ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20180009750 APPLICANT REQUESTS: correction of his DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the periods 5 August 2013 through 4 August 2014 and 5 August 2015 through 1 October 2016. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record), dated 5 September 2018 * DA Form 2166-8 covering the period 5 August 2013 through 4 August 2014 * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 26 September 2014 * DA Form 2166-8 covering the period 5 August 2015 through 1 October 2016 * Letter, Headquarters, U.S. Army Reserve Command, dated 29 November 2016 * Congressional correspondence FACTS: 1. The applicant states, in effect, his NCOERs covering the periods 5 August 2013 through 4 August 2014 and 5 August 2015 through 1 October 2016 contain substantive errors. a. His annual NCOER covering the period 5 August 2013 through 4 August 2014 contains the following errors: (1) In Part IVa3 (Army Values), the bullet comments do not coincide with the "NO" rating in "Respect/Equal Opportunity/Equal Employment Opportunity." (2) In Part IVd (Leadership), the "Needs Improvement (Some)" rating has no supporting documentation, he was not counseled or approached by his leadership, and the NCOER shows no counseling dates. (3) In Part Ve (Senior Rater Bullet Comments), the senior rater stated there were findings that he committed an act of sexual harassment, but according to his DA Form 268, the commander's investigation was closed favorably without findings.? b. His annual NCOER covering the period 5 August 2015 through 1 October 2016 contains the following errors: (1) In Part IVc (Character), his "Did Not Meet Standard" rating had one negative bullet comment for using his personal credit card to pay for hotel fees. Using his personal credit card did not negatively impact completion of the mission as stated by Department of the Army Pamphlet 623-3 (Evaluation Reporting System) in the definition of "Did Not Meet Standard." The squad leader was informed that his government credit card was not active at the time of the mission; therefore, it was not available for use. (2) In Part IVd (Presence), the incident referenced in the comments was a one- time event, which did not merit the given rating. (3) In Part V (Senior Rater Overall Potential), his "Not Qualified" rating and the senior rater's comments were based on the unjust ratings given throughout the evaluation. The comments should be reevaluated. 2. Having prior enlisted service in the Regular Army, the applicant enlisted in the U.S. Army Reserve on 16 March 2011 in the rank/grade of specialist/E-4. 3. On 1 January 2013, he was promoted to the rank/grade sergeant/E-5. 4. His NCOER covering the period 5 August 2013 to 4 August 2014 shows in: a. Part IVa3, his rater marked the "No" block for "Respect/EO/EEO" and entered the comment: "demonstrated a lack of respect towards another Soldier"; b. Part IVd (Leadership), his rater marked the "Needs Improvement (Some)" block and entered the comment: "failed to execute his duty as a leader to create a culture of respect by making inappropriate sexual remarks"; and c. Part Ve, his senior rater commented: "does not support the SHARP [Sexual Harassment/Assault Response and Prevention] program due to a substantiated finding that the soldier committed an act of sexual harassment." 5. The DA Form 268, dated 26 September 2014, shows an adverse action flag was removed effective 26 September 2014 and the case was closed favorably. His records do not contain the initial flagging action. 6. He provided a letter from the Deputy Chief of Staff, G-1, Headquarters, U.S. Army Reserve Command, to his Congressional representative, dated 29 November 2016, in response to his inquiry on behalf of the applicant. The G-1 advised him that: a. The U.S. Army Reserve Command SHARP Program Manager had no record of any report pertaining to the applicant for any incident of sexual harassment in the Army Integrated Case Reporting System. Neither the 355th Theater Signal Command nor the 76th Operational Response Command SHARP Program Offices have a record of any substantiated or reported sexual harassment complaint against the applicant. b. The U.S. Army Reserve Command directed the 379th Chemical Company to conduct a Commander's Inquiry into the applicant's allegations that the NCOER comments were erroneous. Once completed, the results of the Commander's Inquiry would be provided to the applicant by his chain of command. c. The applicant had the option of appealing his NCOER using the guidelines prescribed in Army Regulation 623-3 (Evaluation Reporting System), chapter 4. 7. His annual NCOER covering the period 5 August 2015 to 1 October 2016 shows in: a. Part IVc, his rater marked the "Did Not Meet Standard" block and entered the comment: "verbally counseled by rater on 13AUG16 [13 August 2016] for failure to use government travel card instead of personal to pay off hotel debt after GOVCC [government charge card] was activated." b. Part IVd (Presence), his rater marked the "Did Not Meet Standard" block and entered the comment: "corrective counseling by the Platoon Sergeant for failure to maintain his military bearing." c. Part IVi (Rater Overall Performance), his rater entered the comment: "requires supervision to complete some tasks in a proper military fashion." d. Part V (Select One Box Representing Rated NCO's Potential Compared to Others in the Same Grade Whom You Have Rated in Your Career), his senior rater marked the "Not Qualified" block and entered the comments: "[Applicant] is a good Soldier, he is still in need of maturing and understanding the silent professional in the counterintelligence field. Given more time and reflection on the purpose and national security implications becoming a badged and credentialed CI [Counter-Intelligence] Special Agent, [Applicant] has the potential for entering the program." 8. His Army Military Human Resource Record (AMHRR) is void of any evidence showing he appealed his NCOERs covering the periods 5 August 2013 through 4 August 2014 and 5 August 2014 through 1 October 2016 under the provisions of Army Regulation 623-3 and Department of the Army Pamphlet 623-3. 9. His AMHRR is void of any evidence of a Commander's Inquiry, substantiated sexual harassment findings, or unfavorable actions.? 