IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20160009548 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 July 2016 DOCKET NUMBER: AR20160009548 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 July 2016 DOCKET NUMBER: AR20160009548 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 from his Official Military Personnel File (OMPF), Army Military Human Resource Record (AMHRR), a Change of Rater DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report (NCOER)) covering the period 29 April 2011 through 21 March 2012 (hereinafter referred to as the contested NCOER) and that the period be declared nonrated. 2. The applicant states the appeal is based on administrative and substantive inaccuracy. a. He states the contested NCOER contains material errors as a result of an improperly conducted Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation. The AR 15-6 investigation was not handled according to required equal opportunity (EO) procedures or timelines. In addition, the investigating officer (IO) was appointed from within the battalion, he did not consult with EO officials, and he disregarded multiple DA Forms 2823 (Sworn Statements). b. He states the two NCOERs he provides (both covering the period 29 April 2011 through 21 March 2012) show changes were made to arrive at the final contested NCOER. Specifically, two of the "Army Values" blocks are marked "No" on the final version. This was based on an improperly handled EO complaint without regard for established policies and procedures. In addition, a letter from the senior rater explains the circumstances regarding the improper processing and filing of the contested NCOER. He adds that he did not appeal the contested NCOER in a timely manner due to the toxic leadership, command climate, and non-availability of resources to seek redress. 3. The applicant provides copies of the following documents: * two versions of an NCOER (29 April 2011 to 21 March 2012) * a letter from the senior rater * three DA Forms 2823 * two memoranda for record (MFR) CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable enlisted service in the U.S. Army Reserve (USAR), the Regular Army, and the Army National Guard of the United States from 28 March 1987 through 27 March 1999. 2. The applicant enlisted in the USAR and he is currently serving in the Active Guard/Reserve program. He was promoted to staff sergeant (SSG)/pay grade E-6 in military occupational specialty 38B (Civil Affairs Specialist). 3. A review of the performance folder of the applicant's OMPF revealed a copy of an NCOER covering the period 18 September 2010 through 28 April 2011. It shows he was assigned to Company B, 431st Civil Affairs Battalion, North Little Rock, AR. It also shows in: * Part I (Administrative Data) – * block g (Reason for Submission): 03 – Change of Rater * block i (Rated Months) – 7 * block k (Number of Enclosures) – 2 * Part II (Authentication) the rating chain as – * Rater – Captain (CPT) A___ G____, Civil Affairs Officer * Senior Rater – CPT E___ L. S____, Company Commander * Reviewer – Lieutenant Colonel (LTC) R___ K. S____, Battalion Commander * Part III (Duty Description) – * block a (Principal Duty Title) – Civil Affairs Sergeant * block f (Counseling Dates) – * Initial – no entry (is blank) * Later – 24 September 2010 * Part IV (Army Values/Attributes/Skills/Actions – Rater) – * block a (Army Values), he received "No" ratings, as follows – * Respect/EO/EEO: Treats people as they should be treated * Honor: Lives up to all the Army values * Personal Courage: Faces fear, danger, or adversity * a bullet comment associated with the above "No" ratings: "SSG [applicant] was sent home from an initial planning conference for Task Force Razorback after making improper advances toward Colonel C____" * Value/NCO Responsibilities: "Success" ratings for Competence, Physical Fitness and Military Bearing, Leadership, Training, and Responsibility and Accountability * Part V (Overall Performance and Potential) – * the rater marked "Fully Capable" * the senior rater marked "Successful (3)" for overall performance and "Superior (3)" for overall potential for promotion and/or service in positions of greater responsibility with the bullet comments – * while competent and knowledgeable of assigned duties, showed lack of quality judgement and decision making outside of duty hours * promote at the convenience of the Army * continue to assign to positions of equal responsibility * Soldier ignored several requests to sign; Soldier now unavailable for signature * Part II – * the NCOER was digitally signed by the rater, senior rater, and reviewer; the applicant did not sign the NCOER * the reviewer indicated with an "X" that he non-concurred with the rater and/or senior rater evaluations * Reviewer's Non-Concurrence and Memorandum for Record pertaining to the evaluation shows – * "As the reviewer during the period in question, I non-concur with the [rater and/or senior rater] evaluation of the [applicant]. I submit the following to clarify the situation and indicate what I consider to be the proper evaluation of performance and/or potential." * "I non-concur with the Rater and do not agree that the Soldier has no promotion potential as his performance was otherwise 