SAMR-RB 5 March 2018 MEMORANDUM FOR Commander, US Army Human Resources Command, 1600 Spearhead Division Avenue, Department 100, Fort Knox, KY 40122-5100 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160016566 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 13 February 2018, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations . I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by removing the DA Form 2166-8 (Non­ commissioned Officer Evaluation Report (NCOER)) for the rating period ending 30 September 2009 from his Official Military Personnel File (OMPF). 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 5 July 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl .e. Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF ( ) HRC BOARD DATE: February 13, 2018 DOCKET NUMBER: AR20160016566 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: February 13, 2018 DOCKET NUMBER: AR20160016566 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: February 13, 2018 DOCKET NUMBER: AR20160016566 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 the DA Form 2166-8 (Non-Commissioned Officer Evaluation Report (NCOER)) for the rating period ending 30 September 2009 from his Official Military Personnel File (OMPF). 2. The applicant states the administrative data for the Army Physical Fitness Test (APFT) portion of the NCOER is wrong. A comment in the Responsibility and Accountability portion of the rating states he was command referred to the Army Substance Abuse Program (ASAP). He was serving in the rank/grade of sergeant/E-5 during the situation described in his NCOER, and he was promoted during that 5 month evaluation. He believes he is being overlooked by the sergeant first class (SFC) promotion board because of this NCOER. He has learned a tremendous amount of information and continues to do his best with each passing year. 3. The applicant provides: * Cumberland Hall Behavioral Health Services Discharge Summary, dated 26 June 2009 (2 pages) * DA Form 4466 (Patient Intake/Screening Record), dated 26 June 2009 * ASAP Appointment, dated 21 September 2009 * NCOER for the rating period 1 May through 30 September 2009 * Email, subject: NCOER Status, dated 5 November 2009 * Email, subject: NCOER Update, dated 17 November 2009 and 14 December 2009 * Memorandum for the U.S. Army Human Resources Command (HRC) subject: Evaluation Report Appeal, from the applicant, dated * 16 September 2010 (5 pages) * Character Support Statement, dated 8 December 2015 * Character Reference Letter, dated 30 December 2015 * Character Support Statements, dated 7 January 2016, 20 January 2016, and 22 January 2016 * Letter, subject: Letter of Character for the Applicant, dated 12 January 2016 * Memorandum, subject: Request to Continued Active Duty Service under the Qualitative Management Program (QMP) with twelve enclosures, dated 12 January 2016 (4 pages) * Enlisted Record Brief (ERB), dated 21 January 2016 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. On 14 November 2002, the applicant enlisted in the Regular Army. He was trained as an artilleryman. He was promoted through the ranks and attained the rank of sergeant, pay grade E-5, effective 1 November 2008. 3. The applicant provides a 2-page Discharge Summary from Cumberland Hall Behavioral Health Services which shows he was admitted on 15 June 2009 because he was identified as being a danger to himself. His past psychiatric history showed he had been prescribed Seroquel and Prozac for 2 years or more. He was diagnosed as having recurrent major depressive disorder with moderate severity. During his voluntary stay in the adult inpatient unit he was placed on a regular diet. His vital signs were routinely checked and suicide precautions were in place. He reported having a history of mood symptoms, feelings of hopelessness and helplessness. His medications were reviewed. Seroquel was gradually decreased because it made him excessively tired. The Prozac was appropriately adjusted. His mood improved. He was able to identify stressors that led to his negative symptoms. He no longer appeared to be a danger to himself. On 25 June 2009, he was discharged from the clinic with a 30 day supply of Prozac and Seroquel with no refills. He was to receive follow up care at Blanchfield Army Community Hospital on a walk-in basis on his date of discharge. 4. A DA Form 4466, dated 26 June 2009, which was provided by the applicant, shows he was medically referred for enrollment into ASAP. A subsequent DA Form 4466, dated 22 September 2009, shows his progress was assessed as fair. He had completed the program and the counselor recommended termination of further treatment and return to duty. 5. A DA Form 2166-8, for the period 1 May through 30 September 2009, shows the applicant held the principal duty title of fire direction chief. He held the rank/grade of staff sergeant/E-6 with a date of rank of 1 August 2009. This form shows in: a. Part I (Administrative Data), the subject NCOER was a change of rater report with no non-rated time. His date of rank indicates he was promoted to staff sergeant/E-6, during this rated period. b. Part II (Authentication), the applicant’s rating chain included the applicant's fire direction officer as the rater, platoon leader as the senior rater, and the battery commander as the reviewer. The applicant’s rating chain digitally signed the NCOER on 22, 25, and 26 February 2010. The applicant did not sign the NCOER. c. Part III (Duty Description), the applicant was responsible for the