IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20160011138 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: AR20160011138 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: AR20160011138 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 the Annual DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 20120619-20130618 (contested NCOER) from his official military personnel file (OMPF). 2. The applicant states he appeals this NCOER on substantive grounds because the report is inaccurate and an unjust evaluation of his performance and potential. a. The remark regarding lack of leadership and use of false information must be removed from his NCOER because such remarks were made as a result of bias or prejudice on the part of a rating official. The remarks regarding a lost radio must be removed from his NCOER because such remarks make reference to unproven derogatory information. New information from the investigating officer states that he was not responsible for the misplacement of the radio as indicated on the report. This is not allowed under Army Regulation (AR) 623-3 (Evaluation Reporting System), paragraph 3-19. b. He gathered all of the information and consulted with a legal representative who informed him of the inaccuracies. He called the U.S. Army Human Resources Command to see if they needed hard copies or digital. He was advised to wait until after the through date and try to submit a request through the Army Review Boards Agency. He was a newly promoted staff sergeant (SSG) in a new unit. After being with the unit for 2 months, the unit deployed to Afghanistan. He was still trying to figure out his full leadership role when the negative remarks from this NCOER were recorded. c. It would be unjust, unfair, and a miscarriage of justice to allow this NCOER to remain in his permanent Army personnel file. Allowing this to remain in his file would not only discredit the outstanding service he has previously provided to our country, it would also have a profound negative effect on his advancement in the Army. It is his sincere desire to continue to serve our country and the Army for the remainder of his career, a goal that would be made difficult if not impossible, if this is allowed to remain in his file. d. He proudly served the Army for more than 14 years. He has received "Outstanding Performance, Must Promote" from his senior rater on his past NCOER. He has completed five overseas tours, three of which were combat tours to both Iraq and Afghanistan. He completed all NCO Education System requirements before making his pay grade. He has never received any Uniform Code of Military Justice action and has never been flagged. No company property was ever lost under his command and he has never had any Financial Liability Investigation of Property Loss conducted prior to or after the event in question. He is honest, trustworthy, and loyal. This NCOER is an attack on his character, integrity, and overall performance. 3. The applicant provides the contested NCOER and a statement from a former platoon leader. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 12 July 2001 and holds military occupational specialty 19K (Tank Crewman). He has served through multiple reenlistments in a variety of assignments and attained the rank/grade of SSG/E-6 in August 2012. 2. He was assigned to A Company, 4th Battalion, 9th Infantry, 4th Striker Brigade Combat Team, 2nd Infantry Division, while deployed to Afghanistan. 3. During June 2013, he received an annual NCOER covering 10 months of rated time from 19 June 2012 through 18 June 2013 for his duties as Mobile Gun System Commander. His rater was SSG CBF, the Platoon Sergeant; his senior rater was First Lieutenant PMN, the Platoon Leader; and his reviewer was Captain (CPT) BCG, the Company Commander. This NCOER shows he was periodically counseled. It also shows: a. In Part IVa (Army Values), the rater placed an "X" in "Yes" blocks for all values and entered bullet comments. b. In Part IVb (Competence), Part IVc (Physical Fitness and Military Bearing), and Part IVe (Training), the rater placed an "X" in the "Success" blocks and entered corresponding bullet comments. c. In Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comments: * failed to enforce standards and hold his subordinates accountable for their actions; removed from his leadership position temporarily for retraining * encouraged his Soldiers to seek counseling for combat stress; resulted in four of his Soldiers receiving the care needed to overcome deployment issues and defeat anxiety * influenced over ten Soldiers to sign up for charity competition; resulted in increased donations to veterans organizations and enhanced esprit de corps d. In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comments: * misplaced a handheld radio that compromised the [operational security] of the company; resulted in a loss of trust from the company leadership in matters of accountability * conducted [pre-combat checks] and [pre-combat inspections] prior to every mission; resulted in mitigated risk for his Soldiers while in a deployed environment * conserved limited resources by reusing C-wire; increased the effectiveness and efficiency of the perimeter while saving thousands of dollars for the Army e. 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. f. 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 "Fair/4" block. g. In Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * do not promote * send to Senior Leaders Course if seats need to be filled * showed potential; develop this NCO by placing him in areas that require hands on leadership and place an emphasis on responsibility and accountability * performed tactical tasks to standards; demonstrated marginal performance in areas that require a command presence and enforcing standards and discipline 4. The NCOER shows the rater and senior rater authenticated this form on 26 November and 3 December 2013 by placing their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place on 5 December 2013. The applicant also digitally signed it on 5 December 2013. 