IN THE CASE OF: BOARD DATE: 6 October 2015 DOCKET NUMBER: AR20150009778 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 the Relief for Cause (RFC) DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 10 July 2011 through 10 July 2012 from his official military personnel file (OMPF). 2. The applicant states: a. Newly discovered evidence proves that no wrong doing occurred. His record contains only one unfounded blemish; such conduct would be distinctly out of character for him as an NCO of integrity. He is unworthy of belief. He wishes to continue serving and sacrificing for the people of the United States. b. His chain of command is unanimously recommending him for retention. He has lived the Army values for the past 17 years and 5 months and will continue to do so once given the opportunity to continue his service. 3. The applicant provides: * Legal brief dated 29 May 2015 from a civilian defense counsel with the military defender addressed to "QMP Authorities" * His Enlisted Record Brief * An undated letter from Personal Investigations, Incorporated, reporting the results of a polygraph examination given to the applicant on 21 May 2015 * 10 memoranda of recommendation * His biography * DA Forms 2166-8 for periods prior to and after the RFC NCOER * Enlisted Rating Scheme as of 16 May 2011 * Army Regulation (AR) 15-6 (Procedures of Investigating Officers and Board of Officers) findings and recommendations * RFC NCOER CONSIDERATION OF EVIDENCE: 1. At the time of the subject NCOER the applicant was a Regular Army (RA) sergeant first class (SFC) with about 14 years of active service. 2. At the time of his application, he was assigned in military occupational specialty (MOS) 76Y (Supply Sergeant) at Fort Bragg, North Carolina. 3. On 9 December 2011, the Commander, Headquarters and Headquarters Brigade, U. S. Army North Atlantic Treaty Organization (NATO), appointed Major (MAJ) J_____ K___, as an AR 15-6 investigating officer (IO) to conduct an informal inquiry into the facts and circumstances surrounding the formal Equal Opportunity complaint submitted by Staff Sergeant (SSG) K________ T_____ on 2 December 2011 alleging that she was sexually harassed by the applicant on numerous occasions between August 2011 and the present. The IO was directed to interview all female members of Headquarters and Headquarters Company (HHC), U.S. Army NATO Brigade, military and civilian, to determine if they had experienced, witnessed, or had knowledge of any sexual harassment. The IO was also directed to submit the findings and recommendations on DA Form 1574 (Report of Proceedings by an IO/Board of Officers) to the legal advisor for legal review and the completed investigation to the appointing authority. 4. In a memorandum dated 6 January 2012, the IO reported the applicant had in fact: a. Likely made verbal statements to SSG T_____ that were of a sexual nature as her stories could be matched, in part, to things that Sergeant (SGT) W______ claimed were said to her that are similar to what SSG T_____ stated was said to her by the applicant. These statements were said particularly during the combatives training conducted by the unit in October 2011. b. Engaged in non-verbal conduct of a sexual nature that was directed towards SSG T_____. Again, the event were combatives training conducted by the unit in October 2011. While the applicant had SGT W______ pinned under him, he made a comment to the affect that he enjoyed her squirming under him. On another occasion the applicant blocked SSG T_____ from exiting by using his body and his hand on her arm in the G-1 office area of the U.S. Army NATO Brigade. There was also an incident in which SSG T_____ complained that the applicant approached her desk, which was corroborated by Mr. V______ J. J____, who saw her "look uncomfortable talking with [the applicant]" and that Mr. J____ remembers SSG T_____ taking her common access card (CAC) and moving into parade rest. c. Engaged in physical contact of a sexual nature twice with SSG T_____. On one occasion he grabbed her by the arm and proceeded to sniff her and kiss her on the cheek. The second occurred while at combatives training, as previously described. 5. The IO stated: a. In every interview superiors, peers, and subordinates stated that the applicant, SSG T_____ and SGT W______ were hard workers and dedicated Soldiers whom they enjoyed working with. “Admittedly, with only the applicant's and SSG T_____'s statements it would have been difficult to ascertain whether or not SSG T_____ was sexually harassed as it would evolve into a ‘he said/she said’ event; however, in finding that SSG W______ experienced similar actions by the applicant it becomes less difficult to find that the applicant has committed sexual harassment against SSG T_____ and SGT W______.” b. The IO found this to be especially true, as neither SSG T_____ nor SGT W______ gained anything through the removal of the applicant other than a more peaceful work environment. Due to finding a second witness and both SSG T_____ and SGT W______ suggesting or saying outright that they felt uneasy or uncomfortable around the applicant, the IO recommended, at a minimum, a summary court-martial or field grant Article 15 be conducted. The IO also recommended that the applicant be moved out of the U.S Army NATO Brigade immediately. 