. Your self-authored statement alone does not suffice as evidence of an inaccurate, unjust or administratively flawed evaluation report. Remember, a report accepted by HQDA is presumed to be correct both administratively, in content and be an accurate portrayal of your performance and potential until you prove it is not.

When should I Appeal? (The Army Redress System)

The first step in the Army Redress System is the Commander’s Inquiry. The primary purpose of the Commander’s Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated NCO and correcting errors before they become a matter of permanent record. The secondary purpose is to obtain command involvement in clarifying errors or injustices after the NCO- ER is accepted at EREC. However, in these after-the-fact cases, this provision is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record. The inquiry must be completed not later than 120 days after the through month of the NCO-ER. Additional information concerning the Commander’s Inquiry is contained in AR 623-205, Chapter 6, section II.

The second step in the Army Redress System is submission of an NCO-ER appeal. You should begin preparation of an appeal immediately after receipt of an evaluation report that you have good reason to strongly disagree with. Waiting too long adds to the difficulty of locating those who might offer support or in gathering records that might serve as evidence.

Substantive appeals must be submitted within 5 years of the NCO-ERs completion date. Failure to submit an appeal within this time-frame may be excused only if you provide exceptional justification to warrant this exception, e.g., extended hospitalization. Administrative appeals will be considered regardless of the date of the report utilizing the regulation in effect during the report period; however, the likelihood of successfully appealing a report diminishes, as a rule, with the passage of time.

What are my chances of successfully appealing an evaluation report?

Statistics are not gathered on the approval/disapproval rate of evaluation report appeals because each evaluation report is unique.

Your success in appealing a report depends largely on your ability to present clear and convincing evidence that the evaluation is inaccurate or unjust. The best evidence is obtained from third parties who were in a position to observe your performance from the same perspective as your rating officials. The bottom line is that “The success of your appeal depends mainly on you”.

Preparing to Appeal

If you decided to appeal, begin laying the groundwork by a thorough review of the appropriate Army regulation in effect at the time the challenged report was prepared. Using your copy of the challenged report, you should note any instances where provisions of the governing regulation were not followed. You may want to seek guidance from your unit S-1, local Staff Judge Advocate (SJA) and Personnel Service Battalion (PSB). They are available to advise and provide assistance in the preparation of an appeal.

While minor inconsistencies or irregularities of any given NCO-ER(s) are noteworthy in an appeal packet, they do not normally constitute removal of a report. They do , however, add to the overall consideration of the merits of an appeal. Serious irregularities, such as improper rating officials, may, warrant full or partial relief.

Start by making a list of individual’s who served in positions that would allow them to challenge or refute specific shortcomings or incidents for which you were faulted on the challenged report. Concentrate on identifying those who also have knowledge of the expectations and demands of your rating officials and your working relationship with them. Make a list of any records or reports that might serve to refute portions of the challenged evaluation. One example is a published rating scheme. This report may be used to contest correctness of the evaluation officials. Extracts from inspections or investigative reports are sometimes useful to challenge faulty remarks or ratings.

Having made a list of individual’s who might support your appeal, the next step is locating them. Check the World Wide Locator for those still on active duty. For those known to have retired or otherwise left active duty, send a request to HQDA, ATTN: DACF-FSR, 2461 Eisenhower Ave., Alexandria, VA 22331-0521 (for retirees) or to the National Personnel Records Center, 9700 Page Blvd., St. Louis, MO 63132-5260 (for other than retirees). The individual’s full name and SSN must be provided along with the correspondence you want forwarded. To protect the privacy of individual’s no longer on active duty, these agencies will normally forward correspondence to the individual’s rather than providing an address. When requesting an address or assistance, always indicate that your request is for official use in support of an evaluation report appeal.

Prepare the letter you intend to send while waiting for the addresses. Examples for both your letter of request and the individual’s letter of support are located in AR 623-205, Figures 6-5 and 6-6. You may want to provide your prospective supporter a copy of the response example or direct them to the example in the regulation.

Remember the requested supporting letter should offer first hand observation or knowledge that might refute any or all of those portions of the report(s) being challenged. Third party statements that merely say you were a good soldier, without addressing or refuting the shortcomings for which you were faulted, provide little in the way of convincing support for your appeal.

For records and reports that might be of assistance to you, write or contact the S1 or adjutant of your previous unit and request copies of documents applicable to the specific aspects of your appeal of job performance. Timeliness is essential when requesting these documents as most records are destroyed within 2 years.

Preparation of your Appeal

While waiting for responses to your request, prepare your basic memorandum of appeal. Follow the format located in AR 623-205, Figures 6-2, 6-3 and 6-4 for the appropriate type of request. These examples cover administrative, substantive and administrative-substantive combined appeals. In order to keep the appeal as confidential as possible, we recommend using your home address for a return address.

Identify the specific portion(s) of the report which you contest and clearly state your disagreement. Be clear, brief and specific. Limit your explanation to basic facts. If detailed information is essential, add your own statement as an enclosure to the appeal. Your self authored statement is your only opportunity to talk to the board since the board will not be contacting you, seek assistance from your S-1, PSB or local SJA.

Type of Evidence needed

Evidence submitted includes statements from third parties, rating officials and often includes documents from other sources, i.e., investigations, inspections, etc. There are no limits on type and amount of evidence submitted see paragraph 6-10, AR 623-205 for guidance as to what will or will not be especially helpful. Vantage points and first hand knowledge are important factors in selecting third parties to support an appeal. Remember, the specific changes you request should be justified by the evidence provided.