'successful' as reflected on Part IV, Page 2. The Rater's annotation of several 'No' blocks and remarks on Part IV, Page 1, is justified given the incident, but it does not warrant non-promotion. I believe his performance for the overall rating period was 'successful' with the exception of this incident of poor judgment. The Senior Rater indicated that the Soldier should be promoted at the convenience of the Army. I concur that this is a fair assessment of his potential given the circumstances." * LTC R___ K. S____, the battalion commander and reviewer, digitally signed both documents on 23 January 2012 4. A review of the performance folder of the applicant's OMPF also revealed a copy of the contested NCOER covering the period 29 April 2011 through 21 March 2012. It shows he was assigned to Company B, 431st Civil Affairs Battalion, North Little Rock, AR. It also shows in: * Part I – * block g: 03 – Change of Rater * block i – 11 months * block k – no entry (is blank) * Part II the rating chain as – * Rater – Sergeant First Class (SFC) L___ B. C____, First Sergeant * Senior Rater – Major (MAJ) P___ D. J____, Company Commander * Reviewer – LTC R___ K. S____, Battalion Commander * Part III (Duty Description) – * block a – Civil Affairs Sergeant * block f  – * Initial – 8 May 2011 * Later – 6 August 2011 * Later – 5 November 2011 * Later – 13 March 2012 * Part IV – * block a, he received "No" ratings, as follows – * Respect/EO/EEO: Treats people as they should be treated * Honor: Lives up to all the Army values * two bullet comments – * "legally substantiated [AR] 15-6 investigation stating that SSG [Applicant] committed sexual harassment against a fellow Soldier" * "takes the initiative and makes things happen on a daily basis" * Value/NCO Responsibilities: an "Excellence" rating for Leadership and "Success" ratings for Competence, Physical Fitness and Military Bearing, Training, and Responsibility and Accountability * Part V – * the rater marked "Fully Capable" * the senior rater marked "Successful (3)" for overall performance and "Superior (3)" for overall potential for promotion and/or service in positions of greater responsibility with the bullet comments – * committed NCO that lives by "Mission First"; assign as Platoon Sergeant at first opportunity * dependable, motivated, and trustworthy; an NCO with the courage to manage company operations without visible support * continue to assign to positions of increased responsibility * Part II – * the NCOER was digitally signed by the rater, senior rater, reviewer, and applicant * the reviewer indicated with an "X" that he non-concurred with the rater and/or senior rater evaluations * Reviewer's Non-Concurrence pertaining to the evaluation shows – * "As the reviewer during the period in question, I non-concur with the [rater and/or senior rater] evaluation of the [applicant]. I submit the following to clarify the situation and indicate what I consider to be the proper evaluation of performance and/or potential." * "I non-concur with the rater's assessment of 'excellence' in leadership (Part IVd). I approved the findings of an investigation on a sexual harassment claim against SSG [Applicant] on 14 March 2012. The investigation passed legal review. The findings indicated that he committed sexual harassment against a junior Soldier. Sexual harassment is a form of gender discrimination and indicates his lack of support to equal opportunity. This substantiated investigation indicates SSG [Applicant] does not demonstrate genuine concern for Soldiers or setting the example, which are two attributes of Leadership. I believe 'Needs Improvement – Some' is a more appropriate assessment for this Army Value." * LTC R___ K. S____, the battalion commander and reviewer, signed the document on 6 May 2012 5. On 12 June 2014, the Deputy Chief of Staff for Personnel and Logistics, U.S. Army Human Resources Command (HRC), Fort Knox, KY, notified the applicant that he had completed the required years of qualifying service to receive retired pay at age 60. 6. In support of his application the applicant provides the following additional documents that were not summarized above. An NCOER covering the period 29 April 2011 through 21 March 2012. It shows he was assigned to Company B, 431st Civil Affairs Battalion, North Little Rock, AR. It also shows in: * Part I – * block g: 03 – Change of Rater * block i – 11 months * block k – no entry (is blank) * Part II the rating chain as – * Rater – SFC L___ B. C____, First Sergeant * Senior Rater – MAJ P___ D. J____, Company Commander * Reviewer – LTC R___ K. S____, Battalion Commander * Part III – * block a – Civil Affairs Sergeant * block f  – * Initial – 8 May 2011 * Later – 6 August 2011 * Later – 5 November 2011 * Later – is blank (no entry) * Part IV – * block a, he received "Yes" ratings for all seven "Army Values" and two bullet comments – * "shows genuine concern for the Soldiers' welfare and positive attitude towards their professional development decisions" * "takes the initiative and makes things happen on a daily basis" * Value/NCO Responsibilities: an "Excellence" rating for Leadership and "Success" ratings for Competence, Physical Fitness and Military Bearing, Training, and Responsibility and Accountability * Part V – * the