ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 






IN THE CASE OF:   
BOARD DATE:  24 October 2019 
DOCKET NUMBER:  AR20180016028 


APPLICANT REQUESTS: 

.removal of the relief-for-cause DA Form 2166-8 (Noncommissioned OfficerEvaluation Report (NCOER)) covering the period 1 March 2013 through9 October 2013 and accompanying documents from his Official MilitaryPersonnel File (OMPF)

.reimbursement of fees he paid as a result of the improper Inspector General (IG)investigation, to include attorney fees and storage fees

.reimbursement of the $750.00 in pay for 2 months as part of his nonjudicialpunishment (NJP)

.reimbursement of the State taxes that were deducted from his back pay by theDefense Finance and Accounting Service (DFAS)

.consideration for promotion by a Standby Advisory Board (STAB) when his relief-for-cause NCOER is removed from his OMPF



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)

.DA Form 2166-8 covering the period 1 March 2013 through 9 October 2013

.Letter, Office of the IG, Records Release Office, Washington, DC, dated2 August 2016, with attachments – DA Forms 1559 (IG Action Request)

.Letter, Freedom of Information Act Office, U.S. Army Installation ManagementCommand, Fort Bragg, NC, dated 23 September 2016, with attachments –



.DA Form 2627 (Record of Proceedings under Article 15, Uniform Code ofMilitary Justice (UCMJ))

.DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ)



.Record of Proceedings, Docket Number AR20170018740, Army Board forCorrection of Military Records (ABCMR), dated 12 July 2018

.Letter, ABCMR, dated 7 September 2018


.Memorandum, U.S. Army Human Resources Command, Fort Knox, KY, dated7 November 2018, subject:  Headquarters, Department of the Army, STAB(Applicant)

.Release of Information Invoice, dated 25 August 2017

.Receipts, Legal Fees, dated 1 August 2017 and 17 August 2017

.Tenant History, All American Airborne Self Storage, Raeford, NC, dated 23 April2018



FACTS: 

1.The applicant states:

.the decision in ABCMR Docket Number AR20170018740 granted him full relief

.the NCOER was written during the period of suspension of the same NJP underArticle 15 that was appealed in ABCMR Docket Number AR20170018740

.his date of rank to staff sergeant (SSG)/E-6 of 1 July 2008 was restored – theNCOER is invalid for that reason and because the NCOER mentions the UCMJaction that was appealed

.he is seeking reimbursement of anything he had to pay as a result of theimproper investigation by the Fort Bragg IG and every after effect of theregulatory violations committed by personnel found guilty as a result of thedecision of ABCMR Docket Number AR20170018740, including attorney fees inpursuit of ABCMR consideration and storage costs

.DFAS did not repay the $750.00 in pay for 2 months that was part of his NJPeven though it was directed in ABCMR Docket Number AR20170018740

.DFAS did reimburse his adjusted back pay from rank/grade sergeant (SGT)/E-5to SSG/E-6 for the period 22 April 2013 through 31 May 2017 and updated hisretired pay for the rate of SSG/E-6

.the State taxes that were taken from his back pay should be reimbursed – hewas not subject to State taxes while he was serving on active duty from 22 April2013 through 31 May 2017

.he deserves to be reconsidered for promotion to the rank/grade ofsergeant first class (SFC)/E-7 when the relief-for-cause NCOER is removed fromhis OMPF



3.At the time the relief-for-cause NCOER was rendered, he was serving in RegularArmy in the rank/grade of SSG/E-6 as the Transmission Systems Section Chief,Company A, 50th Signal Battalion.

4.On 22 April 2013, NJP was imposed against him under the provisions of Article 15,UCMJ, for:

a.failure to go at the time prescribed to his appointed place of duty, a0600 accountability formation, without authority on or about 8 August 2012; 

b.failure to go at the time prescribed to his appointed place of duty, a 1330 medicalappointment without authority on or about 17 October 2012; 

c.failure to go at the time prescribed to his appointed place of duty, the0630 accountability formation, without authority on or about 5 March 2013; 

d.failure to go at the time prescribed to his appointed place of duty, the0630 accountability formation without authority on or about 12 March 2013; 

e.dereliction in the performance of his duties by willful failure to follow the rules ofprotocol when escorting a detainee from on or about 18 March 2013 to about 20 March 2013; 

f.dereliction in the performance of his duties by willful failure to guard his platoon'sequipment on or about 0905, 26 March 2013; 

g.dereliction in the performance of his duties by willful failure to guard his platoon'sequipment on or about 1342, 26 March 2013; and 

h.failure to go at the time prescribed to his appointed place of duty, the0630 accountability formation, without authority on or about 4 April 2013. 

