IN THE CASE OF: BOARD DATE: 5 December 2022 DOCKET NUMBER: AR20220003817 APPLICANT REQUESTS: removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 13 January 2012 through 15 October 2012 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), with applicant's memorandum * Email ((Applicant) NCOER), 20 August 2013 through 1 December 2013 * five DA Forms 2166-8 covering the periods 13 January 2011 through 22 June 2015 * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 18 May 2014 and 19 April 2020 * eight DA Forms 2166-9-2 (NCOER) covering the periods 2 November 2015 through 28 February 2021 * Witness Statement, 9 February 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 shown on his contested NCOER was not his rater during the rating period and he was never counseled for failure to meet the standard for Army Values or any other expectation during the rating period. b. The senior rater shown on his contested NCOER was not his senior rater during the rating period. He has never met this officer; therefore, the officer never counseled him or had any discussion whatsoever with him about his performance, and certainly never counseled that he "should attend SHARP [Sexual Harassment Assault Response and Prevention training]." There is no context for such a defamatory statement. He was never counseled about any behavioral issue noted in the bullet comments. c. The incidents occurred well beyond the 3-year timeline; however, the timing of the behavior noted in the evaluation is part of the injustice. The evaluation itself was completed and submitted 2 years after he had left the position, and includes references to negative behavior that never occurred or for which he was never counseled or punished. d. At the time he signed the contested NCOER, he had been advised by his command that he had no recourse beyond the State Army National Guard (ARNG). He was unaware of the ABCMR process until recently. e. He has honorably served 20 months during two deployments since receipt of the contested NCOER and has spent more time fulfilling his responsibilities to the Army and his State ARNG than taking care of his personnel records, which he now struggles to reconcile with what his sacrifices cost his career. 3. The applicant's marriage certificate shows his marriage to on 12 April 2003. 4. He was serving in the Washington ARNG in an Active Guard Reserve status when he was promoted to the rank/grade of master sergeant (MSG)/E-8 effective 13 January 2010. 5. His DA Form 2166-8 covering the period 13 January 2011 through 12 January 2012 shows his rater as Battalion Operations Officer, and his senior rater as Lieutenant Colonel (LTC) Battalion Commander. His rater rated his overall potential for promotion and/or service in positions of greater responsibility as "Fully Capable." His senior rater provided positive comments and rated his overall performance as "Successful/2" and his overall potential for promotion and/or service in positions of greater responsibility as "Superior/2." 6. A review of his AMHRR shows his contested DA Form 2166-8 covering the period 13 January 2012 through 15 October 2012 was filed in his performance folder on 22 July 2014. The contested NCOER shows his rater as Command Sergeant Major (CSM) Battalion CSM; his senior rater as LTC Battalion Commander; and his reviewer as Colonel Brigade Commander. a. Part Ig (Reason for Submission) shows the reason for submission as "Relief for Cause"; b. Part II (Authentication) shows the Battalion CSM signed the report on 8 May 2014, the Battalion Commander and the Brigade Commander signed the report on 29 May 2014, and the applicant signed the report on 2 July 2014; c. Part IV (Army Values/Attributes/Skills/Actions) shows his rater marked "No" for Respect/Equal Opportunity (EO)/Equal Employment Opportunity, Selfless-Service, Honor and Integrity, and commented: * failed to fulfill his leadership's intent for positive and appropriate EO practices * broke trust of superiors * used poor judgement without consideration of results d. Part IVd (Leadership) shows his rater marked "Needs Improvement (Some)" and commented: * lacked the moral conscience of an Army leader * needed to respect and follow EO policies set forth from the chain of command * failed to live up to obligations e. Part IVf (Responsibility and Accountability) shows his rater marked "Needs Improvement (Some)" and commented: * needed to improve on subordinate/NCO relationship boundaries * used poor judgment which compromised his reliability with others * the rated NCO has been notified of the reason for the relief f. Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows his rater rated his potential as "Marginal"; g. Part Ve (Senior Rater Bullet Comments) shows his senior rater commented: * do not promote * should attend SHARP * bottom 1% percent [sic] of all NCOs in the BSTB [Brigade Special Troops Battalion] * limited potential, actions and judgment was not in line with rank and status h. Part Vc (Senior Rater – Overall Performance) shows his senior rater rated his performance as "Poor/5"; and i. Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows his senior rater rated his potential as "Poor/5." 7. He provided no Headquarters and Headquarters Company, 81st BSTB, rating scheme to substantiate his rater and senior rater at the time of the contested NCOER. 8. He received nonjudicial punishment on 16 October 2012 for: a. violating Army Regulation 600-20 (Army Command Policy), paragraph 4-14b (Relationship Between Soldiers of Different Rank), by wrongfully engaging in an inappropriate relationship with Specialist between on or about 23 July 2010 and 15 December 2011 at b. violating Army Regulation 600-20, paragraph 4-14b, by wrongfully engaging in an inappropriate sexual relationship with Staff Sergeant between on or about 15 January 2010 and 17 March 2010 at c. His punishment consisted of reduction in rank/grade by two ranks, suspended for 6 months, and a general officer letter of reprimand filed in his temporary personnel file pending no further transgressions; future failure will result in permanent filing of the general officer letter of reprimand. d. He elected not to appeal the punishment. e. A review of his AMHRR shows the Military Form 88 (Record of Proceedings under Article 15, Uniform Code of Military Justice) was filed in the performance folder on 5 April 2014. 9. Headquarters Military Department, State of Washington, Office of the Adjutant General, Orders 292-944, 18 October 2012, reduced him in rank/grade from MSG/E-8 to sergeant first class/E-7 effective 16 October 2012. 10. Headquarters Military Department, State of Washington, Office of the Adjutant General, Orders 305-909, 31 October 2012, transferred him from Headquarters and Headquarters Company, 81st BSTB, to the 96th Troop Command effective 16 October 2012. 