IN THE CASE OF: BOARD DATE: 8 September 2022 DOCKET NUMBER: AR20220001824 APPLICANT REQUESTS: removal of the DA Form 2166-9-2 (Noncommissioned Officer (NCO) Evaluation Report (NCOER) (Staff Sergeant-First Sergeant (1SG)/ Master Sergeant) covering the period 17 September 2017 through 15 May 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) * Task Force Arctic Sabers, 2d Combat Aviation Brigade, 2d Infantry Division, Unit Number 15880, Memorandum for Record ((Applicant) Character Letter), 3 February 2019 * 1st Attack Reconnaissance Battalion, 25th Aviation Regiment, 25th Combat Aviation Brigade, Memorandum for Record (Character Reference for (Applicant)), 26 February 2019 * Fort Wainwright Law Center Memorandum (Qualitative Management Program (QMP) – Matters of Mitigation and Extenuation for (Applicant)), 1 September 2022 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 rater for this evaluation, Sergeant First Class (SFC) (now retired), chose a counterproductive leadership style to falsely rate him for his own personal gain. The personal vendetta SFC had against him was then unknown, but his actions during and after the rating period prove SFC 's goal was to ruin his military career to help portray the image that SFC was a tough, stern military leader. SFC accomplished his goal by assigning tasks with unrealistic objectives, narcissistic lectures in front of both peers and subordinates, and false persuasion to the unit about the kind of NCO he was. SFC threatened severe consequences in the event that he tried to seek help from other levels of leadership. In all, SFC perfectly fits the definition of toxic leadership and was very unprofessional in his leadership. b. After the rating period, SFC portrayed his true self to the rest of the unit, which made it easy for the applicant to collect character-reference letters in an attempt to save himself from the QMP. He would like this NCOER deleted from his records in the event he ever decides to work for the U.S. Government in the future since he now lives next to Fort Wainwright, AK. c. His supporting documents are the documents that were used to save his Army career when he was being considered for the QMP. They include a rebuttal memorandum to his QMP notification which prove the comments on his NCOER are unjust, a character-reference letter from his senior rater regarding the evaluation who changed his mind about his comments after observing his rater's performance after the evaluation, and a character-reference letter from the command sergeant major (CSM). He contacted his senior rater to ask permission to use his letter for this application. His senior rater agreed and stated he could be contacted at his email listed in the letter if necessary. There are plenty more character-reference letters that could be submitted if necessary. His evaluations before and after this rating period do not show him to be the NCO SFC tried to portray him as. d. There are two reasons why the Board should find it in interest of justice to consider this application and why he waited this time to submit his request. (1) The first reason is because of the fear of retribution. During many scolding sessions, SFC told him to go ahead and report SFC 's behavior. SFC assured him that he had enough dirt to win whatever case was brought against him and overtime instilled the fear in him not to try to pursue this. He felt it was best to leave the issue alone until he knew for sure that SFC had absolutely zero jurisdiction to affect what remaining military career he had. (2) The second reason was the issue he felt was more important with the time he had. He wanted to stay in the Army and reach retirement. It took time to be notified that he was considered for non-retention under the QMP. He then spent months contacting peers and leaders to collect their character-reference letters to submit with his rebuttal. By the time he was retained, he was in his 18th year of service and his focus was to see if there was the possibility that he could be promoted and continue his Army career. Since that did not happen, he made the choice to retire and to prevent the situation from happening again. During this time, SFC had been relieved from two first sergeant positions and has had Sexual Harassment/Assault Response and Prevention Program/Equal Opportunity violations. He is not fully aware of the details. He spent the last 2 years in his unit trying to prove he was not the NCO this evaluation made him out to be. e. By the time he was eligible for retirement, he decided to stop trying to dig himself out of the hole that SFC dug for him. He decided to move on and clear his name. He determined it would not be beneficial to wait another 3 years for this evaluation to fall far enough into his past and be considered for promotion and continuation beyond 20 years. 3. His NCOER covering the period 17 September 2017 through 15 May 2018 shows the reason for submission as "Change of Rater." His rater was SFC and his senior rater was MAJ . The NCOER shows in: a. Part IVc (Character), his rater marked "DID NOT MEET STANDARD" and commented, in part: "Displayed characteristics contrary to Army Values when faced with challenging situations requiring Personal Courage, Integrity, and Honor"; b. Part IVf (Leads), his rater marked "DID NOT MEET STANDARD" and commented: * failed to possess or learn basic MOS [military occupational specialty] tasks required of a 15P [Aviation Operations Specialist] and was unable to train subordinates * chose to not assist in mentoring or preparing two subordinates for promotion board until directed to do so c. Part IV (Rater Overall Performance), his rater marked "DID NOT MEET STANDARD"; d. Part V (Senior Rater Overall Potential), his senior rater marked "NOT QUALIFIED" and commented: "[Applicant] has not demonstrated a basic level of competency with regard to basic leadership of Soldiers or MOS-specific skills. Do not send to SLC [Senior Leader Course]. Do not select for promotion at this time. Retention of this NCO is not a priority." 