ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  1 December 2021DOCKET NUMBER:  AR20200007311 


APPLICANT REQUESTS: 

.in effect, removal of the DA Form 2166-9-2 (Noncommissioned Officer (NCO)Evaluation Report (Staff Sergeant (SSG) – First Sergeant (1SG)/MSG)(NCOER)), for the period ending 30 November 2018

.retroactive promotion to master sergeant (MSG) and backpay



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.Counsel Statement

.Two NCOERs

.Law Enforcement Report – Final

.Memorandum, subject:  Appeal of Findings of Administrative InvestigationAppointed Pursuant to Army Regulation (AR) 600-20 (Army Command Policy),Appendix C-8

.Letter from Victim’s Attorney

.Memorandum, subject:  Recommendation to Retain or Remove from the FiscalYear (FY) 2017 MSG Selection List, pertaining to [Applicant]; The case wasclosed with a probable cause legal opine

.Memorandum, subject:  Rebuttal for Standby Advisory Board for [Applicant]

.Enlisted Record Brief (ERB)

.Timeline of Events

.DA Form 4856 (Developmental Counseling Form)

.Memorandum, subject:  Letter of Concern

.Memorandum, subject:  Initial Counseling for [Applicant]

.19 Character Letters



FACTS: 

1.The applicant, through counsel, states he is currently serving in the active dutycomponent of the Army at the rank of sergeant first class (SFC)/E-7. He received areferred NCOER for the rating period of 1 December 2017 through 30 November 2018.The NCOER rated the applicant as “Did not Meet Standards” and noted that “his
otherwise impeccable standards were eclipsed by disregarding the commander’s SHARP priorities and lacked judgment expected of an NCO.” 

a.The basis for the referred NCOER was a complaint made by another Soldier thatalleged the applicant acted inappropriately toward her. On 30 May 2017, First Lieutenant (1LT) G__ made a complaint that the applicant had touched her inappropriately on several occasions and was overly flirty. 1LT G__ accused the applicant of inappropriately touching her waist, shoulders, and thigh. After reviewing the Criminal Investigation Division (CID) investigation, the Chief of Military Justice opined that probable caused existed to believe the applicant committed the offenses of abusive sexual contact and sexual harassment. 

b.The applicant vehemently denied any wrongdoing whatsoever during theinvestigation process. The applicant had his flag lifted and the case closed favorably on 29 September 2017 after he received a local letter of concern. His battalion commander strongly recommended that the applicant remain on the FY17 MSG promotion list. 

c.On 20 October 2017, the applicant’s brigade commander recommendedremoving the applicant from the selection list. On 23 April 2018, the applicant submitted a rebuttal to U.S. Army Human Resources Command (HRC) regarding his standby advisory board. The applicant once again argued that he had been falsely accused of these actions which he considered to be “horrendous and unconscionable.” The applicant explained that the accusation was made in retaliation for him reporting an extramarital affair involving her and a senior commissioned officer to his chain of command. 

d.Despite the applicant’s impassioned rebuttal, the board approved his removalfrom the promotion list on 19 October 2018. Subsequently, he submitted a complaint to the Office of the Inspector General (IG). The IG stated that the alleged action was not defined as a personnel action, but rather was a lawful communication, so they recommended dismissal and the case was closed. 

e.The applicant then received the referred NCOER. He argued it was based onunfounded derogatory information. He once again raised the argument that the allegations were fabricated and were retaliation for reporting the affair between the two Soldiers in his battalion. On 14 June 2019, the applicant’s rater and senior rater drafted a memorandum in support of his NCOER appeal. After reviewing the circumstances that led to the referred NCOER, the rating chain recommended removing all of the negative information from the NCOER and changing the rating “Met Standard” to the character portion “Exceed Standard.” 

f.The enlisted special review board met on 20 September 2019 and found theevidence presented did not establish clearly and convincingly that the presumption of 
regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. The applicant’s request for relief was denied. 

2.The applicant enlisted in the Regular Army on 23 January 2002.

3.He served in:

.Afghanistan from 14 April 2005 to 20 March 2006

.Iraq from 8 June 2007 to 15 July 2008

.Iraq from 5 January 2010 to 24 August 2010



4.He served in a variety of assignments and attained the rank of SFC/E-7 on 1 March2014. He was assigned to Vicenza, Italy. He is currently serving on active duty.

