ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 June 2021 DOCKET NUMBER: AR20210006947 APPLICANT REQUESTS: transfer of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period 12 March 2014 through 15 September 2014 from the performance folder to the restricted folder of 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) * DA Form 2166-8 covering the period 12 March 2014 through 15 September 2014, with attached Headquarters, U.S. Army Recruiting Command, Memorandum (Relief for Cause Report Directed by an Official Other Than Rater or Senior Rater), 15 September 2014 * Applicant's Memorandum (Request for Transfer of General Officer Memorandum of Reprimand (GOMOR) of (Applicant)), 2 November 2018, with enclosures * Department of the Army Suitability Evaluation Board (DASEB) Docket Number AR20180015171, 30 April 2019. * Army Review Boards Agency Memorandum (Resolution of Unfavorable Information for (Applicant), Case Number AR20180015171 * three DA Forms 2166-9-2 (NCOER) covering the period 2 June 2018 through 13 July 2020 * Applicant's Memorandum (Evaluation Report Appeal of (Applicant), 28 July 2020 * U.S. Army Human Resources Command (HRC) Memorandum (NCOER 12 March 2014 through 15 September 2014 (Applicant)), 31 August 2020 FACTS: 1. The applicant states there were administrative and substantive errors in his NCOER covering the period 12 March 2014 through 15 September 2014. a. He believes there are several administrative errors in his contested NCOER, to include the dates of the rating period, the delay of signatures, and his duty title. b. He believes there are substantive errors in the contested NCOER. The memorandum (Relief for Cause Report Directed by an Official Other Than Rater or Senior Rater) attached to the NCOER used evidence that was proven to be false during the initial investigation and was still used to discredit him. c. A GOMOR; field-grade nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ); and a relief-for-cause NCOER were all issued under the same nonjudicial punishment. The GOMOR and the field-grade DA Form 2627 were transferred to the restricted folder of his AMHRR, although his request to DASEB was for transfer of all documents under the same nonjudicial punishment to his restricted folder. 2. He was assigned to the U.S. Army Recruiting Battalion in the rank/grade of staff sergeant (SSG)/E-6 effective 30 August 2013. 3. On 13 June 2014, the Commanding General, Headquarters, U.S. Army Recruiting Command (USAREC), reprimanded him in writing for making unofficial personal contact with Ms. a subject of recruiting efforts, by establishing communications with her on Facebook and Google between on or about 29 August 2013 and 28 March 2014. The commanding general stated: a. On 4 January 2014, the applicant told Ms. that his wife would be leaving for the Philippines and that he "would be all alone," to which Ms. replied "not for long (winking emoticon)." His wife left for the Philippines because of messages she found wherein the applicant detailed his ability to kill her. Lastly, he created profiles on social networking sites where he described himself as "single," and "living alone" in an effort to solicit relationships with women who were not his wife. These actions are unbecoming of an Army NCO. b. This is an administrative reprimand imposed under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under the UCMJ. 4. The U.S. Army Recruiting Company memorandum (Commander Recommendation on Filing Determination), 19 June 2014, from the applicant's company commander recommended temporarily placing the GOMOR in the applicant's local unit file for a period of 3 years or until he was reassigned. His company commander made this recommendation based on charges of private conversations and emails, and that his spouse, who initially made the allegations, has since expressed regret and stated she overreacted. 5. In the applicant's memorandum (Rebuttal), 25 June 2014, he requested locally filing the GOMOR and not in his AMHRR. He stated: a. The reprimand is also inaccurate in specific detail, for he never discussed the ability to kill his wife. The exhibits will show he never said he would directly kill anyone; the exhibits mentioned the experiences while he was deployed. b. The attached documents did not make it into the official Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation. He would to submit them for record verification and rebuttal review. (1) His spouse's email (Regarding the Investigation), 27 March 2014, states: "Over the last two months and after multiple correspondences with my husband, I no longer believe he committed adultery. I wish I hadn't overreacted and caused as much trouble as I have." (2) The DA Form 2823 (Sworn Statement), 31 January 2014, from Sergeant states: "Between the months of October 2013 to December 2013 [Applicant] and myself have been exchanging Facebook messages. They entiled [entailed] an inside joke between the both of us about my current situation with my wife. It was never intended to be anything more than a joke. Both he and myself do not wish bodily harm to my spouse, it was a joke to in a sense make me feel better because of how my wife was treating me. A form of therapy that only we would understand due to the nature of the discussion. I do not believe he would ever do any bodily harm to anyone." 6. The USAREC memorandum (Commander Recommendation of Filing Determination) 2 July 2014, from the applicant's battalion commander recommended temporarily filing the GOMOR in the applicant's local unit file for a period of 3 years or until he was reassigned. His battalion commander made this recommendation based on charges of private conversations and emails, and that his spouse, who initially made allegations, has since expressed regret and stated she overreacted. Additionally, the applicant still is currently unqualified for recruiting. He recommended the applicant's relief and reassignment back to his primary military occupational specialty (MOS) as unqualified for recruiting. 