BOARD DATE: 24 March 2016 DOCKET NUMBER: AR20160002872 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 BOARD DATE: 24 March 2016 DOCKET NUMBER: AR20160002872 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. Enclosure 1 BOARD DATE: 24 March 2016 DOCKET NUMBER: AR20160002872 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 removal of a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rated period 1 February 2012 through 31 January 2013 (hereafter referred to as the contested NCOER) from his Official Military Personnel Record (OMPF). 2. The applicant states: a. The contested NCOER contains false information, accusations that are unjust and unfounded. He has a signed memorandum for record (MFR) from the then senior rater for the contested NCOER redacting the statement. He gained support from the senior rater to write an MFR redacting the negative information portrayed in the NCOER only after he sent him an email explaining that he was being considered for the Qualitative Management Program (QMP) Board. b. Once he received the MFR, he compiled the rest of the documentation for his appeal and sent it to the U.S. Army Human Resources Command (HRC) Enlisted Special Review Board (ESRB) on 28 January 2016. While he made every attempt to make the 3-year appeal deadline, he received an email on 3 February 2016 stating HRC did not have enough time to process the request and he must submit his application to the Army Board for Correction of Military Records (ABCMR). He has made efforts over the past 3 years to obtain proof of his innocence; however, it came very late. 3. The applicant provides: * the contested NCOER * NCOER for the period from 1 February through 1 May 2013 * MFR, dated 6 September 2012 * DA Form 4856 (Developmental Counseling Form) * two self-authored statements, dated 7 September 2012 * DA Form 2823 (Sworn Statement), dated 23 September 2012 * four pages of email, dated between 24 October 2012 and 3 February 2016 * two statements of support to HRC, dated 26 January 2016 * two self-authored memoranda to HRC, dated 28 January 2016 * five self-authored pages to his Representative in Congress, undated * page 1 of DA Form 638 (Recommendation for Award), undated 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. Having had prior active service, the applicant enlisted in the Regular Army on 1 June 2004. He attained the rank/grade of staff sergeant (SSG)/E-6 on 1 January 2011 and he holds military occupational specialty (MOS) 35M (Human Intelligence (HUMINT) Collector). He is currently serving on active duty. 3. He was assigned to Company C, 502nd Military Intelligence (MI) Battalion, Joint Base Lewis McChord (JBLM), WA. In or around May 2012, he deployed to Afghanistan with his assigned unit in support of Operation Enduring Freedom (OEF) and was assigned to the Kandahar Field Detention Site (KFDS), Kandahar Airfield. 4. The applicant provides a DA Form 4856, dated 7 September 2012, wherein it shows he was counseled on that date by Sergeant First Class (SFC) GS. This counseling stated, in part: a. Purpose of Counseling - On 8 August 2012, the applicant displayed blatant disrespect towards a senior NCO. He displayed a condescending attitude during an interrogation debriefing when confronted with deficiencies and trouble areas concerning one of his interrogations. He (SFC GS) had to instruct him several times to stop arguing and speaking over him and follow his guidance. The applicant made the disrespectful comment "that doesn’t make any sense" when told interrogations took priority over event-writing. He claimed not to have time to conduct an interrogation because he had Intelligence Information Reports (IIRs) to correct. He told a senior interrogator that one of his (the applicant’s) Soldiers would not work because he was giving him the day off. He specifically stated he would not follow instructions even if it meant he would receive an Article 15. b. Key Points of Discussion - As stated in his initial counseling, his team was under operational control (OPCON) to the KFDS and was required to follow the schedule the NCO in charge (NCOIC) and OIC set for interrogation operations. The applicant's Soldier was scheduled for interrogations on the night of 3 September 2012. The applicant stated "My Soldier will not come into work even if it means I get an Article 15." He also stated he did not understand why he had to answer to Mr. S or SFC GS because he was OPCON to his own Operational Management Team (OMT) and not KFDS leadership. It was his team and he should be able to dictate their day off schedule. c. Plan of Action - For a pattern of blatant disrespect to a senior NCOIC, SFC GS was recommending the applicant receive a company grade Article 15. Even after verbal counseling, he continued to act in a way which did not represent the Army values, or good order and discipline. He recommended the applicant seek anger control/management to address his emotional feeling of being attacked when receiving blunt criticism. He should understand that professional guidance, although somewhat harsh at times, was necessary in order for him to grow as a professional Soldier. He suspected the applicant would be removed from KFDS in order to reset and retrain. If that was the case, he should take the time to reflect on the importance of rank structure within an Army organization. He should stay motivated and focus his energy in a positive direction. He needed to start consolidating the items on his hand receipt so they could be laterally transferred to the appropriate entity. e. The applicant and SFC GS signed the DA Form 4856 on 7 September 2012. The applicant checked the block of the form to indicate he disagreed with the information on the form but initialed the statement that the counseling did cover the key points and he understood the plan of action. 