5.The applicant provides:

a.His ERB, which shows his assignment history, promotion dates, awards, andservice data. 

b.A timeline summary, which shows, in pertinent part:

.2015:  applicant served as motor sergeant

.2016:  1LT G__ replaced 1LT P__; common knowledge of 1LT G__ and 1LTP__ in a romantic relationship; applicant’s NCOER indicates fully supportedArmy SHARP and Equal Opportunity programs

.January 2017:  placed on mission to Bosnia

.February 2017:  applicant informed warrant officer that 1LT G__ may behaving personal issues

.March 2017:  1LT G__ informed applicant she is pregnant and Major K__ isthe father (married); applicant tells 1LT G__ to end relationship

.April 2017:  applicant informed chain of command

.May 2017:  formal complaint against applicant

.September 2017:  CID investigation complete

.October 2017:  Letter of Concern issued



c.Memorandum, subject:  Initial Counseling for [Applicant], dated 1 June 2016,which outlined expectations and company policies, including character and leadership. 

d.NCOER, for the period ending 31 December 2016, which shows his duty position,description, performance, and potential for the rating period. 
e.A counseling statement, dated 30 May 2017 by the applicant’s battalioncommander, for notification of suspension of favorable personnel action (FLAG) for being the subject of an investigation. 

f.Law Enforcement Report, dated 14 September 2017 from CID, which shows theapplicant as the subject of abusive sexual contact against 1LT G__ on several occasions from 1 June 2016 to 12 April 2017 in Vicenza, Italy. The Chief of Military justice opined there was probable cause to believe the applicant committed the offenses of abusive sexual contact and sexual harassment.  

g.Memorandum, subject:  Appeal of Findings of Administrative InvestigationAppointed Pursuant to AR 600-20, Appendix C-8, which shows the commanding general received the applicant’s appeal of the findings of an investigation appointed in accordance with AR 600-20, to investigate his formal complaint of sexual harassment. He carefully considered the matters contained in his appeal and the supporting investigation and approved his appeal to the extent he disapproved the findings and recommendations of the supporting AR 15-6 investigation appointed on 25 May 2017. 

h.Letter from the victim’s counsel, dated 4 July 2017, which states he is respondingon behalf of his client to the investigation pertaining to allegations of possible sexual assault and sexual harassment involving the applicant. He further adds that the investigation should be investigated by CID not the command. 

i.Memorandum, subject:  Letter of Concern by the applicant’s battalion commanderto the applicant, which states: 

(1)A CID investigation found probable cause to believe he committed theoffenses of abusive sexual contact and sexual harassment on a female 1LT in his section. The evidence collected in the investigation indicates he made numerous comments of a sexual nature to the 1LT and touched her inappropriately on multiple occasions. His actions harmed the cohesiveness of the unit and were prejudicial to good order and discipline. This behavior is completely unacceptable. 

(2)His conduct causes the commander to question his professionalism andjudgement as well as his ability to serve effectively as a noncommissioned officer in the U.S. Army. Soldiers are mentored and trained by noncommissioned officers and he has a moral responsibility to uphold the Army values. As a leader, he must show the highest degree of professionalism and judgment and respect. Others look to him to set the standard. Any further incidents of this nature will not be tolerated and may result in much more serious adverse action. 

(3)This letter of concern is imposed as an administrative measure inaccordance with AR 600-37 (Unfavorable Information) and not as punishment under the 
Uniform Code of Military Justice. He will acknowledge receipt of this letter by completing the enclosed receipt of notification. He must provide any written matters he wants him to consider within five working days of his receipt. If he did not submit matters within the time allowed, the letter would be filed in his local file without his input. 

j.Memorandum, subject:  Recommendation to Retain or Remove from the FY17MSG Selection List [Applicant], dated 20 October 2017, which states the applicant was flagged during an investigation for abusive sexual contact (adult) that was reported on 30 May 2017 and closed on 14 September 2017. He received a locally filed letter of concern. This action is now closed and no other derogatory information or adverse action will result from this incident. The commander recommended the Soldier be removed from the FY17 MSG selection list. 

k.Memorandum, subject:  Rebuttal for Standby Advisory Board for [Applicant],dated 23 April 2018 from the applicant to HRC, which states: 

(1)He has been falsely accused of actions he considers to be horrendous andunconscionable. He spent years building a career he is proud of. He is not merely a Soldier, it is his life, his calling, his pride and joy. For over 16 years he crafted himself into an NCO of professionalism, a steadfast mentor for his troops, and a guide for young officers. He would, in no way, shape, or form risk his career and the livelihood of his family, by committing the acts he was accused of. 

(2)It was in his exercising of professionalism, and in his support of the missionfor his unit, that he revealed an extramarital affair to his command. In so doing, he became the target of retaliation. The actions he is accused of doing is not in his character. 

(3)This junior officer had an extramarital affair with another senior officer withinthe battalion, became pregnant by him, continued the relationship despite advice not to and when it was revealed, turned her wrath on the applicant. 

