IN THE CASE OF: BOARD DATE: 10 February 2015 DOCKET NUMBER: AR20150000503 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)) for the rating period 1 October 2010 through 4 February 2011 from his official military personnel file (OMPF). 2. The applicant states: a. He is a sergeant first class (SFC)/E-7 with 16 years of active duty service, 2 years in the Army National Guard (ARNG), and 5 years of U.S. Army Reserve (USAR) service. The basis for this appeal is substantive inaccuracy. He challenges the entire report for regulatory violations as well as violations of impartiality or bias as it relates to his performance. The ratings against him were based upon an arbitrary certification process for his military occupational specialty (MOS) that was created outside of regulations, which resulted in a biased and erroneous perception of his performance. b. In September 2011, he was in the targeting acquisition platoon as the Senior Station Leader for the MOS 13 Series, Meteorological and Survey (MET/Survey) Section. Prior to their deployment to Iraq, the platoon leader, Chief Warrant Officer Two (CW2) CAB, informed some of the other Soldiers of a possible certification that would be held while they were deployed. CW2 CAB never informed him of the pending certification. On or about 15 October 2011, CW2 CAB approached Staff Sergeant (SSG) DR, the section chief, to schedule a meteorological/survey certification. CW2 CAB told SSG DR not to tell him or Sergeant First Class (SFC) RLH, the Battalion Master Gunner, about the pending certifications or what events would be included. In January 2011, CW2 CT, the Battalion S-2, was often seen in the platoon area with SSG DR; however, there was never any mention of an upcoming certification. When he finally learned of the certification, he informed CW2 CT and SSG DR that they could not administer the certification because they were not certified themselves and it was his responsibility to administer all training and certification for 13Ts in the platoon. In response, CW2 CAB demanded that he (the applicant) take the certification anyway. Later that day, CW2 CAB informed him that he had failed the exam, but refused to provide him a copy of his exam to establish such. c. He immediately requested a Commander's Inquiry and an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation through his chain of command. He also approached the Battalion and Brigade Command Sergeants Major (CSM). In response to these requests, no action was taken by the chain of command regarding the improper certification testing. Instead, the applicant was referred to AR 623-3 (Evaluation Reporting System) for an NCOER appeal as his only recourse. d. The Fires Center of Excellence has established the Artillery Skills Proficiency Test (ASPT) in order to standardize training and certification of all 13T Survey/MET sections. Training Circular (TC) 3-09.8 (Field Artillery Gunnery), chapter 7 covers the standardized test. Under paragraph 7-4, the Survey/MET station leader and master gunner are responsible for the overall training program. As a preliminary requirement, Survey/MET Table III, Survey/MET Planning and Coordination must be administered to station leaders and section chiefs prior to Table V certification. In addition, all evaluators must be tested and certified on all stations prior to any testing. In order to pass the ASPT, each Soldier must pass a written exam with 80% or more and receive a GO on all stations. After a written exam failure or No-GO, each Soldier must be retrained and retested. Soldiers are allowed to retake the written exam four times and each station three times. e. The certification conducted by CW2 CAB failed to meet the basic requirements of TC 3-09.8 and was specifically designed to eliminate him (the applicant) and form the basis for the negative ratings. CW2 CAB is a 131A, Field Artillery Targeting Technician. He is not certified within the 13T MOS and has no technical expertise on the equipment used during the certification. In accordance with (IAW) TC 3-09.8, the section leader and master gunner are the only persons who can certify 13T Survey/MET Sections; the Targeting Officer is not qualified to conduct such a certification. Even if CW2 CT's certification was legitimate, he (the applicant) was not given the opportunity to retrain and retest the written exam or the hands-on stations as required. f. Additionally, he would like the Board to take into consideration the email enclosed dated 18 December 2014, between the senior rater and him on the report in question. Within that email, he inquired about the AR 15-6 investigation previously requested during the original appeal. He would highlight the fact that he received no response to this request despite his direct knowledge about the inconsistencies in the report in question. The admission of inconsistencies was made during a phone conversation with this same officer. When he was informed by his S-1 NCO of the relief for cause action, the reason given was not the same as the report in question shows. He was not counseled in writing by any of his rating officials. He strongly believes a review of the actions of his rating officials will show there is illegitimacy for the relief for cause. g. Allowing the contested NCOER to remain in his OMPF would inaccurately represent his performance, does not constitute an objective assessment of his ability, and would result in a manifestation of injustice. The