AR20160002448

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IN THE CASE OF:

BOARD DATE: 26 April 2016

DOCKET NUMBER: AR20160002448

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests removal of the annual DAForm2166-8 (Non-commissioned Officer Evaluation Report (NCOER)) for the rating period ending 10 July 2010 (contested NCOER) from his official military personnel file (OMPF).

2. The applicant states the record is unjust because the negative NCOER was not a true evaluation and did not reflect an accurate performance. The injustice was caused by the lack of care for Soldiers in the unit and also because he was unaware of how to fully address the injustice at the time. The Board members should find it in the interest of justice to consider this application because he has suffered many years due to an unjust evaluation of his performance in 2010 and his career is now at stake due to this NCOER. He is being looked at by the Qualitative Management Program (QMP) and will be possibly separated from service with nothing to show for it after 16 years of honorable service to our country if he cannot get his records to accurately reflect the type of NCO he is. He knows that he should have taken action immediately, but he was unaware of the appeals process and also the Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigations at the time of evaluation. He takes responsibility for not acting sooner. At this point, he has exhausted all other means and he requests favorable action so that he may continue to lead, mentor, and train troops.

3. The applicant provides:

* Self-authored statement
* “Nol prossed” (will not prosecute) decision by a Municipal Court regarding driving under the influence (DUI) charge and an “ABC Violation”
* Supporting statement from his former senior rater
* Certificate and orders for award of the Meritorious Service Medal
* Other NCOERs from 2009 to 2015
* 36 character reference letters/letters of support addressed to the QMP

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the Regular Army on 13 June 2000 and he holds military occupational specialty 68W (Healthcare Specialist). He was promoted to staff sergeant (SSG)/E-6 in May 2008.

2. He served through multiple reenlistments in a variety of stateside or overseas assignments, including Eisenhower and Madigan Army Medical Centers as well as Iraq from May 2002 to July 2004.

3. During July 2010, he received an annual NCOER covering 12 months of rated time from 11 July 2009 through 10 July 2010 for his duties as Cardiovascular Sergeant while assigned to Eisenhower Medical Center at Fort Gordon, GA. His rater was Sergeant First Class (SFC) WJG, the Medicine NCO in Charge (NCOIC); his senior rater was Ms. SDW, the Head Nurse at Cardiology Service; and his reviewer was Major SPJ, the Chief of Cardiology Service. This NCOER shows he was not counseled. It also shows:

a. In PartIVa (Army Values), the rater placed an “X” in “Yes” blocks for all values except the “Honor” value and entered a supporting bullet comment that reads “compromised standards of personal conduct while operating a vehicle.”

b. In Parts IVb (Competence), IVc (Physical Fitness and Military Bearing), and IVe (Training), and IVf (Responsibility and Accountability), the rater placed an “X” in the “Success” blocks and entered corresponding bullet comments.

c. In Part IVd (Leadership), the rater placed an “X” in the “Needs Improvement (Some)” block and entered the bullet comment “refused a state breathalyzer test after being suspected of drunk driving; drove with an open alcohol container in the vehicle.”

d. In PartVa (Rater Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an “X” in the “Fully Capable” block.

e. In PartVc (Senior Rater Overall Performance), the senior rater placed an “X” in the “Successful/3” block and in PartVd (Senior Rater Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an “X” in the “Superior/3” block.

g. In PartVe (Senior Rater Bullet Comments) the senior rater entered the following bullet comments:

* promote with peers
* send to further schooling if available
* capable of functioning in a position of greater responsibility
* no written counseling was conducted by the rating chain; only verbal counseling was performed during this period

4. The NCOER shows the rater and senior rater digitally signed the NCOER on 12 and 16 August 2010 and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place on 13 September 2010. The applicant also digitally signed this report on 16 September 2010.

5. On 3 October 2011, he appealed the contested NCOER to the Enlisted Special Review Board (ESRB). He contended that the NCOER contained false statements regarding an accident while operating a personal vehicle. The charges were dropped and the records were destroyed. Additionally, the report was based on false statements and pressure from the chain of command. With his appeal, he provided a supporting statement from his former senior rater (also provided here) and the court decision (to not prosecute) (also provided here).

6. On 5 April 2011, the ESRB unanimously voted to deny him relief as the evidence presented did not establish clearly and convincingly that a material error, injustice, or inaccuracy existed.

