IN THE CASE OF: BOARD DATE: 14 February 2022 DOCKET NUMBER: AR20210010856 APPLICANT REQUESTS: removal of the DA Form 2166-9-2 (Noncommissioned Officer Evaluation Report (NCOER) (SSG-1SG/MSG)) covering the period 15 January 2018 through 30 August 2018 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) * DA Form 2166-9-2 covering the period 15 January 2018 through 30 August 2018 * DA Form 2166-9-2 covering the period 31 August 2018 through 5 January 2020 * Qualitative Management Program (QMP) Decision Memorandum FACTS: 1. The applicant states he was temporarily suspended from his duty as a recruiter (position of special trust and authority) pending the results of an investigation. He was exonerated and placed back in his previous duty position as evidenced by his DA Form 2166-9-2 covering the period 31 August 2018 through 5 January 2020. According to Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-55 ("Relief for Cause" Evaluation Report (DA Form 2166-8)), he should not have received the relief-for-cause NCOER if subsequently placed back on duty. The regulation states: "If the rated NCO is suspended and subsequently placed back to duty (not relieved), the period of suspension is recorded as evaluated time on the next NCOER." This relief-for- cause NCOER should have been combined with the following NCOER as one rating period and not recorded as a relief-for-cause NCOER. 2. He was assigned to the U.S. Army Recruiting Company Frederick, Frederick, MD, with duties at the Frederick Recruiting Station effective 10 September 2016. 3. His DA Form 2166-9-2 covering the period 15 January 2018 through 30 August 2018 shows he received a relief-for-cause NCOER for his duties as a recruiter assigned to the U.S. Army Recruiting Company Frederick. Part IV (Performance Evaluation, Professionalism, Attributes, and Competencies), block c (Character), shows his rater marked "DID NOT MEET STANDARD" and entered the comment: "removed from recruiting duties; found unfit for position of special trust and authority due to accusations which were later revoked by the accuser." His rater rated his overall performance as "MET STANDARD." His senior rater rated his overall potential as "HIGHLY QUALIFIED." 4. Headquarters, U.S. Army Recruiting Command, Orders 330-26, 26 November 2018, attached him to the U.S. Army Recruiting Company Frederick effective 27 November 2018 to perform administrative duties as directed by the commander for the period 27 November 2018 through 26 May 2019. His service records are void of additional orders or directives terminating this assignment. 5. His DA Form 2166-9-2 covering the period 31 August 2018 through 5 January 2020 shows he received a change-of-rater NCOER for duties as a recruiter assigned to the U.S. Army Recruiting Company Frederick. His rater rated his overall performance as "MET STANDARD." His senior rater rated his overall potential as "HIGHLY QUALIFIED." 6. His service records are void of a report of investigation. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the applicant's military records, the Board determined that relief was warranted. The Board carefully considered the applicant’s contentions, military record, and regulatory guidance. The Board found clear evidence of administrative error in the processing of the contested document and agreed that the applicant met the burden of proof. Based on preponderance of the evidence available for review, Board determined the evidence presented sufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removal of the DA Form 2166-9-2 (Noncommissioned Officer Evaluation Report (NCOER) (SSG-1SG/MSG)) covering the period 15 January 2018 through 30 August 2018 from his Army Military Human Resource Record (AMHRR). 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), effective 1 January 2015, prescribed the policies and tasks for the Army's Evaluation Reporting System. a. Paragraph 3-36 (Modifications to Previously Submitted Evaluation Reports) stated an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to: (1) be administratively correct, (2) have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and (3) represent the considered opinions and objective judgment of the rating officials at the time of preparation. b. Paragraph 3-55 ("Relief for Cause" Evaluation Report (DA Form 2166-8)) stated a relief-for-cause NCOER is required when an NCO is relieved for cause. An NCO can be relieved for cause regardless of the rating period involved; however, a waiver is required to render relief-for-cause NCOERs covering a period of less than 30 days. Relief for cause is defined as the removal of an NCO from a specific duty or assignment based on a decision by a member of the NCO's chain of command or supervisory chain. A relief for cause occurs when the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army. Additional considerations for the relief-for-cause NCOER are described below. (1) If the relief does not occur on the date the NCO is removed from the duty position or responsibilities, the suspended period of time between the removal and the relief will be nonrated time included in the period of the relief-for-cause NCOER. The suspended NCO will not render NCOERs and academic evaluation reports or receive NCOERs until his or her status (and, thus, his or her ability to serve as a rating official) is decided. The published rating chain at the time of the relief will render the relief-for- cause NCOER; no other NCOER will