BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160009360 BOARD VOTE: ____x____ ____x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160009360 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Removing from his Official Military Personnel File his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 1 April 2013 through 31 March 2014 and all allied documents; b. Replacing the NCOER with a statement of non-rated time; and c. Submitting his records to a duly-constituted Standby Advisory Board for consideration for promotion to master sergeant under the appropriate years' criteria, beginning after the ending date of the NCOER referenced above, provided otherwise eligible. _____________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160009360 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 the removal of a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 1 April 2013 through 31 March 2014 (hereafter referred to as the contested NCOER) from his official military personnel file (OMPF). In the alternative, he requests the redaction of unfavorable information within the contested NCOER. 2. The applicant states, in effect, as others have indicated in their statements and experts in the field have suggested, there was no violation of Army Regulation or doctrine. a. His concern was a disagreement between a superior commissioned officer and an NCO, and rank won the day versus what was actually right or wrong. b. The evidence he provides clearly and convincingly shows violations of Army Command Policy and evaluation policy occurred, wherein the commander conducting a Commander's Inquiry and the NCOER reviewer interceded in the rater and senior rater's evaluation by insisting comments be inserted into the contested NCOER. c. The evidence he provides clearly shows there was a decision made that superseded the insights of the live fire team, whose job it is to oversee safe firing at the National Training Center (NTC). 3. In a separate, self-authored statement, the applicant states: a. On 15 March 2014, there was a deliberate question asked by the senior task force trainer pertaining to a perception that there may have been a violation of the range surface danger zones (SDZ) for the 81mm mortar firing point. This is supported within enclosure 2 (Sworn Statement from Captain (CPT) L_S_ OIC). In his statement, CPT S_ states, "This was a deliberate question raised nearing the completion of the lane." CPT S_ further states that this was a question about a possible SDZ violation. The applicant submits enclosure 3 as picture evidence of the two guns used for the live fire exercise. The picture shows clearly both mortar systems as they were emplaced and positioned during firing and the gun target line. This picture convincingly shows that neither mortar system was positioned or laid in so as to fire over the head of one another or to willfully violate doctrine or regulation. The mortar on the left side of the image is clearly offset from the mortar on the right side of the image and is not positioned to shoot directly over the heads of any troops. b. He submits enclosure 4 as picture evidence that shows the unit in question using their M16 plotting boards and their M32 lightweight handheld mortar ballistic computers simultaneously during the live fire exercise. (1) Neither of these fire control systems or the four personnel from the unit assigned as safety personnel (platoon sergeant (PSG)/platoon leader (PL)/fires support officer (FSO)/first sergeant (1SG)) gave any indication of an error or safety incident that would generate a "message to observer," denying the mission due to a violation of the SDZ or due to a live fire incident. This is substantiated by CPT S_'s sworn statement where he states, ''This was not a split second question or a safety "cease fire' 'freeze' that would have happened if there was imminent danger to personnel on the lane." This is further supported by the PL's statement, where he identifies the four people and adherence to all safety procedures. Furthermore, the SDZs were approved during the "Dry Fire" iteration, approved by the live fire team (Dragon), and were in possession of the lane officer in charge (OIC) during the exercise, as indicated by CPT S_'s sworn statement. (2) This clearly and convincingly shows that the senior task force trainer did not know whether or not there was an issue, which is why he asked a deliberate question rather than affirming doctrine or regulation in a manner to correct an inefficient person or process. Further conversation between the live fire team OIC, lane OIC, lane NCO in Charge (NCOIC) and the live fire team NCOIC convincingly indicate that none of them felt that this was a live fire issue or a violation of an SDZ further supported by CPT S_'s sworn statement where he mentions the fact that the live fire team NCOIC indicated this to the applicant after their conversations about this deliberate question. This is again supported by Major (MAJ) W_'s statement at enclosure 14, where he states, "[applicant] was acting on approval he received from higher ranking authorities in the NTC live fire chain of command". c. He