IN THE CASE OF: BOARD DATE: 19 April 2018 DOCKET NUMBER: AR20170011128 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 IN THE CASE OF: BOARD DATE: 19 April 2018 DOCKET NUMBER: AR20170011128 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. IN THE CASE OF: BOARD DATE: 19 April 2018 DOCKET NUMBER: AR20170011128 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 redaction of all derogatory comments from his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 June 2015 through 31 May 2016. He further requests that the rater and senior rater prove beyond a reasonable doubt that preparation of the NCOER was an unbiased, fair, and just evaluation, and that counseling sessions were conducted in their entirety in accordance with the guidelines of Army Techniques Publication 6-22.1 (The Counseling Process) and Field Manual 7-21.13 (Soldier's Guide), chapter 6. (Note: Field Manual 7-21.13 was superseded by Training Circular 7-21.13 (Soldier's Guide).) 2. The applicant states his NCOER is based on unsupported, derogatory, and false information provided by his former rater and senior rater. He did not sign the NCOER because it is vindictive in nature, personally motivated, and not an honest reflection of him as a Soldier. He understands that it is his word against his former rater and senior rater due to the results of the Inspector General (IG) investigation. He is also aware that decision does not mean he was not telling the truth. 3. The applicant provides a self-authored memorandum for the Commander, U.S. Army Human Resources Command (HRC), dated 10 June 2017, subject: Appeal for (Applicant) NCOER 20150601-20160531, with 26 numbered enclosures titled as follows: * 1 – Supporting Statement (Memorandum for Commander, HRC, dated 7 July 2017, subject: Supporting Statement for (Applicant) Qualitative Management Program (QMP)) * 2 – Current First Sergeant (1SG) DA Form 4856 (Developmental Counseling Form) * 3 – Current Commander DA Form 4856 * 4 – Department of the Army Inspector General (DAIG) Completed Report Memorandum * 5 – Award Recommendation Email Traffic and DA Form 638 (Recommendation for Award) * 6 – Mission Pictures (copies of photographs) * 7 – Coin Presentation from Brigadier General (copies of photographs) * 8 – Coin Pictures * 9 – Certificate of Appreciation from Major General  * 10 – Physical Security Officer Training Program Certificate of Training * 11 – Email Traffic Related to Bar to Reenlistment Removal * 12 – DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 23 June 2016 * 13 – Doctor's Memorandum to Commander, dated 7 March 2016 * 14 – (unnamed and not enclosed) * 15 – HRC QMP Decision Memorandum, dated 29 April 2016 * 16 – Doctor's Progress Notes Related to 1SG's Call and Health Insurance Portability and Accountability Act (HIPPA) Violation * 17 – DA Form 268, dated 23 June 2016 (duplicate of enclosure 12) * 18 – Doctor's Release Note, dated 15 August 2016, Prior to Permanent Change of Station (PCS) from the 753rd Quartermaster Company to the 303rd Quartermaster Company * 19 – DA Form 4856 from the 753rd  1SG * 20 – DA Form 2823 (Sworn Statement) by Sergeant First Class (SFC) C____ H____, dated 4 February 2016 * 21 – Support Statement from SFC G____ J____, Retention NCO, dated 19 January 2016 * 22 – Support Statement from Former Navy Officer and Now U.S. Army Staff Sergeant (SSG) D____ E. S____, dated 16 January 2016 * 23 – DA Form 4856 from the 753rd Quartermaster Company Commander, dated 25 April 2016 * 24 – Doctor's Memorandum, dated 22 January 2016 * 25 – DA Form 4856 from the 753rd Quartermaster Company 1SG, dated 25 October 2015 * 26 – DA Form 4856 from the 753rd Quartermaster Company Commander, dated 3 August 2015 CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving on active duty in the U.S. Army Reserve Active Guard Reserve Program in the rank of staff sergeant. 2. His records contain his NCOER covering the period 1 June 2014 through 31 May 2015. a. Part IVb (Competence) shows he was rated "Needs Improvement (Some)" by his rater. b. Part IVd (Leadership) shows he was rated "Needs Improvement (Some)" by his rater. c. Part V (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows he was rated "Fully Capable" by his rater. d. Part Vc (Overall Performance) shows he was rated "Fair/4" by his senior rater. e. PartVd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows he was rated "Superior/3" by his senior rater. 3. He provided a DA Form 4856 from Captain , his company commander, dated 3 August 2015, for the purpose of performance-based counseling wherein she informed him that she received a telephone call from the 103d Sustainment Command (Expeditionary) Mobilization NCO who was concerned about the quality of the Command and Control Chemical, Biological, Radiological, and Nuclear Response Element (C2CRE) mission slides being submitted and the timeliness in which they were reaching the command. a. She noted he received email from the battalion S-3 section on 6 July 2015, directing the company to submit weekly C2CRE slides to the battalion to help their higher echelons track their upcoming mission and stated she was not courtesy copied in the email. b. She stated he failed to inform her of the requirement and the email. From her understanding, the slides were incomplete and were not reviewed by the first sergeant or commander prior to submission to the battalion. She also noted they had discussed this in the past and its unacceptability. c. She advised him that the command team must be in the know for all operations and it was his responsibility as the unit full-time Operations Sergeant to ensure the unit was tracking all requirements. d. She advised him that C2CRE mission was an extremely high-priority mission and needed to be treated as such as they reflect the unit's ability and status for deployment. e. She advised him that she had lost confidence in his abilities to be an adequate Operations NCO and prioritize tasks efficiently. She stated she was not willing to let the company and battalion suffer for his inability to perform at this level. f. She advised him that she would have no choice but to relieve him of his current position if he continued to fail to communicate with the command team in the future. g. She advised him that she was relieving him of his involvement with the C2CRE mission. 