ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20160017429 APPLICANT REQUESTS: removal from his official records a change of rater Noncommissioned Officer Evaluation Report (NCOER) for the rating period 1 June 2013 through 21 May 2014. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Contested NCOER * 2017 U.S. Army Reserve Honorable discharge orders * 2015 DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enlisted Record Brief FACTS: 1. The applicant states the single NCOER in his official file added 2014/05/21 has multiple injustices in it. It states that he was "Unavailable for signature, had PCS'd and avoided contact with rating chain. No attempt whatsoever was made with him to sign this NCOER. If he had been given an opportunity he would have disputed this slandering document 100%. Additionally, numerous statements concerning an article 15 he received while stationed in Korea that are completely false and based on no evidence. Therefore, he would like my NCOER deleted. He also states: a. While he was stationed in Korea, a battalion-wide scandal was uncovered concerning "black marketing" duty free items. An investigation was conducted by military police investigators and then transferred to his battalion (1-38 Field Artillery). On a side note- this investigation included many high ranking officers engaging in black marketing. He was interviewed by the military police investigator conducting the investigation and disclosed to him a few names of individuals that he knew were involved in this operation, some of them high ranking. This was a huge mistake on his part. After this, his chain of command basically decided he himself was guilty of black marketing and they began work looking for a way to prove that he was the "kingpin" of this operation to keep the higher ranking individuals insulated. They never accomplished this. The battalion dragged out the investigation over a period of roughly 5 months. b. He was involuntarily extended 3 times while this investigation took place. When it was all said and done, I had 2 options: accept an article 15 hearing where he knew he would almost certainly be punished for something he did not commit and could not be proven, or take this issue to court martial and stay in Korea away from his family for what would most likely be another 6 months to a year or more. Now, as he was planning on separating from the Army anyways, he figured an article 15 would not affect him that much in the outside world. So, he decided to accept the article 15 hearing. While in the hearing, he believes there were 3 charges: that he exceeded his rations (he 100% proved this false with a copy of my rations report stating he did not exceed); the second was conspiracy, he has no idea what this means; and the third was false official statement given to an officer conducting a battalion 15-6 investigation. The last charge stuck. It is also worth noting that the investigating officer of this 15-6 investigation was known by him (and he knew that he (the applicant) knew) that he engaged in black marketing. c. The alleged "False statement" that he gave was that "I had never at any time participated in the black marketing of duty free goods," which is true. There were 15 other Soldiers interviewed concerning him (the applicant) and black marketing. Only one out of 15 stated that he (the applicant) had done it in the past. This was used as the sole evidence for his article 15. Also there was a huge conflict in that he, as an NCO, had been involved in multiple disciplinary actions concerning that one Soldier in the past. He was also a witness against his character at a previous unrelated court martial. This Soldier also had a history of giving false official sworn statements but none the less, his statement was used to punish him (the applicant). d. Out of over 20 people investigated in this case, he was the only one punished. Per Army regulation, the burden of truth at an article 15 hearing is supposed to be the same as at court martial which obviously was not. However, it was decided by the officer administrating the article 15 that a record would his official military personnel file (OMPF). However, a simple look at his NCOER in his personnel records discloses the entire untrue results of his article 15 hearing. Not only this, but his chain of command never made any attempt to contact him whatsoever. This can be proven by a simple look at his AKO (Army Knowledge Online) email records. Therefore, the fact that they claim to have contacted him is a false statement. Had they attempted to contact him, he would have 100% disputed this NCOER. h. Now, in his civilian life, he is pursuing a career in law enforcement. This NCOER is viewed by potential employers and giving a complete false representation of who he is as a person. He accepted this article 15 just because he missed his family and had stayed in Korea already 18 months without going home. Now, it is completely haunting him in his civilian life and it is completely 100% untrue. Any help that can be given to him regarding this issue is much appreciated. . Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 13 April 2010. He held military occupational specialty 13M (MLRS/HIMARS Crewmember). b. He was promoted to sergeant (SGT)/E-5 on 1 June 2013. He served in Korea from around March 2013 to around July 2014. c. The complete facts and circumstances surrounding his reduction are not available for review. There is/are no Article 15(s) filed in his official record. His Enlisted Record Brief and other documents show he was reduced to specialist (SPC)/E-4 on 21 May 2014. d. Also during May 2014, he received the contested NCOER, a change of rater NCOER covering 12 months of rated time from 1 June 2013 through 21 May 2014 for his duties as a launcher/Gunner while assigned to C Battery, 1st Battalion, 38th Artillery in Korea. This NCOER shows he was counseled on 2 June 2013, 3 September 2013, 2 December 013, and 4 March 2014. It also shows in: (1) Part IVa (Army Values), the rater placed an "X" in the "No" block for