ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20190002620 APPLICANT REQUESTS: through counsel, reconsideration of his earlier request for removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 13 May through 30 September 2011 from his Official Military Personnel File (OMPF). 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) * Counsel's Supplemental Statement, dated 31 December 2018 * Army Board for Correction of Military Records (ABCMR) Letter, dated 9 January 2018, with Record of Proceedings Docket Number AR20160014814, dated 4 January 2018 * NCOER covering the period 13 May 2010 through 12 May 2011 * Defense Finance and Accounting Service Form 702 (Military Leave and Earnings Statement (LES)) covering the period 1-30 June 2011 * Two DA Forms 2823 (Sworn Statement), dated 14 and 19 September 2011 * NCOER covering the period 13 May 2011 through 30 September 2011 * Memorandum for Record, dated 30 September 2011, subject: Letter of Reprimand (LOR) for (Applicant) * Memorandum for (Applicant), dated 30 September 2011, subject: Letter of Concern * Memorandum for (Applicant), dated 24 April 2013, subject: Supporting Statement for Evaluation Report Appeal of (Applicant) * Self-Authored Memorandum for Record, dated 30 August 2016, subject: Request Appeal for NCOER (20110513-20110930) (Applicant) * Memorandum for Army Review Boards Agency (ARBA), dated 19 April 2017, subject: Letter of Support for (Applicant) * Memorandum for ARBA, dated 24 April 2017, subject: Letter of Support to Remove Evaluation Report dated 20110513-20110930 (Applicant) * Memorandum for ARBA, undated, subject: Memorandum of Support – (Applicant) * Letter, dated 15 August 2018 * Memorandum for ARBA, dated 18 August 2018, subject: Memorandum of Support – (Applicant) * Letter, dated 31 August 2019 * Memorandum for ARBA, dated 18 September 2018, subject: Letter of Support for (Applicant) * Office of the Inspector General (IG) Letter, dated 28 November 2018 * Electronic 1559 (IG Action Request System), dated 17 October 2011 * Self-Authored Declaration, dated 31 December 2018 * Email, dated 2 January 2019, subject: ABCMR Filing * Counsel's Memorandum, dated 10 March 2019, subject: Filing for Reconsideration in the Case of (Applicant) * Letter, dated 31 August 2019 (should read 31 August 2018) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160014814 on 4 January 2018. 2. The applicant submits new evidence in the form of third-party statements, IG documents, and a self-authored document. He also submits a new argument in that the discussion and conclusion portion of the ABCMR Record of Proceedings in Docket Number AR201060014814 on 4 January 2018 overlooked documents in his original filing. This evidence and argument warrant consideration by the Board at this time. 3. The applicant's counsel states: a. In accordance with Army Regulation 623-3 (Evaluation Reporting System), paragraph 4-11(d), for a claim of inaccuracy or injustice of 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 served in positions allowing them a good opportunity to observe firsthand the appellants 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. b. The ABCMR apparently overlooked statements from the applicant's rater, senior rater, and reviewer of the NCOER in question. In their statements, these officials all wrote the NCOER in question should be removed from the applicant's OMPF and, while they do not claim that the contents therein are untrue, their recommendations should nevertheless be interpreted and treated as evidence that the report was not an accurate reflection of the applicant's performance during the rated period in question. c. The ABCMR apparently penalized the applicant for not providing evidence that he was not counseled. It must be understood that one cannot provide affirmative evidence of an event that did not happen. In the original application, the applicant clearly argued and explained he was not counseled. The only evidence he could provide of this fact was his sworn statement that it did not happen. In this current application, the applicant includes a sworn declaration, under penalty of perjury, that he was never counseled by his command during the rated period. d. The Board dismissed the applicant's LES for June 2011 that supported his contention he was not present at his unit at the beginning of the rated period and therefore could not have been counseled on the date claimed by his command. The Board wrote the "date was the start of the rating period and is irrelevant to this case." The Board's logic makes absolutely no sense. The applicant provided his LES for the purpose of demonstrating that he was on leave and not present at the unit on the date the command claims to have counseled him. The LES does, in fact, corroborate his absence. This makes the LES highly relevant to this case and the Board should specifically reconsider this argument that he was not counseled, and the burden should therefore shift to the government to substantiate its claim that he was counseled. e. Similarly, the Board apparently held it against the applicant that he did not produce any documentation that he was not given an opportunity to rebut the LOR referenced in the discussion of the original request for relief. Again, the applicant cannot conjure evidence of something that did not happen. The applicant should have been afforded the opportunity to rebut the LOR in accordance with Army Regulation 600-37 (Unfavorable Information). The applicant's memorandum is his clear evidentiary statement that he was not provided an opportunity to rebut the LOR at issue. He also swears to the same in the newly submitted sworn declaration. f. There is evidence the applicant's NCOER was generated in an act of retaliation following his report made to the IG based on unfair and biased treatment on the part of his command. The applicant obtained a copy of an IG complaint that he filed prior to receiving the NCOER at issue which demonstrates he immediately sought assistance from the IG in Afghanistan when he perceived his command was taking unfair and unwarranted action against him. g. He and the applicant provide several statements which detail the biased nature of the command at the time and provide firsthand accounts of racial discrimination, favoritism, and bias on the part of the applicant's command. The statements also support the applicant's contention his command was biased and that race played a role in how members of the unit were treated and evaluated. The statements are not only new evidence, but additional evidence that the presumption of regularity should not be applied to this NCOER. h. For all of these reasons, justice, fairness, and equity require that the ABCMR reconsider the applicant's request for relief and grant relief in light of the new evidence and arguments. 4. After having prior Active and Reserve Component service, the applicant enlisted in the Regular Army on 23 April 2004 in the rank of staff sergeant (SSG). He was promoted to sergeant first class (SFC) effective 1 June 2007. 5. His annual NCOERcovering the period 13 May 2010 through 12 May 2011 (the period prior to the contested NCOER) hows: a. the rater, Command Sergeant Major (CSM) X X X completed Part IV (Army Values/Attributes/Skills/Actions) by marking: * "Yes" for all Army Values * "Excellence (Exceeds Standard)" for Competence and Physical Fitness * "Success (Meets Standard)" for Leadership, Training, and Responsibility and Accountability * "Fully Capable" for Overall potential for promotion and/or service in positions of greater responsibility" b. the senior rater and battalion commander, Lieutenant Colonel (LTC) X X. X completed Part V (Overall Performance and Potential) by marking the block "Successful/2" for overall performance and "Superior/2" for overall potential. 6. The applicant's DA Form 702 covering the period 1-30 June 2011 shows he was on leave from 14 May through 12 June 2011. 7. On 14 September 2011, Sergeant (SGT) X prepared a DA Form 2823 wherein he indicated he overheard the applicant telling Sergeant First Class (SFC) X that First Lieutenant (1LT) X unplugged the device that provided Internet to the Infantry B huts. The applicant also stated he was going to get his money from 1LT X or from IO Global and he would punch "that mother f er" (1LT X ) in the face because he was interfering with everyone's Internet. 8. On 20 September 2011, Captain (CPT)X completed a DA Form 2823 wherein he indicated he was writing this statement as a character reference for the applicant. He indicated he only observed the applicant exemplify the highest caliber of NCO characteristics and the applicant consistently embodied the NCO Creed and Army Values. CPT X witnessed the applicant's dedication to duty and was always impressed. The applicant simply sought to be an example of selfless service, was a team player, was a tremendous asset to the office and the Religious Support Team, and was committed to the Army, his specialty, and ultimately to assisting Soldiers to reach their goals. 9. His relief-for-cause NCOER for the period 13 May to 30 September 2011 lists the same rating chain as shown in his prior report. Part IIIf (Counseling Dates) contains the initial date of 11 June 2011 and documents no other dates. This report shows: a. the rater, CSM X , completed Part IV (Army Values/Attributes/Skills/Actions) by marking: * "No" for Respect/Equal Opportunity (EO)/Equal Employment Opportunity (EEO) and Honor * "Yes" for Loyalty, Duty, Selfless-Service, Integrity, and Personal Courage * "Success (Meets Standard)" for Competence, Physical Fitness and Military Bearing, Training, and Responsibility and Accountability * "Needs Improvement (Some)" for Leadership * "Marginal" for Overall potential for promotion and/or service in positions of greater responsibility b. the senior rater, LTC X , marked the block "Fair/4" for both Overall Performance and Overall Potential. 10. The applicant's counsel submitted the following documents with this application: a. An LOR, dated 30 September 2011, from LTC X , the applicant's battalion commander and senior rater stated the applicant violated Articles 90 and 134 of the Uniform Code of Military Justice (UCMJ) on 13 September 2011 by failing to obey a direct order from 1LT X and by wrongfully communicating a threat to injure 1LT X . He further stated the applicant: (1) created a work environment that was unprofessional and unbecoming of someone of his experience and position and had the potential to cause significant and lasting negative impacts on the task force; (2) failed to uphold the Army Values, his duty to his team, to maintain and show proper respect towards a superior, to maintain honor and commitment to the Warrior Ethos, and to maintain integrity and personal courage by letting his emotions take control; and (3) acknowledged his actions were wrong, was notified he