BOARD DATE: 23 May 2017 DOCKET NUMBER: AR20160019571 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: 23 May 2017 DOCKET NUMBER: AR20160019571 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: 23 May 2017 DOCKET NUMBER: AR20160019571 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 a Relief for Cause Noncommissioned Officer Evaluation Report (NCOER) covering the rating period 1 July 2013 through 13 May 2014 (hereafter referred to as the contested NCOER) be removed from his record. He also requests a personal hearing. 2. The applicant states he received an unfair NCOER for an operational security (OPSEC) violation involving information that had already been published on the U.S. Army homepage some 3 years before. According to Army Regulation (AR) 360-1 (The Army Public Affairs Program), paragraph 6-6, he is innocent of the alleged information that initiated the poor evaluation because this information had been previously released and would have had to have been cleared for release by the Office of the Chief of Public Affairs or the Office of the Secretary of Defense. The news story can still be accessed today and confirms the information was released via Army channels years earlier and constituted public knowledge by the time he received the NCOER in 2014. He states: * his appeal is based upon procedural errors – lack of proper counseling, improper comments, and substantive errors, in that he is innocent of the alleged OPSEC violations stated in the contested NCOER * he was never given developmental counseling; therefore, the allegations are without merit * his senior rater's comments are inappropriate because they are all related to the same incident and do not reflect his overall performance * the senior rater's comments are all based on one incident; also, the rater's and senior rater's evaluations are not logically related and show a lack of congruity * an investigation proved that he was innocent of the alleged OPSEC violations * his weekly tasks revolved around monitoring media activity on the unit, answering media inquiries from reporters, screening news articles from outside sources for public release, and producing stories and photo products on the unit * his duties also included recommend changes to the news articles he had screened to safeguard sensitive information about the unit; with those changes, the story could be released for publication, and the biggest challenge of the job was the mystique surrounding members of the unit * on 8 March 2014, First Sergeant (1SG) P, informed him that he was under investigation; the investigation was due to an OPSEC leak of classified information through an unsecure network * even though the investigation had barely started, it seemed that his fate had already been decided; the 1SG told him, "If there was a time you wanted to get out of the Army, now is that time" * he noted the challenge in releasing information and/or the day-to-day functions as a Public Affairs Officer (PAO) within the special operations unit; the main job of dealing with the public and media creates conflict with special operations personnel due to possible misunderstanding of the requirements and the functions Public Affairs can perform on behalf of unit commands * he also requested help from his superiors the first time he responded to a reporter's request, and the second time he quoted DOD policy, all in an effort to safeguard sensitive information * he believes he could not successfully do his job if he is in fear of receiving information and analyzing it in a manner to make it releasable; he took the information received, asked questions, and requested help * he strongly believes the NCOER is unjust because although it was DOD policy not to release the names of units involved in the terrorist mission, the Army had already published the news in a story on its homepage * regardless of the special operations unit’s involvement already being public information, he still tried his best to protect the information as best as possible 3. The applicant provides: * Contested NCOER * Email exchange with his former commander * Articles from the Army homepage * More email exchange with his former commander * Character reference letters/letters of support * Other NCOERs from before and after the contested NCOER * Appeal memorandum to the Army Special Review Board (ASRB) * Denial letter from the ASRB * Article from Soldiers: The Official U.S. Army Magazine CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 15 April 2003. He holds military occupational specialty 46Q (Public Affairs Specialist). 2. He served through multiple reenlistments in a variety of assignments and he was advanced to staff sergeant (SSG)/E-6 in May 2014. He was assigned to Headquarters and Headquarters Company, 160th Special Operations Aviation Regiment (SOAR) (Airborne), Fort Campbell, KY. 3. He provides NCOERs he received while assigned to the 160th SOAR prior to the contested NCOER. For the period ending 25 October 2012, his rater rated him as "Fully Capable" and his senior rater rated him as "2/Successful" and "2/Superior." He received the same evaluation for the period ending 30 June 2013. 4. On 1 July 2013, an investigation by the chain of command concluded that the applicant violated Army Regulation (AR) 380-5 (Department of the Army Information Security Program) when he caused spillage (he forwarded an email that disclosed unit involvement, unit mission, and unit success). The investigating officer indicated that the likelihood of compromise was low as the information in the email was public knowledge; however, in his attempt to take appropriate action, he created further spillage. 5. In February 2014, and in another operational security violation, the IO determined that although there was no compromise to classified information, the applicant's carelessness and failure to follow protocol indicated the "applicant had repeatedly demonstrated his inability to responsibly safeguard classified information." He was removed from his position and his security clearance was temporarily suspended. 