IN THE CASE OF: BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20160013984 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: 15 December 2016 DOCKET NUMBER: AR20160013984 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: 15 December 2016 DOCKET NUMBER: AR20160013984 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 1 August 2010 through 20 April 2011 from his Official Military Personnel File (OMPF). 2. The applicant states: a. He received an unjust relief-for-cause (RFC) NCOER while he was deployed in Afghanistan in 2011. He tried submitting two appeals prior to this and both were denied, even though he provided additional supporting documents for the second appeal. b. While he was deployed to Afghanistan from February 2011 to January 2012, he served as a low-level voice intercept team leader and was also in charge of a collection system. He and his team were not trained on the collection system prior to deployment and only received 1 week of relief in place. The system itself was also non-mission capable throughout the deployment despite repeated attempts to fix it. After he was relieved, the system was pulled back to the "main" forward operating base, where it stayed for the remainder of the deployment. The collection system also required a category III linguist to conduct operations, but he was not able to obtain one since there were none available. They also possessed a man-portable signals intelligence system that also required a linguist, which they did not have despite his requests. In addition, despite his Soldiers being linguists, none of them spoke any of the Afghan dialects, which made it impossible to conduct operations. Due to the reasons stated above, they never left Combat Outpost Ghormach. This was misconstrued as cowardice on his part by his first sergeant and is the reason why the NCOER states he displayed cowardice. The collection system was also secure at all times since it is a Top Secret system, which required two-man integrity and protection with triple-strand concertina wire, while they attempted to fix the system and conduct operations. He did the very best he could with no training to conduct their mission and take care of his Soldiers, but he was unsuccessful due to the aforementioned reasons. Because he couldn't conduct his mission due to non-mission capable equipment, no training, and no linguistic support, somehow this was grounds for receiving a "NO" under the Army Value of Duty. He questions how was he supposed to do his duty when he was lacking equipment, training, and linguistic support. He also made repeated attempts to get the logistical support he needed regarding the equipment deficiencies and linguist support, but he was unsuccessful through no fault of his own. c. The attached appeal letters support the lack of support. The attached original appeal letters from his Soldiers and various members of his chain of command provide further information regarding the collection system and the mitigating circumstances regarding his relief. In addition to the substantive errors mentioned above, the counseling dates were fabricated. At no time during that rating period was he counseled by his rater or senior rater. The attached original appeal letter from Captain (CPT) N____ addresses these counseling dates. d. The Board should consider this application because the RFC NCOER simply does not portray who he is as an NCO. The bullets in the NCOER are inaccurate and the counseling dates were fabricated. He has been fighting to stay in the Army for the past 5 years because of this unjust NCOER and he has overcome incredible odds so he can continue to serve. e. After losing his second appeal in 2013, he considered getting out of the Army. That is why he did not continue this process through the Board at that time. When his reenlistment window opened, he learned he could apply for a waiver for the NCOER. After a lot of paperwork, he was granted a waiver to reenlist in July 2014 and reclassify to military occupational specialty (MOS) 25E (electromagnetic spectrum manager). After graduating in December 2014, he was stationed at Fort Drum, NY. In the spring of 2014, he was notified that he was being considered for retention under the Qualitative Management Program because of the RFC NCOER. Once again, he had to prove to the Army that he was worthy of retention and he did. He is still faithfully serving after everything that happened to him because of this injustice and it would, in his opinion, continue to be an injustice to let it remain in his records. f. His next career goal is to become a warrant officer and he knows this NCOER will negatively impact his chances of being selected. He tried to submit a packet for MOS 35N (signals intelligence analyst) when he was stationed at Fort Bliss, TX, but he could not convince a chief warrant officer three to write a letter for him. He has served honorably and faithfully throughout his career and his accomplishments speak for themselves. From May 2006 to December 2009, he served as a Spanish linguist. He served in various leadership positions for his mission and was in charge of six joint-service linguists and nine Soldiers, five of whom were NCOs. Due to his tireless work ethic, he was promoted to sergeant with only 20 months of time in service. His contributions were recognized by site leadership for creating a new branch within the mission that developed 26 high-value targets, a 20-percent