IN THE CASE OF: BOARD DATE: 12 November 2015 DOCKET NUMBER: AR20150001966 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) and all allied documents from his Official Military Personnel File (OMPF). 2. The applicant states: a. It was an injustice to receive nonjudicial punishment (NJP) under Article 15 and he was not given the respect of rank or experience as a recruiter due to age. He was mistreated and not given proper consideration. The NJP under Article 15 has caused problems in relation to promotions and positions within the Army. b. He has over 24 years of combined active duty, Active Guard Reserve (AGR), U.S. Army Reserve (USAR), and Army National Guard service. He is currently serving as a career counselor in the USAR in military occupational specialty (MOS) 79V (Retention and Transition Noncommissioned Officer (NCO)). c. He spent more than 12 years in recruiting and retention, including one tour of duty with U.S. Army Recruiting Command as a recruiter. He served in MOS 79S (Career Counselor) and 79D (Reenlistment NCO) prior to receiving MOS 79V. The retention and transition position was considered a secondary job in conjunction with his primary MOS and he has been with retention and strength management for more than half of his career. d. He contends that all AGR Soldiers in transition and first-term AGR Soldiers were being placed in recruiting positions in 2007. Everyone entering the AGR Program had to be recruiters before being accessed into other career fields. His first recruiting assignment was with the U.S. Army Recruiting Company Baltimore for 2 years and it was very difficult for him. Recruiting in the "hood" was bad enough and definitely a more difficult task during war time. e. His battalion expected 4 recruits per month which totaled 48 or more per year. He was not making his monthly quotas and he was only able to achieve 60 percent of the USAR mission. He was also receiving counseling statements for not making required appointments and monthly missions. He was lucky to actually make quarterly and fiscal year mission goals. f. He was in the wrong demographic for recruiting duty and Baltimore was the only choice he was given for the recruiting assignment. Normally anyone entering recruiting duty for the first time gets three choices of different regions and locations. The Baltimore recruiting battalion would not even consider relocating him within the company or battalion. g. He ended up with high blood pressure within the first 6 months of recruiting duty due to the pressures of recruiting and considerable "beat downs" on a daily basis. h. His first sergeant had issues with the recruiters who did not want to be assigned duty in the Baltimore recruiting battalion. His commander directed their work hours beyond the prescribed 1700-hour closing time. i. His relationship with Sergeant First Class (SFC) C____ R____, a Station Commander in Baltimore, was not a good one and they always seemed to have friction. SFC R____ expected all the recruiters to get better quality prospects. j. In an open meeting, he told SFC R____ that he was not realistic about his assessments of the area, applicants, or the market and poaching in other recruiter areas was the only way they could get quality applicants in Baltimore. He was not trying to be disrespectful and it was a station meeting where SFC R____ asked for their opinions. k. SFC R____ wanted him out of his station and did not trust him. SFC R____ did some things that one might consider for possible recruiter investigation. SFC R____ came into the station a few times drunk, smelling of alcohol. SFC R____ went drinking with other recruiters from the station on a few occasions. l. SFC R____ told him the only way he could be moved was to find faults and build counseling statements until the battalion removed him. He was also aware of the applicant's blood pressure and told him "he was going to build up pressure until I popped." Making complaints to higher ups made things pointless because they supported the station commanders regardless of what they did or said. The U.S. Army Recruiting Command Inspector General didn't do anything to help any recruiter. m. One day he was scheduled to give a training briefing to other recruiters; however, he and other recruiters were told to report to the Towson recruiting station on the same date. He told the other recruiters he would reschedule the class for another day. When he reported to the Towson recruiting station, SFC R____ was already there and asked if he completed the class. SFC R____ said he failed to follow instructions; he was given a directive to give the class. n. All of his counseling statements were utilized for due process during his Article 15 proceedings. All the derogatory statements were also applied to the NCO evaluation report (NCOER) he received in 2009 and he disputes each item in the NCOER (hereafter referred to as the contested NCOER). SFC R____ became his rater because he was promoted to SFC a few months earlier than he was. SFC R____ also accused him of purposely defacing his common access card in order to hide his social security number which was untrue. o.  He eventually transferred to a different area and he has received nothing but good reviews and NCOERs. He has no other blemishes on his record and he does not want the NJP under Article 15 to reflect on him as a senior NCO. 3. The applicant provides: * self-authored statement * DA Form 2627 * extracts of his OMPF CONSIDERATION OF EVIDENCE: 1. Having prior service in the Regular Army, USAR, and Army National Guard, the applicant again enlisted in the USAR on 8 January 2005 in the rank/grade of staff sergeant (SSG)/E-6. 