4. He provided a DA Form 4856 from First Sergeant , dated 25 October 2015, for the purpose of performance/professional oriented counseling wherein he reviewed his assigned duties with him. 5. He provided a statement from , a Licensed Clinical Social Worker, dated 1 January 2016, wherein she states she is a mental health therapist and is currently treating the applicant for a combination of depression and anxiety that he described as having been exacerbated by some ongoing stressors at his workplace. Because the applicant's symptoms were at a level where they were interfering with his ability to do his job, his evaluating therapist recommended a short-term medical leave from his position, starting immediately upon leaving his appointment. The applicant was started on medication that may take a month to be of most therapeutic benefit to him. She is estimating his return to duty date to be 22 February 2016. He would be receiving treatment during that time and would be released to return to his job when his symptoms would no longer impair his performance. 6. He provided a memorandum from Staff Sergeant , dated 15 January 2016, subject: (Applicant) QMP, wherein he stated the applicant has always shown him the highest professionalism and candor in all of their interactions. The applicant is willing to share the best of his experiences with his fellow Soldiers. The applicant always works at being the best example he can be. He described the applicant's responsibilities during the 3-week annual training exercise. He stated the applicant may seem a little harsh and impersonal on the surface, but he does what he does for the sole purpose of creating the best reflection on the Army and the Soldiers who make it their profession. He stated the wise decision would be to see the applicant's career continue. 7. He provided a memorandum from Sergeant First Class , dated 19 January 2016, subject: Supporting Statement for (Applicant) Qualitative Management Board, wherein he stated he worked in the same U.S. Army Reserve Center as the applicant. The applicant has always been highly professional; he is greatly motivated to assist and look out for the best interests of his unit and its assigned Soldiers. During the last year he regularly found the applicant diligently working with little interaction with other members of his unit, which was a change from the past. The applicant confided that he had some sort of personality conflict with some individuals assigned to his unit and it resulted in negative consequences, such as a bar to reenlistment and a less than stellar NCOER (covering the period 1 June 2014 through 31 May 2015). The applicant was currently on the Permanent Promotion Recommended List awaiting the final outcome of the bar to reenlistment and is currently working to clear up the negative NCOER so he can request a permanent change of station and complete his military career away from his current unit of assignment. 8. He provided a DA Form 2823 from Sergeant First Class _, dated 4 February 2016, wherein he stated he served as the Senior Human Resources NCO in Charge of the 646th Regional Support Group from November 2012 to November 2015. a. He stated he reviewed a bar to reenlistment action against the applicant based on events that occurred during annual training. He notified his leadership that the battalion commander had the authority to impose a bar to reenlistment by regulation; however, the action had to be reviewed by the group commander since the applicant was an Active Guard Reserve Soldier. He informed the new commander that the bar to reenlistment was incomplete (lacked documentation of poor performance) and might involve personal feelings. The unit had a hostile environment and he recommended a site visit as the unit performance seemed to be decreasing. The group commander and command sergeant major visited the unit during a weekend battle assembly and none of the full-time staff reported issues that they had previously reported to the Equal Opportunity Office, group S-1, and brigade staff. In September 2015, the 646th Regional Support Group hosted a field training exercise during which the applicant had the opportunity to speak to the group commander about his issues. The command asked the applicant to remain patient while investigations were pending preventing promotion, favorable actions, and more beyond the normal time frame. b. He stated the applicant contacted him about processing a request for a commander's inquiry into his NCOER (covering the period 1 June 2014 through 31 May 2015). The applicant informed him that the unit S-1 presented him with his NCOER containing negative statements that were identical to the statements in his bar to reenlistment. The applicant also stated he reviewed a different NCOER provided by his rater. He advised the applicant