6. On 28 April 2014, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully introducing Secret//ACCM (Alternate Compensatory Control Measures) information into an unclassified information system. His punishment consisted of a reprimand. He did not appeal. 7. During May 2014, the applicant received an annual NCOER (contested NCOER) covering 11 months of rated time from 1 July 2013 through 13 May 2014 for his duties as Public Affairs Operations NCO while assigned to the 160th SOAR. His rater was Major DAH, the Regiment Public Affairs Officer; his senior rater was Lieutenant Colonel MEM, the Regiment Executive Officer; and his reviewer was Colonel JRE, the Regiment Commander. This NCOER shows: a. He was initially counseled on 19 August 2013 and then counseled quarterly on two occasions, 19 November 2013 and 19 February 2014. b. In Part IVa (Army Values), the rater placed an "X" in the "Yes" block for all of the Army values. c. In Part IVb (Competence), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments: * exhibited poor judgment having three OPSEC violations on the same subject within a seven-month period * did not learn from previous mistakes; inefficient in his inability to perform duties as a staff sergeant * demonstrated good writing skills in support of three Regiment events 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. 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 "Fair/4" 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. In Part Ve (Senior Rater Bullet Comments), the senior rater entered the following bullet comments: * do not promote until service member gains maturity and accepts responsibility for his actions * failed to perform at the staff sergeant level, evident in his multiple OPSEC violations * service member has reached his full potential * do not send to additional professional military education until he has demonstrated performance and potential 8. The contested NCOER was digitally signed by the rater and senior rater on 15 May 2014 respectively. The reviewer concurred with the rater and senior rater and signed the NCOER on 15 May 2014. The applicant signed the NCOER on 16 May 2014. It is filed in his record. 9. The NCOER he received immediately following the contested NCOER was for the period 14 May 2014 through 14 May 2015. He was evaluated as the Garrison Public Affairs NCO in Charge assigned to Headquarters and Headquarters Company, U.S. Army Garrison Yongsan, South Korea. His rater rated him as "Among the Best" and his senior rater rated him as "1/Successful" and "1/Superior." The senior rater commented that the applicant is an extremely capable NCO and in the top 5 percent of NCOs he had worked with in the past 15 years. 10. On 28 August 2016, he appealed the contested NCOER to the Army Special Review Board (ASRB). He made a similar argument as made here and provided the same character reference letters as provided here. On 18 October 2016, the ASRB denied his appeal. The ASRB stated the applicant did not provide clear and convincing evidence which shows the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered. Additionally, there was no evidence in the available records and he did not provide evidence showing that the contested report was inaccurate, unjust, or otherwise flawed. 11. He provides: a. Multiple newspaper articles and internet printouts showing the President of the United States addressing troops at Fort Campbell, KY, and other places, and/or talking about the 160th SOAR (Night Stalkers) and the many missions they conducted in support of special operations. b. Email exchange with his former commander who, in one redacted email, addresses a security violation, and in another email, speaks highly of the applicant (in relation to the applicant's selection by the Qualitative Management Program (QMP)). c. There is another email, dated 24 June 2016, from Captain (CPT) CSC (PAO), who stated the applicant should be removed from the QMP list because his NCOER reflected he lacked competence. The applicant was doing the job exactly the way he was supposed to do it in public affairs (whether in support of conventional or unconventional forces). He was given an Relief for Cause NCOER for three OPSEC violations; however, the Commander's Inquiry and security investigation (completed after his NCOER was written) was returned with the allegations being unfounded. Also, the applicant's temporary suspension on his clearance was lifted. Further, the NCOER indicates a severe lack of leadership. He was a junior NCO at the time and operating mostly alone while his supervisor was away. d. Character reference letters/letters of support from various officers, NCOs, or civilian employees (mostly in Korea), all speaking highly of the applicant and his technical/tactical ability. 12. It appears the applicant appealed his selection by the QMP, as shown by the multiple letters addresses to the QMP board. It also appears his appeal of separation under the QMP was denied because it presumably did not meet the appeal criteria set forth regarding the identification of a material error, newly-discovered evidence, or the subsequent removal of documents from his record to make him eligible to appeal. 13. The applicant is currently pending separation from active duty under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 16-4a (Non-retention on Active Duty). REFERENCES: 1. AR 623-3 (Evaluation Reporting System) prescribes the policy for completing the NCOER. a. Paragraph 1-9 states 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 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 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 1-11 states when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or 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 (CI) 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 policy and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. c. Paragraph 3-55 states a Relief for Cause NCOER, is required when an NCO is relieved for cause. NCOs can be relieved for cause regardless of the rating period involved; however, a waiver is required to render "Relief for Cause" NCOERs covering a period of less than 30 days. Relief for cause is defined as removal of an NCO from a specific duty or assignment based on a decision by a member of the NCO's chain of command or supervisory chain. It occurs when the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the Army. d. Paragraph 4-4 states 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. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA. However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record provides restrictions on modifications to previously submitted reports already accepted by HQDA). e. Paragraph 4-11a states the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration; and, action is warranted to correct a material error, inaccuracy, or injustice. f. Paragraph 4-11d states for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. The results of a Commander's Inquiry may provide support for an appeal request. g. Paragraph 4-13a(2) states limited support is provided by statements from people who observed the appellant's performance before or after the period in question (unless performing the same duty in the same unit under similar circumstances); letters of commendation or appreciation for specific but unrelated instances of outstanding performance; or citations for awards, inclusive of the same period. 2. AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 19 (QMP), contains policy and procedures for voluntary and involuntary separation for the convenience of the government of Regular Army NCOs under the QMP. a. NCOs whose performance, conduct, and/or potential for advancement do not meet Army standards as determined by the appropriate recommendation of HQDA, centralized selection boards responsible for QMP screening will be denied continued service. The QMP is designed to enhance the quality of the career enlisted force, selectively retain the best qualified Soldiers, deny continued service to nonproductive Soldiers, and encourage Soldiers to maintain their eligibility for further service. b. Screening for QMP is accomplished by HQDA boards that may be convened for other purposes as well. The appropriate board reviews the performance folder of the OMPF, Personnel Qualification Records/Enlisted Record Brief), official photograph, and other authorized documents pertaining to Soldiers in the QMP zone of consideration. This material forms the basis for the board's evaluation of the Soldier's past performance and potential for continued service, leading to a determination of whether the Soldier does or does not warrant retention. QMP selection criteria include, but are not limited to, lack of potential to perform NCO duties in current grade and a decline in efficiency and performance over a continued period as reflected by NCOERs. c. QMP appeals are limited to newly-discovered evidence, the subsequent removal of documents from the Soldier's OMPF, or material error in the Soldier's record that was reviewed by the QMP screening board. 3. AR 600-8-104 (AMHRR Management), table 2-1, states an NCOER will be filed in the performance folder of the OMPF. 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: 1. 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 are sufficient to render a fair and equitable decision at this time. 2. An investigation established that the applicant violated OPSEC on several occasions. He received nonjudicial punishment for wrongfully introducing classified information into an unclassified information system. Subsequently, he received a Relief for Cause NCOER covering 11 months of rated time during the period July 2013 to May 2014. According to his rating official, he exhibited poor judgment as an NCO: he had three OPSEC violations on the same subject within a 7-month period and he did not learn from his previous mistakes, thus making him inefficient in his ability to perform his duties. Accordingly, his chain of command relieved him. 3. As a result of his OPSEC violation, his senior rater rated his overall performance and overall potential as "4/Fair." This, and the nonjudicial punishment he had received as an SSG, triggered his consideration and selection by the QMP for non-retention. He appears to have appealed his QMP selection, but his appeal was denied. 4. He also appealed to the ASRB claiming the contested NCOER contains administrative and substantive inaccuracy. The ASRB carefully considered the applicant's contention but concluded that the applicant did not provide clear and convincing evidence which shows the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered. He comes before this Board with the same argument and contention. 5. He contends that the rater's and senior rater's evaluations were not logically related and show a lack of congruity, yet he does not explain, show, or corroborate such contention. His rating officials provided an objective and thorough assessment of his achievements and strengths. The rating officials stated he exhibited poor judgement by having three OPSEC violations on the same subject within a 7-month period, did not learn from previous mistakes, and was inefficient in his inability to perform duties as an SSG. The reviewer, the Regiment Commander, concurred with the rater's and senior rater's evaluations. 6. As for the issue of counseling, the contested NCOER shows the applicant received initial and quarterly counseling. In any event, a lack of counseling is not grounds to invalidate an evaluation report. Further, the facts cited in the report were supported by the findings of an investigation. 7. The several letters of support provided by the applicant are noted. None of the authors were in his rating scheme at the time and only one was in any position to know the expectations and performance standards placed by the rating officials on the applicant. As such, although positive and supportive of the applicant's continued service in the Army, these statements do not negate the ratings or comments on the contested NCOER. 8. The evidence does not show the contested NCOER contains any administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160019571 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160019571 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2