IN THE CASE OF: BOARD DATE: 6 July 2021 DOCKET NUMBER: AR20210009394 


APPLICANT REQUESTS: 

a.removal of the following documents from the performance folder of his ArmyMilitary Human Resource Record (AMHRR): 

.DA Form 2627 (Record of Proceedings under Article 15, Uniform Code ofMilitary Justice (UCMJ)), 21 April 2020

.DA Form 2166-9-2 (Noncommissioned Officer (NCO) Evaluation Report(NCOER) (Staff Sergeant-First Sergeant (1SG)/Master Sergeant)) coveringthe period 19 December 2019 through 30 April 2020



b.or correction of the aforementioned documents.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record under the Provisionsof Title 10, U.S. Code, Section 1552)

.Self-Authored Letter, undated (first page only)

.U.S. Army Trial Defense Service Southwest Region, Fort Huachuca Field Office,Letter, 28 April 2020 (first page only)

.Article 93 (Cruelty, Oppression, or Maltreatment of Subordinates), UCMJ

.Article 134 (General Article), UMCJ

.Certificate of Training, 5 February 2018

.six DA Forms 2166-8 (NCOER)

.three DA Forms 2166-9-2



FACTS: 

1.The applicant states he was falsely accused of sexual harassment. He was alsosingled out by his unit. Due to the false allegation and unjust nonjudicial punishment(NJP) and relief-for-cause NCOER, he is subject to non-retention under the QualitativeManagement Program. His career has effectively been ruined. He further states:







a. The legal standard required to find him guilty under Article 15 requires the same high standard applied at courts-martial: beyond a reasonable doubt. There should have been no lesser standard because this was NJP. This meant Lieutenant Colonel (LTC) F____, as the commander, was to serve in a quasi-judicial role and impartially hear and consider the evidence, and must believe that every element of each alleged offense is met beyond a reasonable doubt to find him guilty of an offense. The Article 15 proceedings took the charges of maltreatment and combined them into one mega allegation of violation of Article 134, UCMJ. This charge is used as a safety valve to criminalize unlawful conduct which is not covered by an enumerated punitive article of the UCMJ. b. The elements as charged appear to be that between on or about 13 January and 24 February 2020: (1) he sexually harassed a sergeant (SGT) by asking her to lunch numerous times, causing her to feel uncomfortable; (2) he sexually harassed a specialist (SPC) by looking her up and down in a sexual manner; and (3) such conduct is prejudicial to good order and discipline and of a nature to bring discredit upon the Armed Forces. c. The paralegal or attorney who drafted this charge on behalf of the command simply tried to have a second bite at the apple with the maltreatment charges under Article 93. This charge does not make sense and should have been dismissed because it was duplicative of the Article 134 charges because it encompasses sexual harassment. Article 134 is to be used for disorders and neglects that are prejudicial to good order and discipline or service discrediting where the conduct is not covered by an article specifically listed in the Manual for Courts-Martial. d. The investigating officer (IO) made unfavorable conclusions about him because she believed he made certain remarks about the 1SG and was generally a toxic leader. The IO only had SGT A____ to support the contention that he would make homophobic and disparaging comments to the 1SG. 

2.His NCOER covering the period 1 May 2010 through 30 April 2011 shows in:

a.Part IVa (Army Values), ratings of "Yes" in all Army Values;

b.Part IVb-h (Values/NCO Responsibilities), ratings of "Excellence" or "Success";and 

c.Part V (Overall Performance and Potential), ratings of "Among the Best" by hisrater and "Successful/1" in "Overall Performance" and "Superior/1" in "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" by his senior rater. 

3.His NCOER covering the period 1 May 2011 through 30 April 2012 shows in:

a.Part IVa, ratings of "Yes" in all Army Values;

b.Part IVb-h, ratings of "Excellence" or "Success"; and

c.Part V, ratings of "Among the Best" by his rater and "Successful/1" in "OverallPerformance" and "Superior/1" in "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" by his senior rater. 

