BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20160017435 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: 8 December 2016 DOCKET NUMBER: AR20160017435 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: 8 December 2016 DOCKET NUMBER: AR20160017435 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 a noncommissioned officer evaluation report (NCOER) for the period 29 January 2014 through 5 January 2015 (hereafter referred to as the contested NCOER) from his Army Military Human Resource Record (which includes the Official Military Personnel File (OMPF)). 2. He states on or about 25 April 2014, there was a vehicle rollover in the Fort Benning, GA, Training Area which involved a few members of his platoon. He adds he was not there and went off the information that was given to him by members of his platoon. An Army Regulation (AR) 15-6 investigation ensued, and throughout the entire process, he was unaware that he was being investigated. He states: a. He went on leave from 17 June to 1 July 2014, and when he returned, the first sergeant (1SG) notified him that he was being investigated for the incident. He was further informed of his reassignment pending completion of the investigation. During his reassignment, he was detailed to attend the Leadership Development and Assessment Course briefings at Fort Knox, KY and later he was chosen to support a detail at Fort Bliss, TX. During the details, he was not contacted or counseled about the situation. However, his Enlisted Record Brief (ERB) indicated a flag was initiated on him on 15 October 2014. He maintains he was unaware of the flag. b. On 3 December 2014, after several readings of an Article 15, he was found "Not Guilty." On 3 January 2015, he was relieved from his duty as platoon sergeant despite an investigation that found him not guilty. On 2 February 2015, he received a relief for cause (RFC) NCOER that he refused to sign because the administrative data was incorrect and there was not any substantive proof or explanation for the incorrect entries. He states he was never counseled throughout his rating period, which was a squadron policy. c. There were clearly errors, an injustice, and reprisal throughout the whole process. He was found "Not Guilty" on 3 December 2014, received a letter of relief on 5 January 2015, was removed from the S-3 shop on 6 January 2015, and received an RFC NCOER on 2 February 2015. These actions led him to file an Equal Opportunity (EO) complaint; however, the chain of command took it as being disrespectful. He believes, since he was not found guilty during the Article 15 proceedings, this was their way of trying to ruin his career. He concludes there is no basis for the contested NCOER and it is not factual or justified. 3. He provides: * self-authored statement * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 3 December 2014 * contested NCOER * Enlisted Special Review Board (ESRB) Record of Proceedings, dated 24 September 2016 with the applicant’s request, dated 17 December 2015 * memorandum, subject: Notification of Denial of Continued Active Duty Service Under the Qualitative Management Program (QMP), dated 29 April 2016, with the applicant's rebuttal and supporting statements CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 6 August 2002. 2. A DA Form 2627 shows on 21 November 2014 the Squadron Commander notified the applicant that he was considering whether the applicant should be punished under Article 15, UCMJ. However, on 3 December 2014, the misconduct listed on the Article 15 was lined through and the commander checked the block indicating the applicant was "Not Guilty of all Specifications." 3. His contested NCOER is for the period 29 January 2014 through 5 January 2015 and shows his rank as sergeant first class (SFC) with a date of rank of 1 October 2011. His primary military occupational specialty is listed as 19D (Cavalry Scout). He received a 5-month RFC report while he was assigned as the Platoon Sergeant, B Troop, 1st Squadron, 16th Cavalry Regiment, Fort Benning, GA. 4. The contested NCOER shows he was rated by the 1SG, B Troop, 1st Squadron, 16th Cavalry Regiment and senior rated by the Troop Commander (a captain), B Troop, 1st Squadron, 16th Cavalry Regiment. The reviewer was listed as the Squadron Commander (a lieutenant colonel), 1st Squadron, 16th Cavalry Regiment. The report was electronically signed by the rater, senior rater, and reviewer on 2 February 2015, 12 February 2015, and 18 February 2015, respectively. The applicant's signature and date are blank. 5. The contested NCOER shows the applicant received counseling, negative comments, and/or ratings by his rater as follows: a. Part IIIf (Counseling Dates), "Initial" on 16 March 2014 and "Later" on 2 July 2014 and 13 November 2014. b. Part IV.2 (Duty), a "No" rating with a supporting negative comment of "failed to adequately supervise, mentor, and guide his Soldiers." c. Part IVd (Leadership), "Needs Improvement (Much)" with a negative supporting comment of "admonished by the Squadron Commander for lack of leadership ability." d. Part IVf (Responsibility and Accountability), "Needs Improvement (Much)" with a negative supporting comment of "rated NCO has been notified of the reason for relief." e. Part Va (Overall potential for promotion and/or service in positions of greater responsibility), the "Marginal" block is checked. 6. The senior rater assessed the applicant's overall performance (Part Vc) and overall potential for promotion and/or service in positions of greater responsibility (Part Vd) as "5 – Poor" and "4 – Fair," respectively. The senior rater entered supporting bullet comments of: "rated NCO refused to sign," "do not recommend for promotion at this time; with further mentorship and training this NCO may be ready for greater responsibility," and "needs to work on his leadership and problem solving before executing duties of greater responsibility." 7. On 17 December 2015, the applicant appealed to the ESRB to have the contested NCOER removed from his OMPF. The ESRB denied his request and stated he failed to provide the CI or the AR 15-6 investigation that could have validated his contentions. His record shows he provided the following documents in support of his request: a. A memorandum, subject: Commander's Inquiry (CI), dated 21 May 2015, that shows he requested a CI be conducted based on administrative and substantive inaccuracies. b. Six supporting statements/character references from a subordinate, an officer, and NCOs who speak highly of the applicant's leadership and accomplishments. (1) A retired command sergeant major (CSM) stated he had the opportunity to work with the applicant and could not think of any allegations, concerns, or issues that would raise questions about his character, commitment, and overall professionalism. (2) A captain stated he worked with the applicant over a year while assigned as an instructor and writer at the Army Reconnaissance Course. During that time, the applicant instantly stood out as one of the top instructors and constantly said what needed to be said to the trainees. (3) A fellow E-7 stated the applicant exemplified the Army values. He was a competent, confident, caring teacher, coach, mentor, and leader who rigidly, if not brutally, enforced standards. c. A