NCOER references CW2 CAB's certification for each checked “No” or “Needs Improvement” box. No such certification can remotely be construed to represent each of the proficiency reviews which an NCOER is designed to measure. As discussed above, the certification was conducted outside of established procedures and by a person who is not qualified to administer the certification. CW2 CAB purposefully circumvented the master gunner and him (the applicant) in organizing his certification. The end result is that he was forced to take a certification exam that was not to standard and without an opportunity to adequately prepare or retrain. h. He requests the Board review/compare the contested NCOER and the NCOER after the relief for cause for comments consistent with his true performance. He requests that the Board correct this injustice and prevent the destruction of an honorable Soldier’s career. Completing his military career is the number one in his priority. This NCOER is a stain on his integrity, pride, and respect, and it is undeserved. He has been notified by the Department of the Army of the potential denial of continuous active duty service under the Qualitative Management Program (QMP) as a result of this erroneous NCOER. A QMP board will convene on 10 February 2015 to consider whether he should be separated and he will be 58 years old on 9 February 2015. He is the oldest Soldier of the battalion because of a break in service, but he returned to fulfill his dream of completing fruitful and honorable service with the Army. At this time, because of this injustice, his career stands on a precipice. He is requesting that the contested NCOER be removed from his OMPF or appropriately amended as it is entirely based upon certification testing conducted outside established parameters by an unqualified evaluator. 3. The applicant provides: * contested NCOER * Enlisted Record Brief * five letters of support/character reference letters * email reply from his senior rater * previous and subsequent NCOERs * Chapter 7 of TC 3-09-8 CONSIDERATION OF EVIDENCE: 1. The applicant's records show he was born in February 1957. His available records show he previously served in the Regular Army (RA) from August 1977 to February 1979 and August 1979 to March 1984, the ARNG from May 1998 to April 2000, and USAR from March 2002 to March 2006. 2. He enlisted in the RA on 22 November 2006 in the rank/grade of staff sergeant/E-6. He was trained in and held MOS 13W (FA Meteorological Crewmember). He was promoted to SFC/E-7 on 1 November 2008. 3. He served in Afghanistan from 30 June 2008 to 30 June 2009 and he completed the FA Surveyor/Meteorological Senior Leader Course (5 January 2010 to 5 February 2010) at Fort Sill, OK. 4. He served in Iraq from 15 September 2010 to 29 August 2011. He was assigned to Headquarters and Headquarters Battery (HHB), 5th Battalion, 82nd FA (5-82 FA), 4th Brigade Combat Team, 1st Cavalry Division, Fort Hood, TX. 5. During October 2010, he received an "Annual" NCOER covering 12 months of rated time from 1 October 2009 through 30 September 2010 for his duties as Meteorological Station Leader. His rater was CW2 CAB, the platoon leader; his senior rater was Captain (CPT) LNG, the battery commander; and his reviewer was Lieutenant Colonel (LTC) RKM, the battalion commander. This NCOER shows: * his rater rated his 7 Army values as "Yes," his NCO responsibilities as "Success" or "Excellence," and his overall potential for promotion as "Fully Capable" * his senior rater rated his overall performance as "Successful/2" and his overall potential as "Superior/2" 6. During February 2011, he received a "Relief for Cause" NCOER covering 4 months of rated time from 1 October 2010 through 4 February 2011 for his duties as Meteorological Station Leader. His rater was CW2 CAB, the platoon leader; his senior rater was CPT LNG, the battery commander; and his reviewer was LTC RKM, the battalion commander. This NCOER shows he was initially counseled on 18 October 2010 and he also received a subsequent counseling on 3 February 2011. It shows the following entries a. In Part IVa (Army Values), the rater placed an "X" in "No" blocks for "Duty," "Selfless-Service," and "Personal Courage." The rater entered the following bullet comments. * has difficulty performing duties to standard and falls short of obligations * does not display the ability to place the needs of subordinates above his own * consistently demonstrated a lack of confidence during stressful situations b. In Part IVb (Competence), the rater placed an "X" in the "Needs Improvement (Some)" and entered the following bullet comments: * did not meet minimum certification requirements on written test scoring 52.5 percent * demonstrated a lack of knowledge during METRO/Survey hands-on test resulting in inability to fully complete either of the performance measure checklists * failed to pass MOS specific-recertification, scoring 58 percent on the written re-test and was unable to complete either METRO or Survey hands-on portion c. In Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Success" and entered appropriate comments. d. In Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" and entered the following bullet comments: * failure to appropriately prioritize mission related tasks was significant to the results of not meeting certification standards * displayed little or no effort in the training of Soldiers up to the platoon certification e. In Part IVe (Training), the rater placed an "X" in the "Needs Improvement (Some)" and entered the following bullet comments: * ignored all opportunities for training for a four month period leading up to the METRO/Survey certification * neglected to adhere to the structured certification training submitted to the Battery Commander and First Sergeant (1SG) f. In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Some)" and entered the following bullet comment: * the rated NCO has been notified of the reason for the relief * maintained management, and accountability within the platoon g. 