IN THE CASE OF: BOARD DATE: 3 November 2016 DOCKET NUMBER: AR20160014924 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: 3 November 2016 DOCKET NUMBER: AR20160014924 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: 3 November 2016 DOCKET NUMBER: AR20160014924 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 Relief for Cause DA Form 2166-8 (Non-commissioned Officer Evaluation Report (NCOER)) for the rating period 1 May 2009 through 20 January 2010. 2. In the alternative, he requests this NCOER be transferred from the performance section to the restricted section of his official military personnel file (OMPF). 3. The applicant states: a. The service members who signed this report were not his rating officials at the time. The senior rater made a false statement of the applicant's availability to provide a signature for the evaluation and concur with the rater and senor rater. It now has been over 6 years since this injustice and the Army is looking to consider him for retention/separation under the Qualitative Management Program (QMP). He believes this NCOER has served its purpose and its removal would provide him an opportunity for professional advancement and help him prove that he is a great Soldier and leader. This NCOER is not a reflection of who he is as a Soldier today. b. Since imposition of this NCOER, he has achieved several accomplishments, including being recognized for leading the best howitzer section in 2010 in the 82nd Airborne Division Best of the Best Competition. He also represented his battalion at the Jumpmaster competition, earning the title of Jumpmaster of the Year, and he has been inducted into the Order of St. Barbara by his battalion command sergeant major (CSM). He has deployed to Afghanistan and Iraq and he has been awarded the Bronze Star Medal, Purple Heart, and Meritorious Service Medal. 4. The applicant provides: * Contested NCOER * Approval memorandum of removal from Drill Sergeant Program * 12 letters of recommendation for continued service from senior officers and NCOs CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 16 November 1998 and he holds military occupational specialty 13B (Field Artillery). He served through multiple reenlistments and was advanced to staff sergeant/E-6 in August 2005. 2. He attended and successfully completed the Drill Sergeant Course from September to November 2008. Following graduation, he was assigned as a drill sergeant to D Company, 1st Battalion, 61st Infantry, Fort Jackson, SC. 3. During April 2009, he received an annual NCOER (prior to the contested NCOER) covering 12 months of rated time from 1 May 2008 through 30 April 2009 for his duties as drill sergeant. His rater was a sergeant first class (SFC), the platoon sergeant; his senior rater was the company first sergeant (1SG); and his reviewer was a captain, the company commander. 4. During January 2010, he received the contested NCOER, a Relief for Cause NCOER covering 9 months of rated time from 1 May 2009 through 20 January 2010 for his duties as drill sergeant. His rater was SFC KJ, the platoon sergeant; his senior rater was 1SG FLG, the company 1SG; and his reviewer was CSM WP, the battalion CSM. This NCOER shows he was frequently counseled. It also shows: a. In Part IVa (Army Values), the rater placed an "X" in the "Yes" block for 6 out of 7 values. He placed an "X" in the "No" block for the "Duty" Army value and entered the following bullet comments: "exhibited unsound judgment; having improper relations with Soldiers in training" and "demonstrated a serious lack of integrity and poor judgment without consideration of the results." b. In Part IVb (Competence), the rater placed an "X" in the "Needs Improvement (Much)" block, and entered the following bullet comments: * failed to comply with instructions of superiors on several occasions in accordance with Training and Doctrine Command (TRADOC) Regulation 350-6 (Enlisted Initial Entry Training Policies and Administration) * performed admirably in most duties but lacked the maturity and discipline to be truly effective as a leader c. Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Excellence" block and entered supporting bullet comments. d. Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments: * consistently led from the front in all that he did * perception of favoritism affected morale and discipline within his company e. Part IVe (Training) and Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Success" blocks and entered supporting bullet comments. f. 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. g. In Part Vc (Senior Rater – Overall Performance), the senior rater assigned him a 5-5 rating. He 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 "Poor/5" block. h. In Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * Soldier would benefit greatly, if assigned to a unit that follows the strict military model and structure * Do not promote * Soldier is not available for signature 5. The contested NCOER shows the rater and senior rater signed the NCOER on 2 and 3 March 2010, and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place on 4 March 2010. The applicant's signature block is blank. 6. On 30 March 2010, the Commander, 165th Infantry Brigade, Fort Jackson approved the applicant's removal for the Drill Sergeant Program in accordance with paragraph 8-17 of Army Regulation (AR) 614-200 (Enlisted Assignments and Utilization Management). 7. The applicant was reassigned to the 1st Battalion, 319th Airborne Field Artillery Regiment, Fort Bragg, NC. He had since deployed to Iraq in support of Operation Inherent Resolve, received multiple awards and decorations, and rated among the best on most of his evaluation reports. 8. There is no indication the applicant requested a Commander's Inquiry or appealed the contested NCOER through the U.S. Army Human Resources Command (HRC) to the Enlisted Special Review Board. 