Submission

Upon receipt of supporting statements and evidence have the entire package reviewed by a disinterested third party that you trust and have confidence in. This third party review will help remove emotion and poor logic from your appeal. Your appeal should not be submitted until you are satisfied that you have presented a logical, well- constructed case.

Submit the finalized appeal, plus one complete copy directly to the address listed in this pamphlet. Verify all necessary information has been included before forwarding the appeal. All supporting statements must be originals and all documents provided must be original or certified true copies. Certification of documents may be done by your local SJA or PSB. The copy of the evaluation report does not have to be certified if it is already a matter of record on your OMPF (microfiche). If you are aware of the current phone numbers of the rating officials on the contested report, please include them in your appeal.

Processing and Disposition of Appeals

The Appeals and Corrections Branch of the Active, Reserve or National Guard component will review the case upon receipt and either notify you by letter that the appeal has been accepted or that the case is being returned for lack of usable evidence. Administrative appeals will be resolved by the appropriate Appeals and Corrections Branch. Substantive appeals will be forwarded for final review and decision by the Enlisted Special Review Board (ESRB). Upon final determination of the case, the appropriate agency will notify you of the outcome.

The time necessary to process an appeal varies with the type and complexity of the case. Some priority 3 cases may take six months or longer while priority 2 and 1 cases take less time. Processing priorities are explained in the Chapter 6, AR 623-205. The fact that you are scheduled to be considered by a DA Promotion Board will not cause your appeal to be expedited or change your priority. You may check on the current status of your appeal by viewing the Personnel Data Snapshot (IWRS) page.

In order to ensure full and just consideration of an evaluation report appeal, the primary members of the rating chain are normally contacted by the ESRB for their comments. After approving an appeal where the individual was previously non-selected by a DA Selection Board for promotion, the ESRB will also take into consideration whether promotion reconsideration is warranted. The appellant will be informed of this decision when notified of the ESRB decision.

In all cases, whether the appeal is approved or denied, totally or in part, documentation is placed on the OMPF. The performance portion of the OMPF (“P” fiche) is amended to include either (1) a memorandum for record which documents the amendment or explains non-rated time or (2) the HQDA letter which notifies you the appeal was denied. When the appeal is denied, either totally or in part, a complete copy of the appeal correspondence is placed on the “R” fiche.

If the appeal is denied, you may gather new or additional evidence and submit another appeal or request relief from the next agency in the Army’s redress system, the Army Board for Correction of Military Records (ABCMR). Operation of the ABCMR is governed by AR 15-185. If your case was decided by the ESRB, a case summary of the Board’s consideration is available by writing to:

Freedom of Information Act
HQDA (DAPE-ZM-IC)
300 Army, Pentagon
Washington, D.C. 203010-0300
DSN: 225-2116 COML: (703) 695-0273

Summary Checklist for the Appellant A detailed checklist, for use when assembling your appeal, is located in AR 623-205, Chapter 6 and Appendix F.

Your Letter: Typed military memorandum on letterhead or white bond paper. First paragraph must contain your name, rank, PMOS, SSN, period of report and priority of the appeal. Include a DSN or commercial phone number and correct mailing address (home address may be used). Use this memorandum to transmit the appeal. Concisely explain the nature of your disagreement and what corrective action is requested. If a detailed explanation of the circumstances of a report is required, add a statement as an enclosure to the appeal. It is important to remember that the ESRB will not contact you, but will more than likely contact the rating officials. Therefore, it is important that you provide as much information as possible in your own statement. List and identify all enclosures and their relevance to your case. Sign and date the memorandum.

Evidence: Appeals based on administrative error must be proven by original or certified true copies of appropriate documents, e.g. orders, leave and earning statements, appropriate medical documents verifying height/weight, APFT results (DA Form 705), DA Form 2-1/ERB.
Claims of inaccurate or unjust evaluations must be supported by originals of typed statements from knowledgeable observers during the report period. These statements must reference the specific allegations/contentions of your appeal. The statements must also be signed, dated, printed on letterhead or white bond paper and should be specific in content. Additional statements from rating officials are acceptable, but will not be the sole basis of the appeal. Documents such as ARTEP, AGI, CI results, etc., may be useful in supporting substantive appeals.

Copies: Original and one copy. Original packet must include originals of all statements and certified true copies of all other documents with the exception of the NCOER.

Mailing: Before mailing, review to ensure all enclosures are included, signatures and dates are on all documents and addresses and phone numbers are included. Enclose your appeal in a secure container, mailing envelope or heavy wrapping as needed. Refrain from using fancy binders or covers. Mail to the appropriate address below.

Follow Up: You will be notified in writing by the NCO-ER Appeals Branch that your appeal was received. It is your responsibility to notify HQDA promptly if your address changes. You will be notified, in writing, of the decision. Upon final decision, if not totally approved, you have further recourse. You may request a copy of the Enlisted Special Review Board (ESRB) Case Summary as mentioned earlier, then submit a second appeal strengthened by additional evidence. As an alternative to reconsideration by the ESRB, appellants may apply to the Army Board for Correction of Military Records (ABCMR) IAW AR 15-185.

Mailing Addressees / POCs