IN THE CASE OF: BOARD DATE: 19 January 2016 DOCKET NUMBER: AR20150016507 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 reconsideration of his earlier request to remove the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 11 July 2007 through 10 July 2008 from his Official Military Personnel File (OMPF). 2. The applicant states: a. This NCOER justified his current selection for noncontinuation under the Qualitative Management Program. b. The rating chain was improper because he was deployed under a different command and rating chain during this rating period. A biased rater entered unwarranted negative comments and unjustified and unproven data in the contested NCOER. The rating period (rated months) is improper and the counseling dates are false. c. There was no detail of his deployed duty performance which would have been a different rating chain. There were improper Army Physical Fitness Test (APFT) comments and data. d. The rating chain did not exercise the correct and ethical procedure. Instead they elected to issue this report due to personal dislike and what they felt was a difficult task to get the correct rating chain to act, and to cover the fact that it was submitted late to the U.S. Army Human Resources Command (HRC). The signature would have been withheld due to administrative reasons, but in this case his signature was missing because it was submitted directly to HRC without his knowledge. 3. The applicant provides: * memorandum to the Army Board for Correction of Military Records (ABCMR), dated 19 October 2015, subject: Request for Reconsideration of Docket Number AR20120018787, Appeal to Remove NCOER 11 July 2007 to 10 July 2008 from OMPF * letter from the Commander, 192d Ordnance Battalion (Explosive Ordnance Disposal (EOD)), dated 19 October 2015 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120018787 on 2 April 2013. 2. The applicant provided a self-authored memorandum to the Army Board for Correction of Military Records (ABCMR), dated 19 October 2015, subject: Request for Reconsideration of Docket Number AR20120018787, Appeal to Remove NCOER 11 July 2007 to 10 July 2008 from OMPF, and a letter from the Commander, 192d Ordnance Battalion (EOD), dated 19 October 2015, which were not previously considered by the Board. This new evidence warrants consideration at this time. 3. The applicant enlisted in the Regular Army on 5 January 1994 and trained as an EOD specialist. He was promoted to sergeant first class on 1 July 2006. He served in Iraq from 1 October 2007 to 27 January 2008. 4. His OMPF contains the contested NCOER showing he was rated for duty as the EOD Team Leader in duty MOS 89D3O (EOD Specialist) while he was assigned to the 55th Ordnance Company (EOD), Fort Belvoir, VA, for the rating period 11 July 2007 to 10 July 2008. a. Part Ig (Reason for Submission) shows the entry "Annual"; b. Part Ii (Rated Months) shows the entry "7"; c. Part Ij (Non-rated Codes) shows the entry "Z"; d. Part IIIa (Principal Duty Title) shows the entry "Explosive Ordnance Disposal Team Leader"; e. Part IIIc (Duty MOS Code) shows the entry "89D3O"; f. Part IIIf (Counseling Dates) shows the entries "20070807 [7 August 2007]" and 20080211 [11 February 2008]"; g. Part IVa (Army Values) shows "No" was marked for Part IVa5 (Honor) and Part Va5 (Integrity) and "Yes" was marked for all other values; h. Part IV (Army Values/Attributes/Skills/Actions) contains the following bullet entries: * failed to properly secure explosives * left an ammunition can of explosives next to his desk unsecured in the operations section for two months before he realized his drastic mistake * went the extra mile to ensure Soldiers are trained to standard i. Part IVb (Competence) shows "Success (Meets Standard)" was marked; j. Part IVc (Physical Fitness and Military Bearing) shows "Needs Improvement (Much)" was marked with the following bullet comment: "SM [service member] failed to meet the minimum time for the two mile run event for his age category on two APFT attempts"; k. Part IVd (Leadership) shows "Success (Meets Standard)" was marked with the following bullet comments: * volunteered to replace an injured Soldier for a short notice special operations mission to OIF [Operation Iraqi Freedom] for four months * gladly stayed after COB [close of business] to ensure EOD Sergeants grasped the concept and the numerous responsibilities of being a team leader and how serious their mission is l. Part IVe (Training) shows "Excellent (Exceeds Standard)" was marked; m. Part IVf (Responsibility and Accountability) shows "Needs Improvement (Much)" was marked with the following bullet comment: "left an ammunition can full of explosives next to his desk in a common use area for two months instead of securing the can in the company's Class-V bunker"; and n. Part V (Overall Performance and Potential) shows his rater rated him as "Marginal" for overall performance and potential and/or service in positions of greater responsibility. His senior rated him "Fair-4" for overall performance and "Fair-4" for overall potential for promotion and/or service in positions of greater responsibility with the following bullet comments: * promote when deficiencies are corrected * send to the ANCOC [Advanced NCO Course] when slots are availible [sic] * put in positions of equal responsibility * Soldier refused to sign 5. The rating officials authenticated the NCOER with their electronic signatures. The reviewer concurred with the rater and senior rater evaluations. However, the applicant did not sign the contested report verifying the rating officials, duty description, counseling dates, and APFT/Height/Weight entries were correct; that he had seen the completed report; and that he was aware of the appeal process of Army Regulation 623-3 (Evaluation Reporting System). 