IN THE CASE OF: BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20150014681 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: 7 February 2017 DOCKET NUMBER: AR20150014681 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: 7 February 2017 DOCKET NUMBER: AR20150014681 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. Removal of the Noncommissioned Officer Evaluation Reports (NCOER) from his Army Military Human Resource Record (AMHRR) covering the rating periods: * 27 August 2009 through 26 August 2010 (hereafter referred to as the Annual NCOER) * 27 August 2010 through 10 January 2011 (hereafter referred to as the Relief-for-Cause NCOER) b. Reconsideration of his Appeal of Denial of Continued Active Duty Service under the Qualitative Management Program (QMP). c. Revocation of the orders discharging him from the U.S. Army Reserve (USAR) Active Guard Reserve (AGR) Program. 2. The applicant states the above NCOERs were retaliatory in nature. In addition to the substantive inaccurate bullets throughout both NCOERs, they were prepared and presented after he had filed an Inspector General (IG) complaint that was substantiated by the Department of the Army Inspector General (DAIG) and after he had met with the special staff of his higher headquarters during a command climate survey. The survey yielded disastrous results for the officers who were rating officials on the NCOERs. He argues that: * the two NCOERs in question are beyond 3 years of their "THRU" dates, but he requests this Board waive the lack of timeliness; these NCOERs are unjust and contain erroneous and concocted negative bullets throughout * a personality conflict with his rater led to the poor ratings on both NCOERs * he appealed both NCOERs without more documentary evidence to prove they were substantively inaccurate as he was awaiting the evidence he anticipated emanating from a commander's inquiry into the NCOERs * the commander's inquiry was not completed at the time of his NCOER appeal submissions although it was requested 1 year prior to that date * he hoped the commander's inquiry provide documents from his rater's profile showing his rater had been relieved of command twice * his 2011 NCOER was a Relief-for-Cause NCOER, yet he was not in fact relieved during that rating period * he was informed of his removal from his position on 7 June 2011 and he signed this NCOER on 8 June 2011, well after the "THRU" date of 10 January 2011; the NCOER was signed by the rating chain 4 months after the rating period ended * he refutes that he plagiarized an essay (he simply had his wife proofread it prior to completion) or that he refused to complete an essay as directed (he was only directed to write one essay, not two), and he was not insubordinate toward his rater * he was proficient in managing the enhanced Logbook Automation System (eLAS) used to monitor organizational priority suspense action taskers * the shortcomings regarding updating weekly training slides resulted from his rater not insisting that he be provided the necessary information to make the updates * it was his rater, not he, who made a practice of berating subordinates, creating a toxic climate and undermining the training plans * he appropriately forecasted ammunition for subordinate units per brigade instructions prior to attending the Battle Staff Course, and upon his return he learned the units had not done their part * he was never assigned a post or tasked to track the movement of the 412th Theater Engineer Command (TEC) Commanders Conference attendees per the operations order and should not be held accountable for that mission on his NCOER * his 2010 annual NCOER was not signed by his senior rater until July 2011 after he signed his 2011 Relief-for-Cause NCOER * the bullet comments stating he was insubordinate to his seniors as well as harsh in his leadership style to subordinates during extended combat training are incorrect – rather, it was his rater who was disrespectful to him * both NCOERs bear no resemblance to the NCOERs he received from previous raters containing comments such as "strong sense of duty," "treats everyone with respect," and "unlimited potential" * the QMP action was based on the two negative NCOERs and will result in his transfer to the Retired Reserve, where he will have to wait 6 years until he can collect his pension despite 34 years of service * this will leave him unemployed with neither income nor benefits for him and his wife, who suffers from type II diabetes and congestive heart failure * the QMP board was not made aware of a substantiated DAIG investigation, which confirms hostile treatment by his chain of command and is a material error affecting the QMP board's decision * newly discovered evidence is a letter from the USAR Command G-1 to the Office of Congressman S__ C__; this letter to the Congressman speaks to the fact that the backdating of and delays in processing his NCOERs detrimentally affected his ability to address them, which in turn are the root of the QMP action against him * the Congressional inquiry was received by the Office of the Chief of Legislative Liaison on 4 April 2014 and he received notice of QMP on 2 May 2014 * the NCOERs drafted under questionable conditions with irregularities in timeliness should not result in QMP action and tarnish his 34-year career 3. The applicant provides: * two contested NCOERs * self-authored statement * memorandum, dated 22 September 2014, subject: Appeal of Denial of Continued Active Duty Service under the QMP * memoranda, dated 28 July 2014 and 22 August 2014, subject: Soldier Acknowledgment – Notification of Denial of Continued Active Duty Service under the QMP * memorandum, dated 23 May 2014, subject: Matters Submitted in Mitigation and Extenuation to the Fiscal Year 2014 Senior Noncommissioned Officer QMP Board * memorandum, dated 18 March 2013, subject: Appeal of NCOER for the 27 August 2010 through 10 January 2011 Rating Period * memorandum, dated 24 February 2012, subject: Commander's Inquiry Request * email correspondence * DA Form 1059 (Service School Academic Evaluation Report), dated 29 January 2010 * Fragmentary Order 002 to 926th Engineer (EN) Brigade (BDE) Operation Order 10-036, dated 6 October 2010 * NCOERs for the period 27 August 2008 through 26 August 2009; 27 August 2007 through 26 August 2008, and 1 December 2006 through 31 August 2007 * memorandum, dated 18 March 2013, subject: Appeal of NCOER for the 27 August 2009 through 26 August 2010 Rating Period * Headquarters, USAR Command, letter to Congressman C_, dated 7 May 2014 * Office of the IG letter, dated 14 September 2011 * memorandum, dated 27 September 2010, subject: Commander's Notice for a Mental Health Evaluation and Notice of Soldier's Rights * DA Form 1559 (IG Action Request), dated 2 December 2010 * memorandum, dated 24 December 2014, subject: Request for Appeal of Involuntary Separation under the QMP * memorandum, dated 26 March 2013, subject: Evaluation Report Appeal COUNSELS' REQUEST, STATEMENT, AND EVIDENCE 1. Counsel requests removal of the negative NCOERS for the rating periods 27 August 2009 through 26 August 2010 and 27 August 2010 through 10 January 2011 from the applicant's AMHRR, revocation of the orders that discharged him from the USAR AGR Program, and the applicant’s reinstatement into the AGR Program. 