IN THE CASE OF: BOARD DATE: 18 December 2018 DOCKET NUMBER: AR20160013740 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration 1. IN THE CASE OF: BOARD DATE: 18 December 2018 DOCKET NUMBER: AR20160013740 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision that was promulgated in Docket Number AR20150005551 on 28 April 2016. Specifically, he requests the removal from his official military personnel file (OMPF) of a: * DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER), covering the period 23 January 2013 through 22 August 2013 [hereafter referred to as the contested NCOER] * DA Form 8028-R (U.S. Army Reserve (USAR) Bar to Reenlistment Certificate) 2. The applicant states: a. The Board referenced a signature on the contested NCOER. The NCOER in his OMPF does not contain his signature. b. The Board argues that he did not provide substantive evidence to support his contention. Please see the attached Request for Commander's Inquiry [CI] that addresses substantive issues, including the reference to an investigation that did not take place during the rating period and was closed favorably. c. The Board argues that he did not provide sufficient evidence to show administrative or substantive error. Administratively, the rating chain was not his rating chain for this rating period. Substantively, the senior rater and reviewer reference information that is contrary to regulation to include in an NCOER, as at the time, the investigation was not complete and it referenced events that did not occur during this rating period for which those individuals were not part of his rating chain. d. The Board referenced a lack of evidence of appeal. He did appeal, but his appeal was denied for lack of signature, lack of request of Commander's Inquiry, Enclosure 2 and illegibility of supporting documentation. He has since addressed these issues and resubmitted an appeal. e. The Board argues that there is no indication that he was deprived of any rehabilitative measure. All of his requests for rehabilitation that were included in the administrative dialogue, to include the appeals process, were ignored every step of the way. By not acknowledging these requests nor including the method to rehabilitation to overcome the bar, the chain of command that initiated and reviewed the bar effectively deprived him of rehabilitation. Rehabilitation was not considered, requests for rehabilitation were not acknowledged. f. It is for these reasons that he respectfully request reconsideration of the Board's previous decision. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting document(s): * ABCMR denial letter, dated 3 May 2016 * memorandum from the applicant to the U.S. Army Human Resources Command (HRC), dated 18 July 2016, subject: NCOER Appeal for January 2013 through August 2013 * memorandum from HRC to the applicant, dated 10 February 2015, subject: Evaluation Report Appeal (23 January 2013 – 22 August 2013) * memorandum from the applicant to the Commander, 649th Regional Support Group (RSG), dated 18 March 2015, subject: Request for Commander's Inquiry into NCOER for January 2013 through August 2013 * 300th Human Resources (HR) Company rating scheme (unsigned), effective 9 June 2010 * two DA Forms 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 19 November 2013 and 7 January 2015 * NCOER for the period 23 January-22 August 2013 * Letter from the applicant to the Commander, 649th Regional Support Group (RSG), dated 31 July 2014, subject: NOCER for [applicant] 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems, including the documents comprising the applicant's separation packet. 1. REFERENCES: 1. Army Regulation 140-111 (USAR Reenlistment Program) implements Department of Defense policy governing retention, reenlistment eligibility, and service requirements in accordance with United States Code. It states that after placing an approved bar to reenlistment in a Soldier’s OMPF, the company, detachment, or comparable commander of the unit to which the Soldier is assigned will continue documented evaluation of the Soldier. Approved bars to reenlistment will be reviewed by the proper unit commander in 3-month intervals, and 30 days before the Soldier’s scheduled departure from the unit, relief from active duty, or discharge. 2. Army Regulation 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 a document is 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 the ABCMR. 3. 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 that when a commander or commandant discovers that an evaluation report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, he or she will conduct an inquiry into the matter. The Commanders or Commandant’s Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the evaluation report, the compliance of the evaluation with policy and procedures established by Headquarters, Department of the Army (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 2-3 states a rating chain is established by the commander, commandant, or leader of an organization and maintained by rating officials to provide the best evaluation of an individual Soldier’s performance and potential. A rating chain also ties the rated Soldier’s performance to a specific senior or subordinate relationship. This allows for proper counseling to develop the rated Soldier and accomplish the mission. These functions are normally best achieved a. within an organization’s chain of command or supervision. Generally, the evaluation of Soldiers by persons not involved in the chain of command or chain of supervision is inappropriate. c. Pargaraph 2-3 also states that the rating chain will consist of the rated NCO, the rater, the senior rater, and the reviewer. The reviewer will be a commissioned officer, warrant officer, command sergeant major (CSM), or sergeant major (SGM) in the direct line of supervision and senior in pay