submits enclosure 5 as picture evidence that shows that with both mortars emplaced beside one another in the established pits utilized by all mortar units as confirmed by CPT S_'s statement at enclosure 2, laid in on the azimuth of fire of 1,500 mils as confirmed by his statement and the statement of the PL at attachment 7 that it is impossible for one to fire over another with the dispersion between the two weapon systems. This picture with the azimuth of fire superimposed along with the statements provided corroborate how the guns were laid in. Finally, it proves that he did not coach the mortar platoon into positioning themselves into a doctrinally incorrect firing position/formation. d. He was animated in his response to the question posed by the senior task force trainer S07, which he believes the trainer perceived as an affront to him. It was not his intention to countermand or undermine his authority in any way shape or form. This was an issue previously raised and dismissed by the live fire team chain of command responsible for ensuring compliance with the NTC execution operating procedures (EXOP) as it relates to live fire training for rotational units. His animation grew as he was confronted the final time as he let his emotions run wild due to his perception that he was being personally attacked. His response to the questioning lead to the injustice of being fired on the spot, even after having the input of the live fire team chain of command on this very issue twice before. e. This is further compounded by four days of trying to figure out what to do with him before finally giving him his first and only counseling statement from his reviewer notifying him of his relief and the follow on of a Relief for Cause NCOER (enclosure 6). The NTC EXOP clearly defines his role as an observer controller, which he adhered to and is further substantiated by the sworn statements of the PL (enclosure 7) and PSG (enclosure 8). f. He further submits enclosure 9, which is a statement from an officer on the Scorpion Team that clearly substantiates his claim of undue command influence from the perception of leaders on the Scorpion Team. This overreaction is further supported with the statement provided by his rater MAJ W_ (enclosure 14), who clearly states that they "disregarded due process to the ratee." Had this been handled in accordance with Army Regulation and the NTC EXOP, the range would have been shut down and the unit would have had to conduct an [Army Regulation] 15-6 (Procedures for Administrative Investigations and Boards of Officers) Investigation with the results of that investigation due to the Commander of Operation Group no later than the end of the rotation according to the NTC EXOP and DA Pamphlet 385-63 (Range Safety) at enclosure 16. g. Enclosure 10 is a statement from a subject matter expert in the field of mortars, SDZs, and Army range regulations and, more importantly, who has years of experience as the OIC of range operations. After reviewing his initial appeal, and the documents now provided in the re-appea,l he provides a clear and convincing quote: "The undersigned found nothing that would lead to a conclusion of a violation of any Army range safety regulation, mortar safety pamphlet nor any mortar field manuals in use." h. Enclosure 11 is an email between him and his rater that refutes the idea that his senior rater knew how he wanted to evaluate him initially along with enclosure 12, the contested NCOER submitted four weeks after the incident in question where the senior rater's comments did not reflect his final NCOER comments being appealed. This directly contradicts the reviewer's email stating that he knew after talking to him and his reviewer later that the applicant was wrong and more pointedly unsafe, which is refuted in enclosures 2 and 10. His rater clearly indicates that the senior rater held off from signing the NCOER stating, "He held off from making any comments because he didn't know what to do." i. His senior rater's email with the final NCOER at enclosure 13 aligns his position and comments with that of his reviewer who fired him, which affirms the fact that he did not have the authority to fire him as that authority was retained by the Commander of Operations Group. If he didn't have the authority to fire him, then why did it happen in the first place outside of an abuse of authority due to toxic leadership within the team? j. The senior rater's comments were based on his beliefs as evidenced by his comments in his email to the applicant where he stated "I once again believed you did not follow regulations and did not ensure that the live fire was safe." The only person on the range that felt anything was unsafe was the reviewer. He found no fault(s) with the unit, the unit's four safeties found no fault(s) and the Live Fire Team Chain of Command found no fault(s) that day. At the end of the day, one person's views trumped the views and perceptions of everyone else based on anything but factual evidence. k. His reviewer and senior rater's views, beliefs, and assumptions are not based off of concrete evidence or facts which were not investigated due