2. Counsel states the applicant should not have been separated under the QMP, and the two NCOERs that formed the basis for the U.S. Army Human Resources Command's (HRC) decision to separate him under the QMP should not have been processed nor filed. a. The applicant mailed an application to the ABCMR previously on or about 26 January 2015. However, on 29 January 2015, upon the discovery of new evidence, he sent an email message to the only contact provided by the ABCMR on its website, advising the ABCMR the applicant would be submitting a new application in light of the new evidence and asking the ABCMR to set aside the application mailed on or about 26 January 2015. His email, dated 29 January 2015, specifically requested that the ABCMR not decide the merits of the applicant's application on the basis of the initial application; the applicant would submit a revised application that included the new evidence. A response was received on 30 January 2015 informing the applicant that he should mail his revised application to the ABCMR. b. The new evidence includes a sworn statement, dated 24 February 2015, from Ms. DCS, 412th TEC Equal Opportunity/Sexual Assault Response Coordinator (EO/SARC); a Memorandum for Record (MFR), dated 30 November 2010, from Ms. DCS; and a memorandum, dated 9 September 2011, from Lieutenant Colonel (LTC) JB, regarding issues at the 391st Engineer Battalion (EN BN). c. Starting there, Ms. DCS's statement makes clear the Relief for Cause NCOER and the adverse Annual NCOER (or the two negative NCOERs) should not have been filed. She states there was a meeting regarding the applicant that included Major General (MG) WB, Commanding General (CG) of the 412th TEC; the IG team; Brigadier General (BG) BJ, the 926th EN BDE Commander; and Ms. DCS, which would have occurred on or about 9 March 2011 and before the filing of the two negative NCOERs. Ms. DCS states that MG WB informed BG BJ that all adverse actions against the applicant would be disapproved and directed BG BJ to refrain from submitting any negative actions such as counseling statements and NCOERs, and directed as well the removal of flags in regard to the applicant. Ms. DCS writes that an outcome of the meeting was the "Applicant's NCOERs were to be rewritten, corrected and resubmitted to the 412th TEC G-1 for processing through HRC." Nonetheless, LTC JJS's (the 391st EN BN Commander) and Major (MAJ) AL's (the 391st ENG BN Operations Officer) antipathy for the applicant was of such a quality that they disregarded the 412th TEC commander's directives. Ms. DCS states the 391st EN BN Commander (LTC JJS) knew someone at HRC and forwarded the applicant's NCOERs (the two negative NCOERs) for filing – effectively doing an end-run around the 412th TEC and MG WB's directions. As Ms. DCS states, the two negative NCOERs were submitted without the approval of the 412th TEC G-1. d. The new evidence supports the narrative advanced by the applicant in his March 2013 appeals of the two negative NCOERs, which turns out to be more than just a narrative – it turns out to be the truth. Ms. DCS's MFR summarizes the 391st EN BN Command Climate Survey results of a survey performed 18-19 September 2010. Notably, she writes the "survey was based on several phone calls from Soldiers requesting the EO and IG assistance with some major issues and concerns." Ms. DCS's memorandum makes clear that the frustration Soldiers expressed in the Command Climate Survey was the result of their frustration with the battalion's officer leadership – LTC JJS, MAJ AL, and Captain (CPT) SCP (company commander). Ms. DCS identified, in pertinent part and directly on point with the applicant's contentions in his appeals of the two negative NCOERs, that the following areas were major concerns: "Unfair treatment of Soldiers - threatened to ruin Soldiers' careers, reprisal, harassment, and abuse of authority," "Discrimination" with respect to "...work environment and performance rating," "Fear of reprisal if EO/IG complaints are filed." Ms. DCS writes in the final paragraph of her memorandum, "I'm afraid if this battalion continues on this path of abuse of authority the battalion will fail and the Soldiers will react to a hostile environment. Reprisal and harassment has to stop." e. The new evidence discovered also includes a memorandum to the 412th TEC Commander, MG JB, from the 412th TEC Staff Judge Advocate (SJA), LTC JB, with subject line, "Issues at 391st EN BN; IG request for investigation ...." LTC JB begins the memorandum explaining that the 412th TEC IG has recommended an investigation pursuant to AR 15-6 (Procedures for Investigating Officer and Board of Officers) based on two complaints against the 391st EN BN. LTC JB further explains that the two complaints derive from a network of controversies that have arisen at the 391st over the past couple of years (2009-2011), and goes on to provide a general overview of those controversies. He states the issues at the 391st first came to his attention in October 2010 upon learning the 391st was sending "a senior AGR NCO" for a command­ directed mental health evaluation (CDE). The senior AGR NCO that LTC JB is referring to is the applicant. f. According to LTC JB's memorandum, the applicant received a counseling statement in June 2010, purportedly for often being in a "bad mood." However, the 391st EN BN did not pursue a mental health evaluation in June 2010 – at the time of the counseling – LTC JB writes, but in early October 2010, the 412th IG and EO/SARC conducted a command climate survey at the 391st. The applicant met with the 412th TEC Special Staff (the IG and the EO/SARC). The CDE issue arose a few days after his meeting with the 412th TEC IG and EO/SARC. Upon learning of