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. He also entered three positions in which the applicant could best serve the Army at his current or next higher grade. h. In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Fair/4" block. i. 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. j. In Part IVe (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * had difficulty meeting the minimum requirements necessary to continue serving as the METRO Station Leader * do not promote at the present time; continue to train and develop * had difficulty leading Soldiers and prioritizing tasks; continue to mentor * has the potential to continue serving but must take the initiative to improve MOS proficiency and leadership skills 7. The NCOER shows the rater, senior rater, and applicant authenticated this form by placing their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place. 8. There is no available evidence showing the applicant requested a Commander's Inquiry regarding the subject NCOER. Likewise, there is no indication the applicant appealed this NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board. 9. During December 2011, he received a "Change of Rater" NCOER covering 10 months of rated time from 5 February 2011 through 10 December 2011 for his duties as Battalion Assistant Operations Sergeant. His rater was the battalion fire direction officer, his senior rater was the battalion executive officer, and his reviewer was the battalion commander. This NCOER shows: * his rater rated his 7 Army values as "Yes," his NCO responsibilities as "Success" or "Excellence," and his overall potential for promotion as "Fully Capable" * his senior rater rated his overall performance as "Successful/2" and his overall potential as "Superior/2" 10. He provided the following evidence in support of his application: a. Statement, dated 7 August 2012, from SGT DR, supporting the applications evaluation appeal. SGT DR states: (1) During the period 20101001 to 20110204, he served as the MET/Survey section leader and the subject matter expert with the applicant as the section leader on the Meteorological Measuring Set AN/TMQ 52A. On or about "15 October," he (SGT DR) was approached by the CW2 CAB, the platoon leader, about writing and getting together the hands-on portion of the ASPT lAW TC 3-09.8, chapter 7. At that time he was also counseled by CW2 CAB who informed him that all NCOs/Soldiers of the TA platoon would be given a written and hands-on test in January to lAW TC 3-09.8 covering the MET/Survey Radar sections. All Soldiers in the section were counseled and the counseling was recorded by CW2 CAB. During the months leading up to January, the Soldiers were given classes covering everything they needed to know for the written and hands on tests but not to ASPT standards and he knew that. He know he should have informed [The applicant] of the upcoming events and of the direct order given to him by CW2 CAB not to inform him of the event. He set him up for failure. (2) In January 2011 CW2 CAB and CW2 CT administered the written/hands on for the ASPT's lAW TC 3-09.8. He (the author) was aware of the policy that the individuals administrating the testing had to be certified on all phases of the MET/Survey certifications prior to administrating a test of this nature to anyone in this MOS and they were not certified on this task or MOS lAW TC 3-09.8. At that point he was told that [Applicant] would no longer be in charge of the section and that he (the author) would be put in charge of the MET/Survey section. During the months that followed up to the point of redeployment, he was given instructions not to aid the applicant in any way for training and any other hands on with the Profiler or IPADS equipment. Other Soldiers were also instructed not to help the applicant with any training or hands-on [events]. All instructions given to him and the other Soldiers were given by the Battalion S-3 Major A---s, CW2 CAB, CW2 CT, and 1SG F---es. b. Statement, dated 14 December 2011, from SFC RLH, Battalion Master Gunner, 5-82 FA, Fort Hood. He states: (1) During the period 20101001 to 20110204 he served as the Battalion Master Gunner of the 5-82 FA. In that position, he did not frequently observe the applicant's duties during said report period as they were deployed and his assigned duties as Battle NCO restricted him from doing so. He was not knowledgeable of the working relationship between the applicant and the rating chain or their expectations of him. Chapter 7 of TC 3-09.8 covers 13T Survey/MET Crewmember Tables. This chapter clearly outlines the training, certification, and qualification standards for all 13T Survey/MET sections. Without his knowledge and without the Survey/MET station leader and himself ensuring that the Survey/MET training program met the criteria outlined in chapter 7, section 7-4, a