IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20160010673 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: 2 August 2016 DOCKET NUMBER: AR20160010673 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: 2 August 2016 DOCKET NUMBER: AR20160010673 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, in effect, removal of DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating periods ending 2 March 2011 (contested NCOER #1) and 15 August 2011 (contested NCOER #2) from his official military personnel file (OMPF). 2. The applicant states that Captain (CPT) NJR (the reviewer on contested NCOER #1), the commander of the 339th Military Police (MP) Company, was relieved from command and discharged from the Army for "failure in becoming an officer." He (the company commander) lied to his chain of command by stating that he was working for a federal agency. He was also investigated for sexual assault of a junior enlisted Soldier within his company. His actions caused his leadership to be incompetent within the company and brought morale to an extreme low. 3. The applicant provides the two contested NCOERs. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the U.S. Army Reserve (USAR) on 19 December 2002 and initially held military occupational specialty (MOS) 42A (Human Resources Specialist). 3. He entered active duty on 4 January 2004 and served in Kuwait/Iraq from 19 February 2004 to 21 November 2004. He was honorably released from active duty on 11 December 2004. 4. He reentered active duty in an Active Guard Reserve status on 27 November 2006 and he was promoted to staff sergeant (SSG) effective 1 December 2009 in MOS 92Y (Unit Supply Specialist). 5. During March 2011, he received an annual NCOER (contested NCOER #1) covering 12 months of rated time from 3 March 2010 through 2 March 2011 for his duties as Supply Sergeant while assigned to the 339th MP Company, Davenport, IA. His rater was First Sergeant (1SG) JFN, the Company 1SG; his senior rater was First Lieutenant JMB, the Company Executive Officer; and his reviewer was CPT NJR, the Company Commander. This NCOER shows he was regularly counseled. It also shows in: a. Part IVa (Army Values), the rater placed an "X" in "Yes" blocks for all values. b. Part IVb (Competence), the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments: * did no follow up on Battalion taskers and missed suspense dates for [Army Combat Helmet] turn in * was the unit and facility physical security NCO during the annual physical security inspection that both failed * arrived over an hour late to a meeting being conducted by the Battalion Commander and the Battalion Command Sergeant Major at the Yearly Training Conference c. Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Success" block and entered corresponding bullet comments. d. Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comments: * did not complete a unit supply [standard operating procedure] as directed * did not set a good example for young Soldiers * failed to turn in unneeded unit equipment which resulted in some equipment sitting in boxes in the motor pool bay for over a year e. Part IVe (Training), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comments: * failed to ensure that unit rations were ordered in a timely [manner] on several [Battle Assemblies] * was responsible for training three non-supply Soldiers to assist with inventories and supply functions * was unable to accurately complete and maintain a unit Master Authorization List for the unit's weapons f. Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Much)" block and entered the bullet comments: * did not ensure that a Soldier was properly licensed before tasking him with driving a forklift which resulted in an accident where a vehicle sustained $7,200 in damage * did not give a safety brief or complete a risk assessment for a detail he was supervising which resulted in damage to an [armored security vehicle] * substantial amounts of unit equipment under his control were found to be unsecured during a Battalion Staff Assistance Visit g. 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. Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Poor/5" 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. Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * do not promote at this time * needs to correct numerous deficiencies to be a successful Soldier * continue towards completion of [NCO Education System (NCOES)] 6. The NCOER shows the rater and senior rater digitally signed the NCOER on 6 March 2011 and the reviewer (CPT NJR) concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place on 7 March 2011. The applicant also digitally signed this report on 8 March 2011. 7. During September 2011, he received a change of rater NCOER (contested NCOER #2) covering 6 months of rated time from 2 March 2011 through 15 August 2011 for his duties as Supply Sergeant while assigned to the 339th MP Company, Davenport, IA. His rater was Sergeant First Class RSO, the Operations NCO; his senior rater was 1SG JFN, the Company 1SG; and his reviewer was CPT JMB, the Company Commander (a different company commander). This NCOER shows he was regularly counseled. It also shows in: a. Part IVa, the rater placed an "X" in "Yes" blocks for all values. b. Part IVb, the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments: * has failed to ensure hand receipts were completed before June 2011 [Battle Assembly] * failed to bring M-4 magazines and blank adapters to the [field training exercise] during 3-5 June 2011 * issued…radios to the 389th Forward Support Company without hand receipts * knowingly gave his supervision false information c. Part IVc, the rater placed an "X" in the "Success" block and entered corresponding bullet comments. d. Part IVd, the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comments: * failed to comply with instructions of superiors on several occasions * sometimes did not understand the importance of his position * leadership and managerial skills need improvement * did not take charge of his section e. Part IVe, the rater placed an "X" in the "Success" block and entered corresponding bullet comments. f. Part IVf, the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comments: * had poor organizing skills that resulted in misplaced equipment * failed to maintain accurate inventory as the Supply Sergeant * failed to understand the importance of his duties as a Supply Sergeant * failed to follow up tasks given to him by his chain of command g. 