BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160015379 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 BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160015379 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. BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160015379 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: a. the removal from his official military personnel file (OMPF) of a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 9 July through 30 November 2012 (hereafter referred to as the contested NCOER); b. restoration of his rank/grade to sergeant (SGT)/E-5; and c. promotion to the rank/grade of staff sergeant (SSG)/E-6. 2. The applicant states, in effect: a. When he received his Article 15, the imposing authority ignored sworn statements that were presented as evidence (during the proceedings) and these statements show he did not make false statements. The Article 15 documentation does not reflect any consideration for appeal. b. The contested NCOER has a number of discrepancies, including a fixation on the Article 15 proceedings, an incorrect reason for submission, and a thru date two days after the Article 15 proceedings. c. Because of this, he missed a promotion to SSG in the spring of 2013. He would like his rank to be reinstated, effective the date of demotion, and to be considered for any promotions he may have achieved if not for the Article15. 3. The applicant provides: * Assumption of Command Orders for Major (MAJ) G.B.M, dated 23 November 2012 * DA Forms 2823 (Sworn Statement), dated 26 and 27 November 2012 * DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 27 November 2012 * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 28 November 2012 * Enlisted Record Brief (ERB), dated 28 November 2012 * Contested NCOER, for the period 9 July through 30 November 2012 * DA Forms 4856 (Developmental Counseling Form), dated 26 November 2012, 14 December 2012, 20 February 2013, and 17 December 2013 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. Following prior service in the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army on 9 June 1997. His record shows he held military occupational specialty 94R (Avionics System Repairer). After a series of reenlistments, he was promoted to the rank of SGT on 1 December 2004. 3. A DA Form 268 shows a non-transferable adverse action flag was initiated against the applicant on 27 November 2012. 4. The applicant received an Article 15 on or about 28 November 2012, while assigned to Company B, Task Force Troubleshooter, Bagram Airfield, Afghanistan. According to the DA Form 2627, the applicant received the Article 15 for making an official statement with the intent to deceive on or about 24 November 2012. The imposing commander signed this form. However, the copy provided by the applicant does not contain his signature or the imposed punishment. The DA Form 2627 is not filed in the applicant's OMPF. 5. The applicant was demoted to the rank/grade of SPC/E-4 on 30 November 2012. 6. The applicant received the contested NCOER during the month of January 2013, a "Change of Rater" report covering 5 months of rated time from 9 July through 30 November 2012. His rater was SSG M.O.G. The NCOER shows in: a. Part IV (Army Values/Attributes/Skills/Actions (Rater)), sub-part a. (Army Values), the rater placed an "X" in the "No" block for "Honor" and "Integrity" and entered the following comments: * compromised integrity by lying to a senior noncommissioned officer * failed to live up to Army values by continuously pursing his agenda, contrary to Army regulations and doctrine * not afraid to voice opinion and stand up for what he thinks is right b. Part IV, sub-part d. (Leadership), the rater placed an "X" in "Needs Improvement (Some)" and entered the following comments: * failed to set the example by disregarding [Combined Joint Task Force] CJTF-1 standards and policy regulation and overall defiance of authority; lied to a senior noncommissioned officer * does not respond to uniform standards * easily adapted to changing situations and taskings c. Part IV, sub-part f. (Responsibility & Accountability), the rater placed an "X" in "Needs Improvement (Some)" and entered the following comments: * failed to accept responsibility for statements which constituted a violation of Article 107 [UCMJ] * maintained accountability to $250,000.00 worth of equipment with no losses * placed a high emphasize [sic] on safety during all aspects of maintenance operations d. Part V (Overall Performance and Potential), sub-part a., the rater placed an "X" in the "Marginal" block. e. Part V, sub-part c., the senior rater placed an "X" in the "Poor/5" block. f. Part V, sub-part d., the senior rater placed an "X" in the "Fair/4" block. g. Part V, sub-part e. (Senior Rater Bullet Comments), the senior rater entered the following bullet comments: * do not promote at this time * do not select for military schools at this time * performance was below what is expected of an NCO in his grade and position * posses [sic] marginal potential for growth as a leader; requires intensive coaching and mentoring 7. The NCOER shows the rater and the senior rater authenticated the form with their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater and affixed his digital signature. The applicant authenticated the form with his digital signature. 8. The applicant's available record is void of documentation that shows he requested a commander's inquiry after receiving the contested NCOER. 9. There is no evidence the applicant appealed the contested NCOER to the U.S. Army Enlisted Special Review Board (ESRB). 10. The applicant was honorably retired on 31 July 2017. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was retired after attaining 20 years, 1 month, and 22 days of honorable service and he was retired in the rank/grade of SPC/E-4. His date of rank is shown as 30 November 2012. 11. The applicant provides the following as evidence that has not been addressed above: a. A sworn statement from SPC A.M.H., dated 26 November 2017, which states, in part, that on 26 November 2012, "he was in his room helping his roommate but didn't ask for help and couldn't call because his phone was out of minutes." b. A sworn statement from the applicant, dated 27 November 2012, which states, in part, that he requested clearance from his squad leader to go to the barracks to help SPC A.M.H. During his departure from the hanger, he was questioned by the first sergeant (1SG) on his activities. His charge of lying to the 1SG is inaccurate. He intended to help SPC A.M.H. when he got to the barracks but didn't see him around and didn't see any detail in progress. c. A DA Form 4856, dated 26 November 2012, which shows he was counseled for violating Article 107 of the UCMJ; specifically, for lying to a senior noncommissioned officer on 24 November 2012. d. Three DA Forms 4856, dated 14 December 2012, which show he was counseled for disrespectful behavior on 3 December 2012, and failure to follow instructions on 4 December 2012. He was counseled for disrespect and failure to follow instructions on 11 December 2012. e. A DA Form 4856, dated 20 February 2013, which shows he was counseled for not properly addressing noncommissioned officers by their rank. f. A DA Form 4856, dated 17 December 2013, which shows he was acknowledged for his outstanding work as the test, measurement, and diagnostic equipment representative for the squad. REFERENCES: 1. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment (NJP) under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial: a. Paragraph 3-6a addresses the filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's OMPF is as important as the decision relating to the imposition of the NJP itself. In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance section. b. Paragraph 3-6b states if a record of NJP has been designated for filing in a Soldier’s restricted section, the Soldier’s OMPF will be reviewed to determine if the restricted section contains a previous record of NJP. In those cases in which a previous DA Form 2627 (Record of Proceedings under Article 15, UCMJ), that has not been wholly set aside has been filed in the restricted section and in which prior to that punishment, the Soldier was in the grade of SGT or higher, the present DA Form 2627 will be filed in the performance section. The filing should be recorded on the present DA Form 2627. The Soldier concerned and the imposing commander will be informed of the filing of the DA Form 2627 in the performance section. c. Paragraph 3-14 states the commander of the alleged offender must ensure that the matter is investigated promptly and adequately. The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident. The investigation should cover (1) whether an offense was committed; (2) whether the Soldier was involved; and (3) the character and military record of the Solider. Usually the preliminary investigation is informal and consists of interviews with witnesses and/or review of police or other informative reports. If, after the preliminary inquiry, the commander determines, based on the evidence currently available, that the Soldier probably has committed an offense and that a nonjudicial punishment procedure is appropriate, the commander should (unless the case is to be referred to a superior commander) take action. d. Paragraph 3-28 addresses setting aside and restoration. This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is "wholly set aside" when the commander who imposed the punishment, a successor in command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. If all findings are set aside, then the Article 15 itself is set aside and removed from the Soldier's records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the Article 15 or punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. e. Paragraph 3-37b(2) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OPMF. The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by superior authority. However, the superior authority cannot direct that a UCMJ, Article 15 report be filed in the performance section that the imposing commander directed to be filed in the restricted section. Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section. f. Paragraph 3-43 contains guidance for the transfer or removal of DA Forms 2627 from the OMPF. It states that applications for removal of an NJP from the OMPF based on an error or injustice will be made to the ABCMR. It further states that there must be clear and compelling evidence to support removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR. 2. Army Regulation 600-8-104 (Military Personnel Information Management/ Records), in effect at the time, provides policies, operating tasks, and steps governing the OMPF. This regulation states that only those documents listed in table 2-1 and table 2-2 are authorized for filing in the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three sections: performance, service, or restricted. Table 2-1 (Composition of the OMPF) shows the DA Form 2627 is filed in either the performance or restricted section of the OMPF as directed in item 5 of the DA Form 2627. 3. 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. 4. Army Regulation 623-3 (Personnel Evaluation – Evaluation Reporting System) prescribes the policies and tasks for the Army’s Evaluation Reporting Systems. 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 overwatch 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. Chapter 6 defines the Evaluation Redress Program and provides guidance regarding redress programs, including commanders' inquiries and appeals. f. 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. g. 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. DISCUSSION: 1. The applicant's request for removal of the contested NCOER from his OMPF, restoration of his rank/grade to SGT/E-5, and promotion to the rank/grade of SSG/E-6, was carefully considered. 2. The evidence shows the applicant violated the UCMJ and was administered NJP on 28 November 2012. He received an Article 15; however, the DA Form 2627 is not filed in his OMPF. He provides a copy of the form signed by the imposing commander; however, it is void of the punishment imposed. There is no evidence available showing he appealed the NJP as prescribed in Army Regulation 27-10. 3. The applicant's record confirms he was demoted to the rank/grade of SPC/E-4 on 30 November 2012. 4. The applicant contends there are a number of discrepancies in the contested NCOER, to include the reason for submission and the thru date, which occurred two days after he received his Article 15. The evidence shows he verified the administrative accuracy of the report, to include the reason and the period covered, and he authenticated the NCOER by digital signature. 5. The applicant's record does not contain evidence that shows he requested a commanders' inquiry and/or appealed the contested NCOER to the Army Evaluation Redress Program. 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. There is a presumption of administrative regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial and credible evidence to support a claim. In the absence of evidence showing otherwise, it must be presumed that the applicant was reduced in accordance with the governing regulations and his rights were protected during the action that led to his reduction. The actions of his chain of command, in reducing him from the rank/grade of SGT/E-5 to SPC/E-4, do not appear to be arbitrary or capricious. 8. The applicant contends he missed his promotion to SSG in the spring of 2013. The evidence shows he was reduced to SPC in November 2012. Therefore, since he was no longer serving as a SGT, he could not be promoted to SSG at the time, even if he was otherwise eligible. His perceived missed promotion was a consequence of the reduction that resulted from his NJP. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160015379 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160015379 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2