the “Integrity” value and entered a supporting bullet that reads “exercised poor judgment by violating general officer policies and regulations.” (2) Part IVb (Competence), the rater placed an "X" in the "Success" block and entered supporting bullet comments (3) Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Success" block and entered supporting bullet comments. (4) Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" block and entered a supporting bullet comment that reads “failed to lead by example when he encouraged subordinate Soldiers to violate lawful general order concerning ration control in the Republic of Korea.” (5) Part IVe (Training), the rater placed an "X" in the "Success" block and entered supporting bullet comments. (6) Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Some)" block and entered a supporting bullet comment that reads “Failed to be responsible for right and wrong when he made two false statements to a commissioned officer during battalion wide AR 15-6 investigation.” (7) Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Marginal" block. (8) 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. Also in Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * do not promote at this time * do not select for advanced schooling at this time * made a lasting negative impression on the unit’s subordinate Soldiers by using his NCO influence for personal gain and failing to follow published policies” * Soldier unavailable for signature; has PCS’d and avoided contact with rating chain e. The contested NCOER shows the rater and senior rater signed the NCOER on 15 July 2014 and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place also on 15 July 2014. The applicant’s signature block is blank. f. The is no AR 15-6 (Procedures for Investigating Officer and Board of Officers) filed in his official record and he does not provide such investigation. g. There is no indication the applicant requested a Commander's Inquiry or appealed the contested NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board. h. He was honorably released from active duty on 8 July 2015. His DD Form 214 shows he held the rank/grade of SPC/E-4 at time of separation, and he completed 5 years, 2 months, and 26 days of active service. He was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligations. i. He was honorably discharged from the U.S. Army Reserve Control Group on 19 December 2017. 3. By regulation (AR 623-3), 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. 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 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. 4. By regulation (AR 600-8-104), once a document is placed in the official military personnel file, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the official file unless directed by certain agencies, to include this Board. Documents authorized for filing in the performance section of the official file include the NCOER. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon a lack of corroborating evidence to the applicant’s statements, the Board concluded that there was insufficient evidence to show that the NCOER had an error or injustice which would warrant its removal from the applicant’s record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 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. REFERENCES: 1. Army Regulation (AR) 623-3 (Evaluation Reporting System) prescribes the policy for completing the NCOER. Procedures, tasks, and steps pertaining to the completion of each evaluation report and support form are contained in DA Pamphlet 623-3. a. Paragraph 4-1 states that the Evaluation Report Redress Program consists of several elements at various command levels. The program is both preventive and corrective, in that it is based upon principles structured to prevent, and provide a remedy for, alleged injustices or regulatory violations, as well as to correct them once they have occurred. b. Paragraph 4-2 states that an NCOER may have administrative errors or may not accurately record the rated Soldier's potential or the manner in which he or she performed his or her duties. The Redress Program protects the Army's interests and ensures fairness to the evaluated NCO. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. A Commander's Inquiry and an evaluation report appeal are separate and distinct actions. Rated Soldiers may seek an initial means of redress through a commander’s inquiry; however, a commander’s inquiry is not a prerequisite for the submission of an appeal. c. Paragraph 4-7h stipulates that appeals based on administrative error only will be adjudicated by HQDA, Evaluation Appeals Branch. Such claims may include, but are not limited to, deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the report period, and errors in the Army Physical Fitness Test and/or height and weight entries. d. Paragraph 4-11 states, in pertinent part, that evaluation reports accepted for inclusion in the Soldier's official record are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of 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 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. e. Paragraph 4-11e states that evidence will be material and relevant to the appellant's claim. In this regard, note that support forms (or equivalent) or academic counseling forms may be used to facilitate writing an evaluation. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form (or equivalent) or counseling form was omitted from an evaluation, or because the comments of rating officials on the evaluation report form are not identical to those in the applicable support form or counseling form. Evaluation reports written based on the findings of an AR 15-6 investigation will include a copy of the AR 15-6 investigation as an enclosure to the appeal. In addition, if there was a commandant’s inquiry conducted, the results of the inquiry will be added as an enclosure to the appeal. 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. ABCMR Record of Proceedings (cont) AR20160017429 6 1