IN THE CASE OF: BOARD DATE: 19 January 2016 DOCKET NUMBER: AR20150017278 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 deletion of the "NO" entry in Part IV(a)(2) (Army Values/Attributes/Skills/Actions-Duty) of his Noncommissioned Officer Evaluation Report (NCOER) for the rating period 20081201-20091031. 2. The applicant states: * he knows that by regulation, he had 3 years to appeal this contested NCOER; it is now too old to appeal but still contains a substantive error * he did not appeal this NCOER because he did not realize it would affect his military career * he was considered by the Qualitative Management Program (QMP) but recommended for retention * the incident that led to the "No" entry on his NCOER was never investigated and should not have been mentioned on this evaluation * he was never charged with driving while impaired (DWI) or any other crime; he was never assigned to an Army Substance Abuse Program * he was pulled over in Germany and given a breathalyzer test; the test indicated he was within the legal blood alcohol range * he was released and never received a citation or a charge, or even counseling * a report of this routine stop went to his commander and the incident was mentioned on the NCOER, without an investigation * by regulation, reference is made to investigations that had been processed to completion * the intent of the regulation is to prevent unverified derogatory informing from being permanently filed * his situation fits the intent of the regulation in that unverified information exists in his file and is causing him harm 3. The applicant provides the contested NCOER, a letter from his commander, and a QMP letter. 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. The applicant's records show he enlisted in the Regular Army on 11 June 2001. He was trained in and holds military occupational specialty 11B (Infantryman). 3. He served through multiple reenlistments in a variety of stateside or overseas assignments and he was promoted to staff sergeant (SSG)/E-6 on 1 December 2008. At the time of his incident, he was assigned to B Company, 1st Battalion, 6th Infantry, Germany. 4. A copy of the redacted U.S. Army Criminal Investigation Command (CID) and Military Police investigation was requested and was received on 23 November 2015. a. A DA Form 3975 (Military Police Report) listing the offense as "Driving while Impaired, alcohol" states an investigation revealed German Police observed the applicant operating a vehicle at a location and initiated a routine traffic stop, made contact with the applicant, and detected the odor of an unknown alcoholic beverage emitting from his person/breath. German Police administered him a breathalyzer with a result of .65 per mille BRAC. Germany Police transported him to the police station where a blood sample was taken at 0655 hours. He was released to military police at 0745 hours and transported to the provost martial office in Vogelweh. Upon arrival, he was administered a breath alcohol analysis at 0824 with a result of .33 per Mille BRAC. He was advised of his legal rights which he invoked declining to make a statement. He was further processed and released to his unit (B Company, 2nd Battalion, 18th Infantry). An additional comment reads, on 23 November 20009, this office received the results of the blood alcohol test that was conducted by Germany Police which revealed a blood alcohol level of .52 per Mille. b. DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action). Section 10(a) (Commander’s Remarks) reads “Soldier no longer assigned to the unit, no action taken.” 5. During November 2009, he received the contested NCOER, a Relief for Cause NCOER, covering 11 months of rated months for his duties as Squad Leader. His rater was SSG JES, the platoon sergeant; his senior rater was First Lieutenant BDP, the platoon leader; and his reviewer was Captain (CPT) OWK, the company commander. This NCOER shows in: a. Part I(g) (Administrative Data-Reason for Submission) the entry "05, Relief for Cause." b. Part IVa (Army Values), the rater placed an "X" in "No" block for "Duty" and he entered bullet comments, that included "did not fulfill his obligations as an NCO; charged with driving while impaired." c. Part IVb (Competence), Part IVc (Physical Fitness and Military Bearing), Part IVe (Training), and Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Excellence" blocks and entered corresponding bullet comments. d. In Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comment: "did not set the example for subordinates regarding behavior while off duty; charged with driving while impaired." e. In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Fully Capable" block. f. In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Successful/3" block and 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 "Superior/1" block. g. In Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * promote behind peers * send to Basic NCO Course if slots are available * NCO had a serious lapse of judgment; continued excellent performer after incident * has definite potential to reassume leadership positions 6. The NCOER shows the rater, senior rater, and applicant 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. 7. The applicant was transferred to the 3rd Battalion, 4th Infantry, and upon return from Germany, he was assigned to the 1st Battalion, 5th Infantry, 198th Infantry Training Brigade at Fort Benning, GA. He remains assigned there as a drill sergeant. 8. There is no indication he requested a Commander's Inquiry or appealed the contested NCOER to the Army Special Review Board within the allotted time prescribed in Army Regulation (AR) 600-3 (Evaluation Reporting System). 