be due on the rated NCO during this nonrated period. (2) Cases where the rated NCO has been suspended from duties pending an investigation will be resolved by the chain of command as expeditiously as possible to reduce the amount of nonrated time involved. Every effort will be made to retain the established rating chain, with the NCO performing alternate duties under that rating chain, until the investigation is resolved. If the rated NCO is suspended and subsequently relieved, the period of suspension is nonrated time. If the rated NCO is suspended and subsequently placed back to duty (not relieved), the period of suspension is recorded as evaluated time on the next NCOER. (3) If a relief-for-cause evaluation report is contemplated on the basis of an informal Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation, the referral procedures contained in that regulation will be followed before the act of initiating or directing the relief. This does not preclude a temporary suspension from assigned duties pending application of the procedural safeguards contained in Army Regulation 15-6. A relief-for-cause evaluation report will be the final action after all investigations have been completed and a determination is made. (4) 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. (5) If the relief is directed by an official other than the rater or senior rater, the official directing the relief will describe the reasons for the relief in an enclosure to the NCOER. c. Paragraph 4-7f (Evaluation Appeals – Policies) stated 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 U.S Army Human Resources Command Evaluation Appeals Branch. d. Paragraph 4-11 (Burden of Proof and Type of Evidence) stated the burden of proof in the appeal process rests with the appellant. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. (1) For a claim of administrative error, appropriate evidence may include the following: (a) the published rating scheme used by the organization during the period of the report being appealed; (b) assignment, travel, or temporary duty orders; (c) electronic battalion/brigade S-1, military personnel office, or administrative human resources documents; (d) leave records; (e) organization manning documents; (f) hospital admission, diagnosis, and discharge sheets; (g) statements of military personnel officers or other persons who know about the situation pertaining to the evaluation report in question; (h) the results of a commander's or commandant's inquiry; and/or (i) other relevant documents. (2) 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 report was rendered. The results of a commander's or commandant's inquiry may provide support for an appeal request. e. Paragraph 4-13 (Appeals Based on Substantive Inaccuracy) stated a decision to appeal an evaluation report will not be made lightly. Before deciding whether or not to appeal, the prospective appellant will analyze the case dispassionately. This is difficult but unless it is done, the chances of a successful appeal are reduced. (1) Once the decision has been made to appeal an evaluation report, the appellant will state succinctly what is being appealed and the basis for the appeal. For example, the appellant will state: (a) whether the entire report is contested or only a specific part or comment; and (b) the basis for the belief that the rating officials were not objective or had an erroneous perception of his or her performance. Note that 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) Most appellants will never be completely satisfied with the evidence obtained. A point is reached, however, when the appellant will decide whether to submit with the available evidence or to forgo the appeal entirely. The following factors are to be considered: (a) The evidence must support the allegation. The appellant needs to remember that the case will be reviewed by impartial board members who will be influenced only by the available evidence. Their decision will be based on their best judgment of the evidence provided. (b) Correcting minor administrative errors or deleting one official's rating does not invalidate the report. 2. Army Regulation 600-37 (Unfavorable Information), effective 10 May 2018, set forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. Unfavorable information will not be filed in the AMHRR unless the recipient has been given the opportunity to review the documentation that serves as the basis for the proposed filing and a reasonable amount of time to make a written statement in response. Paragraph 7-2d(2) stated the recipient has the burden of proof to show, by clear and convincing evidence, to support assertion that the document is either untrue or unjust, in whole or in part. Evidence submitted in support of the appeal may include, but is not limited to: an official investigation showing the initial investigation was untrue or unjust; decisions made by an authority above the imposing authority overturning the basis for the adverse documents; notarized witness statements; historical records; official documents; and/or legal opinions. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management), effective 7 May 2014, prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File, finance-related documents, and non-service related documents deemed necessary to store by the Army. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010856 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1