BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20170001068 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: 4 January 2018 DOCKET NUMBER: AR20170001068 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: 4 January 2018 DOCKET NUMBER: AR20170001068 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 modification of the ratings rendered in his DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the periods 7 February 2012 through 6 February 2013 and 7 February 2013 through 1 August 2013 (hereafter referred to as contested NCOERs). He specifically requested the following changes: a.  NCOER for the period 7 February 2012 through 6 February 2013: (1)  Part V, block b (Rater – List 3 Positions in Which the Rated NCO Could Best Serve the Army at His/Her Current or Next Higher Grade), replaced with the following positions: * Platoon sergeant * Operations NCO in Charge (NCOIC) * Recruiter/Retention NCOIC (2)  Part V, block e (Senior Rater Bullet Comments), replaced with the following bullet comments: * promote with peers * send to Advanced Leader Course (ALC) with peers * has unlimited potential * continue to assign to tough positions of increased responsibility b.  NCOER for the period 7 February 2013 through 1 August 2013: (1)  Part IV a (Army Values), change block 2 (Duty), block 4 (Selfless Service), block 5 (Honor), and block 6 (Integrity) to show "Yes;" (2)  Part IVa (Bullet Comments) replaced with the following bullet comments: * task-oriented and detail-minded; completed assignments to the fullest while staying focused to make sound and thoughtful decisions * outstanding organizational skills; maximized limited resources to create excellent results * demonstrated commitment to mission accomplishment (3)  Part IV, block b (Competence), to show the rater placed an "X" in the "Success" block and entered the following bullet comments: * possessed great amount of integrity, sound judgement, and professionalism * put the Army, mission, and Soldiers before her [his] own personal needs * utilized common sense and courtesy while performing duties in a professional manner (4)  Part IV, block f (Responsibility and Accountability), to show the rater placed an "X" in the "Success" block and entered the following bullet comments: * ensured Soldiers were properly trained and licensed to operate tactical vehicles * maintained 100-percent accountability of equipment valued in excess of $250,000 * SM [service member] was made aware of cause of relief (5)  Part V, block a (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), changed to show the rater placed an "X" in the "Fully Capable" block; (6)  Part V, block b (Rater – List 3 Positions in Which the Rated NCO Could Best Serve the Army at His/Her Current or Next Higher Grade), replaced with the following positions: * Section NCOIC * Lead Instructor * Master Resiliency Trainer/Instructor (7)  Part V, block c (Senior Rater – Overall Performance), to show the senior rater placed an "X" in the "Success" block; (8)  Part V, block d (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) to show the senior rater placed an "X" in the "Superior" block; (9)  Part V, block e (Senior Rater Bullet Comments), replaced with the following comments: * promote with peers * completed ALC on his second attempt; achieved first time "GO" on all academy and leadership tests * demonstrated potential for continued excellent performance at a higher rank 2. The applicant states: a.  Alternate administrative routes would be untimely. b.  In August 2013, he was demoted from the rank/grade of sergeant (SGT)/ E-5 to specialist/E-4 and he was pending separation from the Army following his reduction. c.  In September 2013, he was legally separated from his wife for over 1 year and he divorced his wife in November 2014. d.  He was eligible for consideration by a separation board because he had 6 years of active duty service. The separation board convened in January 2015 and he was retained. e.  In March 2015, he was transferred to 2d Brigade Combat Team, 82d Airborne Division. In September 2015, he became eligible for promotion to the grade of E-5. He was promoted to SGT/E-5 on 1 November 2015 and he has been on a roller coaster since his receipt of the negative NCOERs. f.  Relief is requested based on errors and injustices. The rater, senior rater, and reviewer in the contested NCOERs were biased and partial. This group did everything within their authority to hinder his retention on active duty. The contested NCOERs were issued in violation of procedural requirements in Army Regulation 623-3 (Evaluation Reporting System (ERS)) and Department of the Army Pamphlet 623-3 (ERS). The substance of the contested NCOERs does not accurately reflect the character of his service during the rating period and the contested NCOERs were issued with malicious intent to involuntarily separate him. It is contrary to Army Values to eliminate a high-performing Soldier and it cannot possibly be in the best interest of the Army to lose a Soldier with tremendous skill, expertise, and high moral character. g.  