6. The complete AR 15-6 investigation is not available for review and there is no available record showing the appointing authority's approval of the AR 15-6 investigation. 7. The applicant received an RFC NCOER covering 7 months of rated time from 10 July 2011 through 10 July 2012 for his duties as an NCO in Charge (NCOIC), Deputy Chief of Staff, G-4. His rater was MAJ S_____ P. D______, Deputy Chief of Staff G-4, and his senior rater was GS14 R______ J. P______, the Chief of Staff, and his reviewer was Colonel BJ C__________, Jr., the Brigade Commander. This NCOER shows the following entries: a. In Part IVa (Army Values), the rater placed an "X" in the "No" block for "Respect/EO/EEO" and "Honor" blocks and entered the following comments: * violated AR 600-20 (fraternization or similar regulatory noncompliance * did not live up to all Army values * showed courage and determination when faced adversity b. In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments: * the rater is the rating official directing the relief of this NCO * the rated NCO has been notified of the reason for the relief * inappropriate behavior with subordinates was substantiated at the conclusion of an AR 15-6 investigation during this rating period c. In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Marginal" block. d. In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Fair/4" block. e. In Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an "X" in the "Fair/4" block. f. In Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * limited potential for promotion without additional training in interpersonal skills and subsequent evaluation at the same grade and level of responsibility * marginal overall performance based on RFC * outstanding performance in specific focus areas such as physical fitness and training * continued potential for service in the Army, but should not serve in positions of independent authority over Soldiers * rated Soldier refused to sign 8. The RFC NCOER shows the rater and senior rater authenticated this form by placing their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place. The applicant did not sign the RFC NCOER. 9. There is no available evidence showing the applicant requested a Commander's Inquiry regarding the subject NCOER. 10. In support of his request the applicant provides an "Appeal and Legal Brief" from civilian counsel addressed to "QMP Authorities,” dated 29 May 2015. Counsel states: a. The applicant is an absolutely top notch NCO. Year after year his NCOERs cite impressive accomplishments. For the past 8 years he has earned the highest laurels – "top block:" and "among the best." b. The applicant's career is highlighted by several awards and deployments to Kosovo, Iraq, Afghanistan, Qatar, Lebanon, and Tajikistan. He was applauded for saving $11 million in equipment recovered as American forces left the war zone. c. One and only one "knock" mars his exemplary service: A phony claim that on 14 October 2011, he harassed a female Soldier, SSG T_____, who was joined by her friend SGT W_____ in claiming the applicant engaged in unwelcome physical contact and verbal and nonverbal statements. d. The applicant recently passed a state-of-the-art Axelton computerized lie detector test. It totally vindicates him. (1) While wrestling in scheduled combatives training, he did not make the statement to SGT W______ that he liked the way her body squirmed under him; (2) He did not sniff SSG T_____ and tell her she smelled good; (3) He did not grab SSG T_____ and kiss her on the cheek; and (4) He did not ever make a statement to SGT W_____ that she looked beautiful. e. The AR 15-6 IO failed to interview essential personnel or evaluate evidence evenhandedly. f. The AR 15-6 report moved forward through channels. The legal review is slightly over a half-page of boilerplate; it is singularly unhelpful. Similarly, the Equal Opportunity (EEO) evaluation is pro forma; it fails to analyze the facts and provides nothing useful – e.g., "each incident could not be proven with hard evidence …more likely than not…" Even preliminary analysis would have disclosed written protests of eyewitnesses such as SGT C________, SSG R___, and SSG A____ that they desired to give testimony but had not been interviewed by the AR 15-6 IO. g. Objectively, there is no reliable proof — surely nothing sufficient to terminate the career of an excellent NCO. h. Along with the lie detector results, 12 major proofs demonstrate the unreliability of the claim against the applicant: (1) The AR 15-6 investigation is fatally flowed. The IO, tasked to interview all female members of the unit, ignored her specific instructions. At least nine females assigned to the organization were not interviewed. (2) The AR 15-6 investigation is untrustworthy regarding the most crucial issue; combatives training. Almost a dozen Soldiers were at combatives training on 14 October 2011. The gym was filled with "eyewitnesses" on two wrestling mats having an unimpeded view in a confined space. Everyone