5.He did not demand trial by court-martial and requested a closed hearing.

6.On 22 April 2013, the imposing commander found the applicant guilty of allspecifications and directed placement of the DA Form 2627 in the performance folder ofhis OMPF.  His punishment included reduction in rank/grade to SGT/E-5, suspended, tobe automatically remitted if not vacated before 19 October 2013; forfeiture of $750.00pay per month for 2 months, $750.00 pay suspended, to be automatically remitted if notvacated before 22 May 2013; and extra duty for 45 days.  He did not submit any mattersfor consideration.

7.On 3 October 2013, suspension of the applicant's reduction to SGT/E-5 was vacatedfor failure to go at the time prescribed to his appointed place of duty, the0630 accountability formation, without authority on or about 27 September 2013.  Hewas not given an opportunity to rebut nor present matters for consideration at thevacation proceedings.

8.His OMPF contains the relief-for-cause NCOER covering the period 1 March 2013through 9 October 2013 rendered on 18 and 22 October 2013.

a.Part Ig (Reason for Submission) contains the entry "Relief for cause."

b.Part II (Authentication) shows the applicant did not sign the NCOER.

c.Part IV (Army Values/Attributes/Skills/Actions) shows the rater marked "NO" forDuty, Honor, and Integrity, and entered the following bullet comments: 

.performed well below expected standards; counseled repeatedly formisconduct

.struggled with taking personal responsibility for his actions

.remained loyal to the unit and fellow Soldiers



d.Part IVb (Competence) shows the rater checked "Needs Improvement (Much)"and entered the following bullet comment:  "lacked the necessary judgement to make sound decisions and accomplish tasks above menial." 

e.Part IVc (Physical Fitness and Military Bearing) shows his rater checked "NeedsImprovement (Much)" and entered the following bullet comments: 

.displayed a complete lack of confidence; carried himself with weakness and alack of authority necessary to endure

.exhibited a lack of pride and consistency in military appearance



f.Part IVd (Leadership) shows his rater checked "Needs Improvement (Much)" andentered the following bullet comment:  "removed from his leadership position by the battalion CSM [command sergeant major] due to repeated failure and misconduct." 

g.Part IVf (Responsibility and Accountability) shows his rater checked "NeedsImprovement (Much)" and entered the following bullet comments: 

.exhibited a lack of personal responsibility through multiple failure to reportviolations thus setting a poor example for Soldiers to emulate

.the rated NCO has been notified of the reason for the relief



h.Part Va (Overall Potential for Promotion and/or Service in Positions of GreaterResponsibility) shows the rater checked "MARGINAL." 

i.Part Vc (Overall Performance) shows the senior rater checked "Poor/5."

j.Part Vd) (Overall Potential for Promotion and/or Service in Positions of GreaterResponsibility) shows the senior rater checked "Poor/5." 

k.Part Ve (Senior Rater Bullet Comments) shows the senior rater entered thefollowing bullet comments: 

.do not promote

.do not send to the Senior Leader Course

.potential is minimal; continued service is not recommended


.struggles with simple tasks; requires constant guidance to accomplish themission

.repeatedly failed the conditions of his suspension of rank and was thereforereduced

.rated Soldier refused to sign



9.The battalion command sergeant major completed the "Relief for Cause NCOERDirected by an Official Other Than the Rater or Senior Rater" and entered the reason forrelief as "[Applicant's] vacation of suspended rank under UCMJ on 3 October 2013resulted in a relief of his duties as a Transmission System Section Chief and he wasreduced to SGT/E-5 with a DOR [date of rank] of 22 April 2013 per the conditions of hissuspension."

10.On 25 October 2013, the brigade commander amended the DA Form 2627 by liningthrough the comment "SM [service member] did not submit any matters forconsideration" and added the comment "Having considered new matters recentlypresented, there is no change to previous decision.  Appeal is denied."

11.The DD Form 2627 and allied documents are not filed in the performance orrestricted folders of the applicant's OMPF.  There is no evidence showing the NJP wasremitted.

12.On 12 July 2018, the ABCMR granted his request for relief and recommendedcorrecting all Department of the Army records concerning the applicant by:

a.amending his DD Form 214 for the period ending 31 May 2018 to show theeffective date of his pay grade to SSG/E-6 as 1 July 2008; 

b.reimbursing him all forfeitures of pay, if collected, and paying him all back payand allowances due as a result of being reinstated to his previous rank of SSG/E-6 with a date of rank of 1 July 2008; 

c.submitting his records before STABs for consideration for promotion to SFC/E-7under the applicable criteria for calendar years 2013 through 2017; 

d.if selected for promotion to SFC/E-7 by a STAB, establishing his SFC/E-7promotion effective date and date of rank as if he had been originally selected under the earlier criteria identified by the STAB and paying him associated back pay and allowances; and 

e.if not selected for promotion to SFC/E-7 by a STAB, so notifying him.