9. He was considered by the QMP Selection Board for separation but he was recommended for retention on active duty. 10. He provides a statement, dated 18 May 2015, from his former company commander who was also his reviewer at the time. The former company commander states: a. He served as the applicant's company commander in B Company, 2nd Battalion, 18th Infantry in the summer and fall of 2009 in Baumholder, Germany. During this time, [Applicant] received a relief for cause NCOER on 3 November 2009, due to an incident that made the local blotter report. He wants to provide some context into this event that is not reflected in the content of this particular NCOER, and to clarify a significant error in the wording on his NCOER. Even six years later, he clearly remembers the applicant as one of his best squad leaders; he had earned the respect of the entire company as a proficient, reliable NCO during the company's recent deployment to Iraq, and continued to demonstrate exceptional leadership in the subsequent months as we underwent reset. He frequently sought out opportunities to lead training events and cover leadership vacancies resulting from their high permanent change of station rate, and he knows that his platoon leadership relied heavily on him to accomplish the myriad demands of reset that were exacerbated by minimal manning. In short, he was a competent, capable leader who shouldered more than his share of the workload. b. A few months into his tenure as commander, [Applicant] was pulled over by German police, given a breathalyzer test, and subsequently released. Since the German police did not file any charges against him, he chose not to press Uniform Code of Military Justice (UCMJ) charges or pursue any administrative actions against the applicant because he felt that none were warranted. Neither German law nor the UCMJ had been violated, but the incident still made the Military Police (MP) blotter report and attracted attention from the battalion commander. Blocks IV(a) and IV(d) state that he was charged with "driving while impaired," which is an error that he unfortunately did not catch at the time of signing. [Applicant] was never charged by the German authorities with driving while intoxicated, DUI, or any similar alcohol-related driving infraction; his breathalyzer results were merely reported to the MP for local command action/information. The relief for cause was directed by his battalion command team, and his (the company commander's) vehement protests against it were overruled. Ultimately, he was forced to sign an NCOER that did not reflect the applicant's true character and contributions to the company. c. Some context and insight into the command climate of the 170th Infantry Brigade Combat Team (IBCT) at this time may help explain the knee-jerk decision of his battalion command team. During the redeployment of 2-1 Armor Division (subsequently reflagged to 170th IBCT) only a few months prior to the applicant's incident, five Soldiers from the Brigade Support Battalion were involved in a car accident off- post that killed three and landed one in prison. All had alcohol in their systems at the time of the accident. He (the commander) served as the line-of-duty investigating officer for that case, and from his interactions with staff at Corps- and Theater Army-level, he can tell the Board that the subsequent scrutiny on the brigade and its methods of controlling alcohol-related incidents as a result of this tragic accident was intense. This scrutiny was compounded with the usual epidemic of post-deployment alcohol-related incidents across the brigade to create a zero-defects policy on alcohol incidents. The MP blotter became the yard stick by which incidents were measured in 2-18th Infantry, irrespective of the merits of each individual case. What is truly unfortunate is that [Applicant] became a victim of this culture for actions that did not violate the law or the UCMJ. d. He has been privileged to command two companies for a combined time of 28 months. In that time, he has executed innumerable Article 15s, administrative separations, and relief for cause for a host of criminal behavior, poor performance, and bad judgement. [Applicant's] is the anomaly; the case that should have never been. He deeply regrets not protesting harder against his battalion commander's decision to relieve the applicant. But most of all, he is anguished that such a top-notch NCO's career has been jeopardized over such unfair and undeserved treatment he played a part in, albeit a reluctant one, as the senior rater. He understands that the Army is downsizing and that QMP is a necessary part of that process. But in considering the future of the applicant's career, he asks the Board to put the incident he described into its proper context, and judge his potential for continued Army service on the entirety of his career performance and not solely on the incident described above. 11. The applicant was provided with the redacted CID report to give him an opportunity to submit comments. He did so on 6 January 2016 and stated: a. He was never cited by the German Police or the Military Police concerning this offense. However there was administrative punishment from his chain of command which included the request for his license to be suspended for 90 days and a flag from all favorable actions (schools and awards). He also received a Relief For Cause NCOER with a "No" block for the Duty value involving this incident. All these things were done in conjunction to the incident itself without an investigation or final police report that confirmed a crime on his behalf. The incident happened on 17 October 2009, he was given a Relief for Cause NCOER on 2 November 2009, and the final police report was completed on 23 November 2009. There was no additional support from his battalion chain of command other than to make sure that he would not progress professionally after the incident. The punishment was imposed at the battalion level by his leaders at that time. This information has been supported by his former company commander at the time. b. The DA Form 4833 also shows that there were no actions taken concerning this incident through seven pages of options, which includes actions to refer him to a drug/alcohol abuse program, adverse performance evaluation, relief for cause NCOER, mandatory reassignment and rehabilitative transfer. These are just a few applications that support this matter, but none were issued or issued properly, being that he still received some things, but aren't supported nor included on the DA Form 4833. This being an alcohol-related incident, he would personally support recommending a Drug Abuse Program to help the Soldier if he were his/her leader. He never attended any regarding this situation, but he would have implemented this action as tool to ensure his Soldiers' safety for the future. Other decisions would have been made along with supporting documents and evidence showing his guilt. After these things were done properly, one has no choice, but to take ownership for their actions. Our justice system has practiced this belief for hundreds of years and he accepted his fate in this matter without very little fairness shown on his behalf. c. He knows the type of Soldier and person he is; that he would face the adversity