AR20160004412

IN THE CASE OF:

BOARD DATE: 3 May 2016

DOCKET NUMBER: AR20160004412

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

____X____ ___X_____ ___X_____ DENY APPLICATION

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

IN THE CASE OF:

BOARD DATE: 3 May 2016

DOCKET NUMBER: AR20160004412

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.

IN THE CASE OF:

BOARD DATE: 3 May 2016

DOCKET NUMBER: AR20160004412

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 amendment or removal of the DAForm2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 1September 2008 through 1March 2009 from his Official Military Personnel File (OMPF).

2. The applicant states, in effect:

a. He received a “NO” rating for the Army Value of Integrity in this NCOER with a bullet comment of “numerous driving infractions and pay inquiries have led to questionable integrity and judgment.”

b. This NCOER has always been a point of shame for him. Until his recent Qualitative Management Program (QMP) selection for non-retention, he did not know there was a process to remove the NCOER from his records. Given his situation, he would like to try to turn his predicament into an opportunity to add a bit of context to the NCOER. At the time, he was simultaneously going through a divorce and a bankruptcy. As a young specialist, he did not understand the difference between an adjustable-rate and a fixed-rate housing loan. This caused a huge financial strain a few years after purchasing the home when the 2008 housing crisis occurred, which caused his monthly mortgage payment to go from $1,040.00 to over $4,000.00.

c. This is the situation that led to the pay inquiries indicated in the NCOER in question. He spoke to a Judge Advocate General officer and was advised that the best option was to file for bankruptcy. He notified both his unit and the security manager, who saw his security clearance lapse for a short time. His clearance was quickly re-instated and eventually upgraded to TopSecret, which he currently maintains. Because of this situation, as well as his divorce proceedings, he was obligated to fly to Florida on multiple occasions from the Noncommissioned Officer (NCO) Academy where he was stationed. His repetitive yet approved absenteeism, along with a few speeding tickets for which he takes responsibility, seemed to frustrate his rating chain. That being said, his rating chain never indicated their intent to give him a “NO” rating in any Army Value until he was asked to sign the document.

d. As a brand new staffsergeant, he did not understand the implication of such a mark and simply signed the document under the incorrect assumption that a 4-month NCOER would not carry much weight. Furthermore, no supporting documentation was presented to validate this assessment. This was not a relief-for-cause NCOER or a 4-block rating which would require such documents.

e. Furthermore, the senior rater’s block states he “has good intentions and initiative,” yet “bad judgment.” A “NO” rating in the Army Value of Integrity leads people to believe that his intentions were subversive, but even this senior rater clearly stated this was not the case. He believes that each of his seven subsequent NCOER’s have proven that this one-time occurrence was an outlier and not the norm. A few examples of this contradiction indicated in his subsequent NCOER’s are: “his character is governed by a high set of personal values and standards”; “continually exhibits the highest standards of loyalty, integrity and honor”; and a “multifunctional NCO that [sic] possesses a great amount of integrity, sound judgement and professionalism.”

f. In the years since this NCOER, he made the Commandant’s List while attending the Senior Leader Course, passed advanced certificate-generating schools (master fitness trainer school and airborne school), and is currently filling the modification table of organization and equipment position of an S-6 NCO in charge which is a sergeantfirstclass position.

g. Lastly, he believes the turbulence he experienced as an inexperienced Soldier has helped him become a better leader, mentor, and NCO. He eagerly awaits the Board’s decision and looks forward to potentially removing this last remnant of this difficult time from his file and life.

h. He had no idea that this process existed until he was recently selected for non-retention under the QMP. He understands that ignorance is not an excuse, but the first time he heard this was a possibility was in his QMP notification letter.
It specifically stated that this NCOER’s “NO” block in Integrity was the reason for being separated under the QMP. He apologizes for not taking the initiative for digging into this earlier and figuring out the correct way to expunge this from his records.

i. At this point, it is do or die. As a staffsergeant with over 15years of service and two combat tours in Iraq, he believes this mark is unjust because he will not receive a retirement because of this one unsubstantiated value block check under the QMP. The NCOER ratings are inconsistent between the senior rater bullet and the “NO” block for Integrity. His subsequent NCOER’s specifically comment on his demonstrated high level of integrity. The NCOER as a whole is overall inconsistent with prior and subsequent ratings and his entire current chain of command attest that he is a man of integrity.

3. The applicant provides:

* DAForms2166-8
* parachutist badge orders
* DAForm1059 (Service School Academic Evaluation Report)
* Master Fitness Trainer Course Certificate
* bankruptcy documentation
* statements of support

CONSIDERATION OF EVIDENCE:

1. Having prior service in the U.S.Army Reserve, the applicant enlisted in the Regular Army on 30April 2001 and he has remained on active duty through continuous reenlistments.

