AR20160004749

IN THE CASE OF:

BOARD DATE: 19 May 2016

DOCKET NUMBER: AR20160004749

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: 19 May 2016

DOCKET NUMBER: AR20160004749

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140021004, dated 6March 2015.

____________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: 19 May 2016

DOCKET NUMBER: AR20160004749

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 reconsideration of his previous request for the removal of a DAForm2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), a Relief for Cause (RFC) NCOER, for the period 22April 2013 through 1October 2013 from his Official Military Personnel File (OMPF).

2. As a new request, he requests retroactive promotion to the rank/grade of sergeant first class (SFC)/E-7 with an effective date of 1March 2014 and payment of all back pay and allowances as a result of the promotion.

3. The applicant states, in effect, that he is providing a new argument and evidence that were not previously considered.

4. The applicant provides

* two statements of support
* AR20140021004 Record of Proceedings (ROP) with attachments
* Army Board for Correction of Military Records (ABCMR) letter, dated 11March 2015
* ABCMR memorandum, dated 11March 2015
* Enlisted Special Review Board (ESRB) ROP and attachments
* NCOER appeal packet with attachments
* Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)) memorandum

CONSIDERATION OF EVIDENCE:

1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant’s case by the ABCMR in Docket Number AR20140021004 on 6March 2015.

2. As a new argument, the applicant states:

a. On the day he was notified of the results of the Fiscal Year 2013 (FY13) SFC selection board results, he was notified by the Brigade (BDE) Senior Human Resources (HR) Noncommissioned Officer (NCO) that he was being reassigned to be the NCO in charge (NCOIC) of the largest battalion (BN) in the BDE. He voiced his concerns over sending a newly promotable staff sergeant (SSG) to handle such a large unit. He was assured by both the current and future BDE HR NCO that he could handle the job and it was easier than he thought. He was not convinced and suggested they move a seasoned SFC into the position and move him to a smaller unit but his request was denied.

b. Upon arrival to his new unit, he was greeted with open arms and introduced to his team which included both of the previous NCOICs (both SSGs), two sergeants (SGTs) and two specialists (SPCs). The officer in charge (OIC) told him that the two SSGs were not NCOIC material. It became apparent that everything in the unit moved at a fast pace. The OIC briefed him on the battle rhythm and instructed him not to email or speak to the BN leadership without going through her. Every personnel issue was priority and all tasks had to be accomplished in the given workday. One SSG was replaced with a new SSG who eventually had medical issues and spent a great deal of the time in the hospital. Both SPCs were separated and replaced with new Soldiers fresh from advanced individual training (AIT) and one SGT was moved to another unit.

c. He approached the BDE HR NCO and voiced his concerns that he had non-available personnel in his section, two Soldiers that needed training, and with the schedule they worked it did not allow time for the training. His response was they would catch on and just needed time.

d. The days became longer and at one point the entire section would stay as late as 2200 hours to meet mission requirements. The BDE mission changed and they assumed responsibility for the contingency response force (CRF) responding to threats and humanitarian events throughout the Pacific. They now had to build the manifest and set up for the Soldier Readiness Program 1 (SRP1) and SRP2. The OIC’s plan was for the section to build over 900 SRP packets. In her office, he told the OIC that he did not think it was a good idea based on the amount of work the section already had. He highlighted that SRP was a unit responsibility and suggested they guide the units throughout the SRP process, store the packets in the unit area, inspect the packets upon completion, and then move them to the BN S-1. While making the suggestion, he quoted Army Regulation (AR)600-1-101 (i.e., AR600-8-101) (Personnel Processing (In-, Out-, Readiness, and Deployment Cycle)). The OIC rejected the idea because she wanted to set the standard for the Division.

e. The situation came to a head when the Division G-1 OIC came to the unit to do a surprise inspection on the SRP packets. Most were incomplete due to the limited time and personnel they had to build them and the completed ones were wrong by Division standards because they had been built with instructions and examples given by his OIC. The next day, he was called into the command sergeant major’s (CSM’s) office with the OIC present and told he was being relieved as the BN Senior HR SGT. The CSM cited the SRP packets as the straw that broke the camel’s back and said the OIC had been complaining about him constantly. He was surprised because prior to the inspection there had been no mention of a RFC.

f. Due to the removal of his promotable status, he was not promoted when he was supposed to be and has lost the wages, esteem, and pride that comes with promotion to SFC. He is now forced to compete with other SSGs that have had the opportunity to go to schools and apply for specialty assignments that strengthen their promotion packets.