the 391st EN BN's plans to subject the applicant to a CDE, LTC JB advised the 391st EN BN by telephone and in writing that a CDE was ill-advised under the circumstances. The 412th IG also advised against the CDE but provided the unit with a set of detailed guidelines for CDEs in the event the unit elected to proceed with one. Disregarding the advice of the 412th Special Staff, the 391st directed the evaluation and failed to follow proper procedures in doing so. The Soldier immediately filed an IG complaint alleging that the CDE was an act of reprisal. In the 412th TEC SJA's own words, the unit subsequently gave the Soldier "two unrealistically negative NCOERs both referring to the same incident back in the summer of 2010 and ignoring all positive aspects of the Soldier's performance (for example, that he had in the meantime successfully completed Battle Staff training)." In the objective mind, then, of the very attorney closest to the 391st EN BN and directly responsible for providing legal advice to the 391st EN BN, the leadership of the 391st EN BN not only erred in insisting on referring the applicant to a CDE after he spoke with 412th TEC Special Staff during the command climate survey, but his rater and senior rater further compounded the appearance of improper motives on their part when they gave him "two unrealistically negative NCOERs" after he filed a complaint alleging that the CDE referral was a reprisal. LTC JB all but suggests that the unrealistically negative NCOERs were themselves double or triple reprisals for the applicant's IG complaint asserting that he was the victim of reprisal as a result of his meeting with the IG and the EO/SARC during the command climate survey. g. The relevance of the CDE to the NCOERs and the QMP does not subsist in whether or not the CDE was identified as a contributing factor to the evaluations he received in the two negative NCOERs or identified as an underlying rationale for his separation under the QMP. Rather, the relevance of the CDE in the context of the applicant's appeal is that the CDE is evidence of (1) the malice the rating officials had toward the applicant; (2) the lengths they were willing to go to harass the applicant for his having dared to meet with the 412th TEC Special Staff offline during the command climate survey, and (3) as linked by the 4121h TEC SJA in his memorandum, the fact that the "two unrealistically negative NCOERs" were themselves reprisals for the applicant having filed an IG complaint asserting that the CDE was an act of reprisal. h. The 391st EN BN, under the leadership of LTC JJS (the senior rater) was a broken unit during the period that LTC JJS and MAJ AL issued the unjust and unrealistically negative NCOERs that ended the applicant's career. The 412th TEC SJA gives more than a nod to that fact in his 9 September 2011 memorandum to the 412th TEC Commander, LTC JB relates in his memorandum to the CG that the 4121h TEC EO/SARC describes the October 2010 command climate survey "as one of the worst she has ever seen." LTC JB goes on to write, "since the ECT (Extended Combat Training) event in the summer of 2010, the 391st has participated in a couple of additional field exercises. Each one had resulted in a spate of disciplinary actions in which the unit alleges Soldier misconduct on one hand and Soldiers alleged overbearing, disrespectful and intimidating conduct by the 391st staff on the other. On a couple of occasions, the unit had asked the 412th SJA to assist in imposing discipline that appeared unsupported by the evidence or otherwise incompatible with regulation. We advised against it or proposed alternatives. It is our understanding that the unit has subsequently sought legal assistance from outside the chain of command, either from HRC or from the Active Component at Fort Jackson." What LTC JB relates in the quoted passage above in terms of the 391st EN BN's modus operandi is not unlike the picture that emerged through the unit's filing of the two negative NCOERs after the 412th TEC had directed that all negative actions with respect to the applicant were to cease - that is to say, when LTC JJS and his staff are determined to mete out their brand of "justice," they will forum-shop for a work-around that accomplishes their objective, even against the advice of those directing or attempting to guide them to a just and wiser course of action. i. The 412th TEC SJA further makes the point that if a Soldier dared to speak up for him or herself in the face of unfair and unprofessional treatment at the hands of 391st EN BN leadership, such Soldier did so at his or her own peril. LTC JB also wrote in the subject September 2011 memorandum, "conventional wisdom among Soldiers at the 391st reportedly holds that complaints of perceived mistreatment or other climate, pertinent issues are pointless at best and dangerous at worst. Soldiers claim that personnel who fall into disfavor with the unit leadership are 'railroaded.' Historical relationships and personnel transfers among the 391st, 926th, and the 412th reportedly discourage Soldiers from addressing issues to higher levels of command." We know now that the applicant's career was effectively ended by the two negative NCOERs he received while assigned to the 391st EN BN. He fell into disfavor with MAJ AL and, consequently, LTC JJS, as he began to speak out about the toxic climate in the 391st EN BN. j. LTC JB, in the next paragraph of his memorandum, bolsters the point that "relationships among the 391st, 926th, and the 412th" discourages Soldiers from addressing issues to higher levels of command," as he explains in his September 2011 memorandum that it has been six months since he, the then-412th TEC Commander (MG [Ret.] PH), the IG, the EO/SARC, and the 926th EN BDE Commander (BG J) met to discuss issues at the 391st ENG BN in March 2011. "The upshot of that meeting," LTC JB writes, "was that BG J would counsel the senior leaders of the 391st and would initiate an investigation into the ongoing controversies." Yet, despite all of the negative feedback that came forth during the command climate survey in October 2010 and the agreement struck in the above-referenced March 2011 meeting that BG J would initiate an investigation into ongoing controversies at the 391st EN BN and counsel the senior leaders at the 391st EN BN, six months after the meeting, LTC JB wrote that no such investigation or counseling had occurred to his knowledge. Because the 926th EN Brigade Commander, BG J, was failing to take actions identified