AR20160003235

IN THE CASE OF:

BOARD DATE: 29 March 2016

DOCKET NUMBER: AR20160003235

BOARD VOTE:

___x_____ ___x___ ___x____ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 29 March 2016

DOCKET NUMBER: AR20160003235

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 contested NCO evaluation report (NCOER) for the rating period 9 February 2011 through 8 February 2012 from his OMPF;
* adding to his OMPF a statement of non-rated time or a statement explaining the gap in his NCOER for the period 9 February 2011 through 8 February 2012

___________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.

IN THE CASE OF:

BOARD DATE: 29 March 2016

DOCKET NUMBER: AR20160003235

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 NCOER for the rating period 20110209 through 20120208 (contested NCOER) from his official military personnel file (OMPF).

2. The applicant states:

a. The NCOER with an ending date of 20120208 shows a rating of 4-4 with a bullet comment that reads he was counseled for being unable to maintain accountability of equipment during deployment in support of Operation Enduring Freedom (OEF) XI. It also shows a bullet stating he forgot that he was responsible for what his Soldiers did or failed to do. These bullets were and are completely false. He has never been counseled for being unable to maintain accountability of equipment in all of his 12 years in the Army. No such document exists.

b. The basis of this appeal is substantive inaccuracy. The first bullet comment that he was counseled for being unable to maintain accountability of all assigned equipment while deployed in support of OEF XI is completely false. At no time did he lose accountability of any assigned equipment. In addition to this inaccurate comment, he never received counseling in reference to not maintaining accountability for equipment. His rater, Sergeant First Class (SFC) AMR, informed him that the Company First Sergeant (1SG) and the Company Commander, Captain (CPT) MBF, changed his NCOER and ordered his rater and senior rater to sign it with the inaccurate bullet comments added. The rater and senior rater submitted statements in support of that.

3. The applicant provides:

* Self-authored statement
* Contested NCOER
* Statement from the rater
* Statement from the senior rater

CONSIDERATION OF EVIDENCE:

1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants 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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2. The applicant enlisted in the Regular Army on 12 June 2003 and he holds military occupational specialty 11B (Infantryman). He was promoted to staff sergeant (SSG)/E-6 in September 2006.

3. He served through multiple reenlistments in a variety of stateside or overseas assignments, including Iraq and Afghanistan. At the time of the contested NCOER, he was assigned to A Company, 2nd Battalion, 2nd Infantry Regiment, 3rd Brigade Combat Team, 1st Infantry Division, Fort Knox, KY.

4. During February 2012, he received an annual NCOER covering 12 months of rated time from 9 February 2011 through 8 February 2012 for his duties as Weapons Squad Leader while assigned to A Company. His rater was SFC AMR, the platoon sergeant; his senior rater was First Lieutenant (now CPT) KMB, the platoon leader; and his reviewer was CPT MBF, the company commander. This NCOER shows he was counseled on 15 February 2011, 3 May 2011, 8 August 2011, and 7 December 2011. It also shows:

a. In PartIVa (Army Values), the rater placed an “X” in the “Yes” blocks for all values.

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

c. In Part IVf (Responsibility and Accountability), the rater placed an “X” in the “Needs Improvement (Some)” block and entered the bullet comments:

* counseled for being unable to maintain accountability of all assigned equipment while deployed in support of OEF XI
* forgetful that he was responsible for what his squad does or fails to do
* enforced and supervised rigorous, yet realistic weapons handling procedures, resulting in no negligence discharges during this rating period

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

e. In PartVc (Senior Rater Overall Performance), the senior rater placed an “X” in the “Fair/4” 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 “Fair/4” block.

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

* do not promote; needs more time at current level
* send to Senior Leader Course (SLC) when slots become available
* potential to become an effective leader with more experience
* performed duties and responsibilities to the best of his ability, but requires more development to become a well-rounded leader

5. The NCOER shows the rater and senior rater digitally signed the NCOER on 16 April 2012 and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place on 17 April 2012. The applicant also digitally signed this report on 17 April 2012.

6. There is no indication the applicant:

* Requested a Commander’s Inquiry
* Appealed the contested NCOER through the U.S. Army Human Resources Command (HRC) to the Enlisted Special Review Board within the prescribed time
7. He provides three statements as follows:

a. Self-authored statement, dated 14 January 2016, wherein he states the basis of his appeal is substantive inaccuracy. The first bullet is completely false because at no time did he lose accountability of any assigned equipment. He also never received counseling in reference to not maintaining accountability for equipment. His rater informed him the unit 1SG and commander changed the NCOER and ordered the rater and senior rater to sign it with the inaccurate bullet comments added. He wants this NCOER removed from his record. He previously prepared an appeal requesting his evaluation reflect an accurate performance report, specifically regarding the bullet in section IVf (original appeal documentation, dated 24 February 2012). He was informed by the battalion Human Resources (HR) NCO that he was supposed to turn his appeal in through the S-1 section for a legal review. After 2 weeks, he was informed by the battalion HR NCO the appeal documents and paperwork were misplaced. He resubmitted all the appeal documents again on 12 March 2012. After attending ALC in April 2012, immediately followed by the Drill Sergeant Course, he was informed his paperwork was misplaced again. He provided the HR NCO with another copy, unaware at that time that he was supposed to send the appeal directly to HRC.