4.His NCOER covering the period 30 April 2012 through 31 January 2013 shows in:

a.Part IVa, ratings of "Yes" in all Army Values;

b.Part IVb-h, ratings of "Excellence" or "Success"; and

c.Part V, ratings of "Among the Best" by his rater and "Successful/1" in "OverallPerformance" and "Superior/1" in "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" by his senior rater. 

5.His NCOER covering the period 1 February 2013 through 1 August 2013 shows in:

a.Part IVa, ratings of "Yes" in all Army Values;

b.Part IVb-h, ratings of "Excellence" or "Success"; and

c.Part V, ratings of "Among the Best" by his rater and "Successful/1" in "OverallPerformance" and "Superior/1" in "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" by his senior rater. 

6.His NCOER covering the period 2 August 2013 through 11 August 2014 shows in:

a.Part IVa, ratings of "Yes" in all Army Values;

b.Part IVb-h, ratings of "Excellence" or "Success"; and

c.Part V, ratings of "Fully Capable" by his rater and "Successful/2" in "OverallPerformance" and "Superior/2" in "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" by his senior rater. 

7.His NCOER covering the period 12 August 2014 through 11 August 2015 shows in:

a.Part IVa, ratings of "Yes" in all Army Values;
b.Part IVb-h, ratings of "Excellence" or "Success"; and

c.Part V, ratings of "Fully Capable" by his rater and "Successful/2" in "OverallPerformance" and "Superior/2" in "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" by his senior rater. 

8.His NCOER covering the period 13 October 2016 through 29 January 2017 showsin:

a.Part IVc-h, ratings of "Exceeded Standard" or "Met Standard";

b.Part IVi, a rating of "Met Standard"; and

c.Part V, a rating of "Qualified."

9.On 5 February 2018, he was issued a certificate of training for completion of theEqual Opportunity (EO) Leaders Course.

10.His NCOER covering the period 30 January 2017 through 3 March 2018 shows in:

a.Part IVc, a rating of "Met Standard";

b.Part IVd-h, ratings of "Far Exceeded Standard," "Exceeded Standard," or "MetStandard"; 

c.Part IVi, a rating of "Exceeded Standard"; and

d.Part V, a rating of "Highly Qualified."

11.His NCOER covering the period 4 March 2018 through 18 December 2018 showsin:

a.Part IVc-h, ratings of "Exceed Standard" or "Met Standard";

b.Part IVi, a rating of "Met Standard"; and

c.Part V, a rating of "Qualified."

12.His NCOER covering the period 19 December 2018 through 18 December 2019shows in:

a.Part IVc-h, ratings of "Exceed Standard" or "Met Standard";

b.Part IVi, a rating of "Exceeded Standard"; and

c.Part V, a rating of "Highly Qualified."

13.On 27 February 2020, an IO was appointed pursuant to Army Regulation 15-6(Procedures for Administrative Investigations and Boards of Officers) to investigate thefollowing matters:

a.Did the applicant engage in sexual harassment of SGT G____ in violation ofArmy Regulation 600-20 (Army Command Policy), chapter 7 (Sexual Harassment/ Assault Response and Prevention Program (SHARP)), or other applicable rules and regulations? 

b.Did the applicant engage in sexual harassment of SPC K____ in violation ofArmy Regulation 600-20, chapter 7, or other applicable rules and regulations? 

c.Did the applicant engage in sexual harassment of SPC T____ in violation of ArmyRegulation 600-20, chapter 7, or other applicable rules and regulations? 

d.Did the applicant commit violations of Army EO policies or other applicable rulesand regulations in his behavior toward Captain (CPT) P____? 

e.Did the applicant commit violations of Army EO policies or other applicable rulesand regulations in his behavior toward 1SG R____? 

f.Did the applicant engage in counterproductive leadership or destructiveleadership in violation of Army Regulation 600-100 (Army Profession and Leadership Policy), paragraph 1-11 (Core Leader Competencies, "Toxic" Leadership, and Destructive Leadership Styles), or other applicable rules and regulations? 

g.Did the applicant engage in hazing, bullying, or other inappropriate behavior inviolation of Army Regulation 600-20, chapter 4 (Military Discipline and Conduct), or other applicable rules and regulations? 