increase in report production, and 100-percent accountability of equipment worth over $500,000.00. g. From January to June 2009, he served as a liaison officer in support of the Global War on Terrorism. While deployed, he analyzed and disseminated over 2,700 intelligence reports and 250 time-sensitive "threat tippers" to host nation military commanders. This resulted in over 50 counter-terrorism operations and increased force protection measures for more than 900 host nation military troops. For this service, he was awarded the Army Achievement Medal. In March 2010, he won the 470th Military Intelligence Brigade NCO of the Quarter competition, earning the Army Achievement Medal. In April 2010, he won the U.S. Army South NCO of the Quarter competition, earning the Army Achievement Medal. In May 2010, he won the U.S. Army South NCO of the Year competition, earning the Army Commendation Medal. In July 2010, he represented U.S. Army South in the Forces Command NCO of the Year competition, earning the Army Commendation Medal. In August 2010, he was awarded the Joint Service Achievement Medal for supporting the National Security Agency/Central Security Service in Texas. He was then promoted to staff sergeant in August 2010 with a little over 5 years of time in service. In September of 2010, he was stationed in Germany where he served as a cryptologic linguist, squad leader, and team leader of a low-level voice intercept team. He also served as the 502d Military Intelligence Company command language program manager where he coordinated weekly language training for 10 linguists in their platoon while deployed in support of Operation Enduring Freedom. During the deployment, he worked tirelessly to ensure that all linguists received foreign language proficiency bonus extensions until they were able to retest after deployment. h. After he was relieved, he served as a senior cryptologic analyst and squad leader in charge of five Soldiers operating in direct support of the 170th Infantry Brigade Combat Team. As an analyst, he single-handedly analyzed over 11,000 intelligence reports, created numerous high-value target packages, presented weekly intelligence briefs to the command team, and released multiple "threat tippers" and significant activity summaries to subordinate elements of the combat team. In June 2012, he was stationed at Fort Bliss with the 204th Military Intelligence Battalion where he served as platoon sergeant, the aerial precision geo-location training coordinator, additional duty safety officer, company retention NCO, and master resiliency trainer. He graduated from the MOS 35P (cryptologic linguist) Advanced Leaders Course (ALC) in March 2013 from Goodfellow Air Force Base, exceeding course standards by receiving a Superior rating in four of five categories, including Leadership, while earning 18 credit hours in intelligence operations studies. He also helped an NCO to meet Army weight and Army Physical Fitness Test standards during the first week. After ALC, he also flew aerial reconnaissance missions while deployed as a linguist, analyzed thousands of pieces of intelligence, and created numerous "threat tipper" reports, which resulted in multiple operations by host nation commanders. i. In January 2015, he was stationed at Fort Drum where he is currently serving as the 2nd Brigade Electromagnetic Spectrum NCO. He provided frequency support for multiple battalion and brigade training exercises and volunteered to be the master resiliency trainer when no one else would. He recently completed the Master Resilience Training Facilitator Course and will be a facilitator for the Master Resilience Training Certification Course in August. He also currently serves as the platoon sergeant for the brigade S-6. 3. The applicant provides: * DA Form 2166-8 * evaluation report appeal, dated 28 March 2014 * numerous statements of support * Enlisted Record Brief * Army Commendation Medal Certificate * finance record CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 15 June 2005 and has remained on active duty through continuous reenlistments. He was promoted to staff sergeant effective 1 August 2010. 2. The RFC NCOER covers the period 1 August 2010 through 20 April 2011. a. In Part IVa (Army Values), the rater placed an "X" in the "NO" block for Duty and entered the following bullet comments: * As the Low Level Voice Intercept Team Leader, [Applicant] failed to fulfill his obligation to provide timely, accurate, and valuable force protection intelligence * dedicated Soldier who treats all with respect b. In Part IV (Values/NCO Responsibilities), he was rated as "Needs Improvement (Some)" for Competence by his rater with the following bullet comments: * lacked the knowledge and motivation necessary to set up and maintain proper Signals Intelligence collection in a remote outpost in support of force protection * demonstrated a lack of initiative by failing to seek clarification, guidance, or training on primary collection mission * improperly manage his team's duties, responsibilities, and mission c. In Part IV, he was rated as "Needs Improvement (Some)" for Leadership by his rater with the following bullet comments: * failed to lead by example and placed his subordinates and his supported battery at risk by failing to collect intelligence * failed to provide adequate supervision to his team during the work day by placing himself on night shift * displayed cowardice and disregard for