rater marked "Fully Capable" * the senior rater marked "Successful (2)" for overall performance and "Superior (2)" for overall potential for promotion and/or service in positions of greater responsibility with the bullet comments – * committed NCO that lives by "Mission first, Soldiers always"; assign as Platoon Sergeant at first opportunity * dependable, motivated, and trustworthy; an NCO with the courage to manage company operations without visible support * continue to assign to positions of increased responsibility * Part II – * the NCOER was digitally signed by the rater and senior rater on 26 April 2012; it was not signed by the reviewer or the applicant * Block d, no entry of concurrence of non-concurrence by the reviewer b. A letter from MAJ P__ D. J____, U.S. Army (Retired), dated 18 December 2015, subject: Erroneous NCOER for [applicant]. MAJ J____ stated that he was the senior rater for the contested NCOER. SFC L___ B. C____ was the rater and he prepared his portion of an NCOER pertaining to the applicant with an "Excellence" rating for Leadership (Army Values/NCO Responsibilities). He agreed with SFC C____'s rating and the NCOER was submitted to the S-1. (1) The battalion commander (LTC R___ K. S____) had a policy of personally reviewing all NCOERs prior to them being forwarded for processing. (2) The battalion commander had initiated an AR 15-6 investigation after becoming aware of an incident that resulted in sexual harassment charges. He appointed an IO from within the battalion. He states the IO "concluded" the investigation "in one BTA [battalion training assembly] weekend with none of the key material witnesses interviewed." (3) The battalion commander called MAJ J____ and SFC C____ into his office and told them their rating of the applicant "was not acceptable and that [they] needed to change it." He threatened the rater and senior rater with career repercussions, if they did not change their ratings. He adds, "LTC S____ then had two of the Army Values blocks on the NCOER edited as 'No' at his own discretion." c. DA Form 2823, dated 6 May 2012, that shows Sergeant (SGT) L___ L. B____ stated he was assigned to Company B, 431st Civil Affairs Battalion. He described an incident involving a female Soldier (Specialist (SPC) D___) who was given a task by the applicant during annual training (AT) in late July 2011. She did not demonstrate diligence in completing the task, complained about a lack of guidance about the task from the applicant, and also talked disparagingly about him. SGT B___ discussed the matter with the applicant and he provided information that was contrary to SPC D____'s version of events. SGT B____ then returned and offered guidance to SPC D____ to assist her in accomplishing the task, but she was not receptive to his input. She subsequently completed the task and briefed the applicant and another NCO. They were critical of the final product and offered information to improve it. He adds that SPC D___ became upset despite the applicant's professional efforts to counsel and assist her. d. DA Form 2823, dated 3 April 2012, that shows SFC M___ R. B____ stated he was assigned to Company D, 431st Civil Affairs Battalion. He described an incident involving a female Soldier (SPC D___) who was given a task by the applicant during AT in late July 2011. He stated SPC D____ continually needed guidance to complete the task. SPC D____ eventually completed the task, she briefed him and the applicant, and they critiqued her effort. He stated that SPC D____ did not perform to standards expected of her grade. He added that the applicant consistently acted professionally as an NCO. e. DA Form 2823, undated, that shows SFC J___ A. S____ stated "during the period in question, SPC D____ was on orders working at the unit" (431st Civil Affairs Battalion). She stated SPC D____ was upset because her husband had been diagnosed with cancer. SPC D____ declined to go home and remained to work under the supervision of the applicant. SPC D____ informed SFC S____ that the applicant was being hard on her because she did not complete her project to his standards. Later, after duty hours, SFC S____ and SPC D____ spent time together. SFC S____ stated that SPC D____ never told her about any problems with the applicant other than his critique of her work performance. f. A Memorandum for Record (MFR), dated 3 April 2012, subject: Conversation with [Applicant], authored by Corporal R___ M. T____, Battalion Chaplain Assistant. He documents a conversation he had with the applicant in July 2011 regarding SPC D____'s poor attitude toward training. He also indicated the applicant and SPC D___ had talked about her husband's health condition. He added that he never witnessed any inappropriate behavior by the applicant. 