was being reassigned to Fort Hood, TX, and was informed the LOR would be filed locally. b. A letter of concern, dated 30 September 2011, from CSM X , the applicant's rater, notified the applicant that he was being relieved from his duties "for lack of integrity, loyalty to the chain of command, and his inability to maintain a professional attitude with his peers and members of the battalion staff." The LOR was mentioned and the CSM concluded, "Your actions leave me no choice but to relieve you from your current position and redeploy you back to III Corps, Fort Hood, TX." c. a. A memorandum , dated 24 April 2013, from an Army civilian employee stated 1LT X reported the applicant for violation of the UCMJ but the applicant was not prosecuted because of hearsay evidence. CSM X set out to make an example of the applicant for betrayal, in that the applicant revealed the CSM was sleeping with two or more lower enlisted Soldiers in the unit. The allegations led to a battalion-wide investigation for inappropriate relationships and Equal Opportunity violations. The investigation found no evidence of the allegations, but the investigating officer recommended UCMJ action against the applicant for complaining about his NCOER and for calling his chain of command racist. The applicant performed his duties as the battalion career counselor before, during, and nearly 30 days after receiving counselings from his chain of command. The outcome of all this was the LOR from the battalion commander and the letter of concern from CSM X . CSM X wanted the applicant reassigned because he was not loyal to the command and took additional steps to further prejudice the applicant's career by sending copes of the evaluation and the LOR and letter of concern to his gaining command. d. In a self-authored memorandum, dated 30 August 2016, the applicant stated: (1) He was given a local LOR without an opportunity for rebuttal, contrary to Army Regulation 600-37, which states Soldiers must sign for an LOR, have the opportunity to rebut the allegations, and state why the LOR should not be placed in his or her file. (2) Immediately after receiving the LOR, his immediate supervisor, CSM X , presented him with a letter of concern that indicated he was being relieved from his duties for lack of integrity, loyalty, and inability to maintain a professional attitude. Prior to the incident, CSM X never counseled him on any concerns he had with his performance. (3) The NCOER covering the period 13 May 2011 through 30 September 2011 showed the reason for submission as "relief for cause"; however, the LOR provides he was reassigned to III Corps, Fort Hood, Texas, to continue his career as a "career counselor" and for that reason the contested report should be changed to a "change of rater" report. Part III (Counseling Dates) of the contested report contains fictitious dates as verified by his LES which confirms he was on leave at the time of the alleged counseling. Accordingly, this section of the report should not list any counseling dates. (4) Part IV(a) of the contested report is not supported by facts as it is not an accurate description of his performance during the rated period. The rater did not provide the substantive detail or explanation necessary to support the opinion that he did not possess or exhibit the Army Values of "Respect" and "Honor." The rater's comments are unjustified and a result of personal animosity. The allegations of disrespect and a wrongfully communicated threat to a commissioned officer were unproven derogatory accusations based on a Soldier's sworn statement and not a conversation between himself and the said disrespected officer. (5) The damaging effects of the contested report have caused him to be overlooked for promotion to master sergeant (MSG) five times. He was evaluated by the Qualitative Management Program Board and retained, but the senior rater's bullet comments "do not promote to MSG until Soldier receives leadership training" leaves the board members to speculate exactly what leadership training entails. Lastly, he requested the U.S. Army Human Resources Command Inspector General assist him in changing the contested NCOER to a "change of rater" report or remove it from his OMPF. e. The senior rater and rater of the contested report, and a general officer, all provided memorandums in support of the applicant's request for removal of the contested report. These documents, dated 19 and 24 April 2017, and one undated report, respectively, all indicate: (1) The senior rater, after reviewing the applicant's last six NCOERs, stated with confidence that the applicant certainly proved himself as a leader in the time since the unfortunate, yet isolated, incident. He is a leader of character whose seniors, peers, and subordinates turn to for guidance, advice, and results. The senior rater had full confidence in the applicant's leadership and experience as well as potential to excel as an MSG and the promotion board would gain a clearer picture of him by removing the contested NCOER. (2) The rater stated the applicant made a remarkable turnaround after the contested NCOER as evidenced by his last six "Far Exceed Standards/Among the Best" evaluations and multiple awards. In April 2015, the Director of Military Personnel Management approved the Qualitative Management Program Board's recommendation to retain him on active duty. The rater recommended complete removal of the NCOER at