9. He provides 12 letters of recommendation for continued service from senior officers and NCOs from company to brigade level. The authors speak highly of his performance, experience, technical and tactical ability, and value to the Army. 10. On 14 October 2016, a staff member of the Board contacted the applicant and requested/advised the applicant: * review the redress policy outlined in AR 623-3 (Evaluation Reporting System) * seek help from his chain of command regarding a properly-submitted NCOER appeal * provide supporting evidence related to the rating period in question * provide a rating scheme during the rating period in question * provide evidence he appealed the contested NCOER to HRC within the timeframe outlined in AR 623-3 11. The applicant did not respond or provide any of the requested documents. REFERENCES: 1. AR 623-3, in effect at the time the contested NCOER was rendered, states: a. Evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pamphlet 623-3 (Evaluation Reporting System). b. 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. 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; it is imperative that rating officials ensure that these evaluations are accurately recorded on the NCOER prior to signing that report d. Because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. Substantive appeals will be submitted within 3 years of an NCOER thru date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered. The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is therefore recommended. e. The burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that (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. f. 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 QMP. The purpose of the QMP 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" or "5" on an NCOER, and NCO Education System failures. * Soldiers are notified ahead of consideration by the QMP and are given an opportunity to exercise an option (appeal, accept, retire, etc.) * Soldiers may appeal on the basis of a material error in their records, the chain of command must make a recommendation * The Director of Military Personnel Management is the final authority for disposition of appeal DISCUSSION: 1. The applicant received a Relief for Cause NCOER covering 9 months of rated time from 1 May 2009 through 20 January 2010 for his duties as drill sergeant. This NCOER shows he failed in some of his duties and responsibilities as a drill sergeant and was ultimately removed from the drill sergeant program. His rating officials opined/stated: a. He did not live up to the "Duty" Army value because he "exhibited unsound judgment; having improper relations with Soldiers in training" and "demonstrated a serious lack of integrity and poor judgment without consideration of the results." b. He needed much improvement in the "Competence" area because he "failed to comply with instructions of superiors on several occasions in accordance with a TRADOC regulation" and he needed some improvement in the area of leadership because "perception of favoritism affected morale and discipline within his company." c. His overall potential for promotion and/or service in positions of greater responsibility according to his rater was "marginal" and his overall performance and overall potential were poor according to his senior rater. 2. The applicant does not address or fully explain what led to his relief at the time. He argues that it was an unfair evaluation: a. He argues that the service members who signed this report were not his rating officials at the time but he did not provide a unit rating scheme that would support this contention. There is no evidence and he provided no evidence confirming that the rating chain was not the proper rating chain. He never appealed this alleged administrative error to HRC within the timeframe allowed in AR 623-3 nor did he request a commander's inquiry to look into this contention. b. He argues that the senior rater made a false statement of the applicant's availability to provide a signature for the evaluation and concur with the rater and senior rater. As required by the governing regulation, the senior rater would explain the lack of signature when a rated NCO is not available for signature. The applicant does not explain why he did not sign the contested NCOER. c. He argues that it has now been over 6 years since this injustice and the Army is looking to consider him for retention/separation under the QMP and that the NCOER has served its purpose. Contrary to his argument, an NCOER is not an administrative reprimand or a "punishment" such as an Article 15. An NCOER as a reflection of an NCO's performance during a given period of time. d. He provides several letters of support and/or recommendations from senior officers and NCOs who all speak highly of his performance and the need to retain him in the Army. While these letters are positive and noteworthy, none of the authors addresses the contested NCOER nor were any of the authors in the applicant's rating chain. e. He argues that since imposition of this NCOER he has several accomplishments (deployment, awards, evaluation). While the applicant is commended on such accomplishments, this has no bearing on the contested NCOER that took place between 2008 and 2009. 3. The contested NCOER appears to be correct and represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question. There is no evidence and the applicant has not provided any evidence to show his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner. More importantly, the applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOER or that they exercised faulty judgment in evaluating him as they did. 4. The available evidence does not appear to clearly and convincingly indicate the contested NCOER contains administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160014924 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160014924 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2