to contact his rater to inquire about the original evaluation. The applicant was informed that the battalion commander wanted the NCOER to reflect the events leading to the bar to reenlistment. The single focus of the evaluation was based on events within a 14 to 21-day annual training period, not in accordance with Army Regulation  623-3 (Evaluation Reporting System) for an annual report. He advised the applicant to submit a request for a commander's inquiry to the group command sergeant major. He asked the battalion about its policy for reviewing NCOERs with "Needs Improvement" ratings and learned there was no battalion policy in place. He believes the applicant signed the form because his morale was at a low point and he didn't want to give the commander more reasons to add to his pending actions. The applicant filed an IG complaint, but it placed the group at a disadvantage because the battalion was moving the actions so quickly. c. In his opinion, the applicant was not given a fair opportunity. They discussed an assignment detail, but the unit commander stated she wanted the applicant to remain in the unit and to the best of his knowledge the commanding general stopped the process. These mistakes cost the applicant a future promotion. They failed to initiate the NCOER appeal process in a timely fashion because the facts didn't match and the applicant remained uninformed at times, which affected him and those around him. 9. He provided a DA Form 4856 from his former first sergeant, dated 7 March 2016, pertaining to several requests regarding medical records from his civilian provider. He noted the applicant provided records in the form of time off and was working only half days under doctor's orders. The applicant was directed to provide all medical documentation regarding his time off. 10. He provided a statement from , a Licensed Clinical Social Worker, dated 7 March 2016, wherein she states she is a mental health therapist and is currently treating the applicant for a combination of single, severe major depression (without psychotic symptoms) and anxiety. The applicant described his symptoms as having been exacerbated by some ongoing stressor at his workplace. She has been counseling the applicant since 12 January 2016. Because the applicant's symptoms were at a level where they were interfering with his ability to do his job, his evaluating therapist had originally recommended a short-term, full medical leave from his position beginning 22 January 2016. She believes the applicant attended some training that had previously been scheduled, as it was described to be low-stress training that would allow him to have some positive interaction with peers, which could be beneficial in helping him to improve. She released the applicant to return to his job on a half-time basis as of 22 February 2016. She recommended that the applicant remain on half-time status while continuing to adjust to the medication and hopefully achieving more improvement with his symptoms. She would continue to meet with the applicant weekly to ascertain his readiness to return to full-time status. She recommended limiting any military drills or exercises that could be expected to elevate his anxiety symptoms and recommended that he not be placed in any active combat situation at that point. The applicant's medical conditions of major depressive disorder and anxiety are very common medical conditions and she anticipates the applicant's full recovery, which she hopes would occur within the next 6-12 weeks. 11. He provided a DA Form 4856 from First Sergeant , his first sergeant, dated 17 March 2016, for the purpose of assignment of additional tasks. 12. He provided a DA Form 4856 from Captain , his company commander, dated 25 April 2016, for the purpose of performance/professional-based counseling pertaining to his medical appointments and work performance. She stated she observed a decrease in his work productivity as a result of his current medical limitations. a. She noted he submitted medical documentation in January 2016 requesting 30 days of convalescent leave. Upon his return to duty on or about 22 February 2016, his medical care provider submitted additional paperwork stating he was to work half days indefinitely until his medical status improved/stabilized. She noted he had been working half days since 22 February 2016. b. She advised him that although she was bound by his doctor's recommendation to continue to have him work half days, it was her responsibility to monitor and track his work progress and accountability in regard to his current bar to reenlistment. c. She noted that according to his medical care provider's documentation, he had been attending weekly appointments. However, he had multiple appointments, often times 2 to 3 times weekly, that he had been leaving work to attend. d. The command team noticed a decrease in his work productivity with his half-day work schedule, multiple medical appointments, and his inability to be an active member of unit training during annual training and field training exercises. e. She advised him that the purpose of the counseling was not negative, it was simply to document and make him aware of how his work productivity and reliability had decreased over the past 6 weeks. It had been difficult to assign any tasks to him because of his short work hours and those tasks assigned to him do not get completed on time. As his rater, she was left with a small amount of work to document in his evaluations. f. She directed him to: * provide a schedule of all upcoming medical appointments