10. His NCOERs covering the periods 5 August 2013 through 4 August 2014 and 5 August 2014 through 1 October 2016 are filed in the performance folder of his AMHRR. BOARD DISCUSSION: 1. The Boar carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the contested NCOERs, administrative requirements for evaluations and the lack of documentation associated with alleged sexual harassment complaint. The Board found insufficient evidence to determine that the contested comments in the applicant’s NCOER for the period 5 August 2015 – 1 October 2016 were in error or unjust. Considering the memorandum provided from the USARC G1 in response to a member of Congress and the statement of the USARC SHARP Program Manager, as well as the lack of a Commander’s Inquiry or and the favorable closure of the Flagging action, the Board determined that a correction to the NCOER for the period 5 August 2013 – 4 August 2014 was appropriate. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s NCOER for the period 5 August 2013 – 4 August 2014 as follows: - Part IV a. Army Values, 3. Respect/EO/EEO – “X Yes” vice “X No”; - Part IV a. Army Values, Bullet Comments – redact bullet three “demonstrated a lack of respect towards another Soldier”; - Part IV (Rater) Values/NCO Responsibilities, d. Leadership – “X Success (Meets std)” vice “X Needs Improvement (Some); - Part IV (Rater) Values/NCO Responsibilities, d. Leadership – Redact bullet three “failed to execute his duty as a leader to create a culture of respect by making inappropriate sexual remarks”, and; - Part V Overall Performance and Potential, e. Senior Rater Bullet Comment -redact final bullet “does not support the SHARP program due to a substantiated finding that the soldier committed an act of sexual harassment.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to relief in excess of that described above. 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. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) 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. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flag)) prescribes Army policy for the suspension of favorable personnel actions (flag) function of the military personnel system. The purpose of a flag is to prevent and/or preclude execution of favorable actions to a Soldier who may be in an unfavorable status (not in good standing). The flag is not the final disposition. A flag is emplaced during some type of disciplinary or administrative action until that action is concluded. The flag should be initiated within 3 working days after identification of the Soldier's unfavorable status and removed within 3 working days after determination of the final disposition. The DA Form 268 and supporting documentation removing a flag must be maintained for 1 year by the unit or the Human Resources Office controlling the flagging action. The DA Form 268 will not be filed in the AMHRR except as an allied document to disciplinary, separation, or other actions. 3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. Unfavorable information will not be filed in the AMHRR unless the recipient has been given the opportunity to review the documentation that serves as the basis for the proposed filing and a reasonable amount of time to make a written statement in response. 4. Army Regulation 623-3 (Evaluation Reporting System) prescribes policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 1-11 states when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, he or she will conduct an inquiry into the matter. The Commander's or Commandant's Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by Headquarters, Department of the Army (HQDA), and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. b. Paragraph 3-4 states failure to comply with any or all support form or counseling requirements will not constitute the sole grounds for appeal of an evaluation report. c. Paragraph 3-20 states any mention of unproven derogatory information in an evaluation report can become an appealable matter if the derogatory information is shown to be unfounded. Any verified derogatory information may be entered in 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 3-37 states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. Requests for modifications to evaluation reports already posted to a Soldier's AMHRR require use of the Evaluation Report Redress Program. Requests that a completed evaluation report filed in a Soldier’s AMHRR be altered, withdrawn, or replaced with another evaluation report will not be honored if the request is based on requests that ratings be revised. For evaluation reports that have been completed and filed in a Soldier's AMHRR, administrative and substantive appeals will be submitted within 3 years of an evaluation report "Thru" date. e. Paragraph 4-3 states commanders and commandants are required to look into alleged errors, injustices, and illegalities in evaluation reports. f. Paragraph 4-5 states a Commander's or Commandant's Inquiry will not be used to document differences of opinion among members of the rating chain about a rated Soldier's performance and potential. The evaluation system establishes rating chains and normally relies on the opinions of the rating officials. Rating officials will evaluate a rated Soldier and their opinions constitute the organization's view of that Soldier. However, the Commander may determine through inquiry that the report has serious irregularities or errors. Examples include: (1) inaccurate or untrue statements and (2) lack of objectivity or fairness by rating officials. g. Paragraph 4-5i states the results of the inquiry forwarded to HQDA will include the findings, conclusions, and recommendations in a memorandum that will be filed with the evaluation report in the rated Soldier's AMHRR for clarification purposes. h. Paragraph 4-5j states that if the commander finds no fault with the evaluation, then the Commander's or Commandant's Inquiry is filed locally and a copy given to the rated Soldier. There is no requirement to send the Commander's or Commandant's Inquiry forward to HQDA. 6. 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 Official Military Personnel File, 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 ABCMR or other authorized agency. ABCMR Record of Proceedings (cont) AR20180009750 2 1