6. There is no evidence the applicant appealed the contested NCOER to the Army Special Review Board within the allowable 3-year period. 7. The applicant did not provide a copy of his unit's published rating chain for the period July 2007 to July 2008. His NCOERs on file for the periods prior to July 2007 and following July 2008 show a different rating chain. 8. He subsequently served in Afghanistan from 12 September 2013 to 16 April 2014. 9. On 30 November 2015, he retired in the rank of sergeant first class after completing 21 years, 10 months, and 26 days of creditable active service. 10. On 2 April 2013, the ABCMR denied his request for removal of the contested NCOER from his OMPF (otherwise known as the Army Military Human Resource Record) based on his failure to provide evidence clearly showing a substantive error or injustice existed in processing the report. 11. As new evidence, he provided a self-authored memorandum to the ABCMR, dated 19 October 2015, subject: Request for Reconsideration of Docket Number AR20120018787, Appeal to Remove NCOER 11 July 2007 to 10 July 2008 from OMPF, dated 19 October 2015, wherein he states: a. He was scheduled for separation from the Army under the Qualitative Management Program on 31 October 2015. When he originally received the ABCMR denial letter, he was deployed and did not have the capability to research and investigate further in search of new evidence to support his motion for reconsideration. b. Recently he was able to locate and communicate with the 192d Ordnance Battalion (EOD) Commander and a witness for this rating period. His attempt to locate his battalion commander started when he first submitted his appeal packet in 2012, but all resources available to him then yielded no positive results. The battalion commander provided a letter and discredits the contested NCOER. c. He strongly feels the ABCMR would have ruled in his favor and expunged the report from his OMPF if this letter were available earlier. He submits orders for the deployment that occurred during this rating period showing the rating chain was not qualified to issue the NCOER. His OMPF does not contain any Uniform Code of Military Justice action or letter of reprimand described in the NCOER which would have been brought before the retired lieutenant colonel for action. d. The report was never presented to him by the rating chain which would have alerted him earlier and allowed for action against it to be taken sooner. His signature is not present on the report and if this report was presented properly he would have withheld his signature due to the inappropriate rating time, false counseling dates, and incorrect APFT data. 12. He also provided a letter from the Commander, 192d Ordnance Battalion (EOD), dated 19 October 2015, who states: a. He disputes any notion that the applicant is anything but a professional Soldier and NCO with Army Values anything less than exemplary. He has reservations and disagrees with the applicant's NCOER covering the period 11 July 2007 through 10 July 2008. b. He does not agree that the applicant was rated "No" in the Army Values for Honor and Integrity. While serving as the applicant's battalion commander, he was always forthright and honest with both the battalion staff and himself. He never gave him cause to question his integrity, honesty, or values. In fact, the applicant's open communications strengthened his opinion of his strong leadership character. He was not an NCO to "sugar-coat" reality and always demonstrated great frankness in all of their communications and his deeds. c. He does not agree that the applicant was rated "Needs Improvement (Much)" for Physical Fitness and Military Bearing and Responsibility and Accountability. The applicant's physical readiness and that of his Soldiers was always above the Army standard and his active leadership during a special combat mission deployment during this rating period involved great physical effort, endurance, and readiness. His service, while serving simultaneously as both 55th Ordnance Company acting first sergeant and operations NCO, was exemplary and he questions why his NCOER does not reflect his many positive accomplishments. d. He does not agree with the rating chain in the applicant's NCOER as he was deployed on a special overseas mission with the 748th Ordnance Company for several months of the rating period. It is obvious by this NCOER's content that the 748th Ordnance Company leadership did not provide any input as to his deployed accomplishments and exemplary duty performance. e. He does not agree with the applicant's rated principal duty title of EOD Team Leader as he simultaneously served as the 55th Ordnance Company (EOD) Operations NCO and acting first sergeant during the rated time for which he was present for duty with the 55th Ordnance Company (EOD). f. He doesn't agree that the applicant was only given two bullet statements in the Values/NCO Responsibilities for Competence and one bullet comment for Training. His EOD, counter-improvised explosive device (IED), and tactical competence are superior to many and he feels the