2. He provided NCOER’s covering the period 1April 2006 to 31August 2008 showing he was rated “Fully Capable” by his raters for overall potential for promotion and/or service in positions of greater responsibility.

3. He was promoted to staffsergeant effective 1September 2008.

4. The contested change-of-rater NCOER covers the period 1September 2008 through 1March 2009. In PartIVa (Army Values), the rater placed an “X” in the “NO” block for Integrity and entered the following bullet comments:

* numerous driving infractions and pay inquiries have led to questionable integrity and judgment
* exhibits high standards of loyalty
* maintains a winning team spirit

5. In PartIV (Values/NCO Responsibilities), he was rated as “Needs Improvement (Some)” for Competence by his rater with the following bullet comments:

* inability to accomplish required IT [information technology] training in order to get full accredidation [sic] for administration rights to full perform duties as an IT administrator for the Academy
* demonstrated technical knowledge by graduating 25U [Signal Support Systems Specialist] BNCOC [Basic Noncommissioned Officer Course] Phase2 with a GPA [grade point average] of 98.5%
* used available resources to accomplish the mission to standard

6. In PartIV, he was rated as “Needs Improvement (Some)” for Responsibility and Accountability by his rater with the following bullet comments:

* received several traffic infractions resulted [sic] in a 30day loss of USARUER [USAREUR (U.S.Army Europe)] driving privileges; placed himself and other [sic] at serious risk or injury
* showed insufficient financial prudence; filed for bankruptcy due to escalating bills and debt that could not be paid
* member of team essential to the upkeep of over $1million dollars [sic] of computer and telecommunications infrastructure

7. In PartVa (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), he was rated “Marginal” by his rater.

8. He provided documentation that shows he filed for bankruptcy on 25March 2009 and he was granted a bankruptcy discharge in July 2009.

9. He also provided NCOER’s covering the period 2March 2009 to 5May 2015 showing he was rated “Fully Capable” by his raters, and one report wherein he was rated “Among the Best” for overall potential for promotion and/or service in positions of greater responsibility.

10. There is no evidence he appealed the contested NCOER to the Army Special Review Board within the allowable 3-year period.

11. A review of the applicant’s performance folder of his OMPF in the interactive Personnel Electronic Records Management System revealed a copy of the contested NCOER.

12. He provided five letters of support from his superiors.

a. In a letter, dated 11January 2016, his battalion S-6 officer in charge states the applicant performed with the utmost integrity for the past 5months. He had noticeably increased the overall shop morale, as well as increased the shop score on two separate occasions. He had a lot to offer the Army if he were allowed to continue serving.

b. In a letter, dated 11January 2016, his company commander attests that the applicant is a talented NCO deserving of extended service in the Army. He highly recommended his retention. The applicant is a very physically fit, self-motivated leader who takes the initiative to execute tasks in support of the mission. As a staffsergeant, he is currently excelling in a sergeantfirstclass billet.

c. In a letter, dated 12January 2016, his commanding officer attests that the applicant is the best signal support systems specialist on the battalion staff and is one of the best NCO’s in a battalion of over 750personnel. He contends that the Army is getting it wrong if the applicant is denied continued active duty service under the QMP.

d. In a letter, dated 13January 2016, his battalion executive officer attests that the applicant is a force multiplier who is highly motivated, physically fit, and a technically proven leader and his loss would greatly affect his organization. The applicant is a proven combat leader who has already deployed twice in support of Operation Iraqi Freedom.

e. In a letter, dated 13January 2016, his company first sergeant contends that the applicant is a proven combat leader who has demonstrated a high ability of being able to execute multiple tasks while simultaneously providing purpose, direction, and motivation to Soldiers. He is an aggressive, mission-focused NCO who has limitless potential to excel as an adaptive and relevant leader in today’s Army.

REFERENCES:

1. Army Regulation600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF. AppendixB (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System), states NCOER’s will be filed in the performance and service folders of the OMPF.

2. Army Regulation623-3 (Evaluation Reporting System) states an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF 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 the rating officials at the time of preparation. The regulation also states the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that: (1)the presumption of regularity will not be applied to the report under consideration and (2)action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION:

1. Army Regulation623-3 states that to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that:

* the presumption of regularity will not be applied to the report under consideration
* action is warranted to correct a material error, inaccuracy, or injustice

2. The applicant’s contentions and his letters of support were carefully considered. However, there is no evidence of record and the applicant provided no evidence showing the information contained in the NCOER covering the period 1September 2008 through 1March 2009 does not represent the considered opinion and objective judgment of the rating officials at the time of preparation.

3. Army Regulation600-8-104 states NCOER’s will be filed in the performance folder of the OMPF. The NCOER in question is properly filed in his military records in accordance with the governing regulation.

//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

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160004412

4

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2