at least 2 weeks in advance by email or other official document from his medical care provider * provide a doctor's note not later than 1 day after his appointment in order to document completion of the appointment for personnel status/accountability reasons * schedule his appointments in the afternoons so as to not impede his restricted work hours * schedule his physical training time to afternoons to allow maximum time to complete his assigned tasks in the time given g. She stated his assigned duty hours were 0800-1200 daily unless alternate hours were requested and approved by her or the first sergeant. h. She directed him to provide the requested documentation/communication until he was released from half-day duty by his medical provider and to immediately notify her and the first sergeant if his medical status changed so they could adjust his work schedule as needed. 13. He provided a behavioral health progress note from his mental health therapist, , dated 28 April 2016, wherein she noted the applicant reported being counseled by his commander and first sergeant regarding his performance expectations for the 6 hours per day that he is approved to work. She received a telephonic message from the applicant's first sergeant pertaining to concerns about the applicant's availability for anticipated increased work demands. She did not return the telephone call because she did not have the applicant's permission to release information. During that day's session, the applicant asserted that he did not wish to release any information to the Army or his supervisor without his permission. The applicant indicated that if documentation were presented to the behavioral health clinic that appeared to be a release signed by him, she should assume the signature was "coerced in some way." 14. His records contain an HRC memorandum, dated 29 April 2016, subject: Department of the Army Consideration for Denial of Continued Active Duty Service under the QMP, informing him that the QMP Selection Board conducted a comprehensive review of his record for potential denial of continued service under the QMP and recommended his retention. As a result, the Director of Military Personnel Management approved the board's recommendation and he was approved to remain on active duty until the established retention control point for his grade, unless separated earlier under appropriate regulation or statute. He was advised that he would not be subject to a future QMP Selection Board unless new derogatory information is posted to his Army Military Human Resource Record (AMHRR). He was further advised that in the event that new information results in initiation of another QMP process, his records, in their entirety, might be subject to further review by another QMP Selection Board. 15. His records contain his NCOER covering the period 1 June 2015 through 31 May 2016. a. Part II (Authentication) contains the statement: RATED NCO: I understand my signature does not constitute agreement or disagreement with the assessments of the rater and senior rater. I further understand my signature verifies that the administrative data in Part I, the rating officials and counseling dates in Part II, the duty description in Part III, and the APFT [Army Physical Fitness Test] and height/weight entries in Part IVa and IVb are correct. I have seen the completed report. I am aware of the appeals process of AR [Army Regulation] 623-3. b. Part IId1 (Counseling Dates) indicates he was initially counseled on 22 July 2015 and later counseled on 12 September 2015, 9 November 2015, and 25 April 2016. c. Part IId2 (Rated NCO's Signature) is blank. d. Part IV (Character) shows his rater checked the box "Did Not Meet Standard" and entered the following bullet comments: * showed a disrespectful attitude towards peers and senior leadership on multiple occasions; lacked professionalism and diminished unit morale * supported both SHARP [Sexual Harassment/Assault Response and Prevention] and EO [Equal Opportunity] programs; ensured his personal conduct was in compliance with both programs e. Part IVd (Presence) shows he was rated "Did Not Meet Standard" by his rater with the following bullet comments: * relieved of his involvement in planning of C2CRE Mission; missed deadlines to higher headquarters on numerous occasions * failed to learn from constructive criticism given; often argued with developmental counseling and did not learn from mistakes f. Part IVe (Intellect) shows he was rated "Did Not Meet Standard" by his rater with the following bullet comments: * struggled with prioritizing daily operations; able to complete tasks on time with supervision and reminders from others * lacked expertise to execute his daily duties; failed on numerous occasions to keep the command team informed on unit operations g. Part IVf (Leads) shows he was rated "Did Not Meet Standard" by his rater with the following bullet comments: * demonstrated inability to manage and organize information amongst the full time staff; failed to gain trust of peers * failed to lead by example for subordinates; showed up late for formation, in wrong uniform and disrespected platoon leadership h. Part IVg (Develops) shows he was rated "Met Standard" by his rater with the following bullet comments: * completed additional duty safety course and OPSEC [Operations Security] courses; taught OPSEC and winter safety class to 70 Soldiers * attended MILES [Multiple Integrated Laser Engagement System] training and acquired GTA [Graphic Training Aids] references for the unit to use while at Annual Training at