IN THE CASE OF: BOARD DATE: 23 April 2021 DOCKET NUMBER: AR20200010193 APPLICANT REQUESTS: removal of the DA Form 2166-9-2 (Noncommissioned Officer (NCO) Evaluation Report (NCOER) covering the period 17 December 2015 through 30 November 2016 from his Army Military Human Resource Record (AMHRR). 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) * Memorandum (Evaluation Report Appeal – (Applicant)), 17 June 2020, with enclosures – * Enclosure A – DA Form 2166-9-2 covering the period 17 December 2015 through 30 November 2016 * Enclosure B – Healthy Urgent Care Medical Document, 29 February 2016 * Enclosure C – Emergency Medicine Royal Oak Medical Document, 22 May 2016 * Enclosure D – DA Form 3349 (Physical Profile Record), 6 July 2016 * Enclosure E – Healthy Urgent Care Medical Document, 18 July 2016 * Enclosure F – Healthy Urgent Care Medical Document, 20 July 2016 * Enclosure G – Emergency Medicine Royal Oak Medical Document, 3 August 2016 * Enclosure H – Advanced Counseling Services Letter, 24 August 2016 * Enclosure I – DA Form 3349, 31 August 2016 * Enclosure J – Advanced Counseling Services Letter, 22 September 2016 * Enclosure K – Advanced Counseling Services Letter, 11 October 2016 * Enclosure L – Headquarters, U.S. Medical Department Activity, Orders 294-002, 20 October 2016 * Enclosure M – U.S. Army Human Resources Command Orders C-04-792907, 5 April 2017 * Enclosure N – DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enclosure O – Advanced Counseling Services Letter, 18 June 2018 FACTS: 1. The applicant did not file within the 3-year time frame 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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. The NCOER is a grave injustice that should never have been allowed to take place. During this rating period he suffered from extreme forceful mental health problems that very immeasurably prohibited him from performing his military duties. Therefore, this NCOER does not actually portray his performance or personality. b. The basis of this appeal is substantive inaccuracy. Prior to and during this rating period he pursued aid for his mental health complications. His mental health worsened during this rating period and created mental and emotional havoc for him inside and outside of work. His enclosures show proof of his mental health deterioration. c. He believed this NCOER would not have any effect on him in the future. However, he later discovered this one NCOER has prevented him from employment with some Government agencies. d. No one from his chain of command or from his Army unit took the time to call him or visit him during any of his hospital visits. He provides enough factual documents to meet the preponderance of evidence to show his mental and emotional conditions interrupted his ability to accomplish his duties during this rating period. He still receives treatment once a week for his mental health conditions. 3. He was serving in the U.S. Army Reserve in an Active Guard Reserve status when he was promoted to sergeant first class/E-7 effective 10 October 2012. 4. U.S. Army Human Resources Command Orders W-10-493087, 25 April 2014, awarded him the Army Good Conduct Medal (4th Award) for the period 20 October 2011 through 19 October 2014. 5. His four DA Forms 2166-8 covering the periods 10 January 2012 through 18 June 2015 show: a. His raters consistently rated his overall potential as "AMONG THE BEST" and "FULLY CAPABLE." b. His senior raters consistently rated his overall performance as "SUCCESSFUL/1" or "SUCCESSFUL/2," and his "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" as "SUPERIOR/2" or "SUPERIOR/3." 6. His DA Form 3349, 6 July 2016, shows his physical profile rating of "1" in all categories of his "P-U-L-H-E-S," and reason for the physical profile rating is shown as "anxiety disorder." In Section 5 (Medical Instructions to Unit Commander), the examining physician states the applicant is non-deployable due to decreased mission capability from a behavioral health condition. The applicant may perform all other military occupational specialty related tasks. 7. His DA Form 3349, 31 August 2016, shows no change in his physical profile rating under the psychiatric factor. In Section 5, the examining physician states the applicant is non-deployable due to decreased mission capability from a behavioral health condition. The applicant may perform all other military occupational specialty related tasks unless doing so is detrimental to the mission or endangers the applicant or others. 8. Headquarters, U.S. Medical Department Activity, Orders 294-002, 20 October 2016, transferred him to Headquarters and Headquarters Company, Warrior Transition Unit (WTU), for continued treatment at a medical treatment facility with a reporting date of 1 December 2016. 9. A review of the applicant's AMHRR shows his NCOER covering the period 17 December 2015 through 30 November 2016 is filed in the 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 IVc (Character) shows the rater marked "DID NOT MEET STANDARD" and commented, in part: "Soldier failed to display self-discipline and loyalty to the unit and to leadership, peers and subordinates." d. Part IVd (Presence) shows the rater marked "DID NOT MEET STANDARD" and commented: * NCO struggles with resiliency and the ability to adapt and overcome while under stress * needs to improve his control over emotions and composure * unable to gain confidence of leadership in task completion e. Part IVe (Intellect) shows the rater marked "DID NOT MEET STANDARD" and commented: * consistently had issues with NCO learning new tasks and adapting to new procedures * several interactions with subordinates and peers were not handled with professionalism, tact, or self-control * struggled with understanding concepts critical to his MOS [military occupational specialty]; impeding mission accomplishment f. Part IVf (Leads) shows the rater marked "DID NOT MEET STANDARD" and commented: * failed to set the standard for communication to peers, subordinates, and leaders throughout the organization * unable to gain the trust of subordinate and leadership due to failed logistics mission * actions of this NCO have been unprofessional; demonstrated an inability to instruct or encourage g. Part IVg (Develops) shows the rater marked "DID NOT MEET STANDARD" and commented: * attitude negatively impacted the work environment and