ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 September 2019 DOCKET NUMBER: AR20170011339 APPLICANT REQUESTS: in effect, removal of unjustified comments from his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 19 September 2011 through 18 September 2012. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552). FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * there are several bullet comments that are not correct or are unjustified * there are several comments regarding an accident with a General Services Administration (GSA) vehicle * his mental healthcare provider had just prescribed a new medication for post- traumatic stress disorder (PTSD) * while driving back from a drill weekend (Reserve Component inactive duty training), he slid off the side of a road * he had never taken that medication before and he didn't know if it would cause a negative reaction * there were no other cars, persons, or property involved in the accident * he did not receive a citation nor was there an accident report * documentation for his diagnosis of PTSD rated 70 or 80-percent disabling was supplied to his chain of command at the time of his last NCOER * his chain of command refused to accept his documentation relating to his new medication at the time of the GSA accident * his chain of command entered several bullet comments in his last NCOER about the accident * his chain of command never tried to help him with his PTSD * his chain of command made sure he could not be promoted and wrote the worst NCOER he received in his career * he did not receive a retirement award or exit interview with the South Carolina Army National Guard Commander * all his chain of command did was persecute him, fully knowing about his diagnosis of PTSD * after the length time he served, long deployments, and combat service, he feels he deserved better than the way he was treated by his chain of command 3. The applicant was ordered to active duty as Recruiting and Retention NCO in an Active Guard Reserve (AGR) status as a member of the South Carolina Army National Guard effective 2 March 2001. 4. He was promoted to sergeant first class/E-7 effective 1 March 2004. 5. On 4 October 2006, he was issued a permanent physical profile rating of "2" under the upper extremities factor for thoracic mass resection T9-T10 fusion. The physician marked "NO" for the Army Physical Fitness Test 2-mile run and sit-up events and recommended an alternative aerobic event. 6. Prior to the applicant's contested NCOER, his previous NCOERs contained no derogatory or negative comments. His overall performance and potential was rated "Fully Capable" or "Among the Best" by his raters; his overall performance was rated "Successful/2" or "Successful/3" by his senior raters; and his overall potential was rated "Superior/1," "Superior/2," or "Superior/3" by his senior raters. 7. His periodic health assessment, dated 27 January 2012, shows he was assigned two permanent physical profile ratings for sleep apnea and back pain. The examining physician reported the applicant was not fit for service and was non-deployable due to sleep apnea with a requirement for a continuous positive airway pressure machine and oral medication for attention deficit disorder. The physician noted the applicant stated he was diagnosed with PTSD at previous assignments, but the diagnosis does not appear in his current records. 8. The applicant provided civilian medical documents from The Saluda Center with entries, dated 27 June 2012, 29 June 2012, and 3 July 2012, stating: a. He reported: * he had memory and focus problems, especially in the mornings since he changed medication for sleep * he was also a little sluggish and off balance with some slurred speech, which has caused issues at work * he needs a letter stating the change in medicine may cause problems remembering details and focusing b. He does need the letter. He wrecked a company vehicle while taking too much medication. The letter needs to state when his medications were started and the potential effects. c. He had an unexpected and severe reaction to a new sleeping medication. It left him dizzy and off balance, and he was unable to work. The medicine has been changed and those side effects have stopped. 9. His records contain his NCOER covering the period 19 September 2011 through 18 September 2012. a. Part IVb (Competence) shows the rater marked the block "Needs Improvement (Some)" and entered the following negative bullet comments: * "completed a one year, BN [battalion] Commander directed, probation period this rating period, ending date was 11 August 2012" * "has the ability to exceed assigned mission monthly; just needs the drive to do so" b. Part IVc (Physical Fitness and Military Bearing) shows he passed the Army Physical Fitness Test on 10 February 2012; his height was 72 inches; he weighed 294 pounds, and he met height and weight standards. c. Part IVf (Responsibility and Accountability) shows the rater marked the block "Needs Improvement (Some)" and entered the following negative bullet comment: "failed to be granted domicile to duty this rating period; resulted in an accident involving a GSA vehicle." d. Part Vc (Senior Rater Overall Performance) shows the senior rater marked the block "Fair/4." e. Part Vd (Senior Rater Overall Potential) shows the senior rater marked the block "Fair/4." f. Part Ve (Senior Rater Bullet Comments) shows the senior rater entered the following negative bullet comments: * "senior NCO who lacks self-motivation" * "lack of responsibility led to him ruining the engine of his GSA car" * "failed to achieve yearly production mission" 10. On 15 January 2013, The Saluda Center recorded the applicant's mental health diagnosis as PTSD. A traumatic event leading to this diagnosis is not identified. 