to the disregard of due process in Army regulation, DA Pamphlet 385-63 and the NTC EXOP. MAJ C_ was influenced by members in the chain of command; he did not completely understand the situation not having been present and/or having gathered any substantive facts. He was influenced to add comments to his NCOER by members of the chain of command (enclosure 15). This clearly and convincingly is detrimental to the good order and discipline of the Army. Furthermore he contends that this is a blatant violation of Army Regulation 600-20 (Army Command Policy) and the evaluations process established in Army Regulation 623-3 (Evaluation Reporting System). l. If he were truly an average Soldier and not the best Soldier for the job, why then did the chain of command not take the opportunity prior to firing him to demote him, fire him, or to replace him with his counterpart? If he were truly an average Soldier then it would most certainly be something that other leaders of his would have captured in their evaluations of him over the years. m. Contrary to that thought process, and as evidenced in enclosure 17, his evaluations over the duration of his career were stellar to say the least. Time and time again he was recognized as the person that's sought out for his expertise and knowledge in the field of mortars, not as someone who makes catastrophic and life-endangering mistakes that put the lives of Soldiers at risk. How is it then that his reviewer, who rarely dealt with him, and his senior rater, who didn't deal with him, could ascertain that he was an average Soldier who callously puts the lives of Soldiers at risk by coaching them inconsistent with doctrine and contrary to the safe conduct of mortar live fires when everyone else but his reviewer found no fault with the live fire exercise? n. He submits a copy of the initial appeal that was denied as a reference to the material information provided the first time around that the majority of is not available in this attempt to appeal the evaluation report. o. Based on the above, he does not believe that his personal or professional characteristics, conduct, behavior, or performance of duty warranted his removal in the best interest of the U.S. Army in accordance with Army Regulation 600-20. He respectfully requests the deletion and removal of the evaluation report from his OMPF. This evidence shows that the contested NCOER is an inaccurate representation of his actions and what took place that day leading to his firing. 4. The applicant provides the following numbered enclosures excluding one with the number "6": * Enclosure 1 – contested NCOER with reviewer's non-concur memorandum * Enclosure 2 – DA Form 2823 (Sworn Statement) by CPT S_ * Enclosure 3, 4 and 5 – photos of the training exercises * Enclosure 7 – DA Form 4856 (Developmental Counseling) first page * Enclosure 8 – DA Form 2823 by First Lieutenant (1LT) S_ * Enclosure 9 – DA Form 2823 by Staff Sergeant (SSG) R_ * Enclosures 10 and 11 – letters of support * Enclosure 12 – email in reference to the contested NCOER, dated 11 September 2014 * Enclosure 13 – a relief for cause memorandum and unsigned NCOER that was his initial evaluation * Enclosure 14 – email in reference to the contested NCOER, dated 9 September 2014 * Enclosure 15 – letter of support from his rater * Enclosure 16 – email informing him the NCOER was no longer a relief for cause * Enclosure 17 – excerpt of NTC EXOP * Enclosure 18 – 11 NCOERs with thru dates of "2005 05" to "20151231" * Enclosure 19 – Enlisted Special Review Board (ESRB) Record of Proceedings (ROP), dated 1 March 2016 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 28 June 2001. He completed his initial entry training and was awarded military occupational specialty 11C (Indirect Fire Infantryman). He is currently serving on active duty in the rank and grade of sergeant first class (SFC)/E-7. 2. The contested NCOER was filed in the applicant's OMPF on 26 September 2014. The contested NCOER shows he was assigned as Task Force Mortar Combat Trainer, Operations Group, NTC, Fort Irwin, CA; and: a. He was counseled four times during the rating period. b. He received all "Yes" ratings for Army values. Part IV ((Rater) – Values/NCO Responsibilities) shows he received "Excellence" ratings except for two "Success" that were in "Physical Fitness and Military Bearing" and "Responsibility and Accountability." c. Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Fully Capable" block. d. 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 "Superior/3" block. e. Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * the rated NCO refused to sign * possess the potential for promotion to master sergeant * lost the confidence of the Task Force Senior Trainer (the reviewer) in his ability to ensure safe live fire operations in accordance with regulation * performed well during most of the rated period; consistently provided valuable feedback to rotational units through detailed after action reviews 3. The rater authenticated the contested NCOER on 27 July 2014. 