The contested NCOER for the period 7 February 2012 through 6 February 2013 indicated he should have been promoted after further development, he should have been sent to ALC when convenient, he needed to improve himself at the current level, and assigning him to greater responsibility would not benefit him or the unit. h.  The contested NCOER for the period 7 February 2013 through 1 August 2013 indicated he failed to exhibit the Army Values of loyalty, respect, and personal courage. i.  While assigned to 1st Platoon, Troop A, 5th Squadron, 73d Cavalry Regiment, his platoon sergeant and troop first sergeant were unhappy because he had issues getting on target and he had a weapon malfunction. The two individuals counseled him for everything they thought they could use to prosecute him. An example was his counseling for not wearing his CamelBak (military hydration pack) while in the turret of a high-mobility multi-purpose wheeled vehicle (HMMWV) at the range. j.  His supervisor at the time was tasked with building his counseling packet with erroneous counselings in order for the first sergeant to make his case in order to demote him from E-5 to E-4. He was being counseled almost weekly for something wrong, such as not responding to text messages quickly enough. His first sergeant called him names numerous times behind his back, including making fun of him because of his Haitian accent. His first sergeant had very low regard for him and said he lacked the general competence to be an NCO. k.  He had no opportunity to grow as a Soldier and an NCO when he was assigned to Troop A, 5th Squadron, 73d Cavalry Regiment. He was given all of the least desirable taskings and he was constantly made the ammunition NCO, grass-mowing NCO, and the chute-shakeout NCO. If there was a detail, he was the NCO in charge. l.  His first sergeant could not find anything wrong with his conduct so he decided to move him to another platoon within the same company. He was moved out of 3d Platoon, 5th Squadron, 73d Cavalry Regiment. During his time in 3d Platoon, an incident occurred where his car hit a HMMWV on the road at a four-way intersection. No injuries occurred and no major damages were caused as a result of the accident, except the car bumper coming dislodged. At the time, there were no requirements for how to move a vehicle in unit. This incident was enough for the first sergeant to recommend a reduction to demote him. However, when he came to the unit, Soldiers drove military vehicles without a truck commander or vehicle commander. He asked Soldiers if he needed to wear proper protective gear when he first arrived at the unit and he was told it was not a requirement. Sergeant D____ told him there were no requirements to move vehicles and Soldiers could move vehicles without wearing headgear and without a truck commander. He did not make up any rules for how the unit moved its vehicles. It was unfortunate that an incident happened and he was the immediate supervisor of the Soldier driving the vehicle, but he followed the unit's standing operating procedure. m.  He was not given adequate time to seek counsel during his reduction board. The board president allowed him to go to Trial Defense Services the morning of the board for about 30 minutes, but no help was provided because he was too late. He was then demoted to the rank of specialist/E-4, an injustice given that he was not provided legal representation to help rebut any false accusations. n.  The reduction board did not abide by Army Regulation 600-8-19 (Enlisted Promotions and Reductions) and he worked in a very hostile environment. o.  His troop commander was hostile toward him, as well as the former and current platoon sergeants, and the former and current first sergeants, not to mention many other NCOs. At one point, a third platoon sergeant referred to him as a monkey. It was clear that his chain of command wanted to end his career. Because the work environment was so hostile, an unfair and unjustified rating and NCOER was all but guaranteed. p.  The contested NCOER for the period 7 February 2012 through 6 February 2013 is legally insufficient because the rater did not meet the minimum rater qualifications required by regulation. His rater was attending ALC when the contested NCOER was due and the Reconnaissance Scout Leadership Course at Fort Benning 3 1/2 months before he was assigned as his immediate supervisor. His rater signed the contested NCOER while he was at Fort Benning. His former immediate supervisor would have been better suited to rate him. His rater simply had insufficient time to properly rate him. q.  