IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20160006331 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: 9 June 2016 DOCKET NUMBER: AR20160006331 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: 9 June 2016 DOCKET NUMBER: AR20160006331 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 a Noncommissioned Officer Evaluation Report (NCOER) for the period 1 September 2008 through 31 May 2009 from his Official Military Personnel File (OMPF). 2. The applicant states: a. A material error exists in the unfavorable document identified through the Qualitative Management Program (QMP) process. b. Unverified derogatory information that was unfounded formed the basis for an annotation of "No" in Part IVa (Army Values/Attributes/Skills/ Actions) of the NCOER. c. In April 2009, the La Junta, Colorado Police Department charged him with driving under the influence (DUI). d. He was not found guilty of the offense. Rather, on 1 September 2009, the judge ordered his case dismissed due to insufficient evidence to prosecute. e. He did not receive a letter of reprimand or any judicial or nonjudicial punishment due to the dismissal of the charge. f. His command was aware of the charge and on 17 June 2009, before the case was dismissed, he was given a change of rater NCOER with a "No" in the integrity block in Part IVa. g. The basis for "No" was the pending DUI charge as stated in the bullet comment "displayed poor judgment in personal conduct while off-duty." h. In accordance with Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-19, "references will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to Headquarters, Department of the Army (HQDA)." The regulation further states that this restriction is designed to prevent unverified derogatory information from being included in a Soldier's evaluation report and to prevent prejudicial information from being included in a Soldier's record, such as "charges that are later dropped." i. The regulation permits inclusion of verified derogatory information; however, if the reported information later proves to be incorrect or erroneous, "the Soldier will be notified and advised of the right to appeal the evaluation report." 3. The applicant provides: * Memorandum For Army Board for Correction of Military Records, dated 15 January 2016 * Otero County Court Motion and Order to Dismiss, dated 1 September 2009 * NCOER, dated 1 September 2008 through 31 May 2009 * DA Notification for Potential Denial of Continued Active Duty Service under the QMP, dated 8 December 2015 * Soldier Acknowledgement - DA Notification for Potential Denial of Continued Active Duty Service under the QMP CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 23 July 2003, in pay grade E-2. He remained on active duty through continuous reenlistments. He was promoted through the ranks to pay grade E-6. 2. On 17 June 2009, the applicant received an NCOER for the period 1 September 2008 through 31 May 2009. In Part IVa, block 6 – “Integrity: does what is right – legally and morally" his rater marked "No." In the bullet comments, his rater stated that he "displayed poor judgement in personal conduct while off-duty." 3. In Part V – Overall Performance and Potential of the NCOER in question, his senior rater stated in a bullet comment "tremendous on-duty performance despite poor off-duty judgement." The applicant acknowledged receipt of the NCOER. 4. The applicant provides a document from the Otero County Court dated 1 September 2009, which is identified as a motion and order to dismiss. This document shows the District Attorney, Sixteenth Judicial District of the State of Colorado, moved that the action against the applicant be dismissed because there was insufficient evidence to prosecute his case. This document does not specify the charges that were pending or the charges that were being dismissed. 5. On 24 July 2012, the U.S. Army Human Resources Command (AHRC) notified the applicant that he was considered for promotion to sergeant first class (E-7) by a HQDA Standby Advisory Board (STAB) that convened on 4 June 2012. He was told that the board members did not recommend and the Director of Military Personnel Management did not approve his name to be added to the recommended list. He was told that selection boards are composed of senior officers and NCOs of demonstrated judgment who are not permitted to divulge their reason for selection or non-selection and each Soldier's OMPF is evaluated and the scope of the deliberation is not limited to any one specification. He was told his non-selection for promotion by the STAB would not affect the results of future selection boards and he would be eligible to compete in subsequent boards provided he is otherwise qualified for consideration. 6. On 8 December 2015, the applicant was notified that a QMP Board would convene on 1 March 2016 to consider him for separation as a result of information received for permanent filing in his Army Military Human Resources Record (which includes the OMPF). The AHRC identified his NCOER ending on 31 May 2009 as the document that led to the initiation of the QMP process. He was told that he could submit matters of mitigation or extenuation for consideration by the President of the Board and that the correspondence should be submitted no later than 5 February 2016. The applicant acknowledged receipt of the notification, by electing to submit matters of extenuation or mitigation to the Board President no later than 5 February 2016. 7. The applicant is currently on active duty in the RA. REFERENCES: 1. Army Regulation 601-280 sets forth policy and prescribes procedures for denying reenlistment under the QMP. This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to (1) enhance quality of the career enlisted force, (2) selectively retain the best qualified enlisted Soldiers to 30 years of active duty, (3) deny reenlistment to non-progressive and non-productive Soldiers, and (4) encourage Soldiers to maintain their eligibility for further service. The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram. Under the qualitative screening subprogram, records for grades E-5 through E-9 are regularly screened by the Department of the Army promotion selection boards. The appropriate selection boards evaluate past performances and estimate the potential of each Soldier to determine if continued service is warranted. Soldiers whose continued service is not warranted receive a QMP bar to reenlistment. 2. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 1-11 states when it is brought to the attention of a commander that a report rendered by one of their subordinates or subordinate commands 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 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 3-36 states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, 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. c. Paragraph 4-11 states the burden of proof in an appeal of an NCOER rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. DISCUSSION: 1. The applicant has provided no evidence to substantiate his contention that the comments made in his NCOER for the period ending 31 May 2009 by his rater and his senior rater were as a result of an arrest for a DUI which was later dismissed. Both comments speak to his off-duty performance and they do not specifically state that he was involved in a DUI incident. 3. Additionally, there is no evidence in the available records that shows he ever denied any alleged DUI charges. He concurred with the comments made in the NCOER by his rater and his senior rater. 4. The motion and order to dismiss that the applicant provided does not state exactly what charge(s) were pending against him or what charge(s) were being dismissed. The applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. 5. He has provided insufficient evidence to support his contention that the NCOER in question should be removed from his OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006331 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006331 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2