supporting statement to U.S. Army Human Resources Command (HRC), from the Commander, Headquarters, 316th Cavalry Brigade (the brigade to which the applicant's battalion was assigned), Fort Benning, GA, dated 17 November 2015, who stated the packet enclosed with the contested NCOER does not include any record of performance counseling prior to the applicant's relief. This indicated that if the applicant had ongoing leadership deficiencies, he was not made aware or given the opportunity to improve. He reiterated that the non-judicial punishment resulted in the applicant being found not guilty of any charges related to a vehicle rollover. As a result, no information from the AR 15-6 investigation referencing the charged misconduct should have been mentioned in the subsequent NCOER. While an investigating officer conducting the CI determined the information used in the NCOER could stand alone, he disagreed with the findings. He found the information from the AR 15-6 investigation was used as the basis for the RFC report and was more than tangentially related to the charged misconduct the applicant was found not guilty of committing. (The statement included the contested NCOER, AR 15-6 investigation, and the CI as enclosures. However, the enclosures are not available.) 8. The applicant provides a memorandum, subject: Notification of Denial of Continued Active Duty Service under the QMP, dated 29 April 2016. The memorandum stated the applicant was recommended for involuntary discharge from the Army no later than 1 November 2016. The memorandum explained his rights and instructed him that he had until 31 May 2016 to submit an appeal. a. On 31 May 2016, he submitted his rebuttal to the QMP and requested retention on active duty. In his rebuttal, he reiterated the information concerning being found not guilty of all specifications under Article 15, UCMJ. Additionally, he said his NCOER was a product of retaliation from the CSM. He explained he was an EO representative at the time of the contested report and reported the CSM's "racially charged and prejudicial email comments" to the Inspector General. He was subsequently treated as an outcast and a whistle blower. In January 2015, when his annual NCOER was due, his rater and senior rater changed his NCOER to reflect what occurred during the investigation. b. He provided four character statements in support of his retention on active duty. The authors of the statements expounded on the applicant's outstanding characteristics and his abilities to accomplish the mission. One officer stated he served with the applicant from September 2006 through March 2009 and the applicant's efforts were instrumental during a 15-month deployment in Iraq in 2007. The battalion maintenance technician said the applicant was a multi-dimensional leader who was consistently sought out for his vast knowledge, technical expertise, and ability to quickly master new concepts with relative simplicity. Another officer stated the applicant was a tough but fair leader who coached and trained his subordinates and treated them with respect. 9. On 2 June 2016, the Chief, Assistance Division, Office of the Inspector General, Department of the Army, notified the applicant that an investigation into his reprisal allegations found: * his allegation that his company commander administered an unfavorable NCOER in reprisal for a protected communication was not substantiated * his allegation that his 1SG administered an unfavorable NCOER in reprisal for a protected communication was not substantiated * his allegation that his squadron commander administered an unfavorable NCOER in reprisal for a protected communication was not substantiated * his allegation that his CSM removed him from his position in reprisal for a protected communication was not substantiated REFERENCES: AR 623-3 (Evaluation Reporting System), in effect at the time, prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 2-10 states the rated Soldier is the subject of the evaluation and has considerable responsibility in the evaluation process. b. Paragraph 3-36 states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to— * Be administratively correct * Have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications * Represent the considered opinions and objective judgment of the rating officials at the time of preparation c. Paragraph 3-55 states a RFC NCOER is required when an NCO is relieved for cause. If a "RFC" evaluation report is contemplated on the basis of an informal AR 15–6 investigation, the referral procedures contained in that regulation will be followed before the act of initiating or directing the relief. This does not preclude a temporary suspension from assigned duties pending application of the procedural safeguards contained in AR 15–6. An "RFC" evaluation report will be the final action after all investigations have been completed and a determination made. d. Paragraph 4-4 states that the primary purpose of a CI 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. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA. However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record. e. Paragraph 4-11 states the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the evaluation report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. f. The same paragraph states third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the evaluation report was rendered. DISCUSSION: 1. The applicant argues that the contested NCOER should be removed from his OMPF based on the fact that he was found not guilty of all specifications under Article 15, UCMJ. Additionally, he argues that he was never counseled throughout the rating period. 2. As verified by the applicant and the Commander, Headquarters, 316th Cavalry Brigade, an AR 15-6 investigation and a CI were conducted. However, the applicant neglected to provide these documents even after the ESRB denied his request for removal of the contested NCOER on 17 December 2015. That board stated he failed to provide the CI and/or the AR 15-6 investigation that could have validated his contentions. 3. A finding of not guilty under Article 15, UCMJ, does not preclude subsequent administrative actions based on the same set of circumstances. 3. He states he was never counseled, though the contested report indicates otherwise. Failure to complete counseling would not invalidate the report. 4. He also maintains that the contested NCOER was rendered out of retaliation for filling an EO complaint against the CSM. However, he has failed to provide a copy of the EO complaint or any documentation to substantiate this contention. The Office of the Inspector General found his allegations of reprisal by his rating chain and his CSM for making a protected communication were not substantiated. 5. The third party statements that the applicant provided speak highly of him and his performance. The statements recognize him as a professional NCO and good Soldier. The opinions expressed in the statements are noted. 6. The governing regulation states to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the evaluation report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160017435 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160017435 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2