His raters were unfair, partial, and prejudiced during the rating periods. The relief for cause and his rank reduction were unjustified. He was attending ALC at the time and his unit should have postponed any legal matters until after graduation. His unit denied postponing the date because it would have interfered with the unit deployment. His commander was aware of the issue but decided to proceed with the actions. 3. The applicant provides: * self-authored statement, dated 20 November 2016 * two DA Forms 2166-8 * DA Form 1059 (Service School Academic Evaluation Report), dated 3 July 2013 * two DA Forms 4856 (Developmental Counseling Form) * character-reference letter, dated 19 December 2014 * character-reference statement, dated 14 January 2015 * Administrative Separation Board Proceedings, 15 pages CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 3 April 2008 in the rank/grade of private/E-1. 2. He was promoted to the rank/grade of SGT/E-5 effective 1 July 2011. 3. His NCOER for the period 7 February 2012 through 6 February 2013 was filed in his Official Military Personnel File (OMPF) on 12 March 2013. a.  Part II (Authentication), block d (Concur/Nonconcur with Rater and Senior Rater Evaluations), shows the reviewer concurred with the rater and senior rater evaluations. b.  Part II, block e, shows he acknowledged he was aware of the appeals process of Army Regulation 623-3 (Evaluation Reporting System). b.  Part IV (Rater) (Values/Noncommissioned Officer (NCO) Responsibilities), shows he received all "Success" ratings. c.  Part V, block a, shows his rater rated him "Fully Capable." d.  Part V, block e, contains the following bullet comments: * promote after further development and mentoring * send to ALC when convenient * NCO still needs to improve himself at current level; assigning him to greater responsibility will not benefit him or unit e.  Part V, block c, shows he received a "Successful" overall performance rating. f.  Part V, block d, shows he received a "Superior" rating. 4. He provided a copy of his DA Form 1059, dated 3 July 2013, showing he completed ALC during the period 3 June 2013 through 3 July 2013. 5. His NCOER for the period 7 February 2013 through 1 August 2013 was filed in his OMPF on 19 December 2013. a.  Part I (Administrative Data), block g (Reason for Submission), shows the reason as "Relief for Cause." b.  Part II, block e, shows he acknowledged he was aware of the appeals process of Army Regulation 623-3. c.  Part III, block f (Counseling Dates), shows the entries: * Initial – 15 March 2013 * Later – 14 June 2013 * Later – 15 July 2013 d.  Part IV shows he received "NO" ratings in block 2, block 4, block 5, and block 6 with the following bullet comments: * relieved for a demonstrated pattern of inefficiency; did not fulfill obligations as a team leader * demonstrated poor concern for Soldier welfare by directing subordinates to operate vehicles in an unsafe manner; resulted in a vehicle collision with damage to civilian and military equipment * demonstrates commitment to mission accomplishment e.  Part IV, block b, shows he received a "Needs Improvement (Some)" rating with the following bullet comments: * failed to make sound decisions as an NCO; led to loss of position and rank for a pattern of inefficiency * demonstrated inconsistent tactical performance in employment of team * accomplished few assigned tasks to standard on own initiative; required intensive and direct supervision beyond that expected of a team leader f.  Part IV, block f, shows he received a "Needs Improvement (Some)" rating with the following bullet comments: * maintained 100% accountability of equipment valued in excess of $250,000 * directed Soldiers to operate tactical vehicles without a vehicle commander; resulted in a collision that damaged one military and one civilian vehicle * SM was made aware of cause for relief g.  Part V, block a, shows he received a "Marginal" rating from his rater. h.  Part V, block e, shows his senior rater provided the following bullet comments: * promote after peers * has completed ALC on his second attempt * has been reduced in rank due to a pattern of inefficiency that resulted in safety incidents and damage to equipment * possesses potential to serve in positions of responsibility with intensive retraining and direct supervision on the most basic of tasks i.  Part V, block c, shows he received a "Poor" overall performance rating and a "Fair" rating for overall potential for promotion and/or service in positions of greater responsibility. 6. He provided two DA Forms 4856 he received after the through dates of the contested NCOERs that show: a.  He was counseled on 7 April 2014 for missing an appointment on 1 April 2014. b.  