NCOER Appeal

December 7, 2020

An NCOER with negative comments, or "no" block checks (referred NCOER), is career threatening for the NCO who receives it. In addition to limiting promotion potential, a negative NCOER can trigger the Army QMP process. If an NCO just received a negative NCOER, it is advisable to retain a military lawyer to assist with an appeal.

NCOER appeals in the Army are governed by AR 623-3, chapter 4, available at this link.

Any NCO who receives an evaluation report that he/she believes is inaccurate or unjust has several ways to submit an NCOER appeal.

The first way for an NCO to appeal an NCOER is through something called a Commander's or Commandant's Inquiry. Essentially, if any alleged error, injustice, or inaccuracy is brought to a Commander or Commandant, he/she can conduct an inquiry to determine if relief is warranted. The Commander/Commandant in question must be above the designated rating official involved in the alleged error, injustice or inaccuracy. Any request for an inquiry must be made no later than 60 days after the signature date of the rated Soldier. The results of the inquiry will be forwarded to HQDA no later than 120 days after the signature date of the senior rater.

Commander's/Commandant's inquiries are not meant to correct differences in opinion among members of the rating chain about a rated Soldier's performance and potential. Here are some examples of errors/injustices that an inquiry is meant to address:

Improperly designated, unqualified, or disqualified rating officials
Inaccurate or untrue statements
Lack of objectivity or fairness by rating official

The Commander/Commandant conducting the inquiry cannot force or pressure the rating officials to change their evaluations. That being said, if a rating official's Commander/Commandant conducts and inquiry and determines there are errors, documented efforts must be taken to allow the rating officials the chance to make the recommended edits. Most rating officials would change their ratings to appease his/her Commander and to not appear non-compliant to HRC.

A Commander/Commandant can uncover information that would have resulted in a lower evaluation; however, the evaluation itself cannot be edited using this information. In this case, the Commander/Commandant will write a memorandum stating their findings.

If the Commander/Commandant finds errors or injustices, the results of the inquiry will be included as an enclosure to the NCOER in question. The results will be only one page, but can include all supporting documents (i.e. investigations, reports, statements). If the Commander/Commandant does not find any fault with the evaluation, there is no requirement to include the results in the NCO's OMPF.

Commander's/Commandant's inquiries are not a required step to otherwise appeal an NCOER. They should be requested in very specific situations and NCOs should be careful not to make a request that is only going to shed negative light on him/her.

Whether or not an NCO requests a Commander's/Commandant's inquiry, he/she can submit an NCOER appeal. NCOERs can be appealed if they are believed to be incorrect, inaccurate, or in violation of the intent of AR 623-3. Any appeal submitted must be supported with substantial evidence (investigation, statements, legal memorandums, etc.).

If an NCOER appeal is based only on an administrative error, it should be sent to HRC, Evaluations Appeals Branch (AHRC-PDV-EA). Administrative errors include, but are not limited to, deviation from established rating chain, insufficient period of observation by the rating officials, signature errors in the evaluation report period, and errors in the APFT and/or height/weight entries. Administrative errors that were known, or should have been known, by the rated NCO and/or rating officials at the time that the evaluation report was signed, will not be corrected.

Appeals based on bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error, should be sent to the Army Special Review Board. Appeals of this nature need to be submitted within 3 years of the "Thru" date on the NCOER. If the 3 years have passed, then an NCOER appeal can still be submitted to the Army Board of Corrections for Military Records using DD Form 149.

An NCOER appeal, if successful, can result in complete removal of the NCOER in question or only the deletion of certain comments. Furthermore, if the appeal is successful, the board will determine if the NCOER was seen by any previous promotion boards and if reconsideration of said promotion is warranted. If the NCOER appeal is not successful, a copy of the board's decision memorandum will be filed in the NCO's OMPF. While it is unlikely, it is possible for the Board to deny the appeal and make the NCOER in question worse.

The Army Special Review Board will give priority to NCOER appeals in the following order:

NCOs that are twice non-selected for promotion in the primary zone of consideration and are within 6 months of discharge; and, NCOs who have been selected for QMP or the Reserve/Guard equivalent (Priority 1)
NCOs that are twice-non-selected for promotion in the primary zone of consideration at least once, but who do not have a mandatory release date within 6 months (Priority 2)
All others (Priority 3)

All NCOERs are presumed to be correct, accurate, and just. The NCO submitting the appeal has to prove, by clear and convincing evidence, that a correction or deletion is warranted.

If the Army Special Review Board denies an NCOER appeal, the NCO in question can submit a subsequent appeal to the Army Board of Corrections for Military Records, using DD Form 149.

As expressed in AR 623-3, an NCOER appeal needs to be well-written and supported by evidence. The assistance of a military lawyer is advisable.

This article was written by Attorney Matthew Barry.

The Law Office of Matthew Barry represents clients worldwide. He has offices on the East Coast, West Coast, and in the Central U.S.