issue from the applicant's OMPF and consideration for promotion to MSG by a Standby Advisory Board. (3) Brigadier General X stated the applicant had a "bad moment" in what is an otherwise stellar career. Since the time of the incident, he has consistently demonstrated he is a leader of both competence as well as character. The contested report would disadvantage the applicant disproportionately from the incident itself and that along with the fact that he obviously overcame the issue, the contested report should be removed. f. In a witness statement dated 15 August 2018, SFC X stated he was assigned to the applicant's unit during the period in question and both experienced and witnessed various levels of discrimination and mistreatment from the leadership of Company A, 303rd Military Intelligence Battalion, the applicant's unit. He also described two specific incidents of unfairness that showed favoritism was given to some Soldiers while others were discriminated against. g. On 18 August 2018, Chief Warrant Officer Two (CW2) X , authored a memorandum of support to remove the biased NCOER from the applicant's record. He indicated he was assigned to the applicant's unit during the period in question and observed firsthand the biased behavior within the unit where the Caucasian Soldiers received special treatment while minority Soldiers did not. While deployed to Afghanistan, he was interviewed in two back-to-back investigations. (1) The applicant filed an IG complaint, commander's inquiry- regarding his NCOER, an EO complaint related to race, and inappropriate relationships in the unit. An investigation was launched by the battalion commander for the allegations of inappropriate relationships and EO violations. The investigating officer only recommended adverse action for the applicant, he was served an LOR and a letter of concern, and was reassigned. There were rumors that his NCOER was generated the following year (2012). (2) The second investigation took place around October 2011 for inappropriate relationship between his then rater, 1SG X X , a Caucasian male, and newly promoted SGT X X , a Caucasian female. 1SG X 's inappropriate relationship with SGT X compromised the integrity of supervisory authority which created the perception of favoritism and unfairness. 1SG X was subsequently relieved for his inappropriate relationship with the battalion legal clerk, SGT X . He redeployed early with a change-of-rater NCOER and was reassigned to Fort Huachuca, AZ. (3) Following his relief, he received a change-of-rater NCOER from 1SG X . Thereafter, the company commander announced that inappropriate relationships would get punished to the maximum, but he then began an inappropriate relationship with the new 1SG. Thus, not only was it happening with 1SG X , but they got new leadership and the same image of inappropriate relationships continued within the command team, becoming the norm for the unit. SGT X also redeployed early and received an approved Family Care Plan separation. (4) The 303rd Military Intelligence Battalion illustrated the climate of injustice, bias, and racial discrimination against minorities. Certain Soldiers received special treatment because of their race or the color of their skin. The applicant was discriminated against because of his race and the color of his skin. h. In a memorandum of support dated 31 August 2019 (should read 31 August 2018), SFC X X indicated she was assigned to the applicant's unit from March 2008 through November 2012. SFC X indicated she experienced and witnessed unfair treatment, lack of professionalism, and toxic leadership from the applicant's senior rater and rater, as well as others. It is her belief the leadership was also responsible for creating a workplace culture where this behavior influenced an environment for Soldiers to emulate this behavior as well. She stated specific instances of the unfair treatment involving others in addition to her personal experiences that began almost immediately upon her arrival in Iraq that include: (1) As a senior NCO and the battalion's Equal Opportunity representative, she was confronted by members of the battalion who expressed their discomfort with SFC X freely grabbing their buttocks in the office (usually only male officers). During this time, SFC X was the S-3 NCO in charge and their relationship was contentious. Aware that CSM X and SFC X had, what appeared, a better working relationship, she confronted CSM X with the issue. CSM X responded with a sigh and said, "Okay I will tell him to stop grab-assing." (2) Later, during a field exercise, a female NCO reported SFC X exposed himself to her and to other Soldiers. This incident prompted an investigation. Although it was founded, she does not know if SFC X received a relief-for-cause NCOER and believes he just received a "NO" in a block on the front of his NCOER. It was due to this investigation or another incident that SFC X was removed from his supervisory position and reassigned to Kuwait as the 303rd Military Intelligence Battalion Liaison Officer. (3). During this same deployment, as the Battalion's rear detachment 1SG, she was not provided full disclosure of certain occurrences. She knows 1SG X , who was married, returned as MSG X pending reassignment for what she believes was due to having an inappropriate relationship with a female junior NCO who was also married. The junior female officer returned from deployment to