(4)He requested the board to not only consider his accomplishments and lettersof support, but to also consider the protections he has not been afforded. The ordeal has caused him a great deal of pain, stress, aggravation, and severe depression. He has given his life, soul, and heart in service. 

6.The applicant received a referred NCOER for the rating period 1 December 2017thru 30 November 2018. His rating chain consisted of 1LT V__, platoon leader (rater);Captain (CPT) B__, commander (senior rater). The NCOER shows, in pertinent part:

(1)Part III (Duty Description):  Platoon Sergeant for B Company, 173rd BrigadeSupport Battalion (Airborne). 
(2)Part IV (Performance Evaluation):

.Character:  Did Not Meet Standard; his otherwise impeccable standardswere eclipsed by disregarding the commander’s SHARP priorities and lackedin judgement expected of an NCO; prior to this lack of judgement, he earnedthe respect of subordinates and peers

.Presence:  Met Standard; demonstrated profound confidence by serving asthe company 1SG and achieving continuity throughout the ranks;implemented weekly battle-focused training and improving tactical executionduring airborne operations; scored a 300 on his last record APFT

.Intellect:  Far Exceeded Standard; standardized command post proceduresand organization which enabled accurate battle tracking across the battlespace

.Leads:  Far Exceeded Standard; consistently the go to for resiliency training;shares his experiences with junior Soldiers for their benefit

.Develops:  Far Exceeded Standard; developed a balanced company leaderstime training plus synthesizing MOS tasks with tactical principles

.Achieves:  Far Exceeded Standard:  supervised the company recordsmanagement and administrative procedures; increasing efficiency andaccuracy



(3)Rater Overall Performance:  Did Not Meet Standard; always exceededexpectations of a senior NCO but blemished by a poor choice and lapse of judgement; his capacity to think critically surpasses his peers, making him an exceptional contributor to the organization. 

(4)Part V (Senior Rater Overall Potential):  Qualified; his battalion levelrecognition as a trustworthy leader and his outstanding performance was overshadowed by a poor decision that impacted the organization’s SHARP climate. His leadership placed him among the best and he had no doubt this resilient NCO is a better leader today. Given the opportunity at the next rank, he will continue to lead Soldiers inspiring them toward excellence. 

7.His record contains a memorandum from the Department of the Army, Office of theInspector General (DAIG), dated 10 December 2019, which states:

a.They non-concurred the lower level IG’s recommendation to substantiate thereprisal allegation. Based on the evidence, they determined the alleged personnel action was in fact a protected communication. They further determined that there was no inference of causation between the resulting personnel actions and the complainant’s protected communication. Therefore, DAIG recommends dismissal of his case without further consideration based on no inference of causation. 

b.The applicant filed a Whistleblower reprisal complaint with the DAIG on11 January 2018. He alleged that 1LT G__ filed a sexual harassment complaint against him, in reprisal for his protected communications. Although the applicant did not allege the following actions were taken in reprisal, he testified that he was rendered a locally filed letter of concern and recommended for removal from a promotion list due to a CID investigation, which stated there was probable cause he committed the offenses of abusive sexual contact and sexual harassment. 

c.Evidence indicated that 1LT G__ filed a formal sexual harassment complaint on24 May 2017 against the applicant. This communication is defined as protected communication. Although she may have filed the sexual harassment complaint in retaliation for the applicant informing the chain of command of her inappropriate relationship with another Soldier, communications shall not be excluded from the protections because of the mentor’s motive for making the communication. 

d.Evidence indicated that once she filed the formal sexual harassment complaint,there was a statutory requirement for the allegation to be investigated. An AR 15-6 was initiated, however, since the sexual harassment complaint included an allegation of inappropriate touching, the complaint was submitted to CID for further investigation. Evidence indicated that although the AR 15-6 investigation found that the evidence did not corroborate allegations of sexual harassment, the CID investigation found that probable cause did exist that the applicant committed the offenses of sexual contact and sexual harassment. 

e.Evidence indicated that another investigation was not initiated. 1LT G__ didprovide testimony, but evidence indicated she did not otherwise influence the investigation, or the personnel actions that resulted from the investigation. 

f.Subsequent to the CID investigation, the applicant received a locally filed letter ofconcern and was recommended for removal from the FY17 MSG selection list. Although both of these actions are personnel actions, the applicant did not allege that these actions were in reprisal. Evidence indicated the causal impetus of these personnel actions were unrelated to the applicant’s protected communication and were a direct result of the findings of the CID investigation. Since there is no possible inference of causation, DAIG recommends dismissal, and found the case did not warrant further investigation. 

8.His record contains a Memorandum, subject:  Evaluation Report Appeal [Applicant],dated 24 July 2019, from the applicant to HRC, which shows he appealed his NCOERfor the rating period 1 December 2017 thru 30 November 2018 based on substantiveinaccuracy. He states the NCOER mentions unproven derogatory information and itlater was unfounded.