7. The U.S. Army 3rd Recruiting Brigade memorandum (Commander Recommendation on Filing Determination), 14 July 2014, from the applicant's brigade commander recommended permanently filing the GOMOR in the applicant's AMHRR. His brigade commander made this recommendation for the following reason: "can't refute fact that he had inappropriate contact with future Soldier, it does not appear to be the Soldier's first issue." 8. On 14 July 2014, the Commanding General, Headquarters, USAREC, having carefully considering the GOMOR, the circumstances of the misconduct, and all matters submitted by the applicant in defense, extenuation, or mitigation, along with recommendations of subordinate commanders, directed permanent placement of the GOMOR in the applicant's AMHRR. 9. A review of his AMHRR shows the contested NCOER covering the period 1 March 2014 through 15 September 2014w is filed in the performance folder. The NCOER shows in: a. Part I(g) (Reason for Submission), "Relief for cause"; b. Part I(h) (Period Covered), 12 March 2014 through 15 September 2014; c. Part I(i) (Rated Months), 4; d. Part I (j) (Non-Rated Codes), Z (None of the Above); e. Part II (Authentication), the rater, senior rater, and reviewer all signed the form on 12 November 2014 and the applicant signed the form on 13 November 2014; f. Part III (Duty Description), his principle duty title is shown as "Human Resources Assistant" and his duty MOS code is shown as 42A2O (Human Resources Specialist); f. Part IV(Army Values/Attributes/Skills/Actions), the rater marked "No" for "Integrity" and commented: "committed a recruiting impropriety by having an unofficial contact with a person of recruiting interest"; g. Part IVf (Responsibility and Accountability), his rater marked "Needs Improvement (Much)" and commented: "the rated NCO has been notified of the reason for the relief, violated personal integrity by having an unofficial contact with an applicant processing for the U.S. Army"; h. Part V (Overall Performance and Potential) his rater marked "Marginal" for the applicant's Overall Potential for Promotion and/or Service in Positions of Greater Responsibility; and i. His senior rater marked "Poor/5" for Overall Performance, "Fair/4" for Overall Potential for Promotion and/or Service in Positions of Greater Responsibility, and commented: * do not promote until Soldier has shown significant signs of improvement * do not send to advanced schooling at this time * poor performance this period, Soldier violated his integrity and did not adhere to the Army Values * displays the potential to recover from this error in judgment; with additional retraining, the Soldier will be able to continue his military career 10. The Headquarters, USAREC, memorandum (Relief for Cause Report Directed by an Official Other Than Rater or Senior Rater), 15 September 2014, from the Commanding General, Headquarters, USAREC, after a review of the Commander's Inquiry, 27 March 2014 (not in evidence), notified the applicant of his relief from duties as a recruiter based on his misconduct. The applicant was informed that the through date of his NCOER would be the month in which his relief was directed. 11. On 2 October 2014, he received nonjudicial punishment for violation of a lawful regulation by wrongfully having unofficial contact with Ms. a subject of recruiting efforts, by establishing communications with her on Facebook and Google between on or about 29 August 2013 and on or about 28 March 2014. This is in violation of Article 92 (Failure to Obey Order or Regulation), UCMJ. a. His punishment consisted of reduction to the rank/grade of sergeant/E-5 and forfeiture of $1,538.10 pay for 1 month. b. He elected not to appeal. The imposing commander directed filing the DA Form 2627 (Record of Proceedings under Article 15, UCMJ) in the performance folder of his AMHRR. 12. 2nd Battalion, 9th Infantry Regiment, Permanent Orders 064-018, 5 March 2015, awarded him the Army Good Conduct Medal (4th Award) for the period 24 February 2012 to 23 February 2015. 13. Headquarters, 3rd Armored Brigade Combat Team, Orders 222-001, 9 August 2016, promoted him to the rank/grade of staff sergeant/E-6. 14. On 20 November 2017, he was awarded the Army Commendation Medal for exceptionally meritorious service while assigned as a squad leader from 15 February 2017 to 12 November 2017. 15. 2nd Battalion, 7th Cavalry Regiment, Permanent Order 174-001, 8 June 2018, awarded him the Army Good Conduct Medal (5th Award) for the period 6 March 2015 to 5 March 2018. 16. In the applicant's memorandum to the DASEB (Request for Transfer of GOMOR (Applicant)), 2 November 2018, he requested transfer of the GOMOR to the restricted folder of his AMHRR. He stated: a. Army Regulation 600-37 allows such transfers when the GOMOR has served its intended purpose, has been in the AMHRR for at least 1 year since imposition of the GOMOR, the Soldier is at least a staff sergeant, and the Soldier has received at least one NCOER since filing of the GOMOR. b. The GOMOR has served its intended purpose and asks the board to note his achievements since imposition of the GOMOR. His past four NCOERs show he has earned high regards in terms of his leadership and has been rated superior. He has earned back his position as a squad leader in under a year and has earned back the rank/grade of staff sergeant/E-6 in under 2 years. He enclosed letters of recommendation to transfer the GOMOR to the restricted folder of his AMHRR from his chain of command as well as other documents for the board's consideration. 17. On 30 April 2019, the DASEB determined the evidence submitted by the applicant was sufficient to warrant relief. The board determined the GOMOR and the field-grade DA Form 2627 would be transferred to the restricted folder of his AMHRR. 18. On 16 July 2019, he was awarded the Army Commendation Medal for exceptionally meritorious service while assigned as a platoon sergeant from 27 July 2015 to 10 September 2019. 19. His last five DA Forms 2166-9-2 covering the periods 3 June 2016 through 13 July 2020 show: a. His raters consistently rated his overall performance as "Far Exceeded Standard" or "Exceeded Standard." b. His senior raters rated his over potential as "Most Qualified" or "Highly Qualified." 