BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150017638 BOARD VOTE: ____x_____ ___x____ ___x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150017638 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from his Official Military Personnel File his NCOER for the period ending 1 March 2012. ___________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. BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150017638 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, in effect, the removal of negative marks on his noncommissioned officer evaluation report (NCOER) for the period 26 August 2011 through 1 March 2012 (hereafter referred to as the contested NCOER). 2. The applicant states: a. He believes his military record, consisting of a bad NCOER, was given to him to prove the power and arrogance of his former battalion commander. b. Letters from a Judge Advocate General's (JAG) Corps officer and the Commanding General, sworn statements, and his bank’s apology letters, along with character references, should begin to paint a picture of the truth. c. He received a bad NCOER that the Qualitative Management Program (QMP) Board is using to try to force him out of the Army on 1 September 2016. He would like to stay in the Army to complete his goals of being an awesome first sergeant (1SG) and mentoring the next wave of leaders. d. His former battalion commander wanted to make an example out of someone who was not using the government travel card (GTC) correctly and he was the new guy. Without understanding what happened, he used him as a lab rat as a sign to other Soldiers. e. In the past 20 years, he has no history of bad behavior, wrong doing, or punitive actions. 3. The applicant provides: * NCOERs * self-authored statement, dated 27 January 2015 * memorandum, issued by the U.S. Army Human Resources Command (HRC), subject: Notification of Denial of Continued Active Duty Service under the QMP, dated 13 April 2015 * Wells Fargo Bank apology letter, dated 22 April 2015 * JAG letter of support, dated 15 May 2015 * Brigadier General K____'s recommendation for approval of his QMP appeal, undated * three character reference letters * memorandum, issued by HRC, subject: Appeal of the QMP Decision and Retention of Active Duty of [applicant], undated CONSIDERATION OF EVIDENCE: 1. The applicant has prior service in the Regular Army (RA) from 4 October 1995 to 30 June 2002, when he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 years, 8 months and 27 days of net active service. 2. Orders R-06-373668, issued by the USAR Personnel Command, dated 16 June 2003, show he was ordered to active duty on 23 June 2003, in an Active Guard Reserve (AGR) status. 3. Orders R-12-789067, issued by HRC on 17 December 2007, show the applicant was released from active duty and discharged for the purpose of reenlistment in the USAR and was ordered to active duty in the AGR with an effective date of 30 March 2008. 5. The applicant’s contested NCOER shows he was assigned to the U.S. Army Recruiting Battalion Atlanta, Atlanta, GA. 6. The applicant’s contested NCOER shows his rater was the first sergeant (1SG), his senior rater was a captain (CPT) (the Company Commander), and the reviewer was a lieutenant colonel (LTC) (the Battalion Commander). The report was electronically signed by the rater, senior rater, and reviewer on 6 March 2012, 8 March 2012, and 13 March 2012, respectively. The applicant signed the document on 13 March 2012. 7. The contested NCOER shows the applicant received a negative rating and comments by his rater and senior rater as follows: a. Part IVa6 (Army Values/Attributes/Skills/Actions) – a "No" rating for “Integrity: Does what is right – legally and morally.” a. Part IVf (Responsibility and Accountability) – a “Needs Improvement” rating with a negative supporting comment of "misused Government credit card.” b. Part Vc (Senior Rater) – overall performance as “3” (Successful). c. Part Vd (Senior Rater ) – overall potential for promotion and/or service in positions of greater responsibility as "3" (Superior). 8. The senior rater entered supporting bullet comments of "continue to groom for promotion to Master Sergeant," "continue to groom for advanced schooling," "assign to positions that will challenge this Sergeant First Class," and "motivated Sergeant First Class.” 9. There is no documentation in the applicant’s record to show he appealed his contested NCOER. 10. On 13 April 2015, the U.S Army Human Resources Command (HRC), notified the applicant that the QMP Selection Board conducted a comprehensive review of his record and recommended that he be denied continued active duty service. 