14.On 11 March 2020, the IO concluded her Army Regulation 15-6 investigation. Sheconcluded that based on a preponderance of the evidence, the applicant did sexuallyharass SGT G____ and SPC K____ in violation of Army Regulation 600-20. He alsoviolated Army Directive 2015-39 (Inclusion of Sexual Orientation in the Military EOProgram) in regard to his comments toward 1SG R____. Additionally, the applicant didengage in counterproductive leadership in violation of Army Regulation 600-100 (ArmyProfession and Leadership Policy). However, there was insufficient evidence to showthe applicant sexually harassed SPC T____ or engaged in bullying or hazing in violationof Army Regulation 600-20. There was in insufficient evidence to determine whether the
applicant purposefully violated EO regulations in regard to his comments about Captain P____. 

15.On 21 April 2020, the applicant accepted NJP under the provisions of Article 15,UCMJ, for two specifications of maltreatment. A third specification of maltreatment andone specification of conduct which was to the prejudice of good order and discipline inthe Armed Forces and of a nature to bring discredit upon the Armed Forces were linedthrough. His punishment consisted of forfeiture of $2,376.00 pay per month for2 months, suspended for 6 months, and an oral reprimand. The applicant did notappeal. The imposing commander directed filing the original DA Form 2627 in theperformance folder of the applicant's Official Military Personnel File (OMPF).

16.The memorandum from the applicant's Trial Defense Service attorney toLTC F____, 28 April 2020, states the applicant should not be found guilty of anycharged offense in the Article 15 proceedings due to evidentiary shortfalls and otherareas of information worth special consideration. (Note: All of the even-numbered pagesof the memorandum are missing.) The issues outlined by the attorney are:

a.The applicant reported to the S-1 shop (personnel section) on or about13 January 2020. All misconduct, and this charge in particular, come very close in time to the applicant simply showing up. This is important when you read SPC K____'s sworn statement where she makes many allegations against the applicant, including that he had been going to her barracks area and staring at her in the parking lot. SPC K____ is not the applicant's Soldier and it defies logic that this NCO, who just arrived at his new duty location, would immediately begin a course of conduct of near-stalking behavior. 

b.SPC T____ is a friend of SPC K____. Consider what SPC T____ statesregarding what SPC K____ told SPC T____ the last time SPC T____ talked with SPC K____ about the applicant. Consider also what SPC T____ will say about how the applicant physically looks, and listen to what she says about how his normal look and facial features are the reasons why she texted SPC K____ that he looked at SPC K____ "like a piece of chicken." She did not write that because she saw him leering at SPC K____ or licking his lips. Finally, although SPC K____ writes in her statement that SPC T____ was present for this interaction where the applicant apparently looked her up and down and licked his lips in a sexual manner, consider that SPC T____ will say about what she did not see the applicant doing. SPC T____ will say she has experienced sexual harassment at prior duty stations and is attuned to the issue, but that she did not see or sense that the applicant acted in any way toward SPC K____ that could be described as sexual harassment. 

c.Consider statements from everyone that this behavior would be out of character.The applicant provides character references from former duty stations that say that it 
would be out of character for him to stare at a junior Soldier and lick his lips at her in a sexual manner. The applicant is a happily married NCO. 

d.It defies logic that the applicant would email SGT G____ about lunch viaGovernment email in some sort of criminal scheme of sexual harassment; it makes sense that he would email her via Government email because he had benign intentions of trying to figure out if she would want to come to the S-1. 

e.Consider the influence of SGT A____ on SGT G____. As any member of thebrigade S-1 shop (or likely anyone who worked closely with SGT A____ in the past months), SGT A____ had a very noticeable personal hygiene issue. He also had work ethic issues in the S-1 shop. Upon the request of the S-1 and based on his experiences at past duty stations, the applicant addressed the issue of SGT A____'s personal hygiene in a counseling session. Corporal W____ and SPC T____ can discuss how SGT A____ reacted negatively to having his deficiency addressed in a direct manner by his NCO in charge. The S-1 can say what she believes about SGT A____'s credibility and trustworthiness. It is clear that SGT A____ despises the applicant because the applicant held SGT A____ to the standard that any Soldier, let alone an NCO, is held to in the realm of personal hygiene and work ethic. As SPC T____ can attest, SGT G____ was hearing disinformation from SGT A____ about what the applicant was saying about SGT G____, which may play a role in her misinterpreting the applicant's simple emails and attributing the worst to them. 