Ft. McCoy, WI i. Part IVi (Overall Performance) shows he was rated "Did Not Meet Standard" by his rater. j. Part IVj (Comments) shows his rater entered the following bullet comments: * NCOs [sic] performance was substandard throughout the rating period; Soldier failed to use constructive criticism and mentorship to increase his productivity and failed to improve his work performance * lack of organizational skills, prioritization and task completion resulted in other full time staff sections having to complete tasks that were originally assigned to the operations section k. Part Va (Senior Rater Overall Potential) shows he was rated "Not Qualified" by his senior rater. l. Part Vb (Comments) shows his senior rater entered the following bullet comments: At this time, [Applicant] does not posses [sic] the potential to serve in positions of higher responsibility or to perform at a higher rank. Do not promote this NCO at this time. Do not send to NCOES [NCO Education System]. Do not assign to more challenging positions. Soldier showed no potential at increasing his capacities in the Army. He has reached his overall potential. NCO refuses to sign. 16. He provided a DA Form 268, dated 23 June 2016, showing the commander's investigation action was closed favorably and the flag suspending favorable personnel actions was removed. 17. He provided a statement from , a Licensed Clinical Social Worker, dated 15 August 2016, wherein she stated she has been providing treatment for the applicant in regard to depression and anxiety. She stated he has been doing well with his symptoms and was released to full-time duty status as of 31 May 2016. She concluded by stating she would consider his symptoms fully treated and his prognosis was quite favorable. 18. He provided email from the HRC Active Guard Reserve Enlisted Division, dated 14 September 2016, informing him that his actions were closed favorably and the flags suspending favorable personnel actions were removed. 19. He provided a Certificate of Training from the Director, U.S. Army Reserve Command G-34, certifying that he successfully completed the 2-day Physical Security Officer Training Program on 11 and 12 January 2017. 20. He provided a Certificate of Appreciation from the Commanding General, U.S. Army South, in recognition of his support to Joint Task Force-Migrant Operations and U.S. Army South in Guantanamo Bay, Cuba, from 18 February 2017 to 4 March 2017. 21. He provided email correspondence from First Lieutenant , dated 22 March 2017, wherein he asked the applicant to complete the administrative data in the attached DA Form 638 recommending him for award of the Army Achievement Medal for exceptional service in support of the Joint Task Force-Migrant Operations exercise during the period 18 February 2017 to 5 March 2017. 22. A letter from the Chief, Assistance Division, Department of the Army Office of the Inspector General, dated 6 April 2017, informed the applicant that the DAIG completed its Report of Investigation into his reprisal allegation conducted under the Military Whistleblower Protection Act. a. The Chief, Assistance Division, informed him that: (1) His allegation that his former company commander initiated a bar to reenlistment against him in reprisal for making a protected communication in violation of Department of Defense (DOD) Directive 7050.06 was not substantiated. (2) His allegation that his former company commander rendered him an adverse NCOER in reprisal for making a protected communication in violation of Department of Defense Directive 7050.06 was not substantiated. (3) His allegation that his former company commander relieved him of his subordinates and duties in reprisal for making a protected communication in violation of Department of Defense Directive 7050.06 was not substantiated. (4) His allegation that his former first sergeant rendered him an adverse NCOER in reprisal for making a protected communication in violation of Department of Defense Directive 7050.06 was not substantiated. (5) His allegation that his former first sergeant recommended relief of his subordinates and duties in reprisal for making a protected communication in violation of Department of Defense Directive 7050.06 was not substantiated. b. The Chief, Assistance Division, advised him that the DODIG conducted a thorough review and agreed with the Report of Investigation conclusions. Accordingly, his case was closed from further consideration under the Military Whistleblower Protection Act. c. The Chief, Assistance Division, further advised him that the determination does not preclude him from submitting an application to the Army Board for Correction of Military Records (ABCMR) if he believes an error or injustice exists in his Army record. However, the ABCMR requires that he exhaust all other administrative remedies before applying to the Board. For example, if he desires to request a correction to a performance evaluation, he must first exhaust all the other appeal options before submitting an application to the ABCMR. 