4. The reviewer completed and signed a non-concurrence memorandum on 3 September 2014, which states: [The applicant] performed very well during most of this rated period. However, I lost confidence in his ability to ensure the safe execution of mortar live fire operations after I stopped a mortar live fire event that was not [in accordance with] IAW the NTC EXOP and DA PAM 385-63. [The applicant] continued to argue an interpretation of the regulation that is incorrect; inconsistent with doctrine; and contrary to the safe conduct of mortar live fire. Coaching rotational units to execute in an unsafe and doctrinally incorrect manner puts the rotational unit at risk during the NTC rotation and during future training. I believe that Part IVb (Competence) in the rater portion should indicate the need for improvement (some). 5. The senior rater and reviewer signed the contested NCOER on 11 September 2014. The applicant did not sign the form. 6. There is no evidence a 1SG or sergeant major (SGM) reviewed the contested NCOER for correctness. 7. There is no evidence a commander's inquiry was conducted. In addition, there is no evidence an investigation was conducted by the chain of command after the incident to determine whether the applicant was at fault. 8. The Inspector General (IG) determined his matter was not IG appropriate and informed him the IG would take no further actions pertaining to his case on 1 April 2014. 9. The applicant appealed the contested NCOER through the Army Enlisted Special Review Board (ESRB). On 1 March 2016, the ESRB unanimously voted to deny relief. 10. The applicant provides: a. Enclosure 1 - a different version of the contested NCOER, which shows check marks instead of "X's" in the appropriate boxes, the senior rater and rater signed the form on 3 September 2011, and the comment "the rated NCO refused to sign" is not listed. This version of the contested NCOER is not filed in his OMPF. b. Enclosure 2 – an unauthenticated sworn statement allegedly prepared by CPT S_, a member of Dragon Team, Operations Group, NTC, Fort Irwin, CA. CPT S_ appears to state the EXOP did not provide a clear framework from which a mortar firing point could be setup or assessed. He found it odd the applicant was so quickly relieved when so many different interpretations existed. c. Photos of vehicles and personnel during dry rehearsal and live fire, and of azimuths of fire. d. The front page of a counseling statement, dated 18 March 2014, which shows his reviewer, LTC H_, the Task Force Senior Trainer, relieved him from his duties noting the following: * on or about 15 March 2014, he allowed a section of 81mm mortars to fire in an unsafe manner; allowing the gun to fire directly overhead of another gun squad that was setup approximately 10 meters in front of that gun * personnel were in the SDZ while guns were firing; ammunition on hand was fragmentation, red phosphorus, illumination * firing the 81mm mortar overhead in that manner is a violation of DA Pam 385-63 and the NTC EXOP, and the placement of a gun section in that manner was doctrinally incorrect and not IAW Field Manual 3-22.90 * when he discussed the concern with the applicant on or about 17 March 2014, the applicant believed the regulation supported firing 81mm mortars with personnel inside the SDZ up to 100 meters in front of the firing gun * his action put the rotational training unit at risk during the NTC rotation and during future training * he lost confidence in his ability to ensure the safe execution of mortar live fire operations and relieved him of his duties as the Senior Mortar Trainer on the Scorpion Team e. Sworn statements from members of rotational training units who participated during the incident in question. f. Letters of support indicating the applicant was proficient in his mortar live fire duties. g. An email, dated 11 September 2014, in which the applicant asked his rater, MAJ W_, for a copy of an NCOER previously prepared that had no negative comments listed on it; however, it showed the reviewer non-concurred with the NCOER. h. A relief for cause NCOER and memorandum that was not processed. i. An email, dated 9 September 2014, from his senior rater, MAJ C_, which states, in effect: * he and the reviewer spoke with colonel (COL) C_, who approved the final version of the NCOER * the senior rater stated he based his evaluation on the applicant's performance for the entire year, including the incident during the live fire exercise where the reviewer lost confidence in his abilities * when his failed to adhere to the NTC EXOP and DA Pam 385-63, the reviewer counseled him and he refused to acknowledge his errors * he was removed from his position to prevent serious injury or death to Soldiers * after talking with the reviewer, he believed the applicant did not follow regulations and did not ensure the live fire was safe * he thought his performance up to the live fire was average, but due to his action and inability to follow regulations, he adjusted his evaluation to fair * the applicant's signature is to verify that his administrative data is correct * his discussion with the applicant on that matter is over, and he will process the NCOER without his signature if not signed j. A letter of support, dated 14 