5. The applicant provides an MFR, dated 6 September 2012, subject: Continuation to [Applicant’s] Event Oriented Counseling, signed by SFC GS. SFC GS stated, in part: a. Respect of superiors by virtue of grade and position is of utmost importance to Army units. As soon as the applicant stated "Doug will not work tonight. I don’t care if I get an Article 15," he was proudly disregarding the instructions of his NCOIC. He raised the tone of his voice and snickered while he (SFC GS) explained a SSG should respect a SFC. He did not find his demeanor, disrespect, and attitude humorous. He (the applicant) informed KFDS leadership he did not have to listen to them because they had no control over his Soldier. He was instructed to stop talking numerous times; however, he chose to continue arguing in a loud and demeaning tone. b. Controlling his anger, military tact, and professionalism were key traits of a solid Army leader. The applicant should not think he could disgrace the uniform in the name of one of his troops. He did not get to put his foot down when speaking to his superiors and did not get to voice his anger or opinion in a disrespectful manner, regardless of the situation. 6. In a self-authored statement, dated 7 September 2012, the applicant stated, in part: a. The first event the counseling referred to happened in the manner described. He failed to properly receive criticism regarding the manner in which he conducted interrogations. SFC GS did have to raise his voice in order to get his point across and was correct in his assessment of his (the applicant’s) attitude. He later apologized to SFC GS for his behavior and never again treated him in a condescending manner. b. The manner in which the counseling stated "that doesn’t make sense" was taken out of context. The conversation began when SFC GS wrote his (the applicant’s) name on the board to conduct an interrogation. He stated he had a lot of work to complete and would not be able to conduct the interrogation that evening and explained he had six IIRs from Specialist (SPC) P that needed to be corrected that night so SPC P could make the final corrections the following day. SFC GS stated IIRs needed to be completed on his own time and not KFDS time and he replied "that doesn’t make sense" meaning he did not understand why SFC GS felt that way. SFC GS replied that was how it was going to be and walked off. c. He did not make the statement that he was OPCON to his OMT and therefore not accountable to KFDS. The counseling takes out of context his statement about not answering to Mr. S and SFC GS. As the lead for the military source operation (MSO) mission, SPC P was to receive a brief from the previous MSO lead and the applicant had been led to believe conducting the MSO mission must be completed. He had appointed SPC P as lead MSO on 31 August 2012 and he informed SFC GS the same day. d. When he noticed SFC GS scheduling SPC P for interrogations on 3 September 2012, he reminded SFC GS that SPC P was the lead on the MSO mission and could not work that night. He also informed SFC GS that 3 September was the day he had given SPC P off and he needed the time off. SFC GS was unwilling to give him the time off and then he (the applicant) stated "even if it means I will receive an Article 15 SPC P will not be coming in." After a break in the conversation, SFC GS came in the room and stated SPC P was working that evening and to go get him now. He explained he was willing to run the matter up to the S-2 if there was a question about the legitimacy of the MSO mission. At some point during the course of the conversation, he smirked not snickered. 7. The applicant provides an email, dated 24 October 2012, from his platoon leader, First Lieutenant (1LT) RO, wherein the 1LT RO stated, in part, the applicant would find his award attached and asked him to let him know if anything he wrote was false or was presented the wrong way. Also, he wrote sergeant (SGT) for the applicant’s rank; his situation was still with legal but that is what he was anticipating. If nothing happened before the award was processed then he would change the rank. 8. During May 2013, he received the contested NCOER, an annual NCOER, covering 10 months of rated time from 1 February 2012 through 31 January 2013 for his duties as HUMINT Collection Sergeant while assigned to Company C, 502nd MI Battalion, Afghanistan. His rater was SFC GS, the Platoon Sergeant; his senior rater was 1LT RO; and his reviewer was Captain (CPT) JM, the Company Commander. This NCOER shows he was counseled on 22 February 2012, 23 June 2012, and 7 September 2012. It also shows: a. In Part IVa (Army Values), the rater placed an "X" in the "Yes" blocks for all Army Values except "Selfless-Service" and "Integrity" and entered supporting bullet comments: * occasionally placed his own welfare before that of his Soldiers; exercised poor judgment and personal integrity by placing his Soldier in an immoral situation * provided false