ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 March 2020 DOCKET NUMBER: AR20180000640 APPLICANT REQUESTS: .removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report(NCOER)) covering the rating period 25 October 2013 through 8 October 2014from his Army Military Human Resources Record (AMHRR) .removal of the general officer memorandum of reprimand (GOMOR), dated20 June 2014, from his AMHRR APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record under the Provisionsof Title 10, U.S. Code, Section 1552) .Memorandum, U.S. Army Recruiting Station Daytona Beach, FL, dated 5 April2018, subject: Removal of Evaluation Report (25 October 2013 through8 October 2014) and GOMOR (20 June 2014) (Applicant) .Enclosure 1 – Memorandum, Headquarters, U.S. Army Training and DoctrineCommand, Fort Eustis, VA, dated 6 March 2016, subject Notification ofReinstatement to Position of Significant Trust and Authority .Enclosure 2 – Memorandum, Army Review Boards Agency, Arlington, VA, dated11 September 2017, subject: Resolution of Unfavorable Information for(Applicant) .Enclosure 3 – 7 Letters of Recommendation from Current Members of hisCommand, dated 5 December 2015 through 4 April 2018 .Enclosure 4 – DA Form 2166-9-2, 28 June 2016 through 27 September 2017 .Enclosure 5 – DA Form 2166-9-2, 29 June 2015 through 27 June 2016 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 theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states: a.He requests removal of the NCOER covering the rating period 25 October 2013 through 8 October 2014 and GOMOR from his AMHRR. b. He asserts he should not have been relieved or removed from positions of significant trust and authority, as evidenced by his reinstatement by Lieutenant General (LTG) M____ who judged the information used as a basis for his negative NCOER did not call his character, conduct, or personal integrity into question. c. Since there was no basis for his relief for cause, the negative comments in the NCOER are based on a false premise. The NCOER should be removed from his NCOER because LTG M____ judged the negative characterization to be inaccurate. d. He received two NCOERs since his reinstatement by two different company command groups in two different brigades. He believes these NCOERs accurately depict his character, conduct, personal integrity, and ability to accomplish the mission without sacrificing his Soldiers' welfare and morale. e. He requests removal of the GOMOR, which has been transferred to the restricted folder of his AMHRR. The GOMOR preceded the relief-for-cause NCOER and had a direct impact on the rating. 3.On 20 June 2014, Major General B____, Commander, U.S. Army RecruitingCommand, Fort Knox, KY, reprimanded the applicant in writing for his abuse of powerwhich resulted in a hostile work environment. He stated the applicant's leadership stylecould reasonably be perceived as threatening and intimidating and his behavior createda work environment filled with unnecessary tension when he failed to treat hissubordinates with dignity and respect. There was no excuse for his irresponsible andimproper behavior and further incidents of this nature might result in more serious actionbeing taken against him. The GOMOR was imposed as an administrative measure andnot as punishment under the Uniform Code of Military Justice. 4.On 27 June 2014, the applicant acknowledged receipt of the GOMOR and elected tosubmit matters in extenuation, mitigation, or rebuttal. 5.On 15 July 2014, the applicant submitted a rebuttal statement to the imposingauthority wherein he disputed the allegations of abuse of power, creation of a hostilework environment, and improper threatening of subordinates. Despite carefulconsideration to the investigating officer's report and evidentiary information in supportof it and/or the allegations against him, he stated he could not conclude that theevidence was substantial enough to support the allegations. Regarding the claimedbehavioral violations, he took full responsibility for his actions and conduct as the centercommander. He stated he does not shy away from responsibility for negative results,which are the direct and proximate outcome of his mistakes. As relates to the imposing authority's reprimand and the allegations, he was truly sorry if his leadership methodology was contrary to that which the imposing authority would have him employ. He has given much to the Army and he hoped the imposing authority would give him an opportunity to move forward with the knowledge that his leadership methods could be changed. 6.On 30 September 2014 after carefully considering the circumstances of misconductand all matters submitted by the applicant in defense, extenuation, or mitigation, theimposing authority directed permanently filing the GOMOR in the applicant's AMHRRperformance folder. 