23. On 10 June 2017, he prepared an appeal to his NCOER covering the period 1 June 2015 through 31 May 2016 to HRC. He stated the contested NCOER was based on unsupported, derogatory, and false information provided by his former rater and senior rater. He did not sign the NCOER because it is vindictive in nature, personally motivated, and not an honest reflection of him as a Soldier. He further requested that the rater and senior rater prove beyond a reasonable doubt that preparation of the NCOER was an unbiased, fair, and just evaluation, and that counseling sessions were conducted in their entirety in accordance with the guidelines of Army Techniques Publication 6-22.1 and Field Manual 7-21.13, chapter 6. He further stated: a. His former rater abused her power, authority, and influence to retaliate, discriminate, shape, and manage the environment around him, ostracizing and segregating him from unit activities due to an IG inquiry he initiated against his former Reserve troop program unit commander and first sergeant. In events that initially started in May 2015, his former unit commander and first sergeant tried to make him look like an insubordinate Soldier by misdirecting him through counseling him in one way and then denying doing so and changing the events. During this period he was barred from reenlistment and flagged against favorable personnel actions. The flagging action denied him the opportunity to request a permanent change of station due to the toxic working conditions. b. Last year he was reviewed under the QMP and was retained on active duty. His former commander was directed to remove his bar to reenlistment and flagging actions. As a result of the favorable decision, his leadership initiated indirect attacks against him, segregating him, treating him as if he were stupid in front of his peers, and providing him with misinformation and misleading guidance. The ostracizing behavior continued to the point of preventing him from fulfilling his responsibilities and causing him feelings of hopelessness and severe depression. c. At this point he started to think he was failing as a Soldier and as a leader of Soldiers. He decided to seek professional help and was able to recover with therapy and medications. d. His former first sergeant called his doctor, inquiring about his treatment and the doctor's notes he was providing. His former commander telephonically ordered him to violate his doctor's notes and attend a field training exercise that he was in no condition to attend because his body and mind were adapting to the prescribed medication. This was staged to replicate the same environment that started the IG inquiry. During the exercise, the command team directly told him not to intervene and to only report to the tactical operations center and following the first sergeant's guidance. He did not receive guidance or instructions from the first sergeant. The former commander and first sergeant pressured him into signing a counseling statement for bad performance at the end of the exercise. e. Since he changed permanent stations he was able to get back on track and enjoy his work. During the first few months he has been able to do his job and become part of a great team/family at his current unit. f. His current battalion and brigade commanders were desperately looking for a volunteer to deploy in support of a real-world mission in Guantanamo Bay, Cuba. He was not military occupational specialty qualified, but he managed to learn and understand computer systems for the mission. He prepared, completed the course requirements, and deployed. During the mission he was asked to assist in a water sustainment notional exercise. He was providing real-world solutions, recommendations, and advice for future courses of action. He was given a Coin for Excellence by the 377th Theater Sustainment Command Deputy Commanding General as a result of his efforts. He continued performing his original mission and volunteering and supporting other missions. He was recommended for award of the Army Achievement Medal at the end of the mission. He also received a certificate of appreciation from the Commanding General of U.S. Southern Command. g. In recent events, he volunteered to participate as a driver in the 377th Theater Sustainment Command change of command ceremony. He also volunteered to be a color bearer representing the 207th Regional Support Group for which he received a coin for excellence in performance and commitment to service. h. He created additional reports for the unit tactical operations center and reproduced them into a hard board at The Army School System Training Center and he is currently creating a range binder for unit weapons qualification with Fort Polk policies and procedures to guide and benefit the unit. He is a member of the funeral detail in his unit's area of responsibility and he volunteers as much as he can. He is also the alternate physical security officer, the courier, computer manager for the quarterly commander's unit status report, and performs other additional duties. i. He is not the Soldier represented in the NCOER covering the period 1 June 2015 through 31 May 2016. He never even met or talked to his senior rater because he was not part of his direct chain of supervision. His senior rater was not available to discuss his NCOER and he never got to interact with him during the rating period. The next person who was supposed to be in his supervisory chain was the battalion operations master sergeant or the battalion S-3 (operations officer). j. In conclusion, he requests redaction of all the derogatory comments without sufficient supporting evidence that affect his career and preclude him from continuing to serve in the Army. He understands that it is his word against his former rater and senior rater due to the results of the IG investigation. He is also aware that decision does not mean he was not telling the truth. 