technical fire direction of the firing platoon and training, welfare, discipline, morale, and supervision of six personnel. His responsibilities also included accurate and timely determination of firing data, maintaining digital communication with the gun line, ensuring completion of maintenance checks, enforcing adherence to established safety procedures, maintaining accurate records for each howitzer, and accountability for section equipment valued in excess of $400,000. d. Part IIIf (Counseling Dates), the applicant received initial counseling on 11 May 2009 and later on 30 August 2009. e. Part IVa (Army Values/Attributes/Skills/Actions), "YES" entries for six of the seven Army Values. A “NO” entry is listed in the Integrity. Comments show: * overdosed on prescription drugs in an attempt to commit suicide; witnessed by subordinates off-duty * loyal to the Army and his unit * treated others with respect f. Part IVb (Values/NCO Responsibilities), the applicant was rated as “excellent,” in the areas of Competence, Physical Fitness, and Military Bearing. In Training he was rated as “successful.” He was rated as needing improvement (some) in the areas of Leadership, Responsibility, and Accountability, which included the following comments: * de-certified as a section chief due to fraternization and excessive drinking * command referred to ASAP after overdosing on drugs resulting in an emergency room visit and admission to behavioral health * assisted the training room to ensure the unit received all GOs for the Commander’s Inspection Program * successfully completed the rehabilitation treatment plan outlined through ASAP g. Part Va (Overall Performance and Potential), the rater marked the “marginal” entry. h. Part Vc (Senior Rater Overall Performance), block 3 “successful” is marked i. Part Vd (Senior Rater Overall Potential), block 3 “superior” is marked. j. Part Ve (Senior Rater Bullets), the following comments: * do not select for SFC at this time; allow to mature in current grade * select for Advanced Leader Course with the needs of the Army * despite his failure to live the Army Values resulting in section de-certification, he is a strong performer who has demonstrated tremendous competence in his job field * potential is only limited by lack of experience working in current grade; continue to increase responsibility gradually * Soldier refused to sign report but did verify administrative data 6. Email provided by the applicant indicates he initiated a conversation with the First Sergeant (1SG), Forces Command (FORSCOM), on 5 November 2009, in an attempt to find out the status of the subject NCOER. The 1SG informed him the report was pending further review for clarification. A subsequent email dated 17 November 2009, written to the FORSCOM 1SG indicates the applicant still had not received the subject NCOER. 7. An email from the FORSCOM 1SG, dated 1 December 2009, to the applicant, indicates the subject NCOER was attached. On 14 December 2009, the applicant responded to the 1SG with the following summarized concerns: a. Some of the administrative data was incorrect, and he discussed errors in Part IIIf (Counseling Dates), stating he was not counseled on the dates indicated and requested copies of the counseling statements. b. The data in Part IVc (Physical Fitness and Military Bearing) pertaining to his APFT was incorrect. He argued that he was in Cumberland Hall from 14 to 25 June 2009, and he could not have taken an APFT on 19 June 2009. He requested a copy of his DA Form 705 (APFT Score-Card) showing he took the test on that date. c. Due to the administrative errors discussed above, he would not sign the report. d. He also stated his rater was fully aware of his living conditions. It was no secret that he shared a house with two enlisted specialists. His rater never advised him that his living situation was considered fraternization. e. He questioned why the “excessive drinking” comment was entered on the NCOER. He self-referred to ASAP due to his drug overdose, not for drinking. He has never been late for formation due to drinking; he has never been drunk on duty; he never had his drinking questioned; nor was he counseled for excessive drinking. f. He argued that he would have been flagged if he had been command referred to ASAP. However, he was promoted while still in ASAP, which would not have occurred had he been command referred. He argued the comment stating he was command referred should be changed to medically referred. g. He apologized for the trouble he caused and stated he never wanted the 1SG to think less of him. 8. The applicant provided a 5-page memorandum, dated 16 September 2010, addressed to HRC, Indianapolis, Indiana, appealing both administrative and substantive errors in the subject NCOER for the period ending 30 September 2009. He listed the following points: a. Both counseling dates listed on the NCOER were incorrect. He stated he was never counseled and he never received a support form. b. The APFT data was incorrect because he did not take the test on 19 June 2009 as shown on the NCOER. c. The integrity block contained a “NO” entry, because he attempted to commit suicide. He argued that if he failed to live up to one Army Value, then he failed to live up to all Army values. d. The comment stating he overdosed on prescription drugs in an attempt to commit suicide shows a vague picture that will follow him throughout his Army career causing him to be judged solely by this statement. The comment is biased in that it will cause