ability to successfully complete S4 [supply] operations * NCO had difficulty improving self for future Army leadership * sought out civilian education to improve institutional knowledge h. Part IVh (Achieves) shows the rater marked "DID NOT MEET STANDARD" and commented: * with constant assistance this NCO can complete some tasks in conjunction with his MOS * challenging for this NCO to manage tasks and monitor completion and progress of subordinate units * judgment decisions made by him often resulted in obstructing accomplishment of the mission i. Part IVi (Rater Overall Performance) shows his rater marked "DID NOT MEET STANDARD" and commented: * performance and actions were not what I expect of a Sergeant First Class, his influence and impact in most areas were negative and not conducive to mission accomplishment * NCO needs to work on resilience and the ability to overcome challenges while positively influencing peers and subordinates to effective mission accomplishment j. Part V (Senior Rater Overall Potential) shows his senior rater marked "NOT QUALIFIED" and commented: "Rated NCO unavailable for signature. [Applicant] does not demonstrate the ability to perform at the next level. He struggles at his current rank and should not be considered for advancement to the next grade at this time." 10. His AMHRR contains no evidence of an evaluation report rendered during his assignment to the WTU. 11. His DA Form 199 (Informal Physical Evaluation Board Proceedings), 1 March 2017, states the board found the applicant physically unfit and recommended a disability rating of 70 percent and permanent disability retirement. His disability is shown as "generalized anxiety disorder" and states: a. The applicant reports onset of this condition in 2006 while on active duty status due to life circumstances. b. The condition is attributed to the following stressors: work environment and trouble sleeping, eating, and concentrating. c. The applicant is unfit because this condition prevents him from being able to perform supervisory and management duties with increasing levels of duties as supply specialist with subordinate elements due to his level of concentration with increased anxiety in completion of his primary military occupational specialty 92Y (Unit Supply Specialist). 12. On 22 March 2017, he was awarded the Army Commendation Medal for retirement for meritorious service in positions of increased responsibility, culminating as a unit supply specialist for the period of 2 June 2007 through 1 June 2017. 13. He retired by reason of physical disability on 20 June 2017. He completed 14 years, 8 months, and 1 day of net active service during this period; 6 months and 24 days of total prior active service; and 1 year, 6 months, and 14 days of total prior inactive service. 14. His Healthy Urgent Care, Emergency Medicine Royal Oak, and Advanced Counseling Services medical documents covering the period 29 February 2016 through 18 June 2016 describe his diagnoses of depression and anxiety and treatment. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board noted that to amend or remove an NCOER for a Soldier's record, the Soldier 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 was 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. In this case, the Board found insufficient clear and convincing evidence indicating the report in question documents anything other than the applicant's rating chain's objective assessment of his performance during the rating period. Based on a preponderance of evidence, the Board determined the contested NCOER should remain in the applicant's record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 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. 3. Army Regulation 623-3 (Evaluation Report System), 4 November 2015, prescribed the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 2-12 (Rater) stated the rater will provide an objective and comprehensive evaluation of the rated Soldier's performance and potential, as applicable, on the evaluation report. b. Paragraph 3-16 (Evaluation Parameters) stated rating officials' evaluation of a rated Soldier will be limited to the dates included in the rating period of an evaluation report. Exceptions to this policy are granted, to include when a Solider is assigned to a WTU, designated on a valid rating chain, and receives an NCOER with a nonrated code "G." c. Paragraph 3-34 (Special Situations) noted the "G" code is unique. It applies if a WTU Soldier is assigned duties to perform and he or she has been assigned to a rating chain. If no evaluation report is prepared, the time the Soldier spent in this status will be included in the number of nonrated months of the next evaluation report. d. Paragraph 4-11 (Burden of Proof and Type of Evidence) stated to justify deletion or amendment of a report, an applicant must produce evidence that established clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was 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 applicant. 4. Department of the Army Pamphlet 623-3 (Evaluation Reporting System), 10 November 2015, provided procedural guidance for completing and submitting evaluation reports and associated support forms to Headquarters, Department of the Army, that are the basis for the Army's Evaluation Reporting System. Paragraph 6-1 (Deciding to Appeal) stated an applicant who perceives that an evaluation report is inaccurate in some way has the right to appeal for redress to the appropriate agency. However, before actually preparing an appeal, an objective analysis of the evaluation report in question should be made. 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 AMHRR. 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. 6. Army Regulation 40-501 (Standards of Medical Fitness), 4 August 2011, governed medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, separation (including retirement), and physical profiles. Chapter 7 (Physical Profiling) prescribed a system for classifying individuals according to functional abilities. The functions have been considered under six factors designated "P-U-L-H-E-S." Four numerical designations are used to reflect different levels of functional capacity. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation of 1, 2, 3, or 4. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200010193 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1