September 2014 for appeal of the contested NCOER from his rater, MAJ W_, which states, in effect: * the applicant was acting on the approval he received from higher ranking authorities in the NTC live fire chain of command * no commander's inquiry was conducted after the incident in question to determine facts or recommendations * no rehabilitative actions were taken to correct the perceived issue that progressed straight to relief actions * those actions present the perception that immediate response was preferred to the proper process necessary to determine facts and appropriate action or inaction k. An excerpt of the NTC EXOP that shows the chain of command is required to conduct an investigation into the cause of safety and firing incidents. l. 11 NCOERs with thru dates of "2005 05" to "20151231" in which in each Part Vc, the senior rater placed an "X" in the "Successful/1" block, and in all Part Vd but one, the senior rater placed an "X" in the "Superior/1" block (he received a "2" in the one exception). REFERENCES: 1. Army Regulation 623-3 in effect at the time, prescribes the policies and tasks for the Army's Evaluation Reporting Systems. The information provided on the NCOER or AER combined with the Army's needs and individual leader qualifications, is used as a basis for personnel actions. Included are: promotion, elimination and retention in grade, retention on active duty, reduction in force, command selection, school selection, assignment, specialty designation, Regular Army (RA), and Joint integration. To ensure that sound personnel management decisions can be made and that a leader's potential can be fully developed, evaluation reports must be accurate and complete. Each report must be a comprehensive appraisal of a Soldier's abilities, weaknesses, and potential. Reports that are either incomplete or fail to provide a realistic and objective evaluation make it difficult to determine a Soldier's true potential. a. Paragraph 1-9 provides that Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or NCO Corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pamphlet 623-3 (Evaluation Reporting System). b. Paragraph 1-11 provides that when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or by a member of 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 policies and procedures established by Headquarters, Department of the Army (HQDA) and the conduct of the rated Soldier and members of the rating chain. c. Paragraph 2-17 provides that every NCOER will be reviewed by the company first sergeant, battalion command sergeant major, or sergeant major, and will be signed by an official who meets the reviewer requirements of paragraph 2–8b. The reviewer is responsible for providing safeguard over watch and will ensure that the proper rater and senior rater complete the report and examine the evaluations rendered by the rater and senior rater to ensure they are clear, consistent, and just, in accordance with known facts. Special care will be taken to ensure the specific bullet comments support the appropriate excellence, success, or needs improvement ratings in Part IV b-f. d. Paragraph 3-37(2) provides that rated Soldiers will always be the last individual to sign the evaluation. The rated Soldier's signature will verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the APFT and weight data; and that the rated Soldier has seen the completed report. This action increases administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data. e. Paragraph 3-39 provides that an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. f. Chapter 6 defines the Evaluation Redress Program and provides guidance regarding redress programs, including commanders' inquiries and appeals. g. Paragraph 6-8 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. h. Paragraph 6-11a provides that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3–39 and 6–7 will not be applied to the report under consideration, and action is warranted to correct a material error, inaccuracy, or injustice. The evidence presented must be of a clear and convincing, and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 2. Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management (AMHRR)) governs the composition of the OMPF and provides that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 4. Department of the Army Pamphlet (623-3), in effect at the time: a. Provides rules for designating a senior rater on an NCOER: (1) A senior rater will be an officer or NCO of the U.S. Armed Forces or an employee of Department of Defense (including non- appropriated fund employees) who is senior to the rater by either pay grade or date of rank. Members of allied forces are not authorized to be senior raters. (2) A senior rater will be a supervisor over all other rating officials in the rated Soldier's chain of command or supervisory chain. The senior rater will be the immediate supervisor of the rater and designated as the rated Soldier's senior rater for a minimum period of 60 consecutive days. b. Paragraph 3–8 provides Part V of the NCOER, structured potential rating for overall performance and potential consists of, and