grade or date of rank to the senior rater. d. Paragraph 2-7 states that a senior rater will be an officer, NCO, or a Department of Defense civilian who is senior to the rater either in pay grade or date of rank and in the direct line of supervision of the rated NCO. e. Paragraph 2-19 states eery NCOER should be reviewed by the first sergeant, SGM, or CSM to ensure accountability of Soldiers’ evaluation reports and to oversee the performance of junior NCOs. This is in addition to the review by the designated reviewer. The reviewer will: (1) Ensure that the proper rater and senior rater complete the report. (2) Examine the evaluations rendered by the rater and senior rater to ensure they are clear, consistent, and just in accordance with known facts. The reviewer will comment only when in disagreement with the rater and/or senior rater. The reviewer indicates concurrence or nonconcurrence with rater and/or senior rater by checking the appropriate box in part II and adding an enclosure. f. Paragraph 3-2 states rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated Soldier for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be honest and discriminating in their evaluations so Army leaders, HQDA selection boards, and career managers can make intelligent decisions. g. Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not 4 be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. DISCUSSION: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150005551 on 28 April 2016. The applicant provides new arguments with his application to the Board. These arguments were not previously considered and now warrant consideration by the Board. 2. The applicant enlisted in the Regular Army on 19 May 2000. He was released from active duty and transferred to the USAR on 18 August 2002. He entered active duty in an Active Guard Reserve (AGR) status on 8 September 2008 and was promoted to staff sergeant/E-6 on 1 November 2011, with duties in military occupational specialty 92Y (Unit Supply Specialist). 3. DA Forms 4856 (Developmental Counseling Form) show the applicant was counseled: * on 19 July 2013, by Lieutenant Colonel (LTC) W, for his lack of motivation and initiative, based on his dereliction of duties as unit supply sergeant for the 300th HR Company * on 23 August 2013, by LTC W, for his failure to follow instructions 4. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) was initiated against the applicant on 19 November 2013. The FLAG was initiated due to a commander's investigation. 5. An investigating officer (IO) was appointed on 4 March 2014, pursuant to Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers), to conduct an informal investigation into the recurring supply issues that had plagued the 300th HR Company since falling under the 649th RSG. The purpose of the investigation was to identify the causes, circumstances, and contributing factors resulting in the supply issues. The IO was also instructed to investigate the job performance of the applicant (as the supply sergeant for the 300th HR Company) to help identify whether he had unsatisfactorily performed his job or had committed a pattern of misconduct in his supply sergeant duties. The investigation was prompted by a series of supply failings over 18 months to 1. include missing equipment, equipment received but not accounted for, Soldiers not receiving their organizational clothing and individual equipment (OCIE), missed physical security inspections, and by the inability of the unit to perform a Combat Support Training Exercise (CSTX) mission due to supply issues. 6. The IO's proceedings are not available. However, by memorandum dated 11 July 2014, the applicant was notified by the 649th RSG commander that he was being relieved of his duties as the supply sergeant for the 300th HR Company. The memorandum states: Recent findings from two 15-6 investigations have found you legally and financially negligent in your responsibilities and duties as a supply sergeant. Your past and current supervisory chain and RSG S4 FTS counseled you on many occasions about your dereliction of duties, inconsistent and substandard work ethic, failure to meet mandated suspenses on time, your lack of Soldier care and safety, compromising several company training events by your frequent unwillingness to cooperate in working toward unit goals and unit readiness, and your lack of knowledge and skill inherent with your rank and grade. You were also counseled on your unprofessional attitude with superiors. You consistently demonstrated a serious lack of integrity and poor judgment without consideration of results. You hid serious shortfalls until it was too late to correct them. Your underperformance has jeopardized the safety and security of the 300th Soldiers. You have not learned from previous mistakes; thereby, have forced my hand in this action. 7. In response to the relief for cause memorandum, the applicant provided a 10-page memorandum in which he essentially expressed his disagreement with the reasons for his relief from unit supply duties. 8. On or around 25 July 2014, the applicant was issued a "change of rater" NCOER covering the period 23 January-22 August 2013. The rater was Captain (CPT) T (300th HR Company Commander), the senior rater was LTC W (649th RSG Executive Officer), and the reviewer was Colonel (COL) W (649th RSG Commander). CPT T entered several positive comments about the applicant's performance and rated his overall potential for promotion and/or service in positions of greater responsibility as "among the best." However, the senior rater rated the applicant's overall performance as "fair" and his overall potential for promotion and/or service in positions of greater responsibility as "poor." The senior rater entered the following comments in Part V (Overall performance and potential) of the NCOER: 1. * a brigade-directed 100 percent inventory located over $200,000 in excess equipment on hand not on the unit property book * failed to properly account for $27,000 of OCIE received during this rating period * has the potential to excel; lacks the initiative to do; do not promote at this time; NCO is not ready for any additional responsibility * Soldier refused to sign; Counseling occurred; not documented on [DA Form] 2166-8-1 [NCOER Counseling and Support Form] 9. Part II (Authentication) of the NCOER shows the applicant indicated that he did not concur with the rater and/or senior rater evaluation and that he did not sign the NCOER. 