20. In the applicant's memorandum to HRC (Evaluation Report Appeal of (Applicant), 28 July 2020, he appealed his NCOER, stating: a. The DASEB reviewed and placed the GOMOR and DA Form 2627 in the restricted folder of his AMHRR. He fully understands that because these two documents were placed in his restricted folder, it does not guarantee the NCOER will be also placed in the restricted folder on the same premise, regardless that all three documents were all imposed under the same nonjudicial punishment. b. He strongly believes the relief-for-cause NCOER has several administrative errors. The rating period of 6 months conflicts with the 4 rated months and the NCOER was signed 2 months after the rating period ended. His principle duty title of Human Resources Assistant and duty MOS 42A2O conflict with the reason for submission of relief for cause for committing recruiting improprieties. c. He strongly believes there was a substantive error because he was not USAREC school-qualified at the time. He lacked a complete understanding of how the USAREC operated in its full extent as a result of not being MOS 79R (Recruiter) qualified. He believes he would have conducted himself differently if he had been properly trained. d. There were substantive errors within the memorandum attached to the NCOER. Additional comments were provided that were later proven to be false accusations by sworn statements and thus removed from the Commander's Inquiry and nonjudicial punishment proceedings. The comments attached after the full evidence was provided show an unprofessional intent to discredit him. 21. On 31 August 2020, HRC returned the applicant's NCOER appeal without action. The Appeals and Corrections Section representative stated his appeal was not received within 3 years of the through date of the report. He was advised to submit his appeal to the Army Board for Correction of Military Records (ABCMR). 22. His DA Form 1059 (Service School Academic Evaluation Report) covering the period 25 January 2021 through 12 March 2021 shows he completed the Senior Leadership Course. Item f (Character/Accountability) shows his rater marked "Far Exceeded Standards." His reviewer commented: "[Applicant] is a skilled and highly trained Noncommissioned officer who has displayed the skills and knowledge to be successful at higher levels of responsibility. He will be a valued asset to his organization and the Army for the unforeseeable future." 23. Headquarters, U.S. Army Garrison, Fort Polk, Permanent Orders 078-226, 19 March 2021, awarded him the Army Good Conduct Medal (6th Award) for the period 5 February 2018 to 4 February 2021. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his military service record, documents provided by the applicant and regulatory guidance. Removal of a NCOER is generally not warranted unless it is factually incorrect. The evidence of record in this case shows the applicant positively responded to the reprimand as evidenced by his subsequent evaluations and continued service. However, the Board determined that the applicant did not demonstrated by a preponderance of evidence that any procedural error occurred that was prejudicial to the applicant, or that the applicant demonstrated by a preponderance of evidence that the contents of the NCOER are substantially incorrect to support removal. 2. The purpose of maintaining the Army Military Human Resource Record (AMHRR). is to protect the interests of both the U.S. Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority. There does not appear to be any evidence the contested NCOER was unjust or untrue or inappropriately filed in the applicant's AMHRR. Therefore, relief is denied. 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 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 6/3/2021 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. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) 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; it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 623-3 (Evaluation Reporting System), 10 August 2007, prescribed the policy and tasks for the Army's Evaluation Reporting System focused on the assessment of performance and potential. a. Paragraph 6-7a (Policies) stated an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is 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. b. Paragraph 6-7b stated appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an NCOER will normally be returned without action unless accompanied by additional substantiating evidence. c. Paragraph 6-7c stated the rated Soldier or other interested parties who know the circumstances of a rating may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation. 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. The determination regarding adequacy of evidence may be made by the Headquarters, Department of the Army, Evaluation Appeals Branch. d. Paragraph 6-8 (Timeliness) stated because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous evaluation report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. Substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR, in accordance with Army Regulation 15-185. e. Paragraph 6-11 (Burden of Proof and Type of Evidence) stated the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice. f. Paragraph 6-11b stated clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. g. Paragraph 6-11d stated 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 injustice at the time the evaluation report was rendered. The results of a Commander's or Commandant's Inquiry may provide support for an appeal request. 3. Department of the Army Pamphlet 623-3 (Evaluation Reporting System), 5 June 2012, provided procedural guidance for completing and submitting to Headquarters, Department of the Army evaluation reports and associated support forms that are the basis of the Army's Evaluation Reporting System. Table 3-7 (Reason Codes for Nonrated Time for NCOERs) stated the reason for code "Z" is "None of the Above." //NOTHING FOLLOWS//