b. A statement, dated 4 February 2016, from his former rater, SFC AMR, who states the purpose of this memorandum is to serve as his recommendation for the applicant’s retention in lieu of separation under the Qualitative Management Program (QMP). He served as his rater from February 2011 until September 2012. During that time the applicant showed he had the potential to become a great leader in the Army and always took great pride in learning his duty as a Squad Leader. The platoon that they were a part of didn’t see eye to eye with their 1SG’s wrong way of doing business and most of the members of the platoon paid for it. The NCOER that the applicant was given through 20120208 was not the one that he or the platoon leader wanted him to have. The 1SG and the commander changed what was on it and made it read what it now says. He does not concur with what that NCOER says and he believes that the QMP board should not judge the applicant on it. Once the board reads the next NCOER it shows that he (the author) was still his rater and states that the applicant became a “meticulous leader that stood out amongst his peers.” The Army has already invested an incredible amount of time, energy, and funds in the refinement of the applicant. Once his time as a Squad Leader was complete, he was selected to serve as a Drill Sergeant in the 155th Infantry Brigade at Fort Jackson where he was able to see him again. His care for all incoming Soldiers was one of the best he has seen by any Drill Sergeant on this base, his Brigade Commander and Command Sergeant Major noted that he was hands down the best drill sergeant in the brigade. An NCO that has a record as good as the applicant should not be considered for QMP by this board but should be considered to serve the Army as a Senior NCO.

c. A statement, dated 18 February 20-16, from his former senior rater 1LT (now CPT) KMB, wherein he states that he recently learned the applicant is being considered by the QMP board. He urges the board to retain him. He served as the platoon leader during a deployment to Afghanistan from January 2011 to January 2012. During that time, the applicant served as the Weapons Squad Leader in a highly volatile area of operations and did so with professionalism and unparalleled teamwork. The NCOER in question is not an accurate reflection of his performance. The NCOER received undue influence from the unit 1SG and his (the author’s) lack of professional experience during that time, which allowed the NCOER to process despite the fact that it did not reflect his comments or statements or those of the platoon sergeant. The applicant never displayed any misconduct, betrayed trust, or disregarded the Army values. The 4-4 rating is not accurate. The applicant was selected to serve as a drill sergeant where he continued his level of professionalism. He fully understands that the intent is to retain only the best leaders and urges the QMP board to retain the applicant.

REFERENCES:

1. 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 the Army 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 3-39, 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.

2. 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.

3. 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:

1. The applicant received an annual NCOER covering 12 months of rated time from 9 February 2011 through 8 February 2012. His rater rated him in need of some improvement in the area of Responsibility and Accountability and justified that with bullets that read he was “counseled for being unable to maintain accountability of all assigned equipment while deployed in support of OEF XI and he was “forgetful that he was responsible for what his squad does or fails to do.”

2. The senior rater echoed those comments by rating him a 4-4 and justified this rating with comments that read “do not promote; needs more time at current level,” “send to SLC when slots become available,” “potential to become an effective leader with more experience,” and “performed duties and responsibilities to the best of his ability, but requires more development to become a well-rounded leader.”

3. Some 3 years later, the very same rating officials (rater and senior rater) provide written statements reversing themselves and claiming there was command influence by the 1SG and the Company Commander. Both the rater and senior rater now claim the wordings on the digitally signed report are not theirs. The Board is tasked with considering opposing statements from the two rating officials.

4. It is possible the reversal of position by the rater and senior rater is based on retrospective thinking due to the QMP board. It is equally possible the 1SG and commander influenced the rater and senior rater to change the report, through it does not explain the absence of “intestinal fortitude” by those very same officials to support their subordinate.

5. Generally, statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by the applicant’s unfavorable personnel action claimed to be the sole result of the contested report. Such claims by rating officials that they did not intend to evaluate as they did, are insufficient, alone, to serve as the basis of altering or withdrawing an evaluation report.

6. Rating officials may provide statements of support contending the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparations. Such statements must describe what the new information consists of, when and how it was discovered, why it was reportedly unknown at the time of the report preparation and the logical impact it may have had on the contested report had it been known at the time the report was originally prepared. This is not the case here.

7. But regardless of the reason the rating officials reversed their position, it is clear that the applicant’s leaders/rating officials failed him. It is equally clear that the applicant now finds himself in the tough situation of facing a steep hill to climb: the QMP board. The sole source of his consideration by the QMP board is the contested NCOER. Although administratively correct, the contested NCOER is questionable and the applicant should not be penalized by its presence his OMPF.

//NOTHING FOLLOWS
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) @#!CASENUMBER

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160003235

8

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

1