as needed to repair the 391st EN BN, presumably as a result of his relationship with 391st EN BN senior leaders and BG J's desire to protect those senior leaders, LTC JB recommended in his memorandum to the 412th TEC Commander "that the 412th TEC initiate a 15-6 investigation ...to examine the command climate issues and persistent allegations of Soldier mistreatment and intimidation." k. In review and to reiterate, LTC JB acknowledges that six months after a special meeting was convened to discuss the issues at the 391st EN BN, it was agreed upon that BG J would counsel the senior leaders at the 391st EN BN and initiate an investigation into the ongoing controversies, BG J had not counseled the senior leaders nor initiated the investigation. This is reiterated because it helps to reveal the 391st EN BN senior leadership's pattern, aided by BG J, of doing what it wants to do - forsaking the guidance and reasoned judgment of special staff at its higher headquarters (the 412th TEC) and even more appalling, ignoring the direction of the 412th TEC Commander – both with regard to (1) initiating the above-described agreed­ upon investigation into issues at the 391st EN BN and (2) filing the "unrealistically negative" and substantively inaccurate NCOERs with HRC after the CG directed that the 391st EN BN refrain from submitting any negative actions pertaining to the applicant, including NCOERs. Is there any wonder that a cadre of leaders that would feel comfortable disavowing the direction of not just one but two flag officers (MG H and MG B) would also have no conscience with unjustly dismantling a Soldier's career as an act of retribution for his daring to speak candidly during a command climate survey about their failures of leadership and his filing complaints concerning the multiple retaliations to which he (the applicant) was subjected by those same leaders? l. Paragraph 4-4 of AR 623-3 (Evaluation Reporting System) provides that 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." That is precisely why the applicant sought to have a Commander's Inquiry conducted over three and a half years ago. He believes that had an objective investigating officer (IO) been appointed at the time of his request, the accounts of other Soldiers in the unit would have refuted the rater's and senior rater's portrayal of him in the NCOERs as a verbally abusive NCO that made it a practice to berate his subordinates. He asks that the Board not presume the Commander's Inquiry was conducted and that the commander ultimately found no fault with the evaluations." To his (counsel) and the applicant's knowledge the requested Commander's Inquiry was never started or completed. m. The new evidence described herein is of a compelling nature and strongly convincing that the negative NCOERs that caused the applicant to be separated under the QMP were unjust and in error and propel his appeal to the point of meeting the clear and convincing standard. The NCOERs prematurely ended his career were both inaccurate and - to quote from AR 623-3, paragraph 4-11 - used as vehicles to carry out "injustice of a substantive type." His appeal is supported by mentioned statements from third parties and speak to the Board how he received "two unrealistically negative NCOERs" subsequent to speaking with 412th Special Staff during a command climate survey and filing an IG complaint asserting that he was command-directed to undergo a mental health evaluation as an act of reprisal. LTC JB all but suggests that the unrealistically negative NCOERs were themselves double or triple reprisals used to retaliate against the applicant for the IG complaint he filed asserting that he was the victim of reprisal as a result of his meeting with the IG and the EO/SARC during the command climate survey. Accordingly, the applicant requests that the Board direct that the two substantively inaccurate NCOERs be removed from the applicant's AMHRR and that he be reinstated to the AGR program. 3. Counsel provides: * Email to and from the Army Review Boards Agency * DA Form 2823 (Sworn Statement) from MS DCS * MFR, dated 30 November 2010, from Ms. DCS * Memorandum, dated 9 September 2011, from the SJA CONSIDERATION OF EVIDENCE: 1. Due to receipt of additional evidence after receipt of the original application, the Board has elected to conduct a de novo review of this case. 2. Having had prior active service (August 1978 to August 1983), the applicant enlisted in the USAR on 6 February 1978. He held an engineer military occupational specialty. 3. He served through multiple reenlistments in a variety of assignments and he was advanced to master sergeant (MSG)/E-8. He was also issued a Notification of Eligibility or Retired Pay at Age 60 (20-Year Letter) in September 2000. 4. On 2 July 2002, following his application and acceptance into the USAR AGR program, he entered active duty in an AGR status, initially for 3 years but later extended. He served in Iraq from 4 January to 20 December 2005. 5. Around October 2008, he was assigned to the 391st EN BN, a subordinate unit of the 412th Engineer Command. He served as the Battalion Operations Sergeant. 6. On 27 September 2010, the applicant's company commander notified the applicant that he was being referred for a mental health evaluation based on his rater's 12 August 2010 counseling recommending him for evaluation due to early morning agitation and changes in his mood. The applicant's rater stated the applicant behaved differently toward others as the day progressed and he may have been showing signs of stress and possible bi-polar disorder tendencies. 7. Following this CDE, the applicant submitted an IG action requesting the IG determine whether he was properly referred for a mental health evaluation. 8. The applicant completed the Battle Staff NCO Course conducted at Fort Bliss, TX, from 5 to 29 October 2010. His DA Form 1059 shows he achieved course standards. 