7. He provides his subsequent NCOERs from 2010 to 2015 to show his performance, rating, and potential. He also provides a document from the Municipal Court, County of Aiken, SC, ordering the destruction of the arrest record and the charge was “nol prossed.” He also provides a self-authored statement wherein he describes what occurred in 2009. He states:

* on 16 August 2009, he was contacted by a Soldier who had been consuming alcohol and as he drove to pick up the Soldier, he was stopped by the police
* the police officer searched the car, conducted a sobriety test, and handcuffed him for no reason; the officer assumed he had been drinking because there had been trash in the back of the truck from a previous camping trip
* he protested to the officer because he had not been drinking but was taken to the police station anyway; he requested a breathalyzer or blood test but the police refused
* he was released to his unit and explained the incident to the commander but the police report indicated that he refused to take a breathalyzer
* between September and January several court dates were set but the officer never showed up and ultimately the court decided to “nolle pros” (not to prosecute); no further action was taken by the court
* the chain of command apologized to him and offered him several E-7 positions but by then he had lost confidence and trust in his chain
* he asked several individuals to support him when the NCOER was prepared but no one would help support him
* the senior rater told him that she did not agree with the rating and that she was pressured into signing it; someone else prepared her comments and she was called “weak” if she did not sign it
* he discussed the issue with the command sergeant major but he told him not to sweat it and that the NCOER would go forward with or without his signature
* despite all this, he moved forward, was awarded a Meritorious Service Medal by the very same command, and transferred to another unit
* he had since improved himself, professionally and personally, enrolled in college, served on committees, and mentored Soldiers
* he did not drink that night and the negative NCOER serves as the basis for the QMP – that is unjust

8. He also provides a statement from his former senior rater, Ms. SW who was the Nurse Manager at the Cardiology Service, Eisenhower Army Medical Center. She states:

* she worked with the applicant on a daily basis and she knows the NCOIC of the section was supposed to provide written counseling for the NCOs but he did not do so; he provided the applicant verbal counseling
* the applicant was involved in an incident off post in which there were allegations of DUI; however, through due process the charges were dropped and no legal action was taken
* it was her responsibility to senior rate him but when she received the NCOER, she was told the senior rater bullets had been written for her
* she did not agree with the pre-prepared bullets and the write up included the legal issue which she had not been privy to
* the written bullets were not accurate and did not portray the applicant’s performance; she chose not to use those bullets
* when she wrote her own bullets she was put under a lot of pressure to change the write up back to the one prepared for her
* her supervisor even counseled her and told her to use the bullets provided to her; she did not feel comfortable with that and she did not want to penalize a Soldier based on a legal issue that was not validated by the legal system
* she signed the report electronically using her own bullets and faced difficulties with her chain of command; her supervisor caused a hostile and confrontational work environment
* although she was accused of being weak and indecisive, she believes she did the right thing based on her observation of the Soldier
* she ultimately resigned from her position as a head nurse and ended her employment in part due to the pressures from this action
* she believed then and continues to believe today that the NCOER should not reflect a penalty that was not substantiated in the court system

9. He further provides 36 character reference letters/letters of support addressed to the QMP from various senior and junior officers, senior and junior Soldiers, and civilians. The authors comment on his integrity, professionalism commitment to the Army, and they all recommend his retention.

10. AR 623-3 (Evaluation Reporting System), in effect at the time the contested NCOER was rendered, shows in

a. Paragraph 1-9, Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pam 6233 (Evaluation Reporting System).

b. Paragraph 1-11, when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or by a member of a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The commanders inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policies and procedures established by Headquarters, Department of the Army (HQDA) and the conduct of the rated Soldier and members of the rating chain. The results of the commanders inquiry may be provided to the rating chain and the rated Soldier at the appointing officials discretion.
c. Paragraph 3-5, shortly after assuming duties, the rater will provide the rated Soldier with copies of the support form and the senior raters support form with the units mission, rating chain individual goals, and objectives. Within the first 30 days of the evaluation period, a rated NCO will discuss and fully understand or adjust goals and objectives discussed with the rater during the initial counseling session.

d. Paragraph 3-39, an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. Requests that an evaluation report in a Soldiers OMPF be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report or be included in the rated individuals OMPF: statements from rating officials that they underestimated the rated Soldier; statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did; requests that ratings be revised; statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential; and/or a subsequent statement from a rating official that he/she rendered an inaccurate evaluation of a rated Soldiers performance or potential in order to preserve higher ratings for another.