7.He received a relief-for-cause NCOER covering the period 25 October 2013 through8 October 2014. a.Part IVa (Army Values) shows his rater marked the "NO" blocks for Loyalty, Duty,Respect/Equal Opportunity/Equal Employment Opportunity, Selfless-Service, Honor, and Integrity. b.Part IVd (Leadership) shows his rater marked the "Needs Improvement (Much)"block. c.Part IVf (Responsibility and Accountability) shows his rater marked the "NeedsImprovement (Much)" block. d.Part Va (Overall Potential for Promotion and/or Service in Positions of GreaterResponsibility) shows he was rated "Marginal" by his rater. e.Part Vc (Overall Performance) shows he was rated "Poor" by his senior rater. 8.The memorandum from the Chief, Force Alignment Division, U.S. Army Human Resources Command, dated 28 September 2015, subject: Department of the Army Consideration for Denial of Continued Active Duty Service under the Qualitative Management Program (QMP), states the QMP Selection Board conducted a comprehensive review of the applicant's record for potential denial of continued service under the QMP and recommended his retention. The Director of Military Personnel Management approved the board's recommendation and the applicant was allowed to remain on active duty until the established retention control point for his grade.9.On 6 March 2016, LTG M____, Commander, U.S. Army Training and Doctrine Command, Fort Eustis, VA, directed the applicant's reinstatement as a recruiter. He stated the information in the applicant's file did not call into question his character, conduct, or personal integrity and he was still best suited to serve in a position of significant trust and authority. 10.The applicant appealed to the Department of the Army Suitability Evaluation Board(DASEB) for transfer of his relief-for-cause NCOER and GOMOR to the restricted folderof his Official Military Personnel File (OMPF). 11.On 11 September 2017, the DASEB directed transfer of the GOMOR, dated20 June 2014, to the restricted folder of the applicant's AMHRR. The DASEBdetermined the applicant provided sufficient evidence to show the GOMOR served itsintended purpose. 12.His annual NCOER covering the period 29 June 2015 through 27 June 2016 showshe was rated "Exceeded Standard" by his rater for his overall performance and he wasrated "Highly Qualified" by his senior rater for overall potential. 13.His extended annual NCOER covering the period 28 June 2016 through27 September 2017 shows he was rated "Far Exceeded Standard" by his rater for hisoverall performance and he was rated "Most Qualified" by his senior rater for overallpotential. 14.His annual NCOER covering the period 28 September 2017 through 27 September2018 shows he was rated "Far Exceeded Standard" by his rater for his overallperformance and he was rated "Highly Qualified" by his senior rater for overall potential. 15.He provided seven letters of recommendation attesting to his performance as aleader and recruiter to be one of the most professional, dedicated, proficient, motivated,respected, effective, well-rounded Soldier, and one who exceeded all expectations byconsistently striving for excellence. a.His chain of command, from the first sergeant to the company and battalioncommanders, stated they would recommend him for the position of first sergeant and would gladly have him working for them. In addition, he was identified as possessing all of the traits of a superior senior NCO who holds all his Soldiers equally accountable for their actions, good or bad, and his team was recognized for being the top recruiting station of the quarter. All of the leaders recommended removal of the relief-for-cause NCOER and GOMOR from the applicant's AMHRR. b.The McKinney Recruiting Company Commander, stated the applicant was underher command since April of 2014 and had displayed dedication above what was required by his position, on countless occasions. She further states that both the GOMOR and the relief-for-cause NCOER were issued prematurely and she supported for both documents to be removed so the applicant could continue his career and excel in the U.S. Army. c.The McKinney Recruiting Company First Sergeant stated the applicant was thecenter leader who was responsible for rating and mentoring 16 NCOs and he observed the applicant not only as his first sergeant, but as his rater and senior rater for the 16 NCOs who worked for the applicant. The Battalion Commander and Command Sergeant Major directed him to process a command directed relief-for-cause NCOER on the applicant, against his will, due to an IG complaint. He stated the Soldiers who made statements against the applicant were the same Soldiers who caused issues within the center and did not want to perform. These same Soldiers were either out of the Army or received Uniform Code of Military Justice actions. BOARD DISCUSSION: After review of the applicant and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions were carefully considered. Based upon the preponderance of evidence, the Board agreed the supporting documents show the NCOER was baseless and the GOMOR served its purpose. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX:XXX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by .removing DA Form 2166-8 covering the rating period 25 October 2013 through8 October 2014 from his OMPF; and .removing GOMOR, dated 20 June 2014, from his OMPF X 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. ADMINISTRATIVE NOTE(S): Not applicable. REFERENCES: 1.Title 10, U.S. Code, section 1552(b), provides that applications for correction ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the ABCMR to excuse an applicant's failureto timely file within the 3-year statute of limitations if the ABCMR determines it would bein the interest of justice to do so. 2.Army Regulation 15-185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy acting through the ABCMR. The ABCMR begins its consideration of each casewith the presumption of administrative regularity. It is not an investigative body. Theapplicant has the burden of proving an error or injustice by a preponderance of theevidence. 3.Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy forcompleting evaluation reports and associated support forms that are the basis for theArmy's Evaluation Reporting System. a.Paragraph 3-55 (Relief-for-Cause Evaluation Report) states a relief-for-causeNCOER (code 05) is required when an NCO is relieved for cause. An NCO can be relieved for cause regardless of the rating period involved; however, a waiver is required to render relief-for-cause NCOERs covering a period of less than 30 days. Relief-for-cause is defined as the removal of an NCO from a specific duty or assignment based on a decision by a member of the NCO's chain of command or supervisory chain. A relief for cause occurs when the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army. b.Paragraph 3-55d states the relief-for-cause NCOER must specifically indicatewho directed the relief of the rated NCO and the rating official directing the relief will clearly explain the reason for the relief in his or her portion of the NCOER. c.Paragraph 3-55e states if the relief is directed by an official other than the rater orsenior rater, the official directing the relief will describe the reasons for the relief in an enclosure to the NCOER. d.Paragraph 4-7a (Policies) states an evaluation report accepted for inclusion in theofficial record of a rated Soldier's OMPF is presumed to: (1) be administratively correct, (2) have been prepared by the proper rating officials, and (3) represent the considered opinion and objective judgment of the rating officials at the time of preparation. e. Paragraph 4-7b states 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. f. Paragraph 4-7c states 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. g. Paragraph 4-8 (Timeliness) states 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. h. Paragraph 4-11 (Burden of Proof and Type of Evidence) 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 action is warranted to correct a material error, inaccuracy, or injustice. i. Paragraph 4-11b states 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. j. Paragraph 4-11d states 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. k. Paragraph 4-11e states no appeal may be filed solely because the information on a support form or counseling form was omitted from an evaluation, or because the comments of rating officials on the evaluation report are not identical to those in the applicable support form or counseling form. While there will be consistency between a rating official's comments on both forms, there may be factors other than those listed on a support form or counseling form to be considered when evaluating a rated Soldier. In addition, no appeal may be filed solely based on the contention that the appellant was never counseled. l. Paragraph 4-13a (Appeals Based on Substantive Inaccuracy) states a decision to appeal an evaluation report will not be made lightly. Before deciding whether or not to appeal, the prospective appellant will analyze the case dispassionately. This is difficult, but unless it is done, the chances of a successful appeal are reduced. The prospective appellant will note that: (1) pleas for relief citing past or subsequent performance or assumed future value to the Army are rarely successful; and (2) limited support is provided by statements from people who observed the appellant's performance before or after the period in question (unless performing the same duty in the same unit under similar circumstances); letters of commendation or appreciation for specific but unrelated instances of outstanding performance; or citations for awards, inclusive of the same period. m. Paragraph 4-13b states once the decision has been made to appeal an evaluation report, the appellant will state succinctly what is being appealed and the basis for the appeal. For example, the appellant will state: (1) whether the entire evaluation report is contested or only a specific part or comment; and (2) the basis for the belief that the rating officials were not objective or had an erroneous perception of their performance. Note that 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. n. Appendix H, paragraph H-13 (Mandatory NCOERs), states a relief-for-cause evaluation report is required if an NCO is relieved for cause. 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) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by an appropriate authority (DASEB or the ABCMR). //NOTHING FOLLOWS//