f.Consider what "maltreatment" is defined as and ask whether, even if true and theapplicant's worst intentions are presumed, it is maltreatment for a sergeant first class/ E-7 to ask an SGT/E-5 to lunch? There is no evidence that the applicant wasconditioning her acceptance of going to lunch with any sort of positive or negativeaction. As the NCO in charge of the S-1 shop, he does not have influence oversomeone in Headquarters and Headquarters Company. This is not a 1SG or drillsergeant asking a subordinate to lunch with an implication that there may beconsequences if the subordinate refuses. Even if SGT G____ felt uncomfortable withbeing asked to lunch, when she let the applicant know that she was not comfortablewith being asked, he did what the Army and society would expect anyone to do: hesimply stopped.

g.Finally, consider the S-1's observations of the applicant's interactions withSGT G____. During the urinalysis where SGT G____ later alleges the misconduct and feeling uncomfortable with the applicant, the S-1 will say the applicant and SGT G____ got along well together by her observations. This runs contrary to SGT G____ saying that a simple email asking about lunch would make her feel uncomfortable. It also runs contrary to SGT G____ writing in her sworn statement that he would look at her in a way that made her feel uncomfortable from their first interaction. 

h.Though SGT A____'s influence and disinformation may have changed the waySGT G____ later felt about the applicant, it does not change the fact that the applicant's actions at the urinalysis and emails asking her to lunch do not constitute criminal maltreatment under Article 93, UCMJ. 

17.His NCOER covering period 19 December 2019 through 30 April 2020 shows hewas relieved for cause and shows in:

a.Part IVc (Character), a rating of "Did Not Met Standard" with the comment: "failedto support the Army SHARP [Sexual Harassment/Assault Response and Prevention]/ EO programs; fostered an environment of sexual harassment"; 

b.Part IVd (Presence), a rating of "Did Not Meet Standard" with the comment: "lossof military bearing and professionalism as documented"; 

c.Part IVf (Leads), a rating of "Did Not Meet Standard" with the comment: "failed tolead by example; lacked basic adherence to Army standards"; 

d.Part IVg (Develops), a rating of "Did Not Meet Standard" with the comment: "nota steward of the profession; actions are not within keeping of military standards"; 

e.Part IVi, a rating of "Did Not Meet Standard";

f.Part V, a rating of "Not Qualified" with the comment: "[Applicant] failed to displaysound judgment by targeting Junior Soldiers for his personnel gain. He destroyed trust with subordinates, peers, and the Chain of Command through inappropriate comments and actions. He created a negative command climate which was detrimental to subordinates and fellow Soldiers. Do not promote, do not retain in the Army, this NCO cannot be trusted to lead Soldiers." 

18.He provided extracts from Department of the Army Pamphlet 27-9 (Military Judges'Benchbook), 29 February 2020, citing the following UCMJ articles:

a.Article 93, UMCJ, states "cruel," "oppressed," and "maltreated" refer to treatmentthat, when viewed objectively under all the circumstances, is abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose and that results in physical or mental harm or suffering, or reasonably could have caused physical or mental harm or suffering. The elements of Article 93, UMCJ, state: 

(1)That (state the name (and rank) of the alleged victim) was subject to theorders of the accused; and 

(2)That (state the time and place alleged), the accused [(was cruel toward)(oppressed) (maltreated)] (state the name of the alleged victim) by (state the manner alleged). 

b.Article 134, UCMJ, states instructions are contained for offenses that are notspecifically listed in the Manual for Courts-Martial and which are disorders and neglects to the prejudice of good order and discipline in the Armed Forces (clause 1, Article 134) or conduct of a nature to bring discredit upon the Armed Forces (clause 2, Article 134). 