information to the company commander during an equipment inspection; suggested his Soldier steal equipment from another team to temporarily cover his deficiency b. In Part IVb (Competence), the rater placed an "X" in the "Excellence" block and entered, in part, the bullet comment: * produced 21 quality Source Operations IIRs while simultaneously conducting a tough interrogation mission; second highest IIR producer within his OMT c. In Parts IVc (Physical Fitness and Military Bearing), IVd (Leadership), IVe (Training), and IVf (Responsibility), the rater placed an "X" in the "Success" blocks and entered, in part, the corresponding bullet comments: * created and maintained a comprehensive physical fitness training program which continuously challenged and conditioned his Soldiers * successfully led three dismounted patrols through high-threat urban areas in Afghanistan; commended by his OMT for courage and dedication to mission * mentored, coached, and developed two Soldiers who became proficient in source operations in a combat environment; used past experience to intensify training * extremely resourceful leader who created an MSO infrastructure while deployed; continuously improved his capability through networking with senior International Security Assistance Force (ISAF) personnel 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. e. 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) he placed an "X" in the "Superior/2" block. f. In Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * promote with peers * send to senior leader course (SLC) when slots are available * possessed the potential to succeed as a team leader * performance during this rating period was hindered due to his insubordination to a senior NCO; he is capable of a much better performance 9. The NCOER shows the rater and senior rater digitally signed the NCOER on 30 April and 3 May 2013 and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place on 3 May 2013 (emphasis added) The applicant also digitally signed this report on 3 May 2013. 10. There is no indication the applicant requested a commander's inquiry in reference to the contested NCOER. This NCOER is filed in the performance folder of his OMPF. 11. During August 2013, he received a change of rater NCOER covering 3 months of rated time from 1 February 2013 through 1 May 2013 for his duties as HUMINT Collection Sergeant while assigned to Company C, 502nd MI Battalion, Afghanistan. His rater was SFC GS, his senior rater was 1LT RO, and his reviewer was CPT JM, the Company Commander. This NCOER shows: a. In Part IVa, the rater placed an "X" in the "Yes" blocks for all values. b. In Parts IVb, IVc, IVd, IVe, and IVf the rater placed an "X" in "Success" blocks. c. In Part Va, the rater placed an "X" in the "Fully Capable" block. d. In Part Vc, the senior rater rated him placed an "X" in the "Successful/2" block and in Part Vd an "X" in the "Superior/2" block. e. In Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * promote with peers * send to SLC when slots are available * possessed the potential to succeed as a team leader * performed effectively during this rating period; adapted to a new position and produced positive results * Soldier refused to sign 12. The rater and senior rater digitally signed the NCOER on 22 May 2013 and 5 August 2013 and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place on 12 August 2013. The applicant did not sign the report. 13. On 28 January 2016, the applicant submitted an appeal of the contested NCOER through HRC to the ESRB. With the request, he submitted a memorandum of support, dated 26 January 2016, wherein now CPT RO stated: a. He served with the applicant from about August 2011 until January 2013 as a HUMINT Platoon Leader during OEF 2012 - 2013. During the first inspection down range, the applicant identified to him a deficiency in the hand receipt as missing a pair of binoculars. He concluded the item in question was accounted for by himself and instructed the applicant to sign for it until it arrived in theater. At no point prior to this was the applicant assigned the missing piece of equipment. The applicant instructed the Soldier to whom the item was assigned to have it shipped. b. During a routine inspection by then CPT JM, the applicant telephoned him and explained the item was still missing and it should be in the mail. The applicant was never counseled on lying to his commanding officer, nor was he counseled on telling his Soldier to steal equipment. c. The information in the NCOER does not reflect the applicant as he knew him, nor does the information reflect the amount of hard work and dedication the applicant applied during the deployment. He recommended the NCOER be stricken from the record and the applicant be kept in the military as he was a valuable asset to any command he served. 