others to judge him without having the benefit of knowing the full story. If the comment is not removed, it is an injustice. e. He argued that the U.S. Army Recruiting Pamphlet 623-2, dated 2 June 2010, prohibits a statement about attempted suicide being listed on the NCOER for recruiters. This is unjustifiable because other Soldiers are excluded. f. He stated his depression started during his second deployment in Iraq between 2007 and 2008. He did not sleep for a week. He suffered relationship and family problems in addition to the normal stressors of being deployed. He was a newly promoted NCO. He sought medical treatment and was prescribed Seroquel to help him sleep and Prozac to ease the depression. g. When he returned from Iraq, he was forced to move out of the barracks because he had been promoted to an NCO status. He moved in with two friends who were specialists. h. His depression grew deeper after returning from Iraq. He was directed to cancel two of his [mental health] counseling sessions because training was a priority. He began to drink heavily on weekends. The night he attempted suicide, he was at home with his girlfriend, who later became his wife; her sister; his roommates; and others. Everyone was drinking and arguments occurred. His anger and rage took over and he punched the television. After everyone was outside, he went to his room and took a handful of Seroquel. Although at the time he did not remember, his objective was to go to sleep; instead he attempted suicide. i. Since the time of his suicide attempt, the Army has determined he is fit for duty and is retainable. He has married and made a permanent change of station move. He worked as Warrior Transition Unit (WTU) cadre. He understands the issues that some Soldiers face and can sympathize with them. He does not drink and no longer takes anti-depressants because of the side effects such as suicidal thoughts. He handles life issues with a more positive and holistic approach. j. He argues the leadership comment concerning his de-certification as section chief, due to fraternization and excessive drinking is misleading and incorrect. k. Based on his arguments, he requested that HRC completely remove the subject NCOER from his OMPF or, in the alternative, remove those entries from the NCOER he addressed in this appeal. 9. The support statements, dated between December 2015 and January 2016, provided by the applicant discuss his capabilities as a Soldier, his tactical and technical competence, his proactive and effective leadership, and his significant accomplishments. These statements were written by commissioned officers and senior NCOs who consider the applicant’s character as outstanding. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System): a. This regulation prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, to include the NCOER. b. Alleged errors, injustices, and illegalities in a rated Soldier's evaluation may be brought to the attention of the commander by the rated individual or anyone authorized access to the report. The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. c. NCOERs accepted for inclusion in the official record of a Soldier is presumed to be administratively correct, 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 the report, the applicant must produce evidence that establishes clearly and convincingly the presumption of regularity should not 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 applicant. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states 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. The NCOER is to be filed in the performance section of the OMPF. DISCUSSION: 1. The applicant contends his military records should be corrected by removing the NCOER for period ending 30 September 2009 because it contains administrative errors. 2. The subject NCOER is a change of rater report for a 5 month period wherein the applicant was rated as marginal for not meeting the Army’s integrity value and for needing some improvement in leadership, responsibility, and accountability. 3. The available evidence shows the applicant wrote an appeal in September 2010, a year after the end of the evaluation period. However, there is no evidence showing he actually submitted his appeal or that it was acted upon. There is no evidence showing he requested a Commander’s Inquiry into his concerns about administrative and substantive errors. 4. The applicant’s contentions about the counseling dates being erroneous and the date shown for his APFT being wrong are not corroborated by any documentary evidence. The standard to change or remove a report requires more than just the possibility of an administrative error or factual inaccuracy. Further, the applicant provided no evidence to indicate when he took the APFT. In any event, the NCOER shows he passed the APFT. Any error in the date of the APFT would be a harmless error. 5. The comments made by the rater appear to have been his considered opinion and objective judgment. A review of the governing regulation failed to show any of the comments were prohibited. 6. The subject NCOER is properly filed in the performance section of his OMPF. To justify removal of an NCOER from the OMPF, an applicant must produce clear and convincing evidence showing the presumption of regularity should not be applied to the report. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016566 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160016566 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2