13.On 7 November 2018, the U.S. Army Human Resources Command notified theapplicant that his record was identified to appear before a STAB in conjunction with theFiscal Year (FY) 2019 Master Sergeant Promotion Board.  He was advised that his
record would be considered against his military occupational specialty for the following promotion boards: 

.FY 13 SFC Promotion Board that convened on 4 February 2013

.FY 14 SFC Promotion Board that convened on 4 February 2014

.FY 15 SFC Promotion Board that convened on 2 June 2015

.FY 16 SFC Promotion Board that convened on 1 June 2016



14.On 9 July 2019, the U.S. Army Human Resources Command notified the applicantof his non-selection for promotion to SFC under the FY 13, FY 14, FY 15, and FY 16SFC promotion selection criteria.

BOARD DISCUSSION: 









1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records, regulatory requirements, and applicable laws.  The Board foundthat relief is not warranted.2.Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, thatappeal of an evaluation report must be supported by substantiated evidence.  An appealthat alleges an evaluation report is incorrect, inaccurate, or unjust without usablesupporting evidence will not be considered.  The burden of proof rests with theappellant.  Clear and convincing evidence must be presented that will be of a strong andcompelling nature, not merely proof of the possibility of administrative error or factualinaccuracy.  For a claim of inaccuracy or injustice of a substantive type, evidence willinclude statements from third parties, rating officials, or other documents from officialsources.  The applicant has provided no clear and convincing evidence that theevaluation is incorrect or unjust nor has he provided statements from third parties, ratingofficials, or other documents from official sources in accordance with the regulation.Therefore, there is no basis to consider removal from his record of the applicant’sevaluation for the period covering 1 March 2013 through 9 October 2013. Andconsequently, there is no basis for referring him to a further STAB.  It is noted that hehas already been considered by a STAB for promotion to SFC from FY13 through FY16.3.Legal fees paid by the applicant for legal representation, obtaining documents underFOIA, and storage fees are not reimbursable by this Board.4.State taxes that were deducted from his back pay by the Defense Finance andAccounting Service (DFAS) in providing back pay is required by Federal PayRegulations and Federal Tax Law and is not reimbursable.5.This Board has previously directed that the applicant be reimbursed$750.00 in pay for 2 months as part of his nonjudicial punishment (NJP).  The Boarddoes not need to issue the same directive again.  The Board will ask the Army ReviewBoards Agency Promulgation section to contact DFAS and clarify this reimbursement.
BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : 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. 

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. 


REFERENCES: 

1.Army Regulation 623-3 (Evaluation Reporting System), in effect at the time,prescribed the policies and tasks for the Army's Evaluation Reporting System.

b.Paragraph 3-39 stated an evaluation report accepted by Headquarters,Department of the Army, 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 represent the considered opinions and objective judgment of the rating officials at the time of preparation. 

c.Paragraph 6-7 stated an appeal will be supported by substantiated evidence.  Anappeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. 

d.Paragraph 6-11 stated the burden of proof in the appeal process rests with theappellant.  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. 

e.Paragraph 6-13 advised that appeals based on substantive inaccuracy mustinclude 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 Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policiesand procedures governing promotions and reductions of Army enlisted personnel.

a.Paragraph 4-13a states the Deputy Chief of Staff, G-1, or designee may approvecases for referral to a STAB upon determining that a material error existed in a Solder's Army Military Human Resource Record when the file was reviewed selection board.  (NOTE:  The Army Military Human Resource Record includes, but is not limited to, the OMPF, finance related documents, and non-service related documents deemed necessary to store by the Army.) 

b.Paragraph 4-13f states reconsideration normally will be granted when an adverseNCOER reviewed by a board was subsequently declared invalid, in whole or in part, and was determined by the Army Review Boards Agency to constitute a material error. 

3.Department of Defense Financial Management Regulation 7000.14-R, volume 7A(Military Pay Policy – Active Duty and Reserve Pay), paragraph 450305 (RetroactiveEntitlements and Deductions), provides that retroactive entitlements and deductions willadjust the pay for the year in which they are made and will be reflected in the taxreporting for the quarter in which they are paid.  All retroactive payments are subject toFederal Insurance Contributions Act tax withholding at the rates in effect at the time ofpayment.  If the member has been discharged, separated, or retired, then issue anInternal Revenue Service Form W-2 (Wage and Tax Statement).

// NOTHING FOLLOWS //