9.On 26 September 2019, the President of the Enlisted Special Review Board, ArmyReview Boards Agency provided a memorandum, which states:

a.Under the authority of AR 623-3 (Evaluation Reporting System), he approved theunanimous vote of the board to deny the appeal in the applicant’s case. 

b.HRC is directed to notify the appellant of the decision and provide him a copy ofthe record of proceedings. 

10.The applicant also provides 19 character letters from superiors, peers, andsubordinates, which speak to his character and how this incident is out of it, hisprofessionalism, his influence, and resilience.

11.By regulation, in order to justify deletion or amendment of a report, the applicantmust produce evidence that established clearly and convincingly that the presumption ofregularity should not be applied to the report under consideration or that action waswarranted to correct a material error, inaccuracy, or injustice. Clear and convincingevidence must be of a strong and compelling nature, not merely proof of the possibilityof administrative error or factual inaccuracy. The burden of proof rests with theapplicant.

12.Also by regulation

a.Soldiers who meet the basic eligibility requirements will be considered forpromotion to MSG. The promotion selection board will select the best qualified Soldiers for placement on the permanent promotion recommended list. Soldiers will be promoted from the list to fill vacancies for which they qualify within their elected mileage. Soldiers who are not fully qualified for promotion pin-on will remain on the list but will not be selected for promotion pin-on until after they are fully qualified and promotion requirement exists. 

b.Occasionally adverse information is discovered concerning a Soldierrecommended but not yet promoted. When this occurs, and the information would appear to warrant removal from the promotion recommended list disposition will be considered by the standby advisory board (STAB). The board’s recommendation will be submitted to the promotion authority for a final decision. 


BOARD DISCUSSION: 

1.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted. The Board carefully considered the applicant's record ofservice, documents submitted in support of the petition and executed a comprehensive
and standard review based on public law, policy and regulation.  One possible outcome was to grant relief based on the applicant’s battalion commander who was his immediate supervisor and recommended removal of the evaluation and allowing him to remain on the promotion list. However, upon review of the applicant’s petition and available military records the Board majority determined the applicant through his counsel did not demonstrate by a preponderance of evidence that a procedural error occurred that was prejudicial to the applicant, and his counsel did not demonstrate that the contents of the NCOER are substantially incorrect that would support removal. Based on the facts and circumstances within the record the Board determined there is insufficient evidence to grant relief.  Furthermore, the determined that retroactive promotion to master sergeant (MSG) and back pay was not warranted.  Therefore, relief was denied.  

2.The purpose of maintaining the Army Military Human Resource Record (AMHRR) isto protect the interests of both the U.S. Army and the Soldier.  In this regard, theAMHRR serves to maintain an unbroken, historical record of a Soldier's service,conduct, duty performance, and evaluations, and any corrections to other parts of theAMHRR.  Once placed in the AMHRR, the document becomes a permanent part of thatfile and will not be removed from or moved to another part of the AMHRR unlessdirected by an appropriate authority.  There does not appear to be any evidence thecontested NCOER was unjust or untrue or inappropriately filed in the applicant'sAMHRR.
BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: XXX : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

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. 


X 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 (AR) 623-3 (Evaluation Reporting System), in effect at the time,prescribed the policy for completing evaluation reports and associated support formsthat are the basis for the Army's Evaluation Reporting System.

a.Paragraph 4-7 (Policies) stated an evaluation report accepted for inclusion in theofficial record of a Soldier is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. 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 HQDA Evaluation Appeals Branch. Appeals based on administrative error only will be adjudicated by HQDA Evaluation Appeals Branch. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board. These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials. 
 
 b.  Paragraph 4-11 (Burden of Proof and Type of Evidence) stated to justify deletion or amendment of a report, the 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. 
 
2.  AR 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. 
 
 a.  Paragraph 5-5 (General) states Soldiers who meet the basic eligibility requirements will be considered for promotion to MSG. The promotion selection board will select the best qualified Soldiers for placement on the permanent promotion recommended list. Soldiers will be promoted from the list to fill vacancies for which they qualify within their elected mileage. Soldiers who are not fully qualified for promotion pin-on will remain on the list but will not be selected for promotion pin-on until after they are fully qualified and promotion requirement exists. 
 
 b.  Paragraph 5-19 (Removal from a Selection List) states occasionally adverse information is discovered concerning a Soldier recommended but not yet promoted. When this occurs, and the information would appear to warrant removal from the promotion recommended list disposition will be considered by the standby advisory board (STAB). The board’s recommendation will be submitted to the promotion authority for a final decision. 
 
//NOTHING FOLLOWS//