IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150017368 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: 26 May 2016 DOCKET NUMBER: AR20150017368 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: 26 May 2016 DOCKET NUMBER: AR20150017368 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 DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 4 June 2011 through 23 January 2012 (hereafter referred to as the contested NCOER) from his official military personnel file (OMPF). 2. The applicant states: a. The contested NCOER is an injustice and the Board should expunge it from his OMPF. He received corrective training for the incident and there have not been any new incidents or further misuse of government travel card. b. He received the contested NCOER for misuse of a government travel card. His rating chain completed the report 55 days after the incident even though he already had received counseling for the incident. c. He paid the government travel card in a timely manner. 3. The applicant lists several supporting documents on his application; however, he did not provide any of these documents with his application. 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. After having prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 4 November 1993. 3. Orders Number 352-77 issued by the U.S. Army Human Resources Command (HRC) on 17 December 2004 promoted him to sergeant first class (SFC)/E-7 with a date of rank and effective date of 1 January 2005. 4. He received a General Officer Memorandum of Reprimand (GOMOR) for misuse of his government travel card on 18 January 2012. The GOMOR indicates that, between July 2010 and November 2011, he made $2,578.41 in unauthorized expenditures, spending the money for his personal use for Wal-Mart purchases, hotels, and rental cars. The imposing official stated that despite the applicant's training on the proper use of government travel cards and his agreement not to abuse government travels cards, he nevertheless used his card to make personal purchases, which he paid back, effectively using taxpayers' funds as an interest-free loan. The imposing official states he imposed the reprimand as an administrative measure under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under Article 15, Uniform Code of Military Justice. 5. The contested NCOER covers the rated period of 4 June 2011 through 23 January 2012 and lists his principal duty title as detachment sergeant. His rater was Captain YTR, the commander; his senior rater was Lieutenant Colonel SCR, the battalion commander; and his reviewer was Colonel MTZ, the brigade commander. This NCOER contains the following entries: a. Part IIIf (Counseling Dates) shows he received his initial counseling on 15 June 2011 and subsequent counseling on 8 September 2011 and 16 December 2011. b. In Part IVa (Army Values), the rater placed an "X" in the "No" block for "Integrity: (Does what is right – legally and morally") and entered the bullet comment: "misused government travel card while not on official TDY [temporary duty] orders." c. In Part IVd (Leadership), the rater placed an "X" in the "Success (Meets standard)" block. d. 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. He also entered three positions in which the applicant could best serve the Army at his current or next higher grade: First Sergeant, Battalion Operations Sergeant, and Brigade CBRN NCO. e. In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Successful/3" block. f. 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. g. In Part Ve (Senior Rater Bullet Comments), the senior rater entered the following bullet comments: * do not promote to master sergeant * compromised integrity with the misuse of government travel card * received a GOMOR for the misuse of government travel card * Soldier refused to sign 6. The contested NCOER shows the rater and senior rater authenticated this form by placing their digital signatures in the appropriate places. The reviewer non-concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place. 7. On 18 April 2012, the reviewer submitted statements in support of his non-concurrence with the NCOER. The reviewer stated: a. In Part IVd, the applicant "failed to set the example and exhibit the BE, KNOW, DO attributes." He stated the applicant's performance in this area should reflect "Needs Some Improvement." b. In Part IVf (Responsibility and Accountability), the applicant "was relieved for improper use of government funds.” His performance in this area should reflect "Needs Some Improvement" and not “excellent." c. In Part Va, the reviewer non-concurred with the rater's assessment of overall potential and or service in positions of greater responsibility and stated this rating should reflect "Marginal." d. The reviewer also stated the applicant "should never serve as a First Sergeant." 8. On 10 June 2013, the applicant appealed the contested NCOER. He stated: a. The contested NCOER was untrue and its processing was unjust. b. He never received counseling on 15 June 2011 and 16 December 2011 because he was on TDY at Fort Leonard Wood, MO, and San Antonio, TX, on these dates. c. The contested NCOER violated Department of the Army (DA) Pamphlet 623-3, paragraph 3-6 (Evaluation Reporting System (ERS)), that states that a specific example can be used only one time on the report. d. Members outside his rating chain influenced the contested NCOER and his rating chain failed to sign the contested NCOER within the designated 30-day signature period in accordance with DA Pamphlet 623-3, paragraph 3-8 [sic] 3-9. e. His Commander's Inquiry was also unjust. His chain of command failed to publish or to make the final report available to him in accordance with Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) paragraph 6-4. f. The contested NCOER caused a prejudicial and adverse impact on his career, resulting in a predetermined outcome not suitable for special assignments and promotions that violates fairness and due process. The report has been in his OMPF for one year and it has met its intended purpose based on his selection for the Fiscal Year 2013 Qualitative Management Program and non-selection for the FY13 Master Sergeant Board. g. He requests expungement of the contested NCOER from his record so that he can be competitive for future promotions and positions of greater responsibility. 9. A review of the interactive Personnel Electronic Records Management System (iPERMS) reveals that HRC filed the contested NCOER in the performance section of his OMPF. 10. On 22 August 2013 and 18 December 2014, the Enlisted Special Review Board denied the applicant's request for removal of the contested NCOER from his Army Military Human Resource Record (AMHRR). REFERENCES: 1. Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the ERS. This includes the DA Form 2166-8. a. Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or NCO corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pamphlet 623-3. Consideration will be given to the following: (a) the relative experience of the rated officer or NCO, (b) the efforts made by the rated officer or NCO, and (c) the results that could be reasonably expected given the time and resources available. Potential evaluations will be performance-based assessments of the rated officers or NCO's of the same grade to perform in positions of greater responsibility and/or higher grades. Assessment of potential will apply to all NCO's, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for Headquarters, Department of the Army (HQDA). b. Paragraph 3-2i 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 their achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, HQDA selection boards, and career managers can make intelligent decisions. c. Paragraph 6-3 states that commanders are required to look into alleged errors, injustices, and illegalities in evaluation reports. d. Paragraph 6-4 states the rated Soldier or anyone authorized access to the report can bring it to the attention of the commander. The Commander’s Inquiry is used to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become permanent records. A secondary purpose is to obtain command involvement in clarifying errors or injustices after an evaluation is processed to HQDA. The Commander’s Inquiry can look into inaccurate or untrue statements, lack of objectivity or fairness by rating officials. e. Paragraph 6-11a states the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. The evidence presented must be of a clear and convincing and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 2. DA Pamphlet 623-3 outlines the procedures, tasks, and steps pertaining to the completion of each evaluation report. a. Table 3-1 states the period covered is the period extending from the day after the "THRU" date of the last NCOER to the date of the event causing the NCOER to be written. The rating period is that period within the period covered during which the rated NCO serves in the same position under the same rater who is writing the NCOER. The period covered and the rating period will always end on the same date (the “THRU” date of the NCOER). The beginning date of the rating period may not be the same as the "FROM" date of the NCOER. b. Paragraph 3-6, table 3-4, states the rater will check either "YES" or "NO" in in each of the Army Values blocks. Base each entry on whether or not the rated NCO meets or does not meet the standard for each particular value. Qualitative and substantiated bullet comments are used to explain any area where the rated NCO is particularly strong or needs improvement. Brief definitions of each of the Army Values are on the NCOER, part IV, block a, and in Army Doctrine and Reference Publications (ADRP) 6-22 (Army Leadership) and ADP 6-22 (Army Leadership). c. Paragraph 3-7, table 3-4 states that in items IVb-IVf (Values/NCO Responsibilities) the rater must check one of three blocks. For an "Excellence" block check the NCO must exceed standards by demonstrating by specific examples and measurable results; special and unusual feats achieved by only a few; and that they are clearly better than most others. For a “Success" block check the NCO must meet all standards, and must be fully competitive for schooling and promotion. The "Needs improvement" block is used for NCOs who missed meeting some standard(s). d. Paragraph 3-7, table 3-5, part Vc, states the senior rater evaluates the overall potential by placing one "X" in the appropriate box. The senior rater's box marks are independent of the rater's. There is no specific box mark ratings required of the senior rater based on box marks made by the rater. A "Fair" number "4" rating represents NCOs who may require additional training/observation and should not be promoted at this time. e. Paragraph 3-9 ("Relief for Cause" NCOER instructions), subparagraph e states the date of relief determines the 'THRU" date of the report. "Relief for Cause" reports may be signed at anytime during the closing or following month of the report. 3. Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management) prescribes the policies governing the AMHRR, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Records. Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by various agencies, including the ABCMR. 4. Army Regulation 600-8-104, table 2-1, states an NCOER will be filed in the performance section of the OMPF. 5. Army Regulation 623-205, paragraph 6-4, dated 15 May 2002 (superseded by AR 623-3, 15 May 2006) stated that the primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA. However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record. DISCUSSION: 1. The applicant contends that the contested NCOER is an injustice and the Board should expunge the contested NCOER from his OMPF. 2. The applicant contends he received corrective training for the incident and he paid the government travel card in a timely manner. However, his completion of corrective training and paying back the money does not negate the fact that he wrongfully used his government credit card. 3. The applicant contends his rating chain executed the contested NCOER 55 days after the incident even though he already had received counseling for the incident. a. The GOMOR indicates the applicant made unauthorized expenditures, spending the money for his personal use for Wal-Mart purchases, hotels, and rental cars between July 2010 and November 2011. b. His rating chain executed the contested NCOER for the rated period 4 June 2011 through 23 January 2012, two months following the date of offense. c. His contested NCOER shows he received initial counseling on 15 June 2011 and later received counseling on 8 September 2011 and 16 December 2011. 4. The contested NCOER shows the rater gave the applicant a rating of "No" in Part IVa for ?Integrity? with the negative comment "misused government travel card while not on official TDY orders." The Army value "Integrity" is defined as “doing what is right – legally and morally." 5. The evidence of record does not show that the contested NCOER contains any 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017368 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017368 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2