BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20170007686 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: 26 September 2017 DOCKET NUMBER: AR20170007686 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: 26 September 2017 DOCKET NUMBER: AR20170007686 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) of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rated period 1 April 2012 to 31 March 2013, hereafter referenced as the contested NCOER. In the alternative, he wants the rating changed or the contested NCOER filed in his restricted folder. 2. The applicant states he received a General Officer Memorandum of Reprimand (GOMOR) that was filed locally, not in his OMPF. While the GOMOR didn't follow him (upon his permanent change of station), it affected his performance rating (contested NCOER), which ultimately led to his referral to the Qualitative Management Program (QMP) in 2014. a. He was retained on active duty by the QMP board, but has experienced three non-selections for promotion to master sergeant (MSG) by the centralized selection boards for fiscal years 2015, 2016, and 2017. b. The contested NCOER is too harsh for an act that was perceived as wrongdoing, but in fact was not what it was made out to be. He believes the GOMOR has served its intended purpose despite his disagreement with it from the start. The Army declared him suitable to remain in the military service. He has felt every bit of the repercussions and it's time to move on. c. Professionally he cannot move on if at every opportunity to do so he is halted because of the injustice he experiences. The record is unjust because he was unfavorably rated for an act considered wrong when it was not harmful to the Soldier's welfare or safety. There was no il -will or malicious intent behind the event. No one was forced to do anything. A letter from the Soldier affected stated he felt it was fun, enjoyable, and a great experience. d. The applicant has not been able to recover thus far in his career because of the contested NCOER. He has been passed over multiple times for assignment consideration to special missions. He has been denied promotion to the next grade based on the contested NCOER, which is normally reserved for people who have had alcohol-related offenses, drug offenses, sexual harassment/assault offenses, or domestic violence offenses. e. His record prior to and after the incident has been perfect. He has completed at least eight courses, earned his Master's degree, and has favorable ratings from every chain of command. He is in great physical shape. f. He asks the Board to find in his favor because he considers this experience a lesson learned. He has worked hard for 4 years to overcome the stigma attached to the contested NCOER. The contested NCOER appears to have stopped his career advancement causing him to professionally stagnant. 3. The applicant provides: * DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) dated 28 September 2012 * DA Form 2823 (Sworn Statement) dated 22 October 2012 * Memorandum for Commander, subject: Request for General CourtMartial Convening Authority (GCMCA) Memoranda of Reprimand, dated 14 November 2012 * Memorandum for the applicant, subject: GCMCA Memorandum of Reprimand, dated 6 December 2012 * Memorandum for Record, subject: Rebuttal to GCMCA for Condoning Hazing, dated 8 December 2012 * Memorandum for Commander, subject: GCMCA, dated 23 January 2013 * DA Form 2166-8 (NCOER) for period ending 31 March 2013 * statement of support from a subordinate NCO, undated CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving as a sergeant first class, pay grade E-7, in the Regular Army. 2. The applicant provides the following evidence outlining the circumstances and sequence of events that led to the contested NCOER. a. DA Form 2823, dated 22 October 2012, prepared by a Soldier who was subordinate to the applicant and a member of his unit. He states that after his promotion ceremony the applicant and others went behind the unit building. He was told to get into a front leaning rest position. The junior NCOs present poured several 5 gallon jugs of water on him as a rite of passage to the NCO Corps. The water in each container changed from ice cold, to soapy, dirty, and warm. The Soldier stated he had been informed 48 hours before the promotion ceremony of what might happen after the promotion ceremony. He had no concerns and did not think the actions constituted hazing. b. The applicant provides a DA Form 1574, dated 24 October 2012, showing an investigating officer (IO) was appointed to investigate the unit's leadership, including the applicant, as it pertained to the Army's policy on hazing. The IO listed the applicant and two others as members of the leadership team who were directly responsible for the actions of their subordinate NCOs (concerning the hazing incident). The IO stated that the unit commander needed to conduct regular sensing sessions with junior Soldiers on a monthly basis to provide them the opportunity to directly communicate with their chain of command. The IO identified two junior noncommissioned officers (NCOs) who he recommended for non-judicial punishment for their actions during the hazing incident. The findings and recommendations of the IO were approved by the appointing authority. c. On 14 November 2012, the applicant's battalion commander stated he had reviewed the findings of the IO concerning a hazing incident that occurred on 31 July 2012 when the detachment leadership including the applicant witnessed subordinate NCOs hazing a newly promoted sergeant. Per the IO, the applicant failed to act or stop the hazing actions of his subordinates. The battalion commander recommended issuance of a GOMOR. He forwarded his recommendation and the IO report to the GCMCA. d. On 6 December 2012, based on the findings of the IO and the recommendation of the applicant's battalion commander, the GCMCA reprimanded him for observing and condoning the hazing of one of his Soldier's by two NCOs. The GCMCA stated the applicant’s inaction in the face of clearly humiliating and degrading behavior, constitutes a breach of both the Army values and the standards of conduct expected of a senior NCO. As the senior NCO in the detachment, the applicant was expected to set the example for his Soldiers. The GCMCA stated he questioned the applicant's ability to effectively lead Soldiers. The GOMOR was imposed as an administrative measure under the provisions of Army Regulation 600-37 (Unfavorable Information), and was not considered as punishment under the provisions of Article 15, Uniform Code of Military Justice. e. On 8 December 2012 the applicant provided a written rebuttal