includes, rater box marks for promotion/service potential; rater specific positions recommendation; senior rater overall performance and potential; and senior rater choice of alternatives for future performance. (1) Part Vc: Senior Rater evaluates overall performance by placing one computer generated, typewritten or handwritten "X" (in black ink) in the appropriate box. The senior rater's box marks are independent of the rater's. There is no specific box mark ratings required of the senior rater based on box marks made by the rater. The following definitions will be used when completing Part Vc: * Successful/superior. A "1" rating represents the cream of the crop and is a recommendation for immediate promotion. A "2" rating represents a very good, solid performance and is a strong recommendation for promotion. A "3" rating also represents a good performance and, should sufficient allocations be available, is a recommendation for promotion * Fair. A "4" rating represents NCOs who may require additional training/observation and should not be promoted at this time * Poor. A "5" represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas. Do not promote and consider for DA imposed bar to reenlistment under the QMP (2) Part Vd: Senior Rater evaluates overall potential by placing one computer generated, typewritten or handwritten "X" (in black ink) in the appropriate box. The senior rater's box marks are independent of the rater's. There is no specific box mark ratings required of the senior rater based on box marks made by the rater. The following definitions will be used when completing Part Vd: * Successful/superior. A "1" rating represents the cream of the crop and is a recommendation for immediate promotion. A "2" rating represents a very good, solid performance and is a strong recommendation for promotion. A "3" rating also represents a good performance and, should sufficient allocations be available, is a recommendation for promotion * Fair. A "4" rating represents NCOs who may require additional training/observation and should not be promoted at this time * Poor. A "5" rating represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas. Do not promote and consider for DA imposed bar to reenlistment under the QMP DISCUSSION: 1. The applicant requests removal of the contested NCOER or the redaction of unfavorable information. 2. The applicant contends the negative evaluation was the result of a difference in the understanding of live fire policy with an officer, in which the officer's opinion ultimately prevailed. Evidence provided shows the senior rater and reviewer discussed how to properly evaluate his performance. They ultimately decided to change his evaluation from a relief for cause report to an annual report with negative comments and ratings. 3. There is no evidence available that shows a 1SG or SGM reviewed the NCOER ensuring the specific bullet comments support the appropriate excellence, success, or needs improvement ratings. 4. The applicant requested assistance from the IG who determined they would not assist him with the case. He appealed through the ESRB and was denied relief. 5. The evidence does not show the contested report contains any administrative or substantive deficiencies or inaccuracies or that it was not prepared in compliance with applicable regulations and policies. 6. The governing Army regulation clearly states an evaluation report 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 to represent the considered opinions and objective judgment of the rating officials at the time of preparation. 7. The contested NCOER shows initial and subsequent counseling dates. The applicant did not sign the contested NCOER. An email exchange between him and his senior rater shows the senior rater informed him he would process the evaluation if he did not sign; therefore, and without any evidence to the contrary, it appears he was informed of his duty performance for the entire rating period. 8. The applicant's rater indicated the chain of command should have investigated the incident before relieving him from his position; the NTC EXOP specifies investigations should occur after safety and firing incidents. However, there is no indication the chain of command conducted an investigation that determined his actions were not IAW governing regulations. Still, he was relieved of his duties and given a negative evaluation. 9. The applicant provided statements from subject matter experts who attested there was no fault in his actions and that training was not halted as a result of any safety violations during the incident in question. 10. The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. 11. Without the due process of an investigation by the chain of command IAW the NTC EXOP, it appears the action to relieve him from his duties and evaluate him negatively was unjust. Maintaining the negative comments that were unsupported by an investigation on the contested NCOER within his OMPF could negatively impact his selection for future assignments and promotion. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009360 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2