out-process for separation from the Army. The only information she was given was that the two of them were not to have contact with each other. (4) SFCX 's personal experiences of unjust and unfair treatment began upon her arrival in Iraq, when she challenged 1SG X 's promotion board appearance process for junior enlisted Soldiers. Thereafter, both 1SG X and CPT X began treating SFC X unfairly and unjustly. Although leadership received a Red Cross message verifying her loco parentis passed away, she was required to submit a detailed description of her family dynamics and either tax returns or school documents as proof that the deceased were her loco parentis. SFC X was unable to easily obtain those documents as she was 43 years old, in Iraq, and her surviving family members had no idea where to look to retrieve 30-year old documents. 1SG X also persuaded 1LT X , her platoon leader, to rewrite and reword her NCOER so her accomplishments would not stand out. CPT X disapproved the award that 1L X submitted to acknowledge her performance and accomplishments. Upon return from deployment to Fort Hood, she was assigned to work in the battalion S-3. Her NCOER did not capture her accomplishments, her raters were changed, and she was unable to gain the support from leadership to receive an accurate NCOER. (5) When the unit deployed to Afghanistan, she was identified to remain in the rear and appointed as the NCO who would oversee the battalion's rear detachment. She was also appointed to be the hand receipt holder for the Headquarters and Headquarters Company commander's property along with other appointed duties. The Headquarters and Headquarters Company commander would not conduct inventory with her and directed his sub hand receipt holders to complete this task. When SFC X was unable to gain the cooperation from these hand receipt holders, she was counseled for not completing inventory in a timely manner. The unit deployed without the property books properly reflecting accountability of property. The leadership attempted to hold SFC X accountable for equipment that she did not signe for and was either signed over to contractors or located in Afghanistan. During the investigation, SFC X submitted a sworn statement that he had laid out the property and turned it over to SFC X . The findings revealed the property was in Afghanistan with him. To SFCX 's knowledge, there was no disciplinary action taken for SFC X submitting an untrue sworn statement. (6) The 303rd Military Intelligence Battalion leaders created a workplace environment of injustice, bias, and a pattern of favoritism towards Soldiers assigned to the unit. The applicant was also unfortunately subjected to such unfair practices as well. I would ask that the applicant's request for reconsideration be reviewed as he was not the only Soldier in this unit subject to unfair and unjust practices. i. On 18 September 2018, SGT X X. X authored a memorandum in support the applicant. She indicated she experienced sexism and racism before signing into the unit. CSM X , the applicant's rater, told the brigade chaplain assistant that he "doesn't want a black female Chaplain Assistant." While deployed, the battalion executive officer, also her senior rater, sought to replace her on battlefield circulation missions in Afghanistan. He felt that the applicant would be better suited as force protection for the chaplain. She was twice dismissed from the promotion board while others were allowed this opportunity to appear telephonically. Once CSM X left, the 1SG instructed her to go back to the promotion board. The applicant fought on her behalf so she could perform her duties while deployed. He provided mentorship and guidance better than any senior chaplain assistant. She witnessed him work tirelessly to make sure that Soldiers were taken care of and would do anything to take care of them. j. On 28 November 2018, the Deputy Legal Advisor, Office of the IG, responded to the applicant's Freedom of Information Act request. Included with this response was an Electronic 1559, dated 24 July 2018, which shows the applicant walked into the III Corps IG's Office on 17 October 2011, requesting assistance with his "relieved for cause" NCOER and related issue of due process. He indicated his NCOER had not been processed and his LOR and letter of concern should not be the supporting documents for his NCOER. It also shows the applicant redeployed early due to misconduct and was being considered for reclassification at the time. An official explained to the applicant that the LOR could support the contested NCOER since the incident happened during the rated period. The applicant was advised to use the NCOER appeal process if he felt it was inaccurate and to contact legal services if he desired to appeal the LOR, letter of concern, and NCOER. The applicant acknowledged his understanding of the information received and no further action was needed. k. On 31 December 2018, the applicant executed a declaration pursuant Title 28, U.S. Code, section 1746, wherein he declared under penalty of perjury that he was not counseled on 11 June 2011 as claimed by his command. He stated he was on leave from 13 May through 30 September 2011. He further indicated he was not provided an opportunity to rebut the LOR he received on 30 September 2011. BOARD DISCUSSION: After review of the application and all evidence, the Board found insufficient evidence to grant relief and amend the decision of the ABCMR set forth in Docket Number AR20160014814, dated 4 January 2018. The Board found the weight of the evidence does not reflect that the NCOER is incorrect, inaccurate, or unjust, with regards to the applicant's misconduct. 