was supervised by a captain (CPT), a first sergeant (1SG) instructor, and a 1SG female Soldier. To create a fair report, everyone present should have been interviewed. Yet with more than 10 Army personnel present, the IO interviewed only CPT F______ and Specialist (SPC) R______. A professional investigation would have uncovered numerous eyewitnesses who insisted that nothing irregular happened and there was no harassment. (3) Counsel states that SPC R______, SSG S______ A________, SSG R___, SSG A______, and SGT A____, were all interviewed and none of them saw anything improper going on during the combatives training. (4) Another consideration is SSG T_____'s reaction to the purported harassment. She never protested. It is rational that an experienced female NCO would remained silent and "take it" without resistance when numerous participants could protect her? (5) At least seven other Soldiers were present at the training, including women and the instructor. Not one can be found to support SSG T_____'s phony allegation that she was physically put upon. ` (6) Where is the reliable proof against the applicant? It surely is not found in words such as "likely" – the best the EEO sergeant and the AR 15-6 IO can evoke. (7) The 15-6 investigation is defective – a neutral witness contradicts the claim that the applicant "sniffed" and kissed SSG T_____ on the cheek. Eyewitness SGT C________ directly repudiates SSG T_____'s allegation. (The polygraph corroborates this as well.) No kissing or sniffing happened. (8) The 15-6 investigation is unreliable – The IO failed to discern any motive for a false allegation against the applicant. She then concluded he must be guilty. The IO's report supports its findings by concluding SSG T_____ and SGT W______ had excellent reputations as hard workers and dedicated Soldiers. As the data shows, this was flat wrong. The IO should have inquired more deeply. (9) The 15-6 investigation is untrustworthy – The applicant never flirted with female Soldiers at a Brigade civilian clothes day. The applicant told SGT W______ and SPC R______ how professional they looked. (10) A harasser does not run home to his wife to decide how to respond to charges. The last person a harasser would consult is his wife. That's because a spouse would know her partner’s track record, innocent or guilty. Only a true innocent man would immediately go home to discuss strategy with his wife. (11) A solid performer doesn't suddenly "harass" a woman in front of a room full of people. The applicant is a devoted family man and a proud NCO. There has not been one whisper of misconduct during his career. (12) The 15-6 investigation is unreliable – the IO's extremely severe recommendations against the applicant strongly suggest a preconception against the applicant. Despite reservations that the charges were only "likely" true, the IO recommended extremely strong punishment. Even the Brigade declined to follow the IO's extreme advice. (13) The IO failed to interview numerous female Soldiers in the unit and thus produced a defective document. (14) The commanding officer never acted on SSG T_____'s complaint because the two female Soldiers did not want it pursued. When informed of the allegation, CPT F______'s reaction was significant. He found the complaint dubious because of the applicant's well-regarded reputation and he thought the applicant simply intended to "egg them on" during combatives training, not to intentionally harass anyone. (15) The chain of command had to invent a phony rating chain to give the applicant a less than stellar NCOER. The system deliberately established an artificial chain of command, with someone else writing a negative NCOER. The applicant's "true rater" refused to do this. 11. An undated letter from Personal Investigations, Incorporated reports the results of a polygraph examination given to the applicant on 21 May 2015. The applicant was questioned about the allegations he sniffed SSG T_____ and told her she smelled good, he kissed her on the cheek, and that he made statements to SGT W______ that he liked the way her body squirmed underneath him and that she looked beautiful. He answered no to each question. In the opinion of the examiner the applicant indicated no deception toward the relevant questions. 12. The applicant provides memoranda of support from: a. MAJ J____ L. K____, who states the applicant has served in the 96th Civil Affairs (CA) Battalion for over 2 years and is a rising star in the Special Operations community. He is an incredibly talented, dedicated, and professional NCO who excels in all he does. b. Sergeant Major (SGM) R______ A_______, who states he has known the applicant since the summer of 2010 and he can confirm that he is a Soldier of great integrity and extremely dedicated to his family and committed to live by Army values. c. Chief Warrant Officer Four (CW4) D______ H____, who states she has known the applicant more than 2 years and she has been impressed with his commitment to service and loyalty to any venture he has been involved with. He operated with integrity and never has a bad word to say about anyone. d. Chief Warrant Officer Three (CW3) M______ M____, who states he has known the applicant 3 years. The applicant is a person of very good moral character who operates with integrity and never has a bad word to say about anyone. e. Mr. R______ A. C_____, who states he has known the applicant since July 2010. During staff assistance visits the applicant's action were never anything less than professional. He considers the applicant one of the finest NCO's he has had the chance to work with in his over 30 years associated with the Army. f. Mr. M_____ M. E______, who states he has known the applicant since his arrival in the U.S. Army NATO Brigade Headquarters. He confirms the applicant is a man of great integrity, extremely dedicated to his family and work. He is an exceptional professional both on and off duty. g. SSG A________ R___, who states that he witnessed the applicant tell both SSG T_____ and SGT W______ that they looked professional on civilian clothes day. He never heard the applicant tell them how cute they looked. h. He also states that he never saw the applicant act unprofessional towards either SSG T_____ or SGT W______ during combatives training. If he had been interviewed he would have made these statements. i. SPC Y______ R______, who states that she was with SGT W______ on the Brigade's civilian clothes day. They went to the G-4 where the applicant expressed how professional they looked. At no time did she feel disrespected. During the combatives training, she was the applicant's partner for part to the training. As they rotated partners, she did not notice anything out of the normal between the applicant and either SSG T____ or SGT W_____. She further states that the applicant is a good leader and professional NCO and he was always available to help her. j. SFC R_____ M. C____-H_____, who states she met the applicant in 2008 and he has always been the type of NCO who looked out for the wellbeing of the Soldier. His leadership skills really stand out, everyone who knows him sees him as a true professional and would not question his integrity. She also describes instances in which she noticed SGT W______ possibly mistreating SPC R______ and she counseled SGT W______ for going outside channels to get assistance on a work situation. k. SSG S______ A________, who states she has known the applicant since July 2010. He has always been motivating, encouraging, professional, and a great mentor. l. Mr. E_____ T. W_____, III, who states he has known the applicant for about 2 years. He found the applicant to be a very knowledgeable and professional NCO. 13. The applicant provides his biography in which he describes his military career including his assignments, education, and awards. 14. The applicant's NCOERs prior to and after the RFC NCOER consistently show ratings of "Excellence," "Success, "Among the Best," and "Superior. 15. An Enlisted Rating Scheme as of 16 May 2011 shows the applicant's Rater as CW4 D_______ H____ his Senior Rater as MAJ S______ D______, and his Reviewer as COL S_____ S_____. 16. There is no available evidence showing the applicant requested a Commander's Inquiry regarding the subject NCOER. Likewise, there is no evidence he appealed the contested NCOER through the Army Human Resources Command to the Enlisted Special Review Board. 17. Army Regulation 623-3 (Evaluation Reporting System), prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. a. Paragraph 1-11 (Commander's Inquiry) states that when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The Commander's Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by Headquarters Department of the Army (HQDA), and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. b. Paragraph 2-17 (Review of NCOERs): (1) Every NCOER will be reviewed by the 1SG, command sergeant major, or sergeant major and signed by an official who meets the reviewer requirements of paragraph 2–8b. The reviewer is responsible for rating safeguard overwatch and will ensure that the proper rater and senior rater complete the report and examine the evaluations rendered by the rater and senior rater to ensure they are clear, consistent, and just, in accordance with known facts. Special care will be taken to ensure the specific bullet comments support the appropriate excellence, success, or needs improvement ratings in Part IVb-f. (2) The reviewer will comment only when in disagreement with the rater and/or senior rater. The reviewer indicates concurrence or non-concurrence with rater and/or senior rater by annotating the appropriate box with a typewritten or handwritten “X “ in Part II and adding an enclosure (not to exceed one page). When the reviewer determines that the rater and or senior rater have not evaluated the rated NCO in a clear, consistent or just manner based on known facts, the reviewer’s first responsibility will be to consult with one or both rating officials to determine the basis for the apparent discrepancy. If the rater and/or senior rater acknowledge the discrepancy and revise the NCOER so that the reviewer agrees with the evaluation, the reviewer will check the concur box in Part II. If the rater and/or senior rater fail to acknowledge a discrepancy and indicate that the evaluation is