statement to the GOMOR. He states that the actions of the junior NCOs were not malicious and seem to have been taken out of context. Their actions and his observation of their actions was never meant to degrade, humiliate, or demoralize any Soldier in the ranks or the NCO Corps. The perception that Soldiers were abused or perceived to be abused without giving them a choice in the matter is untrue. The applicant states the cold water represented the initial shock of being selected for promotion, which was a wake-up call preparing him for the duties and responsibilities he would fulfill as an NCO. The dirty water represented the "bad habits" he might have acquired as a junior Soldier. The soapy water represented a cleansing of his "bad habits." The final water was warm representing a "clean start." All the NCOs present recited the NCO Creed. He is aware of the Army's pursuit to “clean up,” especially the actions of hazing, sexual assaults, fraud, and waste abuse. He requested the GOMOR not be permanently filed or filed locally rather he saw it as a learning tool. He states this is his first incident in his military career. This process (investigation and receipt of GOMOR) has been at times unbearable. f. On 23 January 2013 the GCMCA directed the applicant's GOMOR be filed in his local personnel file for 3years, or until he was permanently reassigned to a new duty station, whichever came first. 3. The contested NCOER is filed in the applicant's OMPF and it shows he was counseled multiple times during the period of the NCOER. His principle duty tile was Detachment Sergeant for a Financial Management Unit. a. Part I (Administrative Data) states the contested NCOER was an annual report with no non-rated time. b. Part II (Authentication) shows the Detachment Commander as his rater, Unit Commander as senior rater, and the Battalion Commander as reviewer. The rating chain digitally signed the report. The applicant did not sign the report. c. Part III (Duty Description) states the applicant was responsible for the safety, health, morale, mentorship and training of nine NCOs and 16 Soldiers. He advised the commander on all Soldier actions; actively supervised two locations disbursing military pay, customer service, Soldier readiness processing, pre-deployment processing and reintegration deployment processing. He supported a population of 15,000 service members. He was also accountable for automation equipment valued at over $300,000.00. d. Part IVa (Army Values/Attributes/Skills/Actions) shows "YES" for six of the seven Army values. He received a "NO" for the value "Personal Courage" with a supporting bullet comment, "Failed to correct a wrongful act." e. Part IVb (Values/NCO Responsibilities) shows the applicant was rated excellent in the areas of Competence, Physical Fitness and Training. In Responsibility and Accountability he was rated successful. In Part IVd (Leadership), he was rated as "Needs Improvement (Some)" with a supporting bullet comment, "Failed to ensure subordinate leaders followed policies and regulations." f. Part Va (Overall Performance and Potential) shows the rater found the applicant to be marginal for overall potential. g. Part Vc (Senior Rater Overall Performance) rated him as "Fair/4." h. Part Vd (Senior Rater Overall Potential) rated him as "Fair/4." i. Part Ve (Senior Rater Bullets) included: * "Lapse in judgment while supervising resulting in potential risks to a Soldier's welfare and safety" * "Service member refused to sign" 4. The Soldier who was the subject of the hazing event resulting in the applicant's GOMOR wrote a statement of support for the applicant. He discusses the applicant’s fine qualities as an NCO and how he helped him cope with his problems. 5. There is no indication the applicant: * requested a Commander's Inquiry * appealed the contested NCOER to the Enlisted Special Review Board (within the authorized timeframe) REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, to include the NCOER. The Evaluation Reporting System identifies Soldiers who are best qualified for promotion and assignments to greater positions of responsibility. This system also identifies Soldiers who will be kept on active duty, retained in grade, or eliminated from military service. a. 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 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. b. Alleged errors, injustices, and illegalities in a rated Soldier's evaluation may be brought to the attention of the commander by the rated individual 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. c. NCOERs accepted for inclusion in the official record of a Soldier is presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation. To justify deletion or amendment of the report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the applicant. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states 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. The NCOER is to be filed in the performance section of the OMPF. DISCUSSION: 1. The applicant, serving in the grade of E-7, received an annual NCOER for the period 1 April 2012 to 31 March 2013. Based on a hazing incident within his detachment during this rating period, he received marginal performance ratings with annotations of needs improvement. The rater and senior rater also provided bullet comments to support their ratings. 2. The evidence does not show the contested NCOER contains administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies. The applicant did not appeal the contested NCOER to his commanding officer or to the Enlisted Special Review Board as recommended by military regulation. 3. The contested NCOER is properly filed in the performance section of his OMPF. To justify removal of an NCOER from the OMPF, an applicant must produce clear and convincing evidence showing that the presumption of regularity should not be applied to the report. 4. In this case, while the applicant states the contested NCOER has served its intended purpose by limiting his upward mobility in the Army, there is no regulatory provision to remove or transfer an NCOER to the restricted folder within the OMPF once an NCOER appears to have served its intended purpose. Unlike a reprimand, which may be restricted or removed upon serving its intended purpose, an NCOER is a permanent record of an NCO's performance during a rating period. Generally, an NCOER will not be removed from a Soldier's record unless there is clear and convincing evidence of substantive errors in the document. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170007686 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170007686 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2