1. The Board found the NCOER represented the considered opinions and objective judgment of the rating officials at the time of preparation. The memoranda from the rating chain supporting removal of the NCOER do not indicate a material error or injustice, but rather that the rating officials opine that the NCOER has “served its purpose.” Such statements do not meet the regulatory requirements of AR 623-3, which states that “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 report was rendered.” 2. The Board found the applicant’s claims that he was not counseled and that the rating chain was biased do not negate the applicant’s substantiated personal misconduct, which is the basis of the relief for cause NCOER. The applicant does not deny that he threatened a superior officer or committed a disrespectful statement concerning him, all of which the chain of command, witnesses and an investigating officer found to be disruptive to good order and discipline and for which the applicant received a LOR, LOC and a relief for cause NCOER. It is specious for the applicant to state that he was not counseled when he received formal communications for his actions, including the LOC, on which is affixed the applicant’s signature of acknowledgment. The Board recognizes that the counseling date on the NCOER is not supported by the LES showing the applicant was on leave. However, the Board found that in light of the administrative reprimands, including the LOC signed by the applicant, this procedural error does not negate the accuracy of the NCOER, which resulted from the applicant’s substantiated personal misconduct. 3. The Board found that a preponderance of evidence indicates that the applicant did not receive the NCOER in retaliation for a protected communication or that the applicant was not afforded due process. The applicant states that he made a protected communication to the IG prior to receiving the NCOER and the NCOER was in retaliation for the protected communication. It is true that the rating chain did not sign the NCOER until 15 March 2012. However, the thru-date of the NCOER is 11 September 2011 and the LOC is dated and signed by the applicant on 11 September 2011. The Electronic Form 1559 (IG Action Request) indicates that the applicant requested assistance from the IG regarding appeal of the Relief for Cause NCOER on 17 October 2011, which is pursuant to the LOC and thru date of the NCOER. Furthermore, the IG communicated to the applicant the procedures for filing an appeal, including that “he must contact his legal assistance if he wants [to] appeal his letter of reprimand, letter of concern, and NCOER.” This Form 1559 does not mention allegations of bias or unfair treatment. The applicant does provide statements from witnesses who allege bias in the command. However, the Board found that possible command bias does not negate the applicant’s substantiated personal misconduct, which is the basis of the LOR, LOC, and relief for cause NCOER. 4. Therefore, the Board found that the applicant did not make a protected communication for which the NCOER was retaliation nor was the applicant unaware of or not afforded due process. 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 Board determined the evidence presented is insufficient to warrant amendment of the ABCMR's decision in Docket Number AR20160014814, dated 4 January 2018. 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 CHAIRPERSON 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 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. a. Paragraph 1-9 (Assessments of performance and potential on evaluations) states reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or NCO Corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in Department of the Army Pamphlet 623-3 (Evaluation Reporting System). b. Paragraph 1-11 (Commander or Commandant's Inquiry) states when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or by a member of a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The commander'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 policies and procedures established by Headquarters, Department of the Army, and the conduct of the rated Soldier and members of the rating chain. The results of the commander's inquiry may be provided to the rating chain and the rated Soldier at the appointing official's discretion. c. Paragraph 3-2 (Evaluation report requirements) states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions. d. Paragraph 3-36 (Modification to previously submitted reports) states evaluation reports accepted for inclusion in the official record of a Soldier are 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. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. e. Paragraph 3-55d (Relief for Cause) states the "Relief for Cause" NCOER must specifically indicate who 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. f. Paragraph 4-11(d) 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 injustices at the time the report was rendered. The results of a Commander's or Commandant's Inquiry or Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation may provide support for an appeal request. //NOTHING FOLLOWS//