11. AR 600-8-104 Army Military Human Resource Records Management (AMHRR)) governs the composition of the AMHRR (which includes the OMPF) and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. NCOERs are filed in the performance section of the OMPF.

12. Several Military Personnel (MILPER) messages provide guidance and procedures in support of the QMP. The purpose of the QMP board is to identify selected NCOs for possible involuntary separation, specifically those with a general officer memorandum of reprimand, conviction by a court-martial or Article 15, Relief for cause NCOER, a “No” in the Army values on an NCOER, a senior rating of “4” on an NCOER, and NCO Education System failures.

* Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.)
* Soldiers may appeal on the basis of a material error in their records when reviewed by the board; the chain of command, all the way to a general officer, must recommend approval or disapproval
* Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge; the Director of Military Personnel Management is the final authority for disposition of appeals

DISCUSSION AND CONCLUSIONS:

1. The complete facts and circumstances of what occurred on 16 August 2009 are not available for review. Much time has passed since the applicant received this NCOER. Nevertheless, the available evidence indicates he was stopped by the civilian police and suspected of driving under the influence. It also shows the civilian court chose not to prosecute and the arrest record was destroyed.

2. The rating official rendered an annual NCOER covering 12 months of rated time from 11 July 2009 through 10 July 2010. The rater placed an “X” in “Yes” blocks for all values except the “Honor” value and entered a supporting bullet comment that reads “compromised standards of personal conduct while operating a vehicle.” The rater also placed an “X” in the “Needs Improvement (Some)” block and entered the bullet comment “refused a state breathalyzer test after being suspected of drunk driving; drove with an open alcohol container in the vehicle.”

3. This NCOER appears it may have some flaws:

a. If the applicant was in fact driving under the influence, there no evidence of any action taken by his commander such as nonjudicial punishment or at least counseling; the NCOER reflects no counseling occurred for 12 consecutive months. It appears the rater failed in carrying out his responsibilities.

b. If the applicant refused a breathalyzer as the NCOER states, there is no evidence that the commander ordered one as would have been an option, especially considering the applicant and his rating officials worked at a hospital.

c. The applicants statement confirms he had trash in the back of his vehicle.

d. The senior rater stated before and continues to state there was command influence in writing this NCOER. It appears, by her statement, that the senior rater was pressured into penalizing the applicant for something that the legal system chose not to prosecute him for.

e. All of the applicant’s subsequent NCOERs reflect successful performance. Additionally, 36 individuals wrote in favor of the applicant. Although none of the authors were in his rating chain and although the subsequent NCOERs stand alone and are distinct from the contested NCOER, it appears he was penalized for something he did not do.

4. There is insufficient evidence to remove the contested NCOER but there is sufficient evidence to show the contested NCOER contains deficiencies and at least the rater exercised faulty judgment in evaluating him as he did, despite the fact that this NCOER appears to represent the rating officials’ objective judgment and considered opinions at the time they prepared the NCOER. The corrections that the evidence supports are:

* change the “No” entry to a “Yes” entry in the “Honor” value and delete the first bullet in Part IVa (compromised standards of personal conduct while operating a vehicle)
* change the comments in Part IVd by redacting the portion of the first bullet stating “refused a state breathalyzer test after being suspected of drunk driving”

5. There is no evidence that clearly and convincingly refutes the comment that he drove with an open alcohol container in his vehicle. Considering his grade and length of service, the presence of this comment supports the “Needs Improvement (Some)” box check for Part IVd.

BOARD VOTE:

________ ________ ________ GRANT FULL RELIEF

_____x__ ____x____ ___x_____ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his NCOER for the period ending 10 July 2010 by:

* changing the “No” entry to a “Yes” entry in the “Honor” value
* deleting the first bullet in Part IVa (compromised standards of personal conduct while operating a vehicle)
* redacting the portion of the first bullet in Part IVd stating “refused a state breathalyzer test after being suspected of drunk driving”

2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removing the NCOER for the rating period ending 10 July 2010 from his OMPF.

____________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.

ABCMR Record of Proceedings (cont) AR20160002448

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ABCMR Record of Proceedings (cont) AR20160002448

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