11. The applicant appealed the QMP Board’s decision and provided the following letters: a. A self-authored letter by the applicant to the President of the QMP Board, dated 27 January 2015, statesthe details of the events in question regarding the Government Travel Card (GTC). In pertinent part, his former chain of command told him to use the GTC for his PCS move for food, hotel, and gas, which he did. However, when he paid his GTC via a check, Wells Fargo did not authorize the check to go through since the applicant’s address was different from his current address. Wells Fargo presumed it was a fraudulent charge. When the applicant was notified of the issues, the checks were released and paid, but not before his new command was told that his GTC was not being paid. Wells Fargo submitted a letter in his defense stating that, essentially, it was through no fault of the member; however, he still received a negative NCOER. b. A letter from Wells Fargo, dated 22 April 2015, states, “between 12 October 2011 and 16 November 2011, these drafts were returned unpaid because we observed that the address on the items did not match bank records…Therefore, as a precautionary measures, the decision was made to return the drafts unpaid to protect your account from potential fraud. We would like to assure you that these drafts were not returned unpaid due to insufficient funds or an adverse account status. We were subsequently made aware that the drafts were legitimate; therefore, we have enclosed a merchant letter for you to copy for your files and forward, at your discretion, to the affected payee.” c. A memorandum, issued by Brigadier General C_______ R. K_____, Headquarters, 335th Signal Command, East Point, GA subject: Appeal of Notification of Denial of Continued Active Duty Service under the QMP for [applicant], stated, “After reviewing [applicant’s] submitted evidence to appeal the notification of denial of continued active duty service under the QMP, recommend approval of his appeal.” d. A memorandum, issued by Headquarters, 326th Chemical Company, Huntsville, AL, signed by the applicant’s company 1SG, dated 5 May 2015, states, “…I have entrusted him with nearly all of the sensitive/secret operations of my company and he has never let me down. [Applicant] is the main front-runner of the company in many areas. I always depend on his expertise and draw from him constantly. I have personally trusted [applicant] with my Defense Travel System (DTS) account which contains my bank account/routing numbers and government credit card information as well as every Soldier in my company.” e. A memorandum, issued by Headquarters, 490th Chemical Biological Radiological nuclear Battalion, Anniston, AL, dated 8 May 2015, supports the applicant’s character, integrity, intelligence, fortitude, and professionalism. It states his company leadership, as well as his peers, confirms his exceptional qualities as a leader, trainer, and motivator. f. a memorandum, issued by 326th CBRN Command, Huntsville AL, subject: Character Statement for [applicant], dated 14 May 2015, states, “I have been made aware of the QMP process [applicant] is undergoing as a result of [GTC] mismanagement that has been adversely documented on an NCOER. [Applicant] has handled all DTS and GTC application transactions within the company during my time here within the last year. His position in the processing of all GTC applications and DTS makes him very knowledgeable in the standing operating procedures. Based on his involvement and handling of 326th CBRN Command GTC handing and my time limited here within the last year, the allegations made against [applicant] appear to be out of character…a mismanagement attributed to Wells Fargo’s negligence based on the evidence provided by Wells Fargo. I believed that the NCOER documenting this action should be overturned.” g. A memorandum from the Office of the Staff Judge Advocate, Redstone Arsenal, AL, dated 15 May 2015, states the applicant should be retained on active duty because the payments on his GTC were made; however, Wells Fargo never notified him of the fraud alert on his account. The applicant did not misuse his GTC and his integrity was not compromised. Appeals are limited to newly discovered evidence. Since the QMP Board met, Wells Fargo has provided correspondence to explain the error. If the applicant had been able to get Wells Fargo’s cooperation in 2012, the senior rater would not have been justified in checking “No” under the integrity block of the applicant’s NCOER, which might have prevented his QMP. 12. In a letter from HRC to the applicant, undated, his QMP appeal was denied based on the absence of a material error. They stated he did not meet the criteria set by the Army Regulation 600-8-19 (Enlisted Promotions and Reductions) to approve his appeal. 