10. The reviewer (COL W) non-concurred with rater and/or senior rater evaluation and provided the following comments: CPT T's evaluation of [the applicant] is sullied by his lack of impartiality as a co-defendant in several FLIPLs [financial liability investigation for property loss] actions. During CPT T's command tenure and under [the applicant's] direct control throughout this rating period, the 300th HRC received over $27,000 in OCIE that was not properly received and that was never issued to the Soldiers. When the 649th RSG conducted a 100 percent inventory of the 300th HRC over $200,000 in excess equipment was recovered that was not properly accounted for. The 649th RSG staff spent 2 weeks conducting a Staff Assistance Visit and organizing the 300th HRC supply area. [The applicant] was directed by the BDE [brigade] XO [executive officer] in a written counseling session on 19 July 2013 to "By 30 July 2013 you will have your weapons racks at Elwood USARTC chained and locked together, have appointment memos, inspection memos, AA&E keys secured properly". [The applicant] not only failed to complete the memorandums, he failed to show or notify anyone he would not be present for the security inspection and failed to respond to calls. 11. The applicant provided a memorandum, dated 31 July 2014, addressed to the 649th RSG commander, in response to the NCOER. The memorandum states: I, [applicant], wish to make record and request as it pertains to my Change of Rater NCOER with a through date of 22 August 2013. I have received my NCOER that has been signed by all within the rating chain, which was never published, but I will not sign the NCOER in its current form. There are administrative errors that have been made that need to be corrected. The DA Form 2166-1 Part IIe. states -that I am only verifying the administrative data to include the duty description and the counseling dates. I wish to make record that the counseling dates are false. I was not counseled in person on a DA Form 2166-8-1 [NCOER Counseling and Support Form] nor did I receive a telephonic counseling as outlined in AR [Army Regulation] 623-3 [Evaluation Reporting System] by my Rater [CPT T] on those dates. The DA Form 2166-8 Part Ve senior rater bullet comments also lack documentation for failure to counsel. As part of the NCOER process the senior rater is to review the NCOER and confirm the administrative data. In the discovery of a failure to counsel scenario such as this it is outlined in DA PAM [Department of the Army Pamphlet] 623-3 Section 3-6 table 3-3 states that (When counseling dates are omitted, the senior rater will enter a statement in part Ve, explaining why counseling was not accomplished). It is my request that the counseling dates be removed and the Senior Rater [LTC W] enters a statement in Part V - that address why the counseling was not accomplished. Upon receipt of those corrections I will sign and return for further processing. 12. A USAR Bar to Reenlistment Certificate was initiated against the applicant on 28 August 2014. The applicant submitted a 3-page response to the bar to reenlistment, in which he expressed his disagreement with the reasons for its implementation. 13. The applicant received a Memorandum of Reprimand on 7 September 2014, issued by LTC W, commander of the 649th RSG and his senior rater. The memorandum states: a. You are hereby reprimanded for a series of events that demonstrate a pattern of misconduct, poor judgment, and mismanagement of Government property within your area of responsibility. b. The incidents of greatest concern involve the following. In June 2013, the 300th AG Company participated in a CSTX at Fort Dix where it was determined that their Soldiers were not properly equipped to complete the mission. This was in part due to your failure to order the necessary equipment as well as not issuing out equipment you had on hand that was to be turned in to CIF. In July of 2013 the RSG staff provided an SAV to your supply area and spent 1 week organizing the items in your care that were in complete disarray. You were tasked to set up a. the meal contracts for battle assembly weekends. Prior to the April 2014 battle assembly, you failed to verify the availability of the chosen locations, resulting in the failure of the unit to have a contracted meal. Finally, one of your primary duties is the handling and accountability of supplies. Over the last two years, there have been numerous incidents involving your ineffective handling of OCIE, resulting in over 85 FLIPLs and statements of charges. You intentionally used a defunct A7 unit identification code in CIF-ISM as a staging area to cover up some of the supply problems. c. Your repeated behavior discredits the NCO Corps and the United States Army. You have failed in your duties as the unit supply sergeant, which has cost the United States Army numerous man hours and expense. After the first inspection on 15-19 July 2013, you were given guidance, tasks to complete, and a course of action going forward. You were also provided authority for direct communication with the brigade property book officer and logistics management specialist as two resources. On 8-11 July 2014, a follow-up SAV was conducted. After that visit, it was clear that you failed to implement the required procedures to ensure the supply problems would not continue. Your conduct has severely affected my trust and confidence in your ability to perform your duties as supply sergeant. 