7. A review of the applicant's OMPF failed to reveal evidence that he appealed the contested NCOER to the Department of the Army Suitability Evaluation Board (DASEB), U.S. Army HRC. REFERENCES: 1. AR 15-6 prescribes procedures for investigations and boards of officers not specifically authorized by any other directive. Chapter 2 (Responsibilities – Investigations and Boards), section (Appointing Authority), paragraph 2-3 (Who may be appointed), shows, in all cases, an IO or voting member of a board will be senior in rank to any person whose conduct or performance of duty may be investigated, or against whom adverse findings or recommendations may be made, except when the appointing authority determines this to be impracticable because of military exigencies. Inconvenience in obtaining an IO or the unavailability of senior persons within the appointing authority's organization are not military exigencies that would justify the above exception. The appointing authority must comply with other specific regulatory requirements that IOs or board members be military officers, professionally certified, or possess an appropriate security clearance. 2. AR 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. a. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file. b. The authorized documents list provides guidance for filing documents in the OMPF. It shows the DA Form 2166-8 (NCOER) will be filed in the performance folder of the OMPF. 3. AR 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policies for completing evaluation reports that support the Evaluation Reporting System, this includes the NCOER. a. Chapter 2 (The Rating Chain): (1) paragraph 2-16 (Review of Evaluation Reports) shows for NCOERs, the review is conducted by a designated individual in the rating chain. An additional, yet undocumented, review of completed NCOERs should be done by the senior NCO in the organization to ensure oversight of NCOs' performance. In some instances, the review may need to document nonconcurrence with a report and/or inconsistencies between the rater's and senior rater's evaluations of a rated NCO. (2) paragraph 2-19 (Review of NCOERs), every NCOER should be reviewed by the First Sergeant, Sergeant Major, or Command Sergeant Major to ensure accountability of Soldiers' NCOERs and to oversee the performance of junior NCOs. This is in addition to the review by the designated reviewer in accordance with paragraph 2-16, if applicable. (3) The reviewer will: * ensure that the proper rater and senior rater complete the report * 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, blocks b through f of the NCOER. (4) The reviewer will comment only when in disagreement with the rater and/or senior rater. The reviewer indicates concurrence or nonconcurrence with rater and/or senior rater by checking the appropriate box in Part II and adding an enclosure, not to exceed one page. b. Chapter 3 (Army Evaluation Principles): (1) paragraph 3-7 (Rater), the rater will assess the performance and potential of the rated NCO using all reasonable means to prepare a fair, correct report that evaluates the NCO's duty performance, values/NCO responsibilities, and potential. (2) paragraph 3-9 (Senior Rater), the senior rater's role is primarily to evaluate potential, over watch the performance evaluation, and mentor subordinates. The senior rater will use all reasonable means to become familiar with the rated NCO's performance throughout the rating period and prepare a fair, correct report evaluating the NCO's duty performance, professionalism, and potential. (3) paragraph 3-10 (Reviewer), the reviewer has the overarching role of validating the accuracy of NCOERs and instilling fairness within the evaluation process. (4) paragraph 3-33 (Preparation and submission procedures), the rated Soldier will always be the last individual to sign the evaluation. The rated Soldier's signature will verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the Army Physical Fitness Test and height and weight data; and that he/she has seen the completed report. If significant changes are made to a final evaluation after the rated Soldier has signed it, the senior rater will ensure the rated Soldier has an opportunity to see the evaluation. c. Chapter 4 (Evaluation Report Redress Program): (1) section II (Commander's or Commandant's Inquiry), paragraph 4-4 (Purpose), provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's or commandant's attention by the rated Soldier or anyone authorized access to the report. 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. (2) section III (Evaluation Appeals), paragraph 4-7 (Policies), places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an NCOER. 4. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends the contested NCOER for the period 29 April 2011 through 21 March 2012 should be removed from his OMPF and the period declared non-rated because of administrative and substantive errors. In effect, he challenges the validity of an AR 15-6 investigation, including the propriety of the IO and the completeness of his investigation, and the validity of the contested NCOER in view of the previously prepared version of the NCOER. 