IN THE CASE OF: BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150012099 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150012099 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. IN THE CASE OF: BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150012099 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 the Relief for Cause Noncommissioned Officer Evaluation Report (NCOER) for the period 22 June 2009 through 13 August 2009 be removed from his Official Military Personnel File (OMPF). 2. The applicant states: a. The NCOER in question lacks the actual documentation to support the findings. b. The NCOER contains unjust, inaccurate, or untrue statements. c. The NCOER lacks objectivity or fairness by the rating officials. d. His rater failed to distinguish between his performance as a military technician with the 336th Military Police (MP) Battalion and his military assignment as Command Sergeant Major (CSM). e. The allegation that he issued false orders to another Soldier is incorrect. The NCOER indicates that he was on a profile as a result of the Army Physical Fitness Test (APFT), which is also incorrect. f. Comments made on the NCOER regarding specific acts or performance fall outside the rating period, which violates Army Regulation 623-3 (Evaluation Reporting System). 3. The applicant provides: * Memorandum for the Commander, U.S. Army Reserve Command (USARC), dated 1 June 2010 * NCOERs with through dates of 21 June 2008, 13 August 2009, and 28 February 2011 * Army Commendation Medal Certificate with Permanent Order 10-289-002, dated 16 October 2010 * U.S. Army Sergeants Major Academy Diploma, dated 20 June 2008 * Meritorious Service Medal Certificate with Permanent Order Number 12-175-001, dated 23 June 2012 * Evaluation Report Result Table * NCOERs with through dates of 14 April 2007, 2 March 2008, and 13 August 2010 * Two Senior System Civilian Evaluation Reports with through dates of 31 October 2011 and 31 October 2012 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. With prior enlisted service in the Regular Army, the applicant enlisted in the U.S. Army Reserve (USAR) for 6 years on 2 January 1990. He remained a member of the USAR through continuous reenlistments and he was appointed to the rank of CSM/E-9, effective 3 March 2008. 3. On 20 May 2008, the applicant was placed on a physical profile (pending approval by the appropriate authority) for chronic low back pain, chronic right elbow pain, and chronic right wrist pain. 4. The applicant was assigned to the 336th MP Battalion on 26 May 2010, performing principle duties as the CSM, when he received a relief for cause NCOER for the period 22 June through 13 August 2009. In Part IV – Army Values/Attributes/Skills/Actions (Rater), Bullet Comments, the rater stated, in part: * dishonored his rank and position and damaged his professional reputation when he orchestrated the issuance of an unauthorized official mobilization order to a Soldier as a hoax * gave false and evasive information when questioned about the mobilization orders given to the Soldier * integrity is highly questionable 5. In Physical Fitness and Military Bearing in the APFT block, the rater indicated the applicant was on a profile on 28 May 2009. The rater stated: * needs much improvement in attitude, appearance, physical toughness, poise, bearing, and authority * did not demonstrate endurance or stamina, constantly disappearing for cigarettes * did not display confidence or portray himself as a CSM 6. In Leadership, the rater stated: * disciplined by battalion commander for misusing his authority to issue false official orders to a Soldier who worked in his AO * displayed immaturity and lack of concern for the emotional well-being of the Soldier [to] whom the unauthorized mobilization order was directed * damaged his ability to lead with display of poor judgment in hoax incident 7. In Training, the rater stated, in part: * an independent, individual performance oriented worker vice a team player * not mission focused as it related to unit's "AT-08 (WAREX)" or in regards to "CTT" 8. In Responsibility and Accountability, the rater stated, in part: * has to be reminded on care and maintenance of USAR Centers equipment/facilities * the rated NCO has been informed of the reason for relief 9. In Part V – Overall Performance and Potential, his senior rater stated, in part: * issued false orders to a Soldier that resulted in not living up to the high standards expected of a battalion CSM and loss of confidence in his ability to effectively lead Soldiers * inability to lead affected unit morale and esprit de corps, did not mobilize for the good of the unit * properly counseled, can become an above average CSM at the battalion level 10. The applicant's rater rated his overall potential for promotion and/or service in positions of greater responsibility as marginal. His senior rater rated his overall performance as fair and his overall potential for promotion and/or service in positions of greater responsibility as poor. 11. On 21 September 2010, the applicant's military occupational specialty (MOS) 00Z50 (CSM) was withdrawn and he was awarded MOS 42A50 (senior human resources operations NCO). He was involuntarily withdrawn from the CSM program. 12. The applicant provides a copy of a self-authored Memorandum for the Commander, USARC, dated 1 June 2010, in which he requested a Commander's Inquiry, into the relief for cause NCOER that he received on 26 May 2010. He provides copies of all of the annual NCOERs he received for the periods between 1 July 2006 and 28 February 2011. He also provides two Senior System Civilian Evaluation Reports for the periods 1 November 2010 through 31 October 2011 and 1 November 2011 through 31 October 2012. All of these reports show he was rated as excellent and successful. REFERENCES: Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 1-11 states when it is brought to the attention of a commander that a report rendered by one of their subordinates or subordinate commands 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 3-36 states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and represent the considered opinions and objective judgment of the rating officials at the time of preparation. c. Paragraph 4-11 states the burden of proof in an appeal of an NCOER rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. DISCUSSION: 1. The applicant's contentions have been noted. His supporting evidence has been considered. 2. The relief for cause NCOER does not state that he was on a profile as a result of an APFT. In the APFT block on his NCOER it states that he was on a profile effective 28 May 2009. The evidence of record shows that on 20 May 2008 he was placed on a physical profile for chronic low back pain; chronic right elbow pain; and chronic right wrist pain. The rater stated he needed much improvement in attitude, appearance, physical toughness, poise, bearing and authority; he did not demonstrate endurance or stamina, constantly disappearing for cigarettes; and he did not display confidence or portray himself as a CSM. Other than his own statement, there is no documentary evidence that contradicts the statements regarding issuing false orders on the NCOER in question. 3. The evidence does not demonstrate that the information contained in the relief for cause NCOER is erroneous, untrue, or unjust. According to the applicable regulation, an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012099 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012099 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2