Survey/MET certification had taken place while they were deployed to Mosul, Iraq. As stated in chapter 1 of TC 3-09.8 under Evaluation, the evaluation is administered under the control of the Battalion Master Gunner and the oversight by the Battalion CSM. (2) None of the evaluators were certified prior to conducting the certification. In no way was he under control of said evaluation. Once he was informed that a Survey/MET certification had taken place, he requested the results and all test materials be turned in to him to maintain. It took over a week to finally obtain the documentation, and after review, he noticed that there were score sheets with different initials of evaluators, but with the same handwriting. He knew, without a doubt, that the score sheets were generated and initialed after he had requested them. After going through all the documentation, there was no packet for the applicant. He was not aware of any planning, coordination, or training that had taken place to prepare this certification. He believes that this certification was unjust and not conducted to standard. c. Statement, dated 15 August 2012, from SSG RG, Senior Chief Surveyor/S-3, 6-82 FA. He states: (1) During the period 201004 to 201310, he served as the Battalion Chief Surveyor. He met the applicant during a live fire exercise in April 2010. He noticed that the applicant was operating the AN/TMQ 52A profiler system on his own with no Soldiers, working for 24 hours, 7 days a week for 10 days. This system needed to be operated with four Soldiers. He was surprised how the applicant managed to operate the profiler by himself and disseminate accurate meteorological information to six M109A paladin howitzers. The applicant took time to train him (the author) on the operations of the profiler, knowing that the Army was planning to merge the two MOS's meteorological and survey operation. (2) He appreciates the applicant's leadership, training, and selfless service during his time with 5-82 FA Battalion. The applicant's character as an NCO reflects great dedication to his Soldiers and the mission. He always places the mission and the Soldiers first before his own. While deploying during Operation New Dawn from 2010-2011, the battalion conducted a survey and met certification, without including him (the author) in the planning and evaluation of the certification. At that time he was the assistant planning NCO in charge (NCOIC) in the S-3 and the Senior Chief Surveyor. In his professional opinion the leadership never gave the applicant a fair opportunity to showcase his skills and knowledge on survey/metro operation. He had multiple obligations, duties outside of his spectrum and still executed his responsibilities with his Soldiers as metro station leader; he was treated with disregard as a senior NCOIC of metro and survey. He believes an injustice was done to the applicant. d. Character reference letter, dated 13 May 2014, from LTC MLT, Battalion Commander, 3rd Battalion, 339th FA, Fort Hood. He states: (1) He is privileged to serve with the applicant as his Battalion Commander. During their acquaintance, he immediately noticed that he is one of the hardest working Soldiers in the Battalion. He is relentless in problem solving, selfless in his time for subordinates, and meticulous in mission accomplishment. The Battalion was able to clearly focus on operational requirements during their tenure because of his tireless effort and involvement in the junior Soldier's professional and personal interests. He is a role model for the Soldiers and is a tremendous asset for the Army. He quickly understands commander's intent and is able to anticipate questions and problems. His ability to work autonomously is indispensable. He (the author) came to rely heavily upon his (the applicant's) ability to always be at the decisive point lending his experience and advice to our subordinate members of the team. He explicitly trusts the applicant's advice and he is confident in his decisions and actions. (2) He considers his straightforward, no-nonsense approach refreshing, but more importantly, he is impressed by the results of his decisions. No matter the complexity of the task or the volume of demands, the applicant consistently brings about lasting solutions. He combines natural organizational abilities with unmatched leadership abilities. He is a proven leader who accomplishes the mission. He is regularly sought out by peers and superiors alike because of his knowledge and experience. An unflappable and steady leader, the applicant is committed to the achievement of excellence. e. Character reference letter, dated 21 April 2014, from CSM TLG, 3rd Battalion, 339th FA, Fort Hood. He states: (1) The applicant has exemplified outstanding character for as long as he has known him. He met the applicant in June 2012. He was an out-front professional from the very start. He welcomed him into the unit and identified himself and his capabilities within the organization. His loyalty has been un-matched at all levels. Over the last two years, he has identified certain go-to persons in the formation. The applicant is one of them. Every single time he called on him to do things other than just his daily duties, he not only accomplished the mission, but exceeded the standard. In most cases, these tasks would require his own time and own efforts. His duty within the organization is impeccable. He has multiple additional duties that contribute to