5. There is no indication the applicant: * requested a Commander's Inquiry * appealed the contested NCOER through HRC to the Enlisted Special Review Board (within the authorized timeframe) 6. He provides a statement from CPT CRI, currently a headquarters company commander in the 2nd Combined Arms Battalion, 70th Armor Regiment. He states: a. The purpose of this memorandum is to provide a recommendation for the applicant to be a recruiter. He was the applicant's platoon leader for a period of 6 months in the train-up to and during part of Operation Enduring Freedom. He served as a tank commander in his Mobile Gun System platoon. While under his command, the applicant served with distinction as they conducted daily patrols in the western-most U.S. Army combat outpost in Kandahar Province at Mushan, Panjwa'i. b. The applicant was involved in an incident where a Motorola radio assigned to him went missing for a period of 24 hours while they were deployed. He conducted an informal investigation and the bulk of the evidence pointed to the applicant's driver, Specialist (SPC) Wilk--, as the culpable party. He (the CPT) believes that SPC Wilk-- was trying to conduct a prank on the applicant by hiding the Motorola in a boxing glove, which was then shipped off in a container to Forward Operating Base Zangabad. The evidence was circumstantial so the only outcome of the investigation was that the Mobile Gun System Platoon and the Headquarters and Headquarters Company section of A Company, 4th Battalion, 9th Infantry, received a brief on the importance of securing sensitive items and classified material. He (the CPT) concluded the investigation with no negative action taken against the applicant. He then transitioned to another assignment shortly thereafter. REFERENCES: 1. AR 623-3, dated June 2012, was in effect at the time the contested NCOER was rendered. a. Paragraph 1-9, Army evaluation reports are independent assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the NCO Corps within the period covered by the report. Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the Army Values, the Army’s leadership framework, and responsibilities identified on evaluation report forms and counseling forms. Potential evaluations will be performance-based assessments of rated NCOs’ ability to perform in positions of greater responsibility and/or higher grades/ranks compared to others of the same rank. These assessments will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades, and will ignore such factors as impending retirement or release from active duty; potential evaluations continually change and are ultimately reserved for Headquarters, Department of the Army (HQDA). b. Paragraph 1-11, Commander’s/Commandant’s Inquiry; when it is brought to the attention of a commander that a report rendered by a subordinate or 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 policy and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain. c. Paragraph 3-19, unproven derogatory information, any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded. No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier. 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 HQDA. For example, rating officials are not prohibited from commenting on a court-martial (judicial), if completed, but the comments should focus on the behavior that led to the court-martial rather than the court-martial itself. If the rated Soldier is absolved, comments about the incident will not be included in the evaluation. Any verified derogatory information may be entered on an evaluation report. This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s reference to verified derogatory information. d. Paragraph 3-36, Modification to previously submitted reports. 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: (1) Statements from rating officials that they underestimated the rated Soldier; (2) Statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did; (3) Requests that ratings be revised; (4) Statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential; and/or (5) 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. e. Paragraph 3-36(d), for reports that have been completed and filed in a Soldier’s OMPF, substantive appeals will be submitted within 3 years of an NCOER "THRU" date. Administrative appeals will be considered regardless of the period of the report; decisions will be made based on the regulation in effect at the time reports were rendered. 2. AR 600-8-104 (Army Military Human Resource Record (AMHRR) Management) 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. Table B-1 covers authorized documents and states NCOERs are filed in the performance section of the OMPF. 3. Several Military Personnel 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 GOMOR, 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. a. Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.). b. 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. c. 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 appeal. DISCUSSION AND CONCLUSIONS: 1. The applicant received an annual NCOER from June 2012 through June 2013 while deployed to Afghanistan with his unit. The available evidence shows the applicant appears to have performed below standard in that he and/or one of his subordinates allegedly misplaced a sensitive item (radio). The formal or informal investigation that was conducted in relation to this action is neither filed in his record nor provided by him. 2. Regardless of who misplaced the radio, the rating officials believed the applicant failed to enforce the standards and hold his subordinates accountable for their actions. Accordingly, his rating officials removed him from his leadership position for retraining. His leaders also lost trust in him in the areas of responsibility and accountability. 3. The applicant provides a statement from a former platoon leader who states that he concluded the investigation with no negative action taken against the applicant. However, the author was neither the applicant's commander nor a rating official on the contested NCOER. Any role he might have played in regard to the misplacement of the radio would have been restricted to a recommendation to the chain of command. 4. There is insufficient evidence to show the contested NCOER 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011138 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011138 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2