He was counseled on 12 May 2014 for missing a squadron appointment formation on 5 February 2014. He was directed to report to either the team leader or section leader at 0545 hours every morning before the first formation. He indicated he agreed with the counseling and demanded immediate removal from his platoon. He found it insulting to have him working under former subordinates. He also indicated he would be contacting the Inspector General if he was not promptly removed from the platoon. 7. The applicant provided a character-reference letter from SGT E____ A. V____, dated 19 December 2014, who stated he had been working with the applicant for about 1 year and 4 months. He stated: * the applicant's performance was satisfactory * he never experienced failure of a tasking while working with the applicant * the applicant did show a lack of performance at the time of the incidents; however, he has taken the time to improve himself and now shows respect to all ranks * his attitude has improved and he needs some time before being placed in a leadership position * he would be comfortable deploying with the applicant 8. The applicant provided a character-reference statement from Sergeant First Class J____ S____, dated 14 January 2015, who stated he had the opportunity to observe the applicant's work ethic. He stated the applicant was never late; always met the expectation of the intent; always volunteered; was reliable, competent, and motivated. The applicant was the one trooper who he could count on when he needed a task to be completed in a timely manner. He further stated the applicant would be a valuable asset to the Army and, with good leadership and mentorship, he had the potential to become a good leader. 9. On 30 January 2015, he was provided a copy of his Administrative Elimination Board Proceedings under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14. The proceedings show: a.  He testified under oath that he missed the formation in February because he thought he did not have to be present. He missed the formation in April because he had a scheduled jump, he had to attend a general technical improvement class, and he had an Army Substance Abuse Program appointment. He told the Army Substance Abuse Program counselor not to schedule him for that date. He admitted to destroying his counseling packet because he was angry. He accepted that his actions were wrong. All the counselings he destroyed were from before he was reduced from SGT/E-5 to SPC/E-4. He requested to leave the unit multiple times. b.  His troop commander, other superior NCOs, and range officials testified under oath about his disrespectful behavior, misconduct, demonstrated integrity issues, suicidal ideation, rehabilitation efforts, and other discipline issues. c.  Soldiers formerly assigned to his unit or who worked directly with him indicated a disconnect between the applicant and his chain of command, many NCOs did not care for the applicant because he had been demoted, correct were records were not kept, the command climate had drgraded significantly, and the leadership focused on Soldiers who excelled and did not help grow the Soldiers who were lacking. The applicant had a language barrier,he did not respond well to yelling, and he was a hard worker. 10. He provided a copy of Headquarters, 82nd Airborne Division, Orders 870-005, dated 11 March 2015, which reassigned him to the 2d Brigade Combat Team effective 15 March 2015. 11. Defense Finance and Accounting Service records show his dates of rank as follows: * E-2 effective 1 October 2008 * E-3 effective 1 April 2009 * E-4 effective 1 April 2010 * E-5 effective 1 July 2011 * E-4 effective 1 August 2013 * E-5 effective 1 November 2015 * E-6 effective 1 March 2017 12. His records are void of and he failed to provide any evidence showing he made attempts to appeal the contested NCOERs. REFERENCES: 1. Army Regulation 623-3 prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's ERS. a.  Paragraph 2-5, in effect at the time, stated the rater would be a person (immediate supervisor) in the rating chain who directed and was most responsible for the rated Soldier's performance. The rater would normally be the supervisor for a minimum period of 90 consecutive days. The military rater would be a SGT or above and senior to the rated NCO by grade or date of rank. b.  Paragraph 2-7, in effect at the time, stated the senior rater would be an officer or NCO of the U.S. Armed Forces or an employee of the Department of Defense (including non-appropriated fund employees) who was senior to the rater by either pay grade or date of rank. A senior rater would be a supervisor over all other rating officials in the rated Soldier's chain of command or supervisory chain. The senior rater would be the immediate supervisor of the rater and designated as the rated Soldier's senior rater for a minimum period of 60 consecutive days. c.  