9. The applicant received an Annual NCOER (contested NCOER #1) covering 12 months of rated time from 27 August 2009 to 26 August 2010 for his duties as Battalion Operations Sergeant while assigned to the 391st EN BN. His rater was MAJ LA, the BN Operations Officer; his senior rater was LTC JJS, the BN Commander; and his reviewer was Colonel JDB, the 926th EN BDE Deputy Commander. This NCOER shows he was frequently counseled. It also shows: a. In Part IVa (Army Values), the rater placed an "X" in the "No" block for 2 out of 7 Army values, "Respect/EO/EEO" and "Honor." The rater entered the following bullet comments: * maintained a no show rate for school scheduling lower than the average in the Brigade * was counseled for unprofessional and disrespectful behavior [toward] superiors specifically his rater and has berated subordinates * fails to live up to the Army Values concerning respect for subordinates b. In Part IVb (Competence), the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments: * does not show sound judgment as shown by his insubordinate actions during Extended Combat Training NTC (National Training Center) 10-08, (counseling dated 12 August 2010) * managed ATTRS [Army Training Requirements and Resources System] program with a minimum of cancellations and only seven no shows for Army schools * managed the TAMIS-R [Total Ammunition Management Information System Redesigned] ammunition for the battalion for one FTX [field training exercise] and NTC 10-08 c. In Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Success" block and entered appropriate bullet comments. d. In Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments: * gives undue consideration and attention to personal likes and priorities during NTC 10-08 at the expense of the mission * overbearing with subordinates that creates tension and becomes a distraction for exercises both at FTX and at NTC 10-08 that the command removed him from the TOC [tactical operations center] * harsh and coarse in leadership style and overly intolerant of mistakes e. In Part IVe (Training), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments: * attends training that is given but rarely instructs subordinates * supports instructors with training materials if requested * assists company training NCOs with school scheduling if required f. In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Success" block and entered appropriate bullet comments. 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. h. 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 "Poor/5" block. i Additionally, in Part Ve (Senior Rater Bullet Comments), the senior rater entered the following bullet comments: * lack of professionalism when dealing with battalion staff officers and subordinates has caused him to lose their entire respect despite his rank and position * conduct has been a disruption to good order and discipline of this battalion; behavior resulted in being thrown out of the Battalion and Brigade CPs [command posts] during NTC rotation * has lost the trust of the command group to successfully perform duties and responsibilities required of his position; failed to conduct such duties at NTC * do not promote; do not assign in positions of responsibility; do not continue service in the AGR program 10. The contested NCOER was digitally signed by the rater and senior rater on 11 February 2011 and 15 April 2011 respectively. The reviewer concurred with the rater and senior rater and authenticated the document by digitally signing it on 3 July 2011. The applicant signed the NCOER on 7 July 2011. It was processed at HRC on 21 July 2011. 11. Meanwhile, on 30 November 2010, Ms. DCS, the EO Advisor to the 412th TEC, submitted a memorandum, subject: 391st EN BN Command Climate Survey Results. She stated the 391st EN BN underwent a command climate survey from 18 to 19 September 2010 after several Soldiers contacted the IG or the EO office. It appeared there were concerns with the battalion leadership. Based on the survey, Ms. DCS indicated there were major concerns with leadership, training, recognition, discrimination, and morale. She made some recommendations. 12. During May 2011, the applicant received a Relief for Cause NCOER (contested NCOER #2) covering 4 months of rated time from 27 August 2010 through 10 January 2011, for his duties as the Battalion Operations Sergeant. His rating officials where the same as the previous NCOER: MAJ LA, the BN Operations Officer; LTC JJS, the BN Commander; and COL JDB, the 926th EN BDE Deputy Commander. This NCOER shows he was frequently counseled. It also shows: a. In Part IVa, the rater placed an "X" in the "No" blocks for 6 out of 7 Army Values: Loyalty, Duty, Respect, Selfless Service, Honor, and Integrity. The rater entered the following bullet comments: * refused order to complete corrective assignment[,] supplied plagiarized essay received on 28 September 2010, refused to complete essay directed on 12 November 2010 * is disrespectful [toward] officers and enlisted, openly argued with supervisor on 08-09 January 2011 * violates standards of behavior and conduct, flagrant disregard of regulations b. In Part IVb, the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments: * blatantly plagiarized a corrective counseling written essay concerning leadership; stated work was his own when questioned about the writing * failed in duty proficiency by not being able to manage eLAS tasking for the Battalion * Soldier used his rank to make others complete work specifically assigned to him and failed in accomplishing the directed task of updating weekly training slides c. In Part IVc, the rater placed an "X" in the "Success" block and entered appropriate bullet comments. d. In Part IVd, the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments: * countermands orders given to subordinates by his supervisor, the Battalion S3 * uses unacceptable counseling techniques; kept subordinates at parade rest while berating them against his supervisor's direction * harsh and coarse in leadership style; demands respect based on his rank without earning it while failing to give officers and NCOs the respect that is deserved e. In Part IVe, the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments: * failed to submit planning input for training schedules of the section and disregards guidance from officers in the section on focusing the training * disruptive to execution of section training; does not function as part of a team effort to accomplish tasks * Soldier wastes section's time by speaking about himself in third person and pontificating on how knowledgeable he is f. In Part IVf, the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments: * failed to properly request Battalion ammunition for Battalion qualifications; required involvement of Battalion, Brigade, and TEC Commanders to resolve * violated General Order Number 1; left his post without completing the mission or being properly relieved on 9 November 2011 and lost accountability of personnel in movement * the rated NCO has been notified of the reason for relief 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 