11. The Department of Veterans Affairs Rating Decision, dated, 30 August 2013, shows he was granted service connection for PTSD with alcohol abuse (claimed as PTSD) with an disability evaluation of 70 percent effective 4 September 2012, based on an initial PTSD examination on 5 August 2013 and treatment records from The Saluda Center, dated February 2012 to February 2013. 12. His records contain his retirement NCOER covering the period 19 September 2012 through 18 September 2013. The NCOER contains no derogatory or negative comments. 13. He retired from active duty on 30 November 2013. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in a designated imminent danger pay area in Southwest Asia from 13 October 1990 to 13 May 1991. 14. On 15 June 2015, U.S. Army Human Resources Command denied his request for combat-related special compensation. The Combat-Related Special Compensation Program Specialist noted there was no documentation in his claim to show a combat- related event caused his PTSD with alcohol abuse. 15. The Army Review Boards Agency Clinical Psychologist rendered a medical advisory opinion, dated 10 October 2017, wherein she stated the available medical records showed evidence the applicant had a documented diagnosis of PTSD and utilized psychiatric medications with noted side effects. 16. The applicant was provided a copy of the advisory opinion on 11 October 2011 and given an opportunity to comment and/or submit a rebuttal. He did not respond. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statement and the medical advisory opinion, the Board found insufficient evidence to grant relief. The applicant requested, in effect, removal of unjustified comments from his DA Form 2166- 8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 19 September 2011 through 18 September 2012 due to a GSA vehicle accident in which the applicant claimed was caused by his taking new medication for PTSD. The Board acknowledges that the medical advisor noted that there was evidence the applicant had a documented diagnosis of PTSD and utilized psychiatric medications with noted side effects. However, the Board found this evidence insufficient to overcome the burden of administrative regularity in that there is no evidence the applicant used administrative procedures to rebut the comments in his NCOER or that he requested a commander’s inquiry, which would have been a contemporaneous investigation into the circumstances of the accident. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time prescribed the policies and tasks for the Army's Evaluation Reporting Systems. a. Paragraph 6-7a (Policies) stated an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation. b. Paragraph 6-7b stated appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an NCOER will normally be returned without action unless accompanied by additional substantiating evidence. c. Paragraph 6-7c stated the rated Soldier or other interested parties who know the circumstances of a rating may appeal any 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. The determination regarding adequacy of evidence may be made by the Headquarters, Department of the Army, Evaluation Appeals Branch. d. Paragraph 6-8 (Timeliness) stated because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous evaluation report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. 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, in accordance with Army Regulation 15-185. e. Paragraph 6-11 (Burden of Proof and Type of Evidence) stated 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 action is warranted to correct a material error, inaccuracy, or injustice. f. Paragraph 6-11b stated clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. g. Paragraph 6-11d stated 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. 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. The results of a Commander's or Commandant's Inquiry may provide support for an appeal request. 4. Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. a. Paragraph 1 (Purpose) states the intent of Army Regulation 600-37 is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely or incomplete is not filed in the individual official personnel files; and, to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. b. Paragraph 3-2 (Policies) states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These traits must be identified early and shown in permanent official personnel records that are available to personnel managers and selection board members for use in making decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others. Other unfavorable character traits of a permanent nature should be similarly recorded. c. Paragraph 7-2 (Policies and Standards) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. d. Paragraph 7-6 (Correction of Military Records) states Army Regulation 15-185 contains policy and procedures for applying to the ABCMR and for correcting military records by the Secretary of the Army. Applications should be sent to the ABCMR to correct an error or remove an injustice only after all means of administrative appeal have been exhausted. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management), in effect at the time, prescribed policies governing the Army Military Human Resource Records Management Program. Table B-1 states a NCOER is filed in the performance folder of the OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011339 6 1