and continue to do great things despite not knowing his options to appeal the disciplinary actions at the time. He asked to be completely moved from the battalion he was in because he felt his situation wasn't handled properly. In the same year, he graduated from the Advanced Leadership Course, earned his Expert Infantryman's Badge and the German Marksmanship Badge, and he was selected to attend Drill Sergeant School en route to his new duty station. He has done many notable things since this incident that increased his chances for promotion; however, the NCOER has plagued his career since and resulted in being considered for QMP. He was retained by the Army and allowed to reenlist and further his military career of nearly 15 years. d. In closing, he asks that the Board looks at the facts listed inside the police report, the things said by his company commander, the punishments taken outside of the regulations that support it, and also the body of work that's been established throughout his career since the incident. He believes that he should be promoted to sergeant first class and finish the remainder of his military career with the chance to serve free of the stigma from those who are quick to pass judgement or possess the lack of concern to lead their Soldiers through their issues or mentor them through their success and failures. He has accomplished great things and lead great Soldiers throughout his career because he cares and he also knows how it feels to have those who don't. 12. AR 623-3 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 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 3-2i (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. c. 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. d. Paragraph 3-24 (Prohibited Comments) states a thorough evaluation of the Soldier is required. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant received a Relief for Cause NCOER for the rating period 20081201 through 20091031. This NCOER contains derogatory information based on an incident that was investigated and confirmed by CID. 2. According to the CID Report: a. The DA Form 3975 lists the offense as "Driving while Impaired, alcohol" and states an investigation revealed German Police observed the applicant operating a vehicle at a location and initiated a routine traffic stop, made contact with the applicant, and detected the odor of an unknown alcoholic beverage emitting from his person/breath. German Police administered him a breathalyzer with a result of .65 per mille BRAC. Germany Police transported him to the police station where a blood ample was taken at 0655 hours. b. He was released to military police at 0745 hours and transported to the provost martial office in Vogelweh. Upon arrival, he was administered a breath alcohol analysis at 0824 with a result of .33 per Mille BRAC. He was advised of his legal rights which he invoked declining to make a statement. He was further processed and released to his unit (B Company, 2nd Battalion, 18th Infantry). An additional comment reads, on 23 November 20009, this office received the results of the blood alcohol test that was conducted by Germany Police which revealed a blood alcohol level of .52 per Mille. 3. According to the applicant's company commander, he was pulled over by German police, given a breathalyzer test, and subsequently released. The German police did not file any charges against the applicant and the commander chose not to press UCMJ action or pursue any administrative actions against the applicant because he felt that none were warranted. Neither German law nor the UCMJ had been violated, but the incident still made the MP blotter report and attracted attention from the battalion commander. 4. Despite the fact that neither German law nor the UCMJ had been violated, for unknown reasons, the applicant's platoon sergeant/rater, platoon leader/senior rater, and company commander/reviewer all signed his NCOER indicating that he had been charged with "driving while impaired." The result was that the applicant was relieved, received a "No" under the "Duty" value, and received a "Needs Improvement" rating under the "Leadership" NCO responsibility. 5. This appears to be an error that the reviewer, who now renders a statement, did not catch at the time of signing. The applicant was not charged by the German authorities with driving while intoxicated, DUI, or any similar alcohol-related driving infraction. His breathalyzer results were merely reported to the MP for local command action/information. The relief for cause was directed by his battalion command team, and his (the company commander's) protests against it were overruled. 6. Although this appears to be retrospective thinking by the reviewer, and although this NCOER seems administratively correct, it appears to contain a substantive inaccuracy. The applicant should not be penalized for his chain of command's failure: * the contested NCOER should not have been a Relief for Cause, rather a Change of Rater report * the applicant should not have received a "No" in the Duty value and/or the comment "did not fulfill his obligations as an NCO; charged with driving while impaired" * the applicant should not have received a "Needs Improvement (Some)" in the Leadership NCO responsibility or the bullet comment "did not set the example for subordinates regarding behavior while off duty; charged with driving while impaired" BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____x___ ____x___ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the NCO Evaluation Report for the rating period 20081201 through 20091031 as follows: * Part I(g), delete the entry "05/Relief for Cause" and add the entry "03/Change of Rater" * Part IV(a)(2), delete the "X" in the "No" block and add an "X" in the "Yes" block and delete the bullet comment "did not fulfill his obligations as an NCO; charged with driving while impaired" * Part IV(d), delete the "X" in the "Needs Improvement (Some)" and add an "X" in the "Success" block and delete the bullet comment "did not set the example for subordinates regarding behavior while off duty; charged with driving while impaired" 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removing the entire NCO Evaluation Report for the rating period 20081201 through 20091031 from his records. _______ _ __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) AR20150017278 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150017278 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1