the primary signals intelligence collection mission by refusing to go outside the wire d. In Part IV, he was rated as "Needs Improvement (Some)" for Responsibility and Accountability by his rater with the following bullet comments: * the rated NCO has been notified of the reason for the relief * failed to properly store, care for, and maintain accountability of highly sensitive and classified equipment * failed to keep positive control of his primary weapon system during pre-deployment training e. In Part Va (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), he was rated "Marginal" by his rater. f. In Part Vc (Overall Performance), he was rated "Fair-4" by his senior rater. g. In Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), he was rated "Fair-4" by his senior rater with the following bullet comments in Part Ve (Senior Rater Bullet Comments): * not ready for promotion to the next grade at this time * send to ALC to increase this NCO'S abilities * place in positions of responsibility to challenge and further assess his potential * does not embody, Be, Know, Do, characteristics of an NCO with his time in service or time in grade 3. On 13 June 2011, he submitted a request to the Enlisted Special Review Board (ESRB) to remove his RFC NCOER covering the period 1 August 2010 through 20 April 2011 from his OMPF. 4. On 10 January 2013, the ESRB voted to deny his request. The ESRB determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice. The ESRB determined the overall merits of his case did not warrant the requested relief. 5. He provided an NCOER appeal, dated 28 March 2014. The appeal was based on the lack of and fabrication of developmental quarterly counseling dates; substantive error in the content of the NCOER under Army Values, Competence, Leadership, Responsibility and Accountability; the lack of linguistic support; the lack of training on mission equipment; broken mission equipment; and problems with leadership. 6. He also provided numerous statements of support from officer and enlisted Soldiers. a. A fellow Soldier states the military intelligence system in Afghanistan was not up and running properly in April 2011. The Soldiers from the signal intelligence platoon had little or no experience with the system. b. CPT B____ states there was a lack of linguistic support in Afghanistan. c. First Lieutenant N____ attests the lack of linguist support would extremely limit the capabilities of the mission. Without the proper linguist support, the equipment the applicant was asked to operate would be extremely limited in capacity and would struggle with properly employing them. d. A fellow Soldier contends the applicant did everything possible to fulfill his obligations as a leader in Afghanistan. At no time during the deployment did the system work properly. The applicant attempted to have his team placed on patrols on at least two occasions so they could perform force protection and on both occasions was told there was not adequate space for their team. e. CPT E____ states the applicant and his team were not properly trained on the system before deployment nor during the relief in place. The applicant's training was limited due to the system not working properly. There was no linguist support that assisted the applicant's team. f. CPT N____ attests the applicant attended a class in Germany during the period October/November 2011 and he remembers the applicant's rater was not one of the attendees of the course, so he could not have counseled the applicant in person. He also contends he participated in a field training exercise where the applicant had his weapon taken away from him while he was in the process of helping another Soldier put on his ruck sack. He remembers the applicant had placed his weapon against the vehicle in order to adjust his ruck sack and help the Soldier. He did not misplace or lose accountability of his weapon, as it was in plain sight within his reach. 7. A review of the applicant's performance folder of his OMPF in the interactive Personnel Electronic Records Management System revealed a copy of the contested NCOER. REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF. Appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System), states NCOER's will be filed in the performance and service folders of the OMPF. 2. Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted for inclusion in the official record of a rated Soldier'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. The regulation also states the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice. DISCUSSION: 1. Army Regulation 623-3 states that to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that: * the presumption of regularity will not be applied to the report under consideration * action is warranted to correct a material error, inaccuracy, or injustice 2. There is no evidence showing the information contained in the NCOER covering the period 1 August 2010 through 20 April 2011 does not represent the considered opinion and objective judgment of the rating officials at the time of preparation. 3. Army Regulation 600-8-104 states NCOERs will be filed in the performance folder of the OMPF. The NCOER in question is properly filed in his military records in accordance with the governing regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013984 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013984 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2