BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20160012407 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: 11 August 2016 DOCKET NUMBER: AR20160012407 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. BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20160012407 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 an annual DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 16 December 2011 through 15 December 2012 (hereafter called the contested NCOER) from his official military personnel file (OMPF). He also requests a personal appearance before the Board. 2. The applicant states, in effect, he received an annual NCOER that contains an "X" in the "NO" blocks for several Army values as well as a "Needs Improvement" rating in the NCO responsibility of "Competence." He appealed the contested NCOER to the Enlisted Special Review Board (ESRB) based on substantive and administrative errors but his appeal was denied. a. He received a memorandum from his rater stating that he (the rater) did not write the contested NCOER. The senior rater wrote the NCOER. The only way for the senior rater to write the NCOER would have been if the rated NCO and the rater are concurrently relieved, then the senior rater would complete the rater and senior rater portions of the report for each of the rater's subordinates. b. According to Army Regulation (AR) 623-3 (Evaluation Reporting System), Table 3-5, the senior rater must meet the minimum rating period of 30 rated days required for an evaluation of the rated NCO. If the senior rater does not meet the criteria, the regulation requires a statement in Part Ve (Senior Rater Bullet Comments) that reads, "Senior Rater does not meet minimum qualifications" and Part Vc (Senior Rater – Overall Performance) and Vd (Senior Rater – Overall Potential) would not be completed. c. The senior rater must be in the direct line of supervision of the rated individual. He was in the battalion S-3 section until June 2013. He never met the senior rater and therefore he could not write his NCOER or rate him. This appeal is based on both administrative and substantive error. The NCOER contained four "NO" blocks in Part IVa (Army Values); however, this is inconsistent with the four success blocks in Part IV (Values/Responsibilities). Additionally, the senior rater block checks in Parts Vc, Vd, and Ve (Senior Rater Bullet Comments) are inconsistent with the bullet comments and block checks in Part IV. d. The contested NCOER is unjust and biased. The rating appears to be unfair and inaccurately stated. It does not provide a correct evaluation of his performance. He requests it be removed from his records. 3. The applicant provides: * contested NCOER * memorandum from his former rater, dated 19 May 2016 * memorandum for record from a command sergeant major (CSM), dated 13 June 2016 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 14 September 2004 and he holds military occupational specialty 25Q (Multichannel Transmission Systems Operator/Maintainer). He was promoted to staff sergeant (SSG)/E-6 in February 2010. 2. In December 2010 he was assigned as a drill sergeant to F Company, 1st Battalion, 61st Infantry Regiment, U.S. Army Training and Doctrine Command (TRADOC), Fort Jackson, SC. 3. During December 2012, following the applicant's alleged involvement with a trainee and referral of court-martial charges against him, he received the contested NCOER for his duties as drill sergeant. His rater was SSG TLW (now Sergeant First Class (SFC) TLW), the Platoon Sergeant; his senior rater was SFC WWB, the First Sergeant; and his reviewer was Captain MRD, the Company Commander. The contested NCOER shows he was periodically counseled. It also shows: a. In Part IVa (Army Values), the rater placed an "X" in "NO" blocks for the "Respect/EO/EEO," "Selfless-Service," "Honor," and "Integrity" values and entered these bullet comments: * ?put himself into a questionable situation with a trainee? * ?conducted himself to where he brought unwanted attention to himself and unit? * ?[his] judgment has been put into question? b. In Part IVb (Competence), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comments: * ?displayed poor judgment by failing to adhere to TRADOC Regulation 350-6; interacted in conversation with a female trainee without a battle buddy? * ?maintained his skill set with his personal weapon? * ?continued to learn from his mistake? c. In Part IVc (Physical Fitness and Military Bearing), Part IVd (Leadership), Part IVe (Training), and Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Success" block and entered appropriate bullet comments supporting a ?Success? rating. d. In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Marginal" block. e. In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Poor/5" block and in Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an "X" in the "Fair/4" block. f. In Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * ?do not promote? * ?do not send to school? * ?performance was not to standard? * ?a unit cannot afford to have him at the next higher level without direct supervision and mentorship? 4. The contested NCOER shows the rater and senior rater authenticated this form on 18 and 19 December 2012 with their digital signatures. The reviewer concurred with the rater and senior rater and authenticated this form with his digital signature on 19 December 2012. The applicant digitally signed it on 4 January 2013. 