24. He provided a supporting statement from Major , the 377th Theater Sustainment Command Secretary of the General Staff, dated 7 July 2017, who stated he was impressed with the applicant's professionalism and calm while dealing with the stressful inbound and outbound processes during the exercise at Guantanamo Bay, Cuba. His contributions helped gather the necessary data to assist with future planning. 25. He provided a DA Form 4856 from his current company commander, dated 5 June 2017, commending his performance as the Training NCO at the mid-year point prior to annual training. 26. He provided a DA Form 4856 from his current first sergeant, dated 10 July 2017, commending his performance during the exercise at Guantanamo Bay, Cuba. 27. On 29 August 2017, the Enlisted Special Review Board voted unanimously to deny his appeal of the previous NCOER covering the period 1 June 2014 through 31 May 2015. The board determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice. 28. An HRC memorandum, dated 5 October 2017, subject: Notification of Denial of Continued Active Duty Service under the QMP, notified him of approval of the QMP Selection Board recommendation for his denial of continued active duty service. He was advised that he would be involuntarily discharged from the Army not later than 1 May 2018 or upon reaching his contractual expiration term of service, whichever is earlier. He was further advised that he had the option to request an earlier separation date or appeal the decision and request retention on active duty. Any such appeal is limited to newly discovered evidence, the subsequent removal of documents from his AMHRR, or material error. An appeal must be submitted to HRC (AHRC-EPF-M) within 30 days of receipt of notification. Appeals that do not meet the criteria will not be used as a reason to delay separation under the QMP. 29. There is no evidence indicating the Enlisted Special Review Board considered his appeal of his NCOER covering the period 1 June 2015 through 31 May 2016. 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 Evaluation Reporting System. a. Paragraph 2-12 states the rater will provide an honest assessment of the rated Soldier's performance and potential (as applicable), using all reasonable means, including personal contact, records and reports, and the information provided by them on the applicable support form or associated counseling documents. b. Paragraph 2-14 states senior raters or reviewing officials use their positions and experiences to evaluate the rated Soldier's performance and/or potential within a broad organizational perspective, military program of instruction, or civilian academic standards. The senior rater's evaluation is the link between the day-to-day observation of the rated Soldier and the longer-term evaluation of the rated Soldier's potential by Headquarters, Department of the Army, selection boards. Normally, senior raters or reviewing officials control the accurate preparation and timely submission of evaluation reports. Senior raters evaluate performance in perspective by considering the rated Soldier's experience; the relative risk associated with the performance; the difficulty of the organization's mission; the prudence and results of action taken; the adequacy of resources; the overall efficiency of the organization; and when applicable, adherence to established military course or academic standards established by the civilian educational, medical, or industrial institution. c. Paragraph 3-19 provides guidance relating to unproven derogatory information. No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, Department of the Army. If the rated individual is absolved, comments about the incident will not be included in the evaluation. This restriction is intended to prevent unverified derogatory information from being included in evaluation reports. It also prevents unjustly prejudicial information from being permanently included in a Soldier's AMHRR. Any verified derogatory information may be entered on an evaluation report. This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's reference to verified derogatory information. d. Paragraph 3-33 states the rated Soldier's signature will verify the accuracy of the administrative data in Part I, confirming the name and social security number on the evaluation report, rank and date of rank, branch or military occupational specialty data, period covered and nonrated time; the rating officials; Army Physical Fitness Test and height and weight entries. This procedure ensures the rated Soldier has seen the completed evaluation report. It also increases the administrative accuracy of the evaluation report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data. In the event the rated Soldier is not available or refuses to sign, senior raters will provide an explanation in their narrative or bullet comments. e. Paragraph 4-7 states an evaluation report accepted for inclusion in the rated Soldier's AMHRR 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. The rated Soldier or other interested parties who know the circumstances of a rating may appeal any evaluation report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation. An appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board. Substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR. f. Paragraph 4-11 states the burden of proof rests with the appellant. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. g. Paragraph 4-13 states appeals based on substantive inaccuracy must include the basis for the belief that the rating officials were not objective or had an erroneous perception of the performance. A personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. 