14. The applicant submitted a 5-page rebuttal to the Memorandum of Reprimand on 9 September 2014. In his rebuttal, he essentially expressed his disagreement with the reprimand and also provided several explanations intended to show that the reasons for the reprimand were untrue. 15. The applicant's bar to reenlistment was approved on 3 November 2014. 16. The applicant submitted an appeal to the bar to reenlistment on 12 November 2014. He stated: [Applicant name and rank] is appealing the approved bar to re-enlist on the grounds that he has continued to demonstrate that he is a motivated, hard- working, Soldier that is committed to the Army as a profession. [Applicant name and rank] has continued to assist the PBO [property book officer], multiple Commanders of the 300th HR Company and other 300th Soldiers, as well as other supply personnel by fielding questions to help locate, inventory, turn-in and transfer Army property. He is currently in the dissertation phase of his doctorate in business administration with a focus on global operations and supply chain management. He maintains a professional military appearance and physical readiness. He has been in the Army for more than 14 years, with more than 8 years of active federal service. His willingness to overcome diagnosed mental health challenges as documented by his voluntary participation with a mental health team proves that he ls willing to self-assess and address any challenges, no matter how stigmatized those avenues of self-help may be. His experience and education and his personal attitude in the face of challenging family wellness concerns would be a force multiplier for any future Army Unit. [Applicant name and rank] desires to overcome this bar to re-enlist through monthly review processes by his first line supervisor, come off AGR status, and transfer to a TPU [troop program unit] position in order to share and implement his knowledge of Army Reserve supply process in future leadership positions. This would not only be beneficial for other Soldiers professionally, but also good for the Army and the American taxpayer. 17. The Commanding Officer, 649th RSG, on 4 December 2014, disapproved the appeal of the bar to reenlistment for continuing service on active duty in an USAR AGR status but approved the appeal of the bar to reenlistment for continuing service as a member of the USAR in any status or category other than AGR. 18. The Deputy Staff Judge Advocate for the 377th Theater Sustainment Command (TSC), provided a memorandum to the Commanding General (CG), 377th TSC, on 15 January 2015, subject: Legal Review of Bar to Reenlistment Appeal [applicant's name], stating the following: a. She had reviewed the appeal and found no legal objection to the chain of command’s recommendation to bar the applicant from continuing service in the AGR program and allow him to reenlist in the USAR in a non-active status. The regulation allowed for a change in the severity of the bar (bar from AGR service versus bar from USAR service). b. In the applicant’s appeal, he requested to come off of AGR status and transfer to a TPU position in order to share and implement his knowledge of Army Reserve supply process in future leadership positions. The chain of command did not elaborate in the reason for the recommendation to partially approve the appeal to allow the applicant to become a TPU Soldier. c. The CG had the option to endorse the chain of command’s recommendation. In the alternative, he could either approve the appeal and allow the applicant to serve in any capacity or disapprove the appeal and continue to bar the applicant. a. 19. The CG, 377th TSG, indicated on 23 February 2015 that after reviewing the matters presented against the applicant, he was disapproving the appeal of the bar to reenlistment for continuing service in any status or category in the USAR. 20. The applicant submitted an appeal of his NCOER to HRC. In a memorandum dated 10 February 2015, the HRC Appeals and Corrections Section returned his appeal without action and stated: a. Your appeal is returned without action. In accordance with Army Regulation 623-3 Chapter 4, paragraph 4-11, an appellant can request total removal or specific modification of a contested report. You provided no remedy. Your appeal memorandum dated 30 Dec 14 is unsigned. Several of your enclosed supporting documents are illegible. Lastly, to justify total removal or modification of an evaluation, the appellant must provide clear and convincing evidence that the report is incorrect, inaccurate, or unjust. b. You may appeal any report in accordance with the provisions of Army Regulation 623-3, Chapter 4, if you believe that it contains errors. However, the burden of proof is upon you to establish, through clear and convincing evidence, that a contested report is incorrect. Examples of evidence include: published rating schemes, assignment orders, duty appointment orders, Personnel Data Cards and statements from rating officials. 21. The applicant was discharged on 18 April 2015, by reason of "non-retention on active duty." He completed 9 years, 3 months, and 14 days of creditable active service and 5 years, 7 months, and 16 days of inactive service. 22. The applicant provided a 300th HR Company rating scheme (unsigned), effective 9 June 2012, which shows his rater was CPT T and his senior rater was First Lieutenant B. 23. Army Regulation 623-3 provides that the senior rater must be senior to the rater either in pay grade or date of rank. //NOTHING FOLLOWS// ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 December 2018 DOCKET NUMBER: AR20160013740 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. Enclosure 1