Paragraph 2-8, in effect at the time, stated the reviewer would be an officer, command sergeant major, or sergeant major in the direct line of supervision and senior in pay grade or date of rank to the senior rater. No minimum time period was required for reviewer qualification. d.  Paragraph 3-39 addresses requests for modifications to both completed evaluation reports that are filed in a Soldier's OMPF and reports that are being processed at Headquarters, Department of the Army (HQDA), prior to completion. e.  Paragraph 3-59, in effect at the time, stated an NCOER is required when an NCO is relieved for cause, regardless of the rating period involved. Relief for cause is defined as the removal of an NCO from a ratable assignment based on a decision by a member of the NCO's chain of command or supervisory chain. A relief for cause occurs when an NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the Army. The minimum rater and senior rater qualifications and the minimum rating period are 30 rated days. The rating official directing the relief will clearly explain the reason for the relief in his/her portion of the NCOER. f.  Paragraph 6-7, in effect at the time, stated: (1)  An evaluation report accepted by HQDA and 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. (2)  Requests for modifications to evaluation reports already posted to a Soldier's OMPF require use of the Evaluation Report Redress Program. g.  The commander or commandant may determine through inquiry that the report has serious irregularities or errors. Examples include: (1)  improperly designated, unqualified, or disqualified rating officials (that is, a rating official not in the published rating chain; a rating official without the minimum required time to render an evaluation report; or a rating official who, through an official investigation, has had a substantiated adverse finding against him or her that results in his or her relief or calls into question the rating official's objectivity); (2)  inaccurate or untrue statements; and/or (3)  lack of objectivity or fairness by rating officials. h.  Paragraph 6-8 states substantive appeals would be submitted within 3 years of an NCOER through date. Failure to submit an appeal within this time could be excused if the appellant provided exceptional justification to warrant the exception. 2. Department of the Army Pamphlet 623-3 provides procedural guidance for completing and submitting evaluation reports to HQDA and associated support forms that are the basis for the Army's ERS. This pamphlet amplifies and clarifies the policies outlined in Army Regulation 623-3 by providing detailed guidance for preparation of an appeal. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program. It states that once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority. DISCUSSION: 1. The applicant contends he was working in a hostile environment. He states his rating chain was biased and partial in his two contested NCOERs for the periods ending 6 February 2013 and 1 August 2013. He also contends the NCOERs were rendered in violation of the procedural requirements contained in the governing regulation and pamphlet, the substance of the contested NCOERs does not accurately reflect the character of his service during the rating period, and the contested NCOERs were rendered with malicious intent to involuntary separate him. 2. The NCOER for the period 7 February 2012 through 6 February 2013 was due to a change of rater and shows he received "Success" and "Fully Capable" ratings from his rater and "Successful" and "Superior" overall performance and potential ratings from his senior rater. 3. The NCOER for the period 7 February 2013 through 1 August 2013 was due to relief for cause based on the assessment from his rating chain. 4. The evidence shows the contested NCOERs were accepted by HQDA and filed in his OMPF on 12 March 2013 and 19 December 2013, respectively. Once the NCOERs were accepted by HQDA, the only way to modify the reports was through the appeals process. 5. While the contested NCOERs show he acknowledged he was aware of the appeal process of Army Regulation 623-3, his records are void of and he failed to provide evidence showing he appealed the contested NCOERs within the regulatory 3-year time period. 6. There is no evidence the contested NCOERs contain any serious substantive deficiencies or that they were not prepared in compliance with applicable regulations and policies. Furthermore, the applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOERs or that they exercised faulty judgment in evaluating him as they did. The governing regulation states an evaluation report accepted and included in the official record of a Soldier is presumed to be administratively correct. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170001068 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170001068 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2