5. On 21 January 2013, the commander ordered termination of the applicant's special duty pay. 6. On 4 June 2013, he was tried by a general court-martial for: * wrongfully engaging in physical contact with a trainee (kissing and touching) * wrongfully engaging in prohibited relationship with a trainee * making a false official statement with intent to deceive * wrongfully committing sexual contact with a trainee * wrongfully endeavoring to impede an investigation * orally communicating indecent language to the trainee 7. Consistent with his pleas, the court found him not guilty of all charges and specifications and acquitted him. He was subsequently informed of his potential removal from the drill sergeant program. He waived his right to appeal or submit a rebuttal statement. 8. On 24 June 2013, his commander recommended his removal from the drill sergeant program and opined that despite the acquittal, the applicant's poor decision placed him in a compromising position. The chain of command had lost all trust and confidence in entrusting him with the health and welfare of future Soldiers. In order to maintain good order and discipline, his removal was recommended. The commander recommended the applicant retain the drill sergeant badge and the special qualification identifier. He also opined that this action, however, would not preclude future consideration for the drill sergeant program. The battalion commander recommended his removal. 9. On 24 June 2013, the brigade commander approved the applicant?s removal from the drill sergeant program. He ordered the applicant retain the badge and the special qualification identifier. He also ordered this action not be adverse in nature and not disqualify him from future considerations. 10. In January 2014, he was reassigned to the 307th Expeditionary Signal Company (ESC) in Hawaii. 11. On 7 March 2015 he petitioned the ESRB for the removal of the contested NCOER from his OMPF. He argued that the contested NCOER contained administrative and substantive errors. On 3 September 2015 the ESRB denied his request because he did not provide clear and convincing evidence that the contested NCOER contained any errors. 12. He provides two memorandums: a. One memorandum, dated 19 May 2016, is authored by his former rater, now SFC TLW. He states that at the time the contested NCOER was rendered, he was the rater and 1SG WB was the senior rater. During the period the NCOER was written and submitted, he was the applicant's platoon sergeant and senior drill sergeant. He states that he did not write the contested NCOER even though he was the rater. During this time the applicant was under investigation for charges that were later dropped. The company leadership attitudes presumed the applicant was guilty and there was no changing their minds. He was instructed to write the applicant's annual NCOER. He wrote an NCOER that was not accepted by leadership because "it had to say certain things." So company leadership wrote the contested NCOER. He was told to sign it because if the findings from the investigation were false he could have the NCOER stricken from his record. He takes responsibility for this and feels he was misinformed on how the entire process works. b. One memorandum, dated 13 June 2016, is authored by the CSM, 307th ESP. The CSM states he feels and believes that the applicant is an NCO of very strong character. He served with him in the 307th ESC for 14 months and he cannot recall an instance where the applicant's character was called into question. He has served as a platoon sergeant for the 13 months performing exceptionally well. He is responsible for training and mentoring over 52 Soldiers. He had very little preparation for this job but hit the ground running. He immediately set the example and has set the company and its Soldiers up for total success. He maintains very high standards and enforces the standards. He has spent countless hours of his personal time late at night and on weekends ensuring that work was completed and nothing was dropped nor ignored. He recommends his retention in the Army. REFERENCES: 1. AR 623-3, dated June 2012, was in effect at the time the contested NCOER was rendered. a. Paragraph 1-9 states Army evaluation reports are independent assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the NCO Corps within the period covered by the report. Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the Army values, the Army's leadership framework, and responsibilities identified on evaluation report forms and counseling forms. Potential evaluations will be performance-based assessments of rated officers' or NCOs' ability to perform in positions of greater responsibility and/or higher grades/ranks compared to others of the same rank. These assessments will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades, and will ignore such factors as impending retirement or release from active duty; potential evaluations continually change and are ultimately reserved for Headquarters, Department of the Army (HQDA). b. Paragraph 3-19d states any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded. No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to HQDA. For example, rating officials are not prohibited from commenting on a court-martial (judicial), if completed, but the comments should focus on the behavior that led to the court-martial rather than the court-martial itself. If the rated Soldier is absolved, comments about the incident will not be included in the evaluation. Any verified derogatory information may be entered on an evaluation report. This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s reference to verified derogatory information. c. Paragraph 3-19e states reports will not be delayed to await the outcome of a trial or investigation unless the rated Soldier has been removed from his or her position and is in a suspended status. Upon completion of the trial or investigation, processing of evaluation reports will resume. Evaluation reports will be completed when due and will contain what information is verified at the time of the "THRU" date of the report. d. Paragraph 3-36 states 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: (1) Statements from rating officials that they underestimated the rated Soldier; (2) Statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did; (3) Requests that ratings be revised; (4) Statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential; and/or (5) 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. e. Paragraph 3-36(d) states that for reports that have been completed and filed in a Soldier’s OMPF, substantive appeals will be submitted within 3 years of an NCOER "THRU" date. Administrative appeals will be considered regardless of the period of the report; decisions will be made based on the regulation in effect at the time reports were rendered. f. Paragraph 4-11b states clear and convincing evidence will be of a strong 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. AR 600-8-104 (Army Military Human Resource Record (AMHRR) Management) 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. Table B-1 covers authorized documents and states NCOERs are filed in the performance section of the OMPF. 3. Several Military Personnel (MILPER) Messages provide guidance and procedures in support of the Qualitative Management Program (QMP). The purpose of the QMP board is to identify selected NCOs for possible involuntary separation. Specifically those with a general 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. a. Soldiers selected by the QMP for denial of retention 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, U.S. Army Human Resources Command is the final authority for disposition of appeals. 4. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for a personal appearance hearing was considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The applicant received an annual NCOER from December 2011 through December 2012 while serving as a drill sergeant. The available evidence shows the applicant allegedly violated a TRADOC regulation by socializing with a trainee. His court-martial convened after the thru date of the report. a. Although he would be found not guilty of the alleged violations, the negative comments reflected on the contested NCOER are within regulatory guidance. These negative comments addressed his poor judgment including putting himself into a questionable situation with a trainee. This was the basis of an investigation that led to court-martial charges. b. The contested NCOER was done prior to an investigation being completed or court-martial charges preferred, the rating officials did not violate a regulation because they did not mention an investigation in any of their bullet comments. . However, this does not preclude the rating officials from stating verifiable derogatory information in an NCOER. It is clear here that the negative comments reflected in the contested NCOER were validated by verified derogatory information which prompted the investigation and ultimately led to the court-martial. c. The statement provided by the former rater is noted. However, it contradicts what he wrote on the NCOER and validated with his electronic signature. He alleges after the fact that he did not write his portion of the contested NCOER and that company leadership directed he authenticate it. d. The applicant did not provide a rating scheme that would shed some light on when his rater became his rater. Again, the Board is not privy to who in 2011 rated whom within F Company, 1st Battalion, 61st Infantry Regiment. The burden of proof rests with the applicant. e. The statement of support provided by the CSM at his follow-on unit is noted. The statement spoke highly of the applicant's character and duty performance; however, the statement was provided in support of the applicant's retention on active duty. The statement does not address any issues that occurred during the rating period of the contested NCOER or specifically address issues in the contested NCOER. 3. There is insufficient evidence to show the contested NCOER contains administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies. Furthermore, the applicant has not shown the 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 AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012407 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012407 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2