3. As new evidence, the applicant provides two letters of support:

a. Letter of support, dated 20May 2015, wherein Captain (CPT)BJ stated he was the applicant’s OIC in the 3rdBN, 7thField Artillery (FA) Regiment, HI, from April 2011 to April 2012. He met the applicant upon his deployment to Afghanistan where they worked closely together for 12months. His duty performance was stellar and to this day he rates at the best military occupational specialty (MOS) 42A (HR Specialist) SSG that he has worked with throughout his 8year career as an adjutant general (AG) officer. The applicant could be counted on to get any assigned task completed to a standard higher than expected and his personal conduct was above reproach. He was unaware of the events that led to the RFC evaluation but the applicant was an NCO worth retaining.

b. Undated Letter of support, wherein SFC (Retired)MJ stated, in part:

(1) He was the applicant’s former NCOIC of the 3rdBN, 7thFA. The applicant was initially assigned to the BN’s rear detachment and then joined the BN downrange. Although inexperienced in working in a BN S-1, his performance while deployed was impeccable and the initiatives and standards he enforced with their severely understaffed administrative family enhanced the skills and abilities of all junior Soldiers, peers, and seniors whom he interacted with. Upon redeployment, the BDE assigned key staff members as part the reset program to include himself and the OIC. The applicant was handpicked to assist him (SFCMJ) in his new assignment because of his proven performance downrange.

(2) The applicant was also selected for promotion to SFC and later for assignment to the 2ndBN, 25thInfantry Regiment (i.e. 35th Infantry Regiment) as the S-1 NCOIC. He witnessed the applicant face a mix of emotions and negativity while assigned there. The BN CSM remained comfortable with an 11B (Infantryman) that reported directly to him to process NCOERs and certain actions. Everything administrative in the BN was manipulative and geared to HR metrics rather [than the] quality administrative processing of personnel actions and echoed the good ole boy feeling throughout certain BN members and staff members in the BDE.

(3) The applicant’s recommendations fell on deaf ears; his OIC continuously ran the section limiting his ability to perform as the NCOIC but blamed him when things she touched failed to get desirable results. The applicant received an unjust RFC NCOER for actions, or lack of performance on his OIC’s part and not his part. The ESRB determined the RFC NCOER should be removed from his OMPF and the Board should reconsider the decision to retain the RFC report in his record.

4. The applicant enlisted in the Regular Army on 31July 1998 and held MOS 42A. On 1March 2009, he was promoted to the rank/grade of SSG/E-6. On or about 22April 2013, he was assigned to Headquarters and Headquarters Company (HHC), 2ndBN, 35thInfantry Regiment, Schofield Barracks, HI, as the BN Senior HR SGT. He continues to service on active duty in the rank of SSG and is assigned to FortSill, OK.

5. On 1October 2013, he was relieved from his assigned duties by CPTERH, the BN S-1. In a memorandum, dated 24October 2013, subject: RFC Report Directed by Rater, CPTERH stated the reasons for his relief were two-fold:

a. During his tenure as the BN Senior HR SGT, he had received numerous counselings outlining his dereliction of duty within the BN S-1. In light of his continuous counseling from his first line supervisor, company commander (CDR), first sergeant (1SG), and BDE Senior HR SGT, the BDE chief warrant officer two (CW2) and 1SG made numerous attempts to provide him mentorship, support, guidance, and tools to ensure he was successful as the BN Senior HR SGT.

b. In performing his duties, the readiness of the section had been notably reduced through missed suspense’s from the company level to Division G-1. His failure to forecast ahead or take the initiative to manage mandatory requirements as the BN assumed CRF1 were clearly identified during the SRP inspection with Division G-1. He required substantial assistance from several individuals in order to complete routine administrative tasks as such as the NCOER tracker, promotion boards, strength reports, etc.

c. It was apparent his demonstrated lack of leadership and managerial skills severely affected his ability as the BN Senior HR SGT to make timely and immediate decisions without supervisory guidance. His performance over the past few months was in immediate need of additional training and leadership.

6. On 24October 2013, he received the RFC NCOER that covered 5months of rated time for the period 22April 2013 through 1October 2013. His rater was CPTERH, the BN S-1; his senior rater was Major (MAJ)RPT, the BN Executive Officer (XO); and his reviewer was Lieutenant Colonel (LTC)JBB, the BN CDR. This NCOER shows he was counseled on 22May 2013 and 22August 2013. It also shows:

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

* supports and encourages allegiance to mission
* committed to the unit’s mission
* stands for what is right

b. In Part IVb (Competence), the rater placed an “X” in the “Needs Improvement (Some) block and the bullet comments:

* required substantial assistance from multiple people completing routine administrative tasks such as an NCOER, memorandum, and awards
* struggled with following up on tasks given to him by his first line supervisor
* unable to qualify in key tasks and limited the readiness of the entire team

c. In Part IVc (Physical Fitness and Military Bearing), the rater placed an “X” in the “Success” block and the bullet comments:

* scored 213 on last Army Physical Fitness Test
* remains flexible and cooperative under all conditions
* presented a professional, Soldierly appearance at all times

d. In Part IVd (Leadership), the rater placed an “X” in the “Needs Improvement (Much)” block and the bullet comments:

* demonstrated a lack of leadership skills; lacks the confidence, managerial skills, and ability to make immediate decisions without supervisor’s guidance
* sometimes does not understand the importance of his position; leadership and managerial skills need improvement to qualify for next rank
* received several verbal and written counseling for incomplete tasks and missed suspense’s due to dereliction of duty

e. In Part IVe (Training), the rater placed an “X” in the “Needs Improvement (Some)” block and the bullet comments:

* does not utilize his free time to improve his knowledge to become a more efficient and better leader
* failure to plan ahead or mange current training requirements significantly reduced readiness resulting in missed administrative and higher echelon suspense’s
* performance was average and is in need of immediate need of retraining and mentorship

f. In partIVf (Responsibility & Accountability), the rater placed an “X” in the “Needs Improvement (Much)” block and the bullet comments:

* current level of responsibility is too great
* needs to realize the importance of performing daily tasks and the effects of ignoring them
* the rated NCO had been notified of the reason for the relief

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

h. 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) he placed an “X” in the “Fair/4” block.

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

* promote at the convenience of the Army
* needs to develop his technical skills before advancing to the next grade with duties of greater responsibility
* put forward much effort but unable to progress; consider reclassification

7. The NCOER shows the rater and senior rater digitally signed the NCOER on 24October 2013 and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place on 24October 2013. The applicant digitally signed this report on 24October 2013.

8. He was subsequently removed from the SFC selection list by a Standby Advisory Board (STAB) based on the RFC NCOER.

9. On 2October 2014, the ESRB recommended removal of the RFC NCOER from the applicant’s OMPF with the period of the report counted as non-rated time.

10. On 14November 2014, the DASA (RB) rejected the ESRB’s decision to remove the NCOER and determined the NCOER would be retained in the performance folder of the applicant’s OMPF. It was DASA’s judgment that clear and convincing evidence did not exist showing the bullet comments on the NCOER were unsubstantiated and untrue or were in error or not the considered opinions and objective judgments of the rating officials at the time the report was rendered. Absent this showing, DASA was unable to find a basis for removal of the NCOER.

11. This NCOER is currently filed in the performance folder of his OMPF.

REFERENCES:

1. AR623-3 (Evaluation Reporting System), in effect at the time, states:

a. 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 NCO 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 623-3 (Evaluation Reporting System).

b. 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. 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. The burden of proof rests with the applicant.

2. AR600-8-104 (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. AR600-8-19 (Enlisted Promotions and Reductions), in effect at the time, governs removal from a centralized selection list by Headquarters, Department of the Army (HQDA). It states:

a. The U. S. Army Human Resource Command (HRC) will continuously review selection lists against information available to ensure no Soldier is promoted or allowed to attend and/or complete training for the purpose of promotion when there is reason to believe a Soldier is mentally, physical, morally, or professionally unqualified to perform duties of the higher rank. A Soldier may be referred STAB when a Soldier receives a RFC NCOER.

b. Soldiers who are removed from a selection list may appeal the action only in limited circumstances. Soldiers may appeal a removal action when the underlying basis for the removal is subsequently determined to be erroneous.

DISCUSSION:

1. The applicant contends the RFC NCOER should be removed from his OMPF because he was rated unfairly by his OIC as he was hindered in performing his duties because the mission changed with increased responsibilities, his OIC wanted things done her way, and his section was short-staffed. In addition, he provides statements of support from a former NCOIC and OIC that stated when he worked with/for them, prior to the period covered by the RFC NCOER, he accomplished all assigned tasks in an impeccable manner while deployed and with a severely understaffed administrative section.

2. Rating officials have a responsibility to balance their obligations to the rated NCO with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated NCO for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions.

3. The available evidence shows the applicant, an NCO serving in a leadership position, appears to have performed below standard. He received a substandard NCOER that covered 5months of rated time. His rating officials believed he did not perform to standards, specifically demonstrating poor competence, leadership, training, and responsibility.

4. The NCOER reflects the objective judgment of the rating officials during a given rating period. This Board does not substitute its own evaluation of the applicant to that rendered by his rating officials. It appears this is how his rating officials judged his performance during the period in question.

5. There is insufficient evidence that shows the contested report contains any administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies. Furthermore, the applicant has not shown the evaluation rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time the NCOER was prepared or that they exercised faulty judgment in evaluating him as they did.

6. In order to justify removal of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature.

7. Notwithstanding his contention that he was hindered in performing his duties, he has not provided any conclusive evidence that clearly shows the information in the RFC NCOER was inaccurate, untrue, contains a material error, and does not represent the considered opinion and objective judgment of the rating officials at the time of preparation.

8. The governing regulation states NCOERs 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.

9. The applicant was removed from the promotion standing list. He was no longer a promotable SSG. Because he was no longer promotable, he is ineligible for retroactive promotion. He may still compete in future promotion boards but remains ineligible for retroactive promotion to SFC in 2014.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160004749

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160004749

10

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2