unit success. Their organization is inspected at least twice a year from an outside source. The applicant has clearly made those look easy. He received commendable ratings on all inspections each time he was looked at. (2) He and the applicant speak quite often about having a balance between Army and family. He has mastered the art of doing both. He has accomplished a ton of things here at Fort Hood since he met him. Not only does he trust him to accomplish his mission within his daily duties and scope, but he often sends him to Troop schools here on the installation to further his knowledge abroad. He has soared above his classmates each time. He places the right amount of focus at the appropriate time and places, to ensure nothing less than success. He is pleased as a CSM in our Army to be able to say he has served with this senior NCO. His future remains bright and promising. f. An email, dated 16 December 2014, from the applicant to his former senior rater requesting a copy of the AR 15-6 investigation, and a response from his former senior rater, dated 16 December 2014, informing the applicant that he did not have a copy of the AR 15-6 investigation. g. A memorandum, dated 5 December 2014, from the U.S. Army Human Resources Command, notifying him of the potential denial of continued active duty service under the QMP and that the QMP board will convene on 10 February 2015. The memorandum also advises him how to correspond with the QMP board and how to submit matters of mitigation and/or extenuation for consideration by that board. h. Chapter 7 of TC 3-09-8, Subject: 13T Survey/Meteorological (MET) Crewmember Tables. This chapter provided commanders, unit Master Gunners, and survey/MET sections a standardized method of training and qualifying the survey/MET personnel assigned to their organizations, including certification and qualification standards. 11. AR 623-3 (Evaluation Reporting System), effective 10 September 2007, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. a. Paragraph 1-11 (Commander's Inquiry) states that when it is brought to the attention of a commander 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 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 Headquarters, Department of the Army (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. b. Paragraph 3-2i (Evaluation Report Requirements) states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions. c. Paragraph 3-23 (Unproven Derogatory Information) states that 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 the evaluation to HQDA. If the rated individual is absolved, comments about the incident will not be included in the evaluation. d. Paragraph 3-24 (Prohibited Comments) states a thorough evaluation of the Soldier is required. e. Paragraph 3-39 (Modification to Previously Submitted Reports) states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, have 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 a report, the appellant 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 appellant. DISCUSSION AND CONCLUSIONS: 1. The applicant contends the contested NCOER should be removed from his records. 2. The available evidence shows the applicant, an NCO serving in a leadership position in combat, appears to have performed below standard. He received a relief for cause NCOER that covered 4 months of rated time. His rating officials believed he did not perform to standards in multiple areas of NCO values and/or responsibilities. 3. The applicant focuses his argument around the certification process. However, this NCOER encompasses various failures by the applicant during the rating period. For example: * in the "Duty" value, the rater commented that the applicant had difficulty performing duties to standard * in the "Selfless-Service" value, the rater commented that the applicant placed his needs above those of his subordinates * in the "Competence" responsibility, the rater commented that the applicant failed to pass MOS specific recertification * in the "Training" responsibility, the rater commented that the applicant displayed little or no effort in the training of Soldiers 4. The NCOER reflects the objective judgment of the rating officials during a given rating period. This Board does not substitute its own evaluation of the applicant to that rendered by his rating officials as the Board is neither privy to his performance during the rating period nor is it an evaluating Board. There is no evidence he requested a Commander's Inquiry or appealed this NCOER through HRC to the Enlisted Special Review Board within the time allotted. Any negative impact on his military career is a natural result of his own performance. The fact that his former senior rater does not have a copy of the AR 15-6 investigation does not mean it was not conducted. Nonetheless, he has the burden of proof. 5. There is insufficient evidence that shows the contested report contains any administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies. Furthermore, the applicant has not shown evaluations rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time the NCOER was prepared or that they exercised faulty judgment in evaluating him as they did. In view of the foregoing evidence, there is insufficient evidence to grant him the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20150000503 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150000503 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1