4. On 3 February 2019, CSM , the applicant's battalion CSM during the contested rating period, rendered a character-reference memorandum for record on behalf of the applicant wherein he stated: a. He is aware of the applicant's NCOER and deems that the applicant's performance was contrary to what is described about him. His prior NCO has since voiced differences pertaining to the applicant and he is certain the NCOER was personal. The applicant works extremely well with his peers and leads Soldiers who are not even assigned to him. He has demonstrated his potential. b. He is certain the NCOER does not reflect the applicant's leadership style, potential, and character. The applicant adapted to the challenges he placed on him with no negative responses and still had a positive outlook for the Soldiers within the battalion. He feels strongly that the applicant is an asset. 5. On 26 February 2019, MAJ , the applicant's senior rater during the contested rating period rendered a character-reference memorandum for record on behalf of the applicant wherein he stated: a. As the previous senior rater for the applicant, he wishes to clarify his remarks and observations with regard to subsequent observations of the applicant's quality. b. While his observations of the applicant during the contested rating period were accurate for that time frame, it has since come to his attention that there were factors affecting the applicant's performance of which he was not aware. After being afforded a professional distance from both the applicant and the applicant's rater during the contested rating period, he was able to observe the performance of both. It is his opinion that the applicant's rater was harsh in his dealings with the applicant and his leadership approach was counterproductive to the applicant's development in his role. c. He was able to observe the applicant during their rotation in Korea. The applicant's performance was an extraordinary departure from what he witnessed previously at the battalion. He feels that it was far more indicative of his value and commitment to the Army. d. He believes the applicant continues to be an asset to the command and he deeply regrets not having found out the applicant's full quality before rendering his report. 6. On 31 August 2021, the applicant retired. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. Based upon the statement of the applicant’s senior rater during the contested rating period and the demonstrated performance of the applicant during all previous rating periods, the Board concluded there was sufficient evidence of an injustice warranting the removal of the DA Form 2166-9-2, Noncommissioned Officer Evaluation Report (NCOER) covering the period 17 September 2017 through 15 May 2018. 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 is 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: * deleting from his record DA Form 2166-9-2 for the rating period 20170917 – 20180513 * placing a statement in his record for the rating period 20170917-20180513 as non-rated time 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 (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 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 600-37 (Unfavorable Information), 10 April 2018, provided 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. Paragraph 7-2a(3) (Appeals Involving Document with Regulatory Appeal Authority) stated this regulation does not apply to documents that have their own regulatory appeal authority, such as evaluation reports or records of courts-martial. 4. Army Regulation 623-3 (Evaluation Reporting System), 4 November 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 4-7f 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 Headquarters, Department of the Army, Evaluation Appeals Branch; National Guard Bureau Appeals Section; or the appropriate State Adjutant General (Army National Guard). c. Paragraph 4-11 (Burden of Proof and Type of Evidence) stated the burden of proof in the appeal process 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: (1) the presumption of regularity will not be applied to the evaluation report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice. d. 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. e. For a claim of administrative error, appropriate evidence may include: (1) the published rating scheme used by the organization during the period of the evaluation report being appealed; (2) assignment, travel, or temporary duty orders; (3) DA Form 705 (Army Physical Fitness Test Scorecard), DA Form 5500 (Body Fat Content Worksheet (Male)), and DA Form 5501 (Body Fat Content Worksheet (Female)); (4) leave records; (5) organization manning documents; (6) hospital admission, diagnosis, and discharge sheets; (7) statements of military personnel officers or other persons with knowledge of the situation pertaining to the evaluation report in question; (8) the results of a Commander's or Commandant's Inquiry, Inspector General, and/or Equal Opportunity investigation; and (9) other relevant documents. (10) Editable documents must be marked certified true copies. This applies to documents submitted as evidence in support of either an administrative or substantive claim. f. 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 or Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation may provide support for an appeal request. g. 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. The prospective appellant will note that: (1) pleas for relief citing past or subsequent performance or assumed future value to the Army are rarely successful and (2) limited support is provided by statements from people who observed the appellant's performance before or after the period in question (unless performing the same duty in the same unit under similar circumstances), letters of commendation or appreciation for specific but unrelated instances of outstanding performance, or citations for awards, inclusive of the same period. h. 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: (1) whether the entire evaluation report is contested or only a specific part or comment and (2) 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. i. 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: (1) 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. (2) Correcting minor administrative errors or deleting one official's rating does not invalidate the evaluation report. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management), 7 April 2014 and currently in effect, prescribes the policies and operating tasks for the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File (OMPF), finance-related documents, and non-service related documents deemed necessary to store by the Army. It provides that once properly filed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001824 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1