Parts Vc and Vd, the senior rater placed an "X" in the "Poor/5" blocks and in Part IVe, the senior rater entered the following bullet comments: * counseled by the Battalion Commander on lack of professionalism before rating period began; failed to show improvement when dealing with battalion staff * poor duty performance continued even after addition of Battle Staff training; failings adversely effected the unit and resulted in involvement of brigade and TEC CDRs [commanders] * lost the trust of the command to successfully perform the duties and responsibilities required of his position; blamed others for failing to have work accomplished * do not promote; do not assign in positions of responsibility; do not continue service in the AGR program 13. The contested NCOER was digitally signed by the rater and senior rater on 17 May 2011 and 18 May 2011 respectively. The reviewer concurred with the rater and senior rater and authenticated the document by digitally signing it on 25 May 2011. The applicant signed the NCOER on 8 June 2011. The applicant signed the NCOER on 7 July 2011. 14. On 9 September 2011, by memorandum to the Commander, 412th TEC, the command SJA sent a memorandum to the Commander, 391st EN BN, regarding issues with the battalion (as outlined by counsel in this application). He recommended the 412th TEC initiate an AR 15-6 to address issues of IG complains and examine the command climate. 15. On 14 September 2011, DAIG advised that they had completed their Report of Investigative Inquiry (ROII) into the applicant's allegations of an improper referral for a command-directed mental health evaluation. Although the ROII is not available for review, the letter indicated it was substantiated that the applicant's commander improperly referred him for a command-directed mental health evaluation and that the mental health care provider failed to contact the chain of command regarding problems with the referral memorandum. 16. There is no record of the applicant's referral for a CDE or the results of the evaluation in any section of his service record, it is not mentioned in the two contested NCOERs, nor is there any evidence the QMP Board had knowledge of the CDE. 17. On 24 February 2012, a commander's inquiry into the two NCOERs in question was requested on behalf of the applicant. As part of the commander's inquiry, the applicant requested that his rating chain provide the following: * all the documents that the rating chain relied upon to support the ratings * copies of NCOER support forms and counseling session forms documenting the quarterly counseling sessions for the rating periods * Soldiers who claim they were mistreated by the applicant be made available for the appointed officer to interview * an explanation as to how the late NCOERs are in compliance with the requirement for NCOERs to arrive at HRC no later than 90 days after the "THRU" date of the report * all documentation pertaining to the rationale behind the decision to refer him to a mental health evaluation * an opportunity to be interviewed by the officer appointed to conduct the inquiry in order to explain why he believes he received the negative NCOERs * a review of his service record by the appointed officer to confirm the contested NCOERs are inconsistent with the prior NCOERs he received * sworn statements from his rating chain regarding the applicant's contention he was told he would be rehabilitatively transferred in lieu of receiving a relief-for-cause NCOER * all evidence regarding the credibility of his rating chain be expressly incorporated in the appointed officer's report 18. The results of the commander's inquiry are not in the applicant's service record and the applicant has not provided a copy to the Board for review. 19. On 18 March 2013, the applicant appealed both the 2010 annual NCOER and the 2011 relief-for-cause NCOER to HRC, arguing that both NCOERs were substantively inaccurate. He acknowledged he did not have an abundance of substantiating evidence as he had not yet received the results of the commander's inquiry he had requested in February 2012. In both appeals he requested that the NCOERs be remanded to the rating officials who drafted the content with instructions to redraft them based on the applicant's performance and not based on personality conflicts. Alternately, he requested filing the NCOERs in the restricted folder of his Official Military Personnel File (OMPF). 20. On 26 March 2013, HRC returned both NCOER appeals without action due to insufficient evidence, advising the applicant the burden of proof was upon him to establish through clear and convincing evidence that a contested report is incorrect. HRC informed him that chapter 4 of AR 623-3 (Evaluation Reporting System) explains substantive appeals and that third-party statements must identify the relationship to the rated Soldier, address specific aspects of the performance appraisal, and present a range of perspectives. 21. On 23 May 2014, he dispatched a memorandum to HRC indicating his desire to remain on active duty. He stated that he considered himself a force-multiplier who could make a difference. 22. On 28 July 2014, the applicant was notified by HRC of his denial of continued active duty service under the QMP. He was notified that the QMP selection board conducted a comprehensive review of his record and recommended that he be denied continued active duty service and that the Director of Military Personnel Management approved the board's recommendation. He was advised he would be involuntarily discharged from the Army not later than 1 February 2015 unless he requested an earlier separation date or appealed the decision. He was also advised that any appeal of the decision was limited to newly-discovered evidence, the subsequent removal of documents from his OMPF, and/or material error in his record when reviewed by the selection board. 23. On 22 August 2014, he signed an acknowledgement of the notification of denial of continued active duty service under the QMP and indicated that he would appeal and request retention on active duty. 24. On 22 September 2014, the applicant appealed the QMP decision on the basis of material error and newly discovered evidence. The applicant argued the fact that the QMP board was not made aware of the substantiated DAIG investigation into his command-directed referral to a mental health evaluation was a material error. Additionally, he argued that newly-discovered evidence, namely a 7 May 2014 letter from the USAR Command to Congressman C__, was not previously seen by the QMP board and it substantiated the delays in the processing of his NCOERs along with limiting his opportunity to address them. 25. On 24 December 2014, HRC denied his appeal of separation under the QMP because it 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 the Soldier's OMPF to make him eligible to appeal. HRC advised him of the option to appeal to the ABCMR should he feel HRC's decision was unjust or in error. 