2. Army Techniques Publication 6-22.1 provides doctrinal guidance for all leaders, military and civilian, responsible for planning, preparing, executing, and assessing counseling actions. a. Paragraph 1-6 states counseling is often tied to specific instances of superior or substandard duty performance. The leader uses the counseling session to convey to the subordinate whether or not the performance met the standard and what the subordinate did right or wrong. Successful counseling for specific performance occurs as close to the event as possible. Leaders should counsel subordinates for exceptional as well as substandard duty performance. b. Paragraph 1-17 states performance counseling is the review of a subordinate's duty performance during a specified period. The leader and the subordinate jointly establish performance objectives and clear standards for the next counseling period. The counseling focuses on the subordinate's strengths, areas to improve, and potential. Effective counseling includes providing specific examples of strengths and areas needing improvement and providing guidance on how subordinates can improve their performance. Performance counseling is required under the Noncommissioned Officer Evaluation Reporting System (see Army Regulation 623-3 for specifics). 3. Training Circular 7-21.13 is a reference for subjects in which all Soldiers must maintain proficiency, regardless of rank, component, or military occupational specialty. Chapter 6 discusses training management and how it applies to Soldiers' development using the institutional, operational, and self-development domains. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant received an unfavorable NCOER covering the period 1 June 2014 through 31 May 2015. The Enlisted Special Review Board subsequently voted unanimously to deny his appeal of that NCOER. The board determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice. 2. On 29 April 2016, the QMP Selection Board recommended his retention. As a result, the HRC Director of Military Personnel Management approved the board's recommendation and he was approved to remain on active duty until the established retention control point for his grade, unless separated earlier under appropriate regulation or statute. He was advised that he would not be subject to a future QMP Selection Board unless new derogatory information is posted to his AMHRR. He was further advised that in the event that new information results in initiation of another QMP process, his records, in their entirety, might be subject to further review by another QMP Selection Board. 3. On 29 July 2016, he received a second unfavorable NCOER covering the period 1 June 2015 through 31 May 2016 which he now contests. 4. In his application to the ABCMR, he requested redaction of all derogatory comments from the NCOER covering the period 1 June 2015 through 31 May 2016. He contends the NCOER is based on unsupported, derogatory, and false information provided by his former rater and senior rater and stated he did not sign the NCOER because it is vindictive in nature, personally motivated, and not an honest reflection of him as a Soldier. 5. The evidence of record shows he was counseled in writing on five occasions regarding his duty performance and responsibilities and his leadership's expectations. 6. His NCOER covering the period 1 June 2015 through 31 May 2016 shows he received ratings of "Did Not Meet Standard" in the blocks for "Presence," "Intellect," and "Leads." He was rated "Did Not Meet Standard" by his rater for "Overall Performance" and he was rated "Not Qualified" by his senior rater for "Overall Potential." 7. Army Regulation 623-3 states that to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that: * the presumption of regularity will not be applied to the report under consideration * action is warranted to correct a material error, inaccuracy, or injustice 8. There is no evidence of record showing the information contained in the contested NCOER does not represent the considered opinion and objective judgment of the rating officials at the time of preparation. 9. In addition, the Chief, Assistance Division, Department of the Army Office of the Inspector General, informed him on 6 April 2017 that the DAIG completed its Report of Investigation into his reprisal allegation conducted under the Military Whistleblower Protection Act and determined that his allegations that he was the subject of reprisal by his former company commander and first sergeant were not substantiated, to include his allegation that his former first sergeant rendered him an adverse NCOER in reprisal for making a protected communication in violation of Department of Defense Directive 7050.06. The Chief, Assistance Division, advised him that the DODIG conducted a thorough review and agreed with the Report of Investigation conclusions. Accordingly, his case was closed from further consideration under the Military Whistleblower Protection Act. 10. He also requested that the rater and senior rater prove beyond a reasonable doubt that preparation of the NCOER was an unbiased, fair, and just evaluation, and that counseling sessions were conducted in their entirety in accordance with the guidelines of Army Techniques Publication 6-22.1 and Field Manual 7-21.13, chapter 6. 11. There is no evidence indicating the applicant's rater and senior rater did not employ the referenced counseling techniques. The ABCMR is not an investigative body. In the absence of evidence to the contrary, administrative regularity must be presumed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953