BOARD DISCUSSION: 

After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted.  The applicant’s contentions, the military record, and regulatory guidance were carefully considered.  Regulatory guidance states that once placed 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, such as this Board.  The Board agreed the NJP the applicant received was just, as the issuing officer used a preponderance of the evidence when making a decision of his guilt, and there is no evidence that shows the applicant disputed the NJP by requesting a trial by court-martial.  As the Board agreed the NJP was, then the following evaluation was supported by the NJP.  Based upon a preponderance of the evidence, the Board determined there is insufficient evidence to grant relief. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :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. 



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) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy acting through the Army Board for Correction of Military Records (ABCMR). TheBoard considers individual applications that are properly brought before it. The ABCMRwill decide cases on the evidence of record; it is not an investigative body. The Boardbegins 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 theevidence.

2.Army Regulation 27-10 (Military Justice), currently in effect, prescribes the policiesand procedures pertaining to administration of military justice.

a.Chapter 3 provides that NJP is imposed to:

(1)correct, educate, and reform offenders whom the imposing commanderdetermines cannot benefit from less stringent measures; 

(2)preserve a Soldier's record of service from unnecessary stigma by record ofcourt-martial conviction; and 

(3)further military efficiency by disposing of minor offenses in a mannerrequiring less time and personnel than trial by court-martial. 

b.Paragraph 3-28 (Setting Aside and Restoration) states an action whereby thepunishment or any part or amount, whether executed or unexecuted, is set aside and 
any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15, UCMJ. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. If all findings are set aside, then the Article 15, UCMJ, itself is set aside and removed from the Soldier's records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the Article 15, UCMJ, or punishment has resulted in a clear injustice. "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. 
 
 c.  Paragraph 3-37a states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal. 
 
 d.  Paragraph 3-37b(1)(a) states for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance or restricted folder of the OMPF will be made by the imposing commander at the time NJP is imposed. The filing decision of the imposing commander is subject to review by superior authority. 
 
 e.  Paragraph 3-37g states allied documents will be transmitted for administrative convenience with the original DA Form 2627 for filing in the restricted folder of the OMPF (see paragraph 3-44). The servicing legal office shall redact the personally identifiable information of all parties, except the Soldier being punished and any co-conspirator(s), from all allied documents transmitted for filing in a Soldier's OMPF or uploaded in the Military Justice Online Enterprise System. 
 
 f.  Paragraph 3-44 (Use of Records) states allied documentation transmitted with the original or copies of DA Forms 2627 and DA Forms 2627-2 (Record of Supplementary Action under Article 15, UCMJ), where filed with any of these forms, will be considered to be maintained separately for the purpose of determining the admissibility of the original or copies of DA Forms 2627 or DA Forms 2627-2 at courts-martial or administrative proceedings. 
 
3.  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 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. 
 
4.  Army Regulation 600-37 (Unfavorable Information), 2 October 2020 and currently in effect, provides 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 OMPF. 
 
 a.  Paragraph 7-2a(3) (Appeals Involving Document with Regulatory Appeal Authority) states this regulation does not apply to documents that have their own regulatory appeal authority, such as evaluation reports or records of courts-martial. 
 
 b.  Paragraph 7-2a(4) (Appeals for Article 15 Removal) stated the Department of the Army Suitability Evaluation Board will not consider appeals to remove a record of proceedings under Article 15, UCMJ, from the OMPF. The authority to adjudicate such claims rests with the ABCMR under the provisions of Army Regulation 15-185. 
 
5.  Army Regulation 623-3 (Evaluation Reporting System), 14 June 2019 and currently in effect, prescribes the policies and tasks for the Army's Evaluation Reporting System. 
 
 a.  Paragraph 3-37 (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 EO 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.  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. 
 
 g.  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. 
 
 h.  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. 
 
 i.  Paragraph 4-12 (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. 
 
  (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. 
 
 j.  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. 
 
 k.  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. 
 
//NOTHING FOLLOWS//