26. On 26 January 2015, via a DA Form 4187 (Personnel Action), the applicant indicated that as a result of the denial of continued service under the QMP, he would like to be separated and placed in the Retired Reserve for the purpose of non-regular retirement at age 60. 27. On 15 February 2015, he was honorably released from active duty under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 16-4a (Non-retention on Active Duty), and transferred to the USAR Control Group (Reinforcement) (also known as the Individual Ready Reserve (IRR)). 28. After a series of order revocations and amendments made by HRC alternately releasing him from the IRR and assigning him to the Retired Reserve then reassigning him from the Retired Reserve to the IRR, he was ultimately discharged from the USAR on 15 March 2015 after completing over 35 years of service, more than 17 of which were active Federal service. 29. Counsel provides a sworn statement, dated 25 February 2015, from Ms. DCS. She states that she had a meeting with the CG, the IG, and BG BJ, at the 412th TEC regarding the applicant. During the conversation, the CG asked BG BJ to counsel the 391st EN BN commander, executive officer, and company commander for misleading Soldiers and behavior unbecoming. The CG also told BG JB that all adverse actions against the applicant would be disapproved and to refrain from submitting any negative actions such as counseling statements, all NCOERs, and he directed removal of the flagging action. The applicant's NCOERs were to be rewritten, corrected, and submitted to the 412th TEC G-1 for processing to HRC. The CH also stated the applicant would be reassigned in good standing with the 391st EN BN, 926th ENG BDE, and 412th TEC. Although the CG stated to stop all negative action, the 391st EN BN commander disregarded that directive; he knew someone at HRC and that is how he forwarded the NCOERs. The battalion commander went around the 412th TEC and submitted these reports without the approval of the 412th TEC G-1. REFERENCES: 1. AR 635-200, chapter 19 (QMP), contains policy and procedures for voluntary and involuntary separation for the convenience of the government of Regular Army NCOs and USAR NCOs serving in an AGR status 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 Headquarters, Department of the Army (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. The QMP does not apply to Soldiers who hold the grade of sergeant and below. 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 Record (DA Forms 2A and 2-1 or 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. d. AGR Soldiers with at least 17 years and 9 months but less than 20 years of qualifying service for non-regular retired pay at the time of notification of QMP selection who choose not to appeal or whose appeal is denied and whose expiration of term of service occurs prior to the 20-year point may extend their enlistments for the minimum period required to qualify for non-regular retirement. AGR Soldiers with 20 years or more of qualifying service for non-regular retired pay may elect voluntary release from active duty with concurrent transfer to the Retired Reserve. e. Paragraph 16-4 (Non-Retention of Active Duty) states Soldiers denied or ineligible for continued active duty service may be separated upon request. The criteria in chapter 1, section VII (Mobilization Asset Transfer Program), govern whether the Soldier is released from active duty with transfer to the IRR or discharged. Per that section, Reserve Component Soldiers will be transferred to the IRR to complete their statutory Military Service Obligations (MSO). Soldiers without 3 or more months remaining on their MSO are not eligible for transfer to the IRR. Soldiers not transferred to the IRR will be discharged. 2. 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 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 623-3 (Evaluation Reporting System), prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. a. Paragraph 1-11 pertains to commander's inquiries and states when a commander discovers that an evaluation report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, he or she will conduct an inquiry into the matter. The inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the evaluation 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. b. Paragraph 3-33 states evaluation reports will be forwarded error-free to reach HQDA no later than 90 days after the "THRU" date of the evaluation report. The senior rater is responsible for ensuring the timely submission of OERs and NCOERs to HQDA. c. Paragraph 3-36 states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and represent the considered opinions and objective judgment of the rating officials at the time of preparation. d. Paragraph 4-4 provides further guidance on the commander's inquiry. 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 by HQDA. However, in these after-the-fact cases, the commander's inquiry is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they become a matter of permanent record. e. Paragraph 4-5 states that if the commander finds no fault with the evaluation, then the commander's inquiry is filed locally and a copy is given to the rated Soldier. There is no requirement to send the commander's inquiry forward to HQDA. f. Paragraph 4-7 states an appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. g. Paragraph 4-11 states the burden of proof in the appeals process rests with the appellant. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 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. h. Paragraph 4-13 advises that appeals based on substantive inaccuracy must include the basis for the belief that the rating officials were not objective or had an erroneous perception of the performance. Note that a personality conflict between the rated Soldier and a rating official does not constitute grounds for a favorable appeal; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. DISCUSSION: 1. With respect to contested NCOER #1: a. This was a 12-month NCOER for the rating period 27 August 2009 through 26 August 2010. While it is true that this NCOER was submitted beyond the regulatory 90 days after the “THRU” date, the delay did not negate it. The evidence of record shows the applicant did not perform to standards during this period. He focuses his argument on a corrupt leadership but ignores the bullets that he berated and failed to respect his subordinates. It appears that is why his rater placed "No" in the "Respect" and "Honor" values blocks. b. It also appears he did not display sound judgment during an exercise at NTC (Needs improvement in Competence); placed his personal likes above the mission and he was overbearing and harsh towards subordinates, thus not setting a good leadership role (Needs improvement in Leadership); and he rarely instructed subordinates (Needs improvement in Training). Those were observations made by his rating officials. c. 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. Any negative impact on his military career is a natural result of his own performance. The fact that he does not have the results of the commander's inquiry does not mean it was not conducted. Nonetheless, he has the burden of proof. d. There is no requirement to mention completion of the Battle Staff Course on the NCOER. Although it is an achievement, the rating itself is captured and mentioned on the DA Form 1059 (Service School Academic Evaluation Report). e. Although the CG may have given instructions to the battalion commander to refrain from submitting any negative actions such as counseling statements and all NCOERs, and he directed removal of the flagging action, the CG was not in the applicant's rating scheme. He could not have influenced the rating submitted by other rating officials or interfered in the rating, even if those rating officials were within his command. f. Aside from being submitted late to HRC, there is no evidence that 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 they prepared the NCOER or that they exercised faulty judgment in evaluating him as they did. 2. With respect to contested NCOER # 2: a. This was a 4-month Relief for Cause NCOER for the rating period 27 August 2010 through 10 January 2011. This NCOER was also submitted late to HRC but remains a valid evaluation. The delay did not invalidate the rating. The evidence of record shows the applicant continued his substandard performance. b. His rater placed a "No" in 6 out of 7 Army values and supported his rating with bullets related to insubordination, disrespect, plagiarism, and being argumentative. The need for improvement in Competence, Leadership, Training, and Responsibility and Accountability is supported with various bullets on the contested NCOER. Again, those were observations made by his rating officials. c. As stated above, an evaluation reflects the objective judgment of the rating officials during a given rating period. Aside from being submitted late to HRC, there is no evidence that this 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 the evaluations rendered by his rating officials represented anything other than their objective judgment and considered opinions at the time the NCOER was prepared. There is no evidence that faulty judgment was used in in evaluating him. 3. As for both NCOERs: a. Despite the tardiness of the NCOERs, the applicant was nonetheless able to appeal them to HRC on 18 March 2013, which was within the prescribed time frame of not over 3 years from the "THRU" date of the evaluations. Additionally, the applicant appealed the NCOERs more than 1 year prior to the QMP board decision, allowing ample time for correction of substantive errors. b. HRC returned his appeals without action due to insufficient evidence. It is noted the applicant states he intended to include as substantiating evidence with his appeals the outcome of his request for a commander's inquiry into the tardiness of his NCOERs and his perceived inaccuracies in the bullet comments they contain. The applicant's service record does not contain the resulting commander's inquiry and the applicant has not provided the Board a copy for review, thus the outcome is unknown. c. It is reasonable to presume that if a commander's inquiry was conducted, the commander ultimately would have found no fault with the evaluations as the applicant's record is void of the findings. There is no requirement to send the commander's inquiry forward to HQDA for inclusion in the Soldier's record if no fault was found. Additionally, although a commander's inquiry is intended to bring obvious errors and injustice, a commander cannot pressure or force rating officials to change their evaluations and may not evaluate the rated individual, either as a substitute for, or in addition to, the designated rating officials’ evaluations. d. Regardless of the outcome of the commander's inquiry, the applicant has the burden of providing clear and compelling evidence to this Board which shows the ratings on the contested NCOERs were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the reports were rendered. 4. With respect to the QMP: a. The applicant was notified that he would be considered by the QMP and was provided an opportunity to appeal. He appealed the QMP decision declining him continued active service; however, HRC denied his appeal because his request did not meet the criteria set forth by Army policy. An appeal is only warranted when a material error exists or newly-discovered evidence is provided. b. He asserted the material error in the QMP process was the board's lack of knowledge regarding the DAIG substantiation that he was improperly referred to a command-directed mental health evaluation. The letter from the DAIG speaks of the improper referral to a mental health evaluation. It does not reference hostile treatment by his chain of command as he claims. Furthermore, the applicant's records do not contain the mental health evaluation itself, his referral to the mental health evaluation, nor is it referenced anywhere in his NCOERs. Thus, this information could not have erroneously swayed the QMP decision process. 5. With respect to reinstatement in the AGR program, if the Board finds the evidence supports a conclusion that he was improperly removed from this program due the contested NCOERs that resulted in his referral to the QMP, the Board may recommend his reinstatement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014681 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014681 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2