2. On 1 October 2006, he was promoted to SFC. 3. On 20 August 2007, he was ordered to active duty in an AGR status for a period of 3 years and he was assigned to the U.S. Army Recruiting Battalion Baltimore. On the same date he was awarded MOS 79R. 4. On 29 October 2008, he accepted NJP under the provisions of Article 15, UCMJ, for: * disobeying an order on or about 13 March 2008 * failing to go to his appointed placed of duty at the prescribed time on or about 30 June 2008 * defacing his military identification card and driver's license in an effort to avoid disclosure of his social security number and date of birth on or about 12 August 2008 * disobeying an order on or about 13 August 2008 * dereliction of duty on or about 13 August 2008 5. His DA Form 2627 shows he appealed the Article 15 and he did not submit additional matters in consideration. After consideration of all matters presented, the imposing authority directed filing the Article 15 in the restricted folder of his OMPF. 6. The contested NCOER for the period 1 September 2008 through 31 August 2009 shows in: a.  Part IV (Rater Values/NCO Responsibilities): (1)  block b (Competence), the rater checked "Needs Improvement (Much)" and entered the following bullet comments: * lack of concern for USAR mission resulted in Station achieving 60% of its YTD [year to date] assigned mission * does not understand duties and responsibilities of his MOS (2)  block c (Physical Fitness and Military Bearing), the rater checked "Success" and entered the following bullet comments: * met Army standards for physical fitness * currently enrolled in the weight control program and is making progress (3)  block d (Leadership), the rater checked "Needs Improvement (Some)" and entered the following bullet comments: * demonstrates a lack of authority by arguing with Station Commander, refusing to provide information, and not following instructions received by the chain of command * became extremely insubordinate when counseled in regards to corrective criticism * showed little concern for Future Soldier sustainment and development (4)  block e (Training), the rater checked "Success" and entered the following bullet comments: * unable to train others due to his lack of [MOS] competency * willingly shares general Army knowledge with Soldiers (5)  block f (Responsibility and Accountability), the rater checked "Needs Improvement (Some)" and entered the following bullet comments: * failed to maintain recruiter tools in accordance with regulatory and command guidance * routinely failed to meet given suspenses and to complete tasks as instructed * tends to put the blame on others for own shortcomings b.  Part V (Senior Rater – Overall Performance and Potential), his senior rater checked "Marginal" and entered the following bullet comments: * promote when slots are available * send to advance schooling when slots are available * only place in positions of increased responsibilities when maximum supervision is available c.  Part Vc (Senior Rater – Overall Performance), his senior rater rated him as "4 – Fair"; and d.  Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), his senior rater rated him as "4 – Fair." 7. On 19 August 2010, he was released from active duty and transferred to the USAR Control Group (Reinforcement). 8. His records are void of and he failed to provide documentation showing he requested a commander's inquiry related to the contested NCOER. 9. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice. Chapter 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ. NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted. 10. "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. 11. Army Regulation 27-10, paragraph 3-37a, states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal. Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted folders in the OMPF will be made by the imposing commander at the time NJP is imposed. The filing decision of the imposing commander is subject to review by superior authority. For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF. 12. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. 13. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program. It states that once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for removal of the DA Form 2627 and allied documents from his OMPF was carefully considered. 2. Army Regulation 27-10 states NJP may be set aside or removed upon a determination that, under all the circumstances of the case, a clear injustice has resulted. There is no evidence of a clear injustice in this case. There is no documentary evidence indicating the NJP he received was improperly imposed or retaliatory in nature. In the absence of substantive evidence showing error or injustice in the imposition of the NJP, there is an insufficient basis upon which to grant the requested relief. 3. The bullet comments in the contested NCOER are not prohibited by the regulation. They specifically address his values and NCO responsibilities. Further, there is no evidence the contested NCOER contains any serious substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies. The applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOER or that they exercised faulty judgment in evaluating him as they did. The governing regulation states an evaluation report accepted and included in the official record of a Soldier is presumed to be administratively correct. 4. The evidence shows the contested NCOER was accepted by HRC and filed in his OMPF. Once the NCOER was accepted by HQDA, the only way to modify that report was through the appeals process. His records are void of and he failed to provide any evidence showing he appealed the contested NCOER. In the absence of substantive evidence showing the NCOER is not administratively correct, was not prepared by the proper rating officials, and/or does not represent the considered opinion and objective judgment of rating officials at the time of preparation, there is an insufficient evidentiary basis for amending or removing this document. BOARD VOTE: ________ ________ ________ 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. __________x___________________ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20150001966 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001966 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1