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. 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 "Fair/4" block. i. Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * continue towards completion of NCOES * do not promote at this time * needs to correct deficiencies in responsibility and accountability 8. The NCOER shows the rater and senior rater digitally signed the NCOER on 15 and 16 September 2011 respectively and the reviewer (CPT JMB, the new commander) concurred with the rater and senior rater and signed the form on 19 September 2011. The applicant signed this report on 21 September 2011. 9. There is no indication the applicant requested a Commander's Inquiry or appealed either contested NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board. 10. He was honorably discharged on 1 May 2016 due to non-retention on active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 10 years, 11 months, and 4 days of active duty service. REFERENCES: 1. Army Regulation (AR) 623-3 (Evaluation Reporting System), dated August 2007 and in effect at the time the contested NCOERs were rendered, shows in a. Paragraph 1-9, 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 noncommissioned officer 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 Department of the Army Pamphlet 623–3 (Evaluation Reporting System). b. Paragraph 1-11, 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. The results of the commander’s inquiry may be provided to the rating chain and the rated Soldier at the appointing official’s discretion. c. Paragraph 3-39, 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. Requests that an evaluation report in a Soldier’s OMPF be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report or be included in the rated individual’s OMPF: statements from rating officials that they underestimated the rated Soldier; statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did; requests that ratings be revised; statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential; and/or a subsequent statement from a rating official that he/she rendered an inaccurate evaluation of a rated Soldier’s performance or potential in order to preserve higher ratings for another. 2. AR 600-8-104 Army Military Human Resource Records Management (AMHRR)) governs the composition of the AMHRR (which includes the OMPF) and states 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. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. NCOERs are filed in the performance section of the OMPF. 3. Several Military Personnel (MILPER) messages provide guidance and procedures in support of the Qualitative Management Program (QMP). The purpose of the QMP board 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" on an NCOER, and NCO Education System failures. * Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.) * Soldiers may appeal on the basis of a material error in their records when reviewed by the board; the chain of command, all the way to a general officer, must recommend approval or disapproval * Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge; the Director of Military Personnel Management is the final authority for disposition of appeals DISCUSSION AND CONCLUSIONS: 1. The applicant received two consecutive derogatory NCOERs by different rating officials. 2. With respect to contested NCOER #1: a. The available evidence shows the applicant appears to have performed substantially below standard in that he failed four out of five NCO responsibilities. Several bullets support the rating rendered by his rating officials and the applicant provides no evidence to show otherwise. b. The applicant claims that the company commander was investigated and/or relieved for various infractions. However, it was the 1SG and Executive Officer who rated the applicant; not the Company Commander. Additionally, even if the applicant's contention regarding the Company Commander were true, several of the bullet comments have no relationship to the command climate. For example: * one of the bullets states he failed a physical security inspection; he provides no evidence that if he had a different commander he would have passed such inspection * another bullet states he failed to turn in unneeded equipment that sat in a box for a year; he does not explain or show how a different commander would have led him to do his job differently * a third example is that he failed to ensure a Soldier was licensed before operating a fork lift, which led to a costly accident; he does not explain why he failed to ensure the licensing of a subordinate c. His rating officials believed he was not proficient in his MOS; he failed to enforce the standards; failed to lead, train, or set an example; and he failed in the area of responsibility and accountability – a key area for any Supply Sergeant. d. There is no evidence of administrative or substantive deficiencies or evidence that NCOER #1 was not prepared in compliance with applicable regulations and policies. The applicant has not shown the evaluations rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time they prepared this NCOER or that they exercised faulty judgment in evaluating him as they did. 3. With respect to contested NCOER #2: a. The available evidence shows that, despite his new rating chain, which did not include the company commander who the applicant alleged was relieved, his substandard performance continued. His new rating officials also believed he performed substantially below standard in that he failed three out of five NCO responsibilities. Several bullets support the rating rendered by his rating officials and the applicant provides no evidence refuting the information contained in this NCOER. b. His new rating officials also believed he was not proficient in his MOS, failed to enforce the standards, failed to lead or set an example, and failed in the area of responsibility and accountability. c. There is no evidence of administrative or substantive deficiencies or evidence that NCOER #2 was not prepared in compliance with applicable regulations and policies. The applicant has not shown the 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160010673 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160010673 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2