13. The applicant’s DD Form 214 for the period ending on 31 August 2016, shows he was placed on the Retired List due to sufficient service for retirement. REFERENCES: 1. Army Regulation 623-3 (Personnel Evaluation – Evaluation Reporting System) at that time, prescribes the policies and tasks for the Army’s Evaluation Reporting Systems. The information provided on the NCOER combined with the Army’s needs and individual leader qualifications, is used as a basis for personnel actions. Included are: promotion; elimination; retention in grade; retention on active duty; reduction in force; command selection; school selection; assignment; specialty designation; regular Army (RA) and Joint integration. To ensure that sound personnel management decisions can be made and that a leader’s potential can be fully developed, evaluation reports must be accurate and complete. Each report must be a comprehensive appraisal of a Soldier’s abilities, weaknesses, and potential. Reports that are either incomplete or fail to provide a realistic and objective evaluation make it difficult to determine a Soldier’s true potential. a. Paragraph 1-9 provides that 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 (Evaluation Reporting System). b. Paragraph 1-11 provides that when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or by a member of 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 policies and procedures established by Headquarters, Department of the Army (HQDA) and the conduct of the rated Soldier and members of the rating chain. c. Paragraph 2-17 provides that every NCOER will be reviewed by the company first sergeant, battalion command sergeant major, or sergeant major, and will be signed by an official who meets the reviewer requirements of paragraph 2–8b. The reviewer is responsible for providing safeguard over watch 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 IV b-f. d. Paragraph 3-39 provides that an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. e. Chapter 6 defines the Evaluation Redress Program and provides guidance regarding redress programs, including commanders' inquiries and appeals. f. Paragraph 6-8 states substantive appeals will be submitted within 3 years of an NCOER through date. Failure to submit an appeal within this time period will require the applicant to submit his or her appeal to the Army Board for Corrections of Military Records (ABCMR). g. Paragraph 6-11a provides that 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. 2. Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the official military personnel file (OMPF), it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management (AMHRR)) governs the composition of the OMPF and provides that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 4. Several Military Personnel (MILPER) messages have been published providing guidance and procedures in support of the QMP. The purpose of the QMP board is to identify selected NCOs for possible involuntary separation; specifically, a "No" in the Army values on an NCOER. a. Soldiers selected by the QMP for denial of retention on active duty must exercise an option (appeal, accept, retire, etc.). b. Soldiers may appeal on the basis of a material error in their records when reviewed by the board; the chain of command, all the way to a general officer, must recommend approval or disapproval. c. Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge; the Director of Military Personnel Management (DMPM) is the final authority for the disposition of appeals. DISCUSSION: 1. The applicant contends that the negative marks on his contested NCOER for the period ending on 1 March 2012 should be removed based on the fact that the error of non-payment to his GTC was not his fault but his bank’s. He also maintains that the contested NCOER was rendered by his commander to make an example of him, and his decision was not based on all of the supporting facts regarding the timely payment of his GTC. 2. There is no documentation in the applicant’s record showing he appealed his contested NCOER with the 3-year time period. 3. Evidence shows the applicant was selected for involuntary separation after a QMP board convened in 2015. The purpose of the QMP board is to identify selected NCOs for possible involuntary separation, specifically, those with a "No" in the Army values on an NCOER. Evidence shows the applicant received a "No" on his NCOER for "Integrity" and a “Needs Improvement” for "Responsibility and Accountability," with the statement “misused Government credit card.” 4. The applicant appealed the QMP Board’s decision by submitting supporting documentation showing that his use of the GTC was authorized and that the non-payment of his GTC was through no fault of his own. There is no evidence he received punishment for acts of indiscipline during his service. 5. The applicant provided third party statements that speak highly of him, his performance, and his integrity. The statements recognize him as a professional NCO and good Soldier, including a statement by the SJA that confirm that the charges he made were authorized and the GTC was used in accordance with the regulation. 6. Furthermore, Wells Fargo Bank substantiated the applicant’s claim that the error was not his, but a precautionary measure to prevent fraud and the funds were released. 7. The governing regulation states to justify deletion or amendment of an evaluation report, the applicant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the evaluation report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017638 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017638 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2