14. With his appeal of the contested NCOER to HRC, he also sent a memorandum of support, dated 26 January 2016, wherein Major (MAJ) JAW stated, in part: a. He had known the applicant for just over 4 years and interacted with him frequently when he took command of B Battery and the applicant was assigned to C Battery, 502nd MI BN, JBLM. He took notice of the applicant because he stood out from other NCOs by the way he presented himself and conducted his duties. He often remarked that other NCOs could learn from the applicant’s example and his Soldiers also noticed the applicant’s conduct and remarked how well he spoke and carried himself. b. The applicant is the picture of professionalism, dependably upholds the Army Values, and consistently embodies technical and tactical proficiency. As such, he often requested the applicant’s assistance during training when he did not have a qualified Soldier. The applicant was the easy choice due to his outstanding and proven record, reliability, unbiased assessments, and commitment to the mission. c. The applicant always displayed superior military bearing which was why he was surprised to learn of the accusations levied against him during the Afghanistan deployment. After speaking with the applicant, senior NCOs in the BN, and his command team, he gained a better understanding of the situation and circumstances. He approached the BN CSM and requested the applicant be transferred to his company but his request was denied; the applicant’s company did not want to lose him given his abilities and skill set. d. The applicant is an outstanding NCO and Soldier and needs to be retained in the Army as he is one of our best. His demonstrated professionalism, superior etiquette, technical and tactical proficiency, and trustworthiness are what other NCOs and Soldiers need to strive toward. 15. In an email, dated 3 February 2016, the Chief, Evaluations Appeals Section, HRC, notified the applicant his appeal of the contested NCOER was not submitted within the 3-year window and he could submit his appeal to the ABCMR. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time the contested NCOER was rendered, shows in a. Paragraph 1-9, 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 Pam 623–3 (Evaluation Reporting System). b. Paragraph 1-11, 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. The results of the commander’s inquiry may be provided to the rating chain and the rated Soldier at the appointing official’s discretion. c. Paragraph 3-39, 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. Requests that an evaluation report in a Soldier’s OMPF be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report or be included in the rated individual’s OMPF: statements from rating officials that they underestimated the rated Soldier; statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did; requests that ratings be revised; statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential; and/or a subsequent statement from a rating official that he/she rendered an inaccurate evaluation of a rated Soldier’s performance or potential in order to preserve higher ratings for another. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management (AMHRR)) governs the composition of the AMHRR (which includes the OMPF) and states 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. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. NCOERs are filed in the performance section of the OMPF. 3. Several Military Personnel (MILPER) messages provide guidance and procedures in support of the QMP. The purpose of the QMP board is to identify selected NCOs for possible involuntary separation, specifically those with a general officer memorandum of reprimand, conviction by a court-martial or Article 15, Relief for cause NCOER, a "No" in the Army values on an NCOER, a senior rating of "4" on an NCOER, and NCO Education System failures. * Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.) * 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 * 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 is the final authority for disposition of appeals DISCUSSION: 1. The available evidence shows the applicant appears to have performed his military duties satisfactorily but did not uphold all the Army Values, as when his rating officials rendered the contested NCOER, he received a rather positive evaluation. However, in Part IV of the NCOER, his rater placed a "No" in the Army Values of Selfless-Service and Integrity and supported the rating with the comments that the applicant occasionally placed his own welfare before that of his Soldiers, exercised poor judgement and personal integrity by placing his Soldier in an immoral situation, provided false information to the company commander during an equipment inspection, and suggested his Soldier steal equipment from another team to temporarily cover his deficiency. 2. Notwithstanding the then-senior rater’s comments that the applicant was never counseled on lying to his commanding officer or on telling his Soldier to steal equipment, this statement does not identify that the comments supporting the "No" block checks for the Army Values were untrue. Regardless, the company commander was the reviewer of the contested NCOER and concurred with both the rater and senior rater comments; he was in a position to know if the comments were an accurate reflection of the applicant’s behavior at the time. 3. There is insufficient evidence to show 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 evaluations rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time they prepared the NCOER or that they exercised faulty judgment in evaluating him as they did. He did not provide sufficient evidence to support the removal of the contested NCOER from his OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings @#!CASENUMBER Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20160002872 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2