their honest opinion, the reviewer will check the nonconcur box in Part II. The reviewer then will add an enclosure that clarifies the situation and renders his/her opinion regarding the rated NCO’s performance and potential. (3) The reviewer may not direct that the rater and/or senior rater change an evaluation believed to be honest. In cases where neither the rater nor the senior rater is an NCO, the reviewer will get additional informal input from the senior NCO subordinate to the reviewer. The reviewer’s enclosure will be submitted along with the completed DA Form 2166–8 and is limited to one page. The reviewer will notify the rating chain and rated NCO of non-concurrence with the report. This will ensure that the rating chain and the rated NCO are informed of the completed report and may allow for a possible request for a Commander’s Inquiry or appeal if desired. The reviewer’s enclosure will not be used as a third, reworded agreement with evaluations by the rater and senior rater. c. Paragraph 3-2i (Evaluation Report Requirements) states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions. d. Paragraph 3-23 (Unproven Derogatory Information) states that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA. If the rated individual is absolved, comments about the incident will not be included in the evaluation. e. Paragraph 3-39 (Modification to Previously Submitted Reports) states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. f. Paragraph 3-55d (RFC Evaluation Report) states that: The “Relief for Cause” NCOER must specifically indicate who directed the relief of the rated NCO and the rating official directing the relief will clearly explain the reason for the relief in his or her portion of the NCOER. 18. An internet article, dated 5 August 2004, published by the American Psychological Association, entitled "The Truth About Lie Detectors (Aka Polygraph Tests)," reports that: a. "Most psychologists agree that there is little evidence that polygraph tests can accurately detect lies." b. "The accuracy (i.e., validity) of polygraph testing has long been controversial. An underlying problem is theoretical: There is no evidence that any pattern of physiological reactions is unique to deception. An honest person may be nervous when answering truthfully and a dishonest person may be non-anxious. Also, there are few good studies that validate the ability of polygraph procedures to detect deception. As Dr. Saxe and Israeli psychologist Gershon Ben-Shahar (1999) note, "it may, in fact, be impossible to conduct a proper validity study." In real-world situations, it's very difficult to know what the truth is." DISCUSSION AND CONCLUSIONS: 1. While there is no available record showing the appointing authority approved the AR 15-6 investigation, the record shows that authority was also the Reviewer of the RFC NCOER. 2. The available evidence shows the applicant, a senior NCO, was serving in a leadership position and was relieved for cause from his duties as the NCOIC, Deputy Chief of Staff, G-4, U.S. Army NATO Brigade. He provides an incomplete AR 15-6 investigation. The IO found the applicant had engaged in non-verbal conduct of a sexual nature that was directed towards SSG T_____ and had engaged in physical contact of a sexual nature twice with SSG T_____. 3. The applicant provided an "Appeal and Legal Brief" from civilian counsel with the military defender, addressed to "QMP Authorities,” dated 29 May 2015. In the brief, counsel makes reference to witness statements and a legal review pertaining to the AR 15-6 investigation that were not provided as evidence. Counsel also states all females in the unit were not interviewed by the IO. Unfortunately, the complete AR 15-6 investigation is not available for review. 4. The Rater for the RFC NCOER was the applicant's normal senior rater and he indicated in the report that "the rater is the rating official directing the relief of this NCO” and “the rated NCO has been notified of the reason for the relief.” 5. The NCOER reflects the objective judgment of the rating officials during a given rating period. It appears this is how his rating officials judged his performance during the period in question. There is no evidence he requested a Commander's Inquiry or appealed to HRC within the allotted timeframe. There are no statements from individuals familiar with the facts at the time and there are no statements from his rating officials of an error. He has the burden of proof. 6. There is insufficient evidence that shows the contested report contains administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies. Furthermore, the applicant has not shown the evaluation rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time the NCOER was prepared or that they exercised faulty judgment in evaluating him as they did. 7. There is insufficient evidence to support the applicant's request to remove the RFC NCOER from his OMPF. 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 that 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) AR20150000074 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150009778 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1