applicant earned more than just a few requisite bullet comments. He is a master trainer and leader who earned more than just one bullet comment for Training. g. He does not agree with the applicant's rater assigning a "Marginal" rating, the stated comments, and the future duty positions for overall performance and potential. The applicant is a master trainer of Soldiers in warrior tasks, EOD and counter-IED operations, and subordinate leadership development. These ratings and comments do not accurately reflect his duty performance or potential to serve as a leader of Soldiers in our Army. h. He does not agree with the applicant's senior rating assigning a "Fair" for both performance and potential. He only observed successful and superior performance while he executed his duties. The applicant has displayed unlimited potential to serve as a leader of our Soldiers. i. His active participation during the 55th Ordnance Company (EOD) individual and team training at Blossom Point only reinforced his opinion of the applicant's professionalism as a leader, trainer, and Soldier. That training was the best conducted by a unit with minimal battalion support – realistic, challenging, and stressful to develop his Soldiers and leaders into warriors. The applicant was the driving force behind planning this training and the strong leader he expects leading and training. j. As the applicant's battalion commander, he called upon him to quickly deploy to the Joint Readiness Training Center to backfill an EOD leader and he stepped up without hesitation, immediately deployed, and excelled. Immediately following this mission, he again called upon him to quickly deploy on a special combat mission overseas with the 748th Ordnance Company and again he excelled by immediately deploying without hesitation on extremely short notice and served with distinction and honor. 13. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF. Appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System) states NCOERs will be filed in the performance and service folders of the OMPF. 14. Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice. The regulation also states a personality conflict between the applicant and a rating official does not constitute grounds for a favorable appeal. 15. Chapter 4 defines the Evaluation Redress Program and provides guidance regarding redress programs, including commanders' inquiries and appeals. Paragraph 4-8 states substantive appeals will be submitted within 3 years of an NCOER through date. Failure to submit an appeal within this time period will require the applicant to submit his or her appeal to the ABCMR. 16. Table 2-9 (Codes and Reasons for Non-Rated Periods) of Department of the Army Pamphlet 623-3 (Evaluation Reporting System), in effect at the time, stated code Z stands for "none of the above." DISCUSSION AND CONCLUSIONS: 1. The applicant contends a biased rater entered unwarranted negative comments and unjustified and unproven data in the contested NCOER. 2. Although he contends there was no detail of his deployed duty performance, the report shows he volunteered to replace an injured Soldier for a short-notice special operations mission in support of OIF for 4 months. 3. Although he contends there were improper APFT comments and data entered in the NCOER, there is no evidence and he provided no evidence showing he passed the APFT during the rating period. 4. Although he contends the rating chain was improper because he was deployed under a different command and rating chain during this rating period, there is no evidence and he provided no evidence that the rating chain was not the proper rating chain. 5. His contention that the rating chain did not exercise the correct and ethical procedure and instead elected to issue this report due to personal dislike was noted. However, the regulation states a personality conflict with a rating official does not constitute grounds for a favorable appeal. 6. His contention that the rating period (rated months) covered by the DA Form 2166-8 is improper was also noted. The contested NCOER shows he was rated for 7 months and the non-rated period cannot be determined. 7. Although he contends the counseling dates are false, there is no evidence and he provided no evidence to support this contention. 8. The letter from his battalion commander during the period in question was carefully considered. However, there is no evidence that the information contained in the NCOER covering the period 11 July 2007 through 10 August 2008 does not represent the considered opinion and objective judgment of the rating officials at the time of preparation. 9. The governing regulation states NCOERs will be filed in the performance folder of the OMPF. The NCOER in question is properly filed in his military records in accordance with the governing regulation. 10. In order to justify removal of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that: * the presumption of regularity should not be applied to the report under consideration * action is warranted to correct a material error, inaccuracy, or injustice 11. Based on the foregoing evidence, there is an insufficient basis for granting 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120018787, dated 2 April 2013. ___________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) AR20150016507 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150016507 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1