2. The Board decides each case on the evidence of record and begins its consideration of the case with the presumption of administrative regularity. The Board is not an investigative agency and the applicant has the burden of proving an error or injustice by a preponderance of the evidence. a. The applicant failed to provide a copy of the AR 15-6 investigation. He provided three witness statements and one MFR from four Soldiers in his unit. However, a review of the documents fails to show that they offer either relevant or substantive evidence concerning matters under review with respect to the contested NCOER. Specifically, they address neither the discreditable remarks in the contested NCOER nor the veracity of the AR 15-6. (It is also noted that one of the witness statements is undated and the MFR is not witnessed.) b. AR 15-6 shows the appointing authority will appoint an IO from within the appointing authority's organization who is senior in rank to any person whose conduct or performance of duty is being investigated, or against whom adverse findings or recommendations may be made. The evidence of record shows the appointing authority appointed an IO who was a commissioned officer from within his organization who was senior to the applicant. c. In his non-concurrence with the contested NCOER, the reviewer certified that an AR 15-6 investigation was conducted and it was found be to be legally sufficient. There is no evidence of record and the applicant failed to provide sufficient evidence that the AR 15-6 was incomplete or invalid. 3. The version of the NCOER the applicant provides is a Change of Rater report that provides an assessment of the applicant's performance as Civil Affairs Sergeant, Company B, 431st Civil Affairs Battalion. It shows, in pertinent part, the final counseling date was blank; the rater marked "Yes" ratings for all "Army Values;" the senior rater marked "Successful (2)" for overall performance and "Superior (2)" for overall potential for promotion and/or service in positions of greater responsibility; and the NCOER was digitally signed by the rater and senior rater on 26 April 2012. However, the NCOER was not signed by the reviewer or the applicant and there is no indication by the reviewer whether he concurred or non-concurred with the rater and/or senior rater evaluations. 4. The contested NCOER that is filed in the applicant's OMPF is a Change of Rater report that provides an assessment of the applicant's performance as Civil Affairs Sergeant, Company B, 431st Civil Affairs Battalion. It shows, in pertinent part, the final counseling date was on 13 March 2012; the rater marked "No" ratings for the "Army Values" of "Respect/EO/EEO" and "Honor" with an associated bullet comment concerning his sexual harassment against a fellow Soldier; the senior rater marked "Successful (3)" for overall performance and "Superior (3)" for overall potential for promotion and/or service in positions of greater responsibility; the reviewer indicated that he non-concurred with the rater and/or senior rater evaluations; and the NCOER was digitally signed by the rater, senior rater, reviewer, and applicant. a. The applicant had an opportunity to see the NCOER after changes were made to the final evaluation and he signed the document. b. The reviewer's non-concurrence statement pertaining to the contested NCOER is filed in the OMPF. 5. The applicant does not provide a copy of the unit's official rating scheme for the period of service under review or any document that officially designated the NCO/officers in his rating chain. However, the evidence of record shows the applicant confirmed the validity of the rating chain with his signature. Thus, the evidence of record indicates the contested NCOER was prepared by the proper rating officials, the administrative data is correct, and the battalion commander was the properly designated reviewing official. 6. The contested NCOER is properly filed in the performance folder of the applicant's OMPF. 7. The letter from MAJ P__ D. J____, the senior rater for the contested NCOER, was carefully considered. The sincerity of his comments is not in question. a. The senior rater confirmed an AR 15-6 investigation was initiated by the battalion commander (reviewer) after he became aware of an incident that resulted in sexual harassment charges. b. The rater's and senior rater's ratings were changed after a conversation with the reviewer concerning a legally sufficient AR 15-6 investigation. It is noted that a final counseling date was added to the contested NCOER and that both the rater and senior rater digitally signed the document subsequent to the final counseling date. c. Based on the foregoing, it is reasonable to conclude that the information the battalion commander (reviewer) provided to the rater and the senior rater offered new information that they considered in arriving at the final version of the contested NCOER. 8. An evaluation report accepted for inclusion in the rated NCO's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. In view of all of the foregoing, there is insufficient evidence to refute the presumption of administrative regularity with respect to the contested NCOER. 9. It is noted the applicant failed to appeal the contested NCOER to the DASEB. 10. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. a. The applicant failed to submit evidence of a compelling nature to show that the NCOER filed in the performance folder of his OMPF is untrue, in error, or unjust. b. The NCOER is properly filed and should not be removed from the applicant's OMPF nor should the period of the report be declared non-rated. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009548 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009548 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2