ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20180008770 APPLICANT REQUESTS: a. removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 15 September 2015 through 15 December 2015 from his Army Military Human Resources Record (AMHRR) or b. correction of Part IVa(3) (Respect/ Equal Opportunity (EO)/Equal Employment Opportunity (EEO) to show "YES" and removal of the bullet comment: "Soldier displayed unsatisfactory actions by initiating verbal and physical altercation with leadership." 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Email, Applicant and U.S. Army Human Resources Command (HRC), dated 26 February 2018, subject: NCOER Appeal * Letter, Applicant, dated 9 April 2018, with 21 enclosures: * NCOER covering the period 15 September 2015 through 15 December 2015 * DA Form 31 (Request and Authority for Leave) * DA Form 137-1 (Unit Clearance Record), dated 30 November 2015 * DA Form 137-2 (Installation Clearance Record), dated 11 December 2015 * Email, Applicant and Mr. S____, Chief, Training Support Division, Communications and Electronics Command (CECOM), dated 1 October 2015, subject: Duty Position * Memorandum for Record, Applicant, dated 1 October 2015, subject: Duty with Logistics Enterprise Operations (LEO) * Email, Applicant and Mr. B____, Chief, Force Modernization Branch, CECOM, dated 6 October 2015, subject: Update Request: Working in LEO * CECOM Master Rating Scheme, dated 19 November 2015 * Commander's Inquiry with allied documents * Excerpt, Department of the Army Pamphlet 623-3 (Evaluation Reporting System) * Memorandum, Sergeant First Class (SFC) (Retired) J____, dated 10 April 2018, subject: Supporting Statement for Evaluation Report Appeal of (Applicant) * DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 10 October 2015, with allied documents * DA Form 2823 (Sworn Statement), Mr. S____, dated 28 October 2015 * Email, Mr. K____, dated 10 November 2015, subject: National American Indian Heritage Month * Email, Applicant and SFC C____, Logistics and Readiness Center NCO in Charge (NCOIC), CECOM, dated 13 November 2015, 9 December 2015, and 24 March 2016, subject: Submitted to HRC * Email, Applicant and SFC W____, Field Support Division NCOIC, CECOM, dated 14 July 2016 and 20 July 2016, subject: (Applicant) Change of Rater NCOER – Signature Needed * Email, Captain B____ and SFC W____, dated 19 July 2016, subject: (Applicant) Officer Evaluation Report (should read NCOER) * Email, Applicant and Mr. S____, Chief, Training Support Division, CECOM, dated 16 August 2016, subject: Update REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policy and tasks for the Army's Evaluation Reporting System focused on the assessment of performance and potential. a. Paragraph 2-5 (Rules for Designating a Rater) stated the rater will be the immediate supervisor of the rated Soldier responsible for directing and assessing the rated NCO's performance. The rater will be the supervisor for a minimum period of 90 calendar days. b. Paragraph 2-7 (Rules for Designating a Senior Rater) stated the senior rater will be the immediate supervisor of the rater. The senior must have been designated as the rated NCO's senior rater for a minimum period of 60 calendar days. c. Paragraph 2-8 (Rules for Designating a Supplementary Reviewer) stated the reviewer will be an Army 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. d. Paragraph 4-3 (Commander's or Commandant's Inquiry – Purpose) stated alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the Commander's attention by the rated Soldier or anyone authorized access to report. The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correct error before they become a matter of permanent record. e. Paragraph 4-7 (Policies) stated an evaluation report accepted inclusion in the official record of a rated Soldier's Official Military Personnel File (OMPF) is presumed to be administratively correct, to have been prepared by the proper rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation. f. Paragraph 4-7f stated 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. g. Paragraph 4-11 (Burden of Proof and Type of Evidence) stated the burden of proof in the appeal process 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. h. Paragraph 4-13 (Appeals Based on Substantive Inaccuracy) stated 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 NCO's 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. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) prescribes the policy and tasks for the Army's Evaluation Reporting System focused on the assessment of performance and potential. a. Table 3-1 (Administrative Data for DA Form 2166-8) stated the period covered is the period extending from the day after the "THRU" date of the last NCOER to the date of the event causing the NCOER to be written. The rating period is that period within the period covered during which the rated NCO serves in the same position under the same rater who is writing the NCOER. The period covered and the rating period will always end on the same date (the "THRU" date of the NCOER). The beginning date of the rating period may not be the same as the "FROM" date of the NCOER. For example, an NCO departs on permanent change of station on 1 July and is given a change-of-rater NCOER with a "THRU" date of 30 June. After 5 days in travel and 20 days on leave, the NCO reports for duty on 26 July. On 1 November, the NCO is assigned to a new position and changes rater; he or she is given a change-of-rater NCOER. The period covered on this NCOER would be 1 July ("FROM" date) to 31 October ("THRU" date); however, the rating period would be from 26 July to 31 October. Note: The "THRU" date on change-of-rater and change-of-duty NCOERs will be the day before the change. For rated NCOs signing out on transition leave, the "THRU" date will be the rated NCO's final duty day in the assigned duty position before transition leave begins. b. Table 3-4 (Army Values/Attributes/Skills/Actions and Values/NCO Responsibilities for DA Form 2166-8) stated for NCOs who are found with substantiated Sexual Harassment/Assault Response and Prevention (SHARP), EO, and/or EEO complaints resulting from an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation or other official investigation by military or civil authorities, a "NO" entry will be annotated in Part IVa3 (Respect) and a bullet comment: "does not support SHARP, EO, and EEO" will be annotated by the rater in Part IV. Additionally, the senior rater will annotate a bullet comment in Part Ve, as appropriate. c. Table 3-5 (Overall Performance for DA Form 2166-8) stated when the senior rater does not meet minimum time requirements for evaluation of the rated NCO, he or she will enter the following statement: "senior rater does not meet minimum qualifications." Part Vc and Part Vd will not be completed, but the senior rater will sign the NCOER. Otherwise, bullet comments are mandatory. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the Army Board for Correction of Military Records or other authorized agency. FACTS: 1. The Applicant states the basis for his request is multiple administrative and/or substantive errors contained in the NCOER: * the rating period for the NCOER is not accurate due to the through date showing 15 December 2015 when he had signed out of the unit on permanent change of station leave on 14 December 2015 * the rating chain was not in accordance with Army Regulation 623-3 * no information was requested from him during the Commander's Inquiry * Part IV3 (Respect/EO/EEO) was checked "NO" and the bullet comments were derogatory * both the block checked and the bullet comments were in contradiction of Department of the Army Pamphlet 623-3 * he was never subjected to any form of an Army Regulation 15-6 investigation or other official investigation by military or civil authorities pertaining to any SHARP, EO, or EEO event 2. The applicant was serving in the Regular Army in the rank/grade of SFC/E-7 when he received nonjudicial punishment and an unfavorable NCOER. 3. He provided a copy of his unit's Master Rating Scheme with an effective date of 27 October 2005 showing his rater as S____ and his senior rater as F____. The Master Rating Scheme effective 19 November 2015 shows the applicant's same rater as S____, his new senior rater as R____, and his reviewer as F____. 4. He provided his DA Form 31 (Request and Authority for Leave), dated 23 September 2015, approving his leave request for 14 December 2015 through 10 January 2016. 5. He received nonjudicial punishment under Article 15, UCMJ, on 10 November 2015 for assaulting SFC C____ by pushing him onto a chair and table top in his office on or about 28 October 2015. His company commander directed placement of the DA Form 2627 in the restricted folder of the applicant's OMPF. 6. U.S. Army Garrison, Aberdeen Proving Ground, Orders 267-0032, dated 24 September 2015, ordered his permanent change of station to Camp Arifjan, Kuwait, effective 10 January 2016. 7. He provided his DA Form 137-2 showing his departure date as 2 December 2015. 8. A review of the applicant's AMHRR shows the NCOER covering the period 15 September 2015 through 15 December 2015 is filed in his performance folder. a. Part Ig (Administrative Data – Reason for Submission) shows this was a change- of-duty report. b. Part IIe (Authentication – Rated NCO) shows the applicant did not sign the NCOER. c. Part IVa3 (Respect/EO/EEO) shows the rater marked "NO" and commented: "Soldier displayed unsatisfactory actions by initiating verbal and physical altercation with leadership" and "Supported EO/EEO by assisting post EO office with monthly observances." d. Part V (Overall Performance and Potential) shows the rater marked "Fully Capable." The senior rater commented: "senior rater does not meet minimum qualifications" and "rated Soldier refused to sign." 9. On 26 March 2016, the applicant requested a Commander's Inquiry, wherein he stated: a. The NCOER did not meet the required 90 days in order to receive a change of rater NCOER, there were violations of the published rating scheme, and the NCOER was not completed objectively. b. The NCOER includes unproven derogatory information. The leadership failed to complete a formal investigation pertaining to any alleged misconduct. The opportunity for a fair non-biased interaction between Mr. S____, the rater, and himself was not possible due to the intrusive and aggressive interference of SFC C____. SFC C____ was not a rating official but felt that he had a say in his rating process due to his position in the Logistics and Readiness Center. 10. The Commander's Inquiry Report, dated 25 May 2016, shows the Commanding General, Headquarters, CECOM, concluded the following: a. The rater met the minimum rating requirement of 90 days. b. The senior rater did not meet the minimum rating requirement of 60 days due to a change to the published rating chain during the month of November 2015. c. Regarding unproven derogatory information, the applicant received UCMJ proceedings under Article 15 on 10 November 2015. He was found guilty of assault and was punished with an oral reprimand. Because of the actions underlying the applicant's UCMJ action, the rater determined the applicant did not treat others with dignity and respect. d. He was unable to confirm the allegations of interference from members of the chain of command outside of the published rating chain. e. He recommended administratively correcting the NCOER to include a lack of senior rater qualifications, then processing and filing in the applicant's OMPF. 11. Section IX (Assignment Information) of his Enlisted Record Brief shows he was assigned to Headquarters, Communications Electronics Command, Aberdeen Proving Ground, as a senior instructor from 31 August 2012 through 12 January 2016. 12. He retired on 31 January 2018. His DD Form 214 shows he completed 24 years, 1 month, and 29 days of total active service. His service was characterized as honorable. 13. On 26 February 2018, HRC notified the applicant the Army Suitability Review Board would not accept appeals from Soldiers who are no longer on active duty in accordance with Army Regulation 623-3, chapter 4. Those who are separated from active duty should make applications to the Army Board for Correction of Military Records. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and regulatory requirements. The Board noted the facts presented above. The Board noted the results of a commander’s inquiry on the applicant’s NCOER and the commanding general’s thorough review and consideration of the evidence. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s subject NCOER. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :XXX 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008770 8 1