11. Headquarters Military Department, State of Washington, Office of the Adjutant General, Orders 134-036, 14 May 2013, ordered him to active duty as a member of his Reserve Component unit in support of Operation Enduring Freedom-Kuwait with a reporting date of 23 June 2013. 12. He was honorably released from active duty and ordered to active duty in another status on 22 June 2013. His DD Form 214 for this period shows in: * item 12c (Net Active Service This Period) – 3 years, 10 months, and 11 days * item 18 (Remarks), in part – Individual Completed Period Which Ordered to Active Duty in Active Guard Reserve Status with the Washington ARNG * item 19b (Nearest Relative) – his spouse's name and address 13. The email correspondence ((Applicant) NCOER), 20 August 2013 through 1 December 2013, shows the coordination for completion of his contested NCOER. 14. He was honorably released from active duty to the control of his ARNG unit on 18 May 2014. His DD Form 214 for this period shows in: * item 12c (Net Active Service This Period) – 10 months and 26 days * item 18 (Remarks), in part – * Served in a Designated Imminent Danger Pay Area * Service in Jordan 1 August 2013 through 6 May 2014 * item 19b (Nearest Relative) – his spouse's name and address 15. His DA Forms 2166-8 covering the periods 23 June 2013 through 22 June 2015 show his raters rated his overall potential for promotion and/or service in positions of greater responsibility as "Among the Best." His senior rater provided positive comments and rated his overall performance as "Successful/1" and his overall potential for promotion and/or service in positions of greater responsibility as "Superior/1." 16. Headquarters Military Department, State of Washington, Office of the Adjutant General, Orders 068-563, 9 March 2017, promoted him to the rank/grade of MSG/E-8 effective 2 March 2017. 17. Headquarters Military Department, State of Washington, Office of the Adjutant General, Orders 51-094-0011, 4 April 2019, ordered him to active duty as a member of his Reserve Component unit in support of Operation Freedom's Sentinel with a reporting date of 16 May 2019. 18. He was honorably released from active duty to the control of his ARNG unit on 19 April 2020. His DD Form 214 for this period shows in: * item 12c (Net Active Service This Period) – 11 months and 4 days * item 18 (Remarks), in part – * Served in a Designated Imminent Danger Pay Area * Service in Afghanistan 6 June 2019 through 15 February 2020 * item 19b (Nearest Relative) – his spouse's name and address 19. His eight DA Forms 2166-9-2 covering the periods 2 November 2015 through 28 February 2021 show his raters rated his overall performance as "Far Exceeded Standard," "Exceeded Standard," or "Met Standard." His senior raters provided positive comments and rated his overall performance as "Most Qualified" or "Highly Qualified." 20. The witness statement, 9 February 2022, attests to his attempt to process the his delinquent NCOER. He assisted the applicant with an official request for a Commander's Inquiry; however, there was no response or findings of the investigation, as he believes a Commander's Inquiry was never completed. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Army has an interest in maintaining the integrity of its records for historical purposes. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. The Board determined there is sufficient evidence to grant relief and remove the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 13 January 2012 through 15 October 2012 from his Army Military Human Resource Record (AMHRR). 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 removing the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 13 January 2012 through 15 October 2012 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. Title 10, U.S. Code, 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 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 600-20 (Army Command Policy), 18 April 2008, prescribed the policies and responsibilities of command, which include the well-being of the force, military discipline, and conduct, the Army Equal Opportunity Program, and the Army Sexual Assault Victim Program. Paragraph 4-14b (Relationship Between Soldiers of Different Rank) stated relationships between Soldiers of different rank are prohibited if they: a. compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; b. cause actual or perceived partiality or unfairness; c. involve, or appear to involve, the improper use of rank or position for personal gain; d. are, or are perceived to be, exploitative or coercive in nature; or e. create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. 3. Army Regulation 623-3 (Evaluation Reporting System), 5 June 2012, prescribed the policies and tasks for the Army's Evaluation Reporting System. a. Paragraph 2-5 (Rules for Designating a Rater) stated the rater will normally be the immediate supervisor of the rated Soldier responsible for directing and assessing the rated Soldier's performance. The rater will normally be senior to the rated Soldier in grade or date of rank. b. Paragraph 2-7 (Rules for Designating a Senior Rater) stated a senior rater will be an officer or NCO of the U.S. Armed Forces, U.S. Coast Guard, or a Department of Defense civilian (or non-appropriated fund civilian) who is senior to the rater either in pay grade or date of rank in the direct line of supervision of the rated NCO. The senior rater will be the immediate supervisor of the rater and designated as the rated NCO's senior rater for a minimum period of 60 calendar days. b. Paragraph 4-7 (Policies) stated an evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR 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. 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. 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. c. Paragraph 4-8 (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. d. Paragraph 4-11 (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. 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. For a claim of administrative error, appropriate evidence may include the published rating scheme used by the organization during the period of the report being appealed. e. Paragraph 4-11d 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. f. Paragraph 4-11e stated to be acceptable, evidence will be material and relevant to the appellant's claim. In this regard, note that support forms may be used to facilitate writing an evaluation. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may filed solely because the information on a support form (or equivalent) or counseling form was omitted from an evaluation, or because the comments of rating officials on the evaluation report form are not identical to those in the applicable support form or counseling form. In addition, no appeal may be filed solely based on the contention that the appellant was never counseled. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003817 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1