AR20160004750

IN THE CASE OF:

BOARD DATE: 31 May 2016

DOCKET NUMBER: AR20160004750

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: 31 May 2016

DOCKET NUMBER: AR20160004750

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: 31 May 2016

DOCKET NUMBER: AR20160004750

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, in effect, removal of the DAForm2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), covering the rating period 26 November 2009 through 30 June 2010, from his official military personnel file (OMPF). Hereafter, the NCOER in question is referred to as the “contested NCOER.”

2. In the alternative, the applicant requests deletion of the appropriate portions of the contested NCOER, as addressed in his attached memorandum and application.

3. The applicant contends the contested NCOER is unjust and is the reason he was notified by the Qualitative Management Program (QMP) board for early separation from the U.S. Army.

4. The applicant provides a 5-page self-authored statement and the following documents labeled as enclosures:

* Enclosure 1 DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period ending 30 June 2010
* Enclosure 2 a memorandum for record (MFR), dated 5 April 2012 and signed by the applicant, subject: Evaluation Report Appeal from 20091126 through 20100630 (Applicant)
* Enclosure 3 Enlisted Special Review Board (ESRB) Docket Number AR20120009555, dated 25 October 2012
* Enclosure 4 DD Form 1610 ( Request and Authorization for TDY Travel of DOD Personnel), dated 31 March 2010
* Enclosure 5 an MFR issued by Combined Joint Special Operations Task Force Afghanistan, dated 20 April 2010, subject: Letter of Release for (Applicant)
* Enclosure 6 North Atlantic Treaty Organization (NATO) Travel Order
* Enclosure 7 DA Form 2823 (Sworn Statement), dated 31 August 2010
* Enclosure 8 DA Form 2166-8, for the period ending 30 June 2010, in draft format
* Enclosure 9 DA Form 2166-8, for the period ending 1 September 2015
* Enclosure 10-13 four (4) letters of support

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(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 applicant’s 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 applicant’s 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 17 January 2002 and holds military occupational specialty 92Y (Unit Supply Specialist). He attained the rank/grade of staff sergeant (SSG)/E-6 on 1 December 2008.

3. The applicant received the contested NCOER during the month of December 2010, a “Change of Rater” report covering 7 months of rated time from
26 November 2009 through 30 June 2010. His rater was his Company Executive Officer, CPT M.M.; his senior rater was his Company Commander, MAJ J.M.; and his reviewer was his Battalion Executive Officer, MAJ M.K. His principle duty title during the rated period was “Company Supply Sergeant.” The NCOER shows in:

a. PartIVa (Army Values/Attributes/Skills/Actions), the rater placed an “X” in the “No” block for “Honor” and entered the following comments:

* does not accept responsibility for his words and deeds; cannot be counted on by the chain of command
* focused on maintaining the unit’s combat readiness
* accomplishes assigned tasks

b. Part IVb (Competence), the rater placed an “X” in “Needs Improvement (Some)” with the following comments:

* lacked judgement frequently, resulting in a waste of government time and resources; unauthorized departure from Afghanistan caused overuse of scarce lift to return
* maintained poor accountability of all property book items during rating period
* failed to follow up on numerous tasks, placing self-interest over that of the mission during OEF-A XV deployment

c. PartIVf (Responsibility and Accountability), the rater placed an “X” in “Needs Improvement (Some)” with the following comments:

* failed to obey a lawful order from his Company Commander by departing a combat zone without his chain of command’s permission
* maintained poor accountability of forward and theater property at eight different outstations in a combat theater
* requisitioned and distributed the Class II supplies for six separate Operational Detachments-Alpha during OEF-A [Operation Enduring Freedom Afghanistan] XV

d. PartVa (Rater Overall potential for promotion and/or service in positions of greater responsibility), the rater placed an “X” in the “Marginal” block.

e. PartVc (Senior Rater Overall performance), the senior rater placed an “X” in the “Successful/3” block.

f. 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.

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

* do not promote to SFC [Sergeant First Class]
* do not send to Senior Leader’s Course
* limited potential to assume greater responsibility
* failed to perform as a NCO [noncommissioned officer] during a combat deployment to OEF-A
* Soldier refused to sign NCOER

4. The NCOER shows the rater and the senior rater authenticated the form with their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater and affixed his digital signature. The applicant refused to authenticate the form with his signature.

5. The applicant’s available records do not contain evidence that shows he requested a Commander’s Inquiry (CI) regarding the contested NCOER.

6. He appealed the contested NCOER to the Army Enlisted Special Review Board (ESRB) on or about 16 April 2012. He contended the NCOER contained both administrative and substantive errors. The administrative errors were that his counseling dates were not correct. The substantive errors were the comments that were previously stated above.

7. The ESRB unanimously voted on 25 October 2012 to deny him relief, as the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that a material error, injustice, or inaccuracy existed.

8. The Fiscal Year 2016 (FY16) Regular Army and Army Reserve Active Guard Reserve (AGR) SFC Promotion Selection Board considered him for promotion to the rank/grade of SFC/E-7. The board declined to select him for promotion; however, it did select him for consideration by the next available promotion selection board for possible separation under the QMP.

9. In a separate memorandum, dated 18 February 2016, subject: Evaluation Report Appeal (20091126 – 20100630), (applicant), the applicant provides the following statements:

a. He is appealing the contested NCOER on the basis of injustice. He also submitted matters to the QMP board that convened on or about 1 March 2016.

b. He exhausted all administrative remedies and submitted an appeal to the Department of the Army Suitability Evaluation Board (DASEB), which denied his appeal on or about 5 April 2012.

c. The injustice and errors stem from his alleged unauthorized departure from Afghanistan. The following are the errors on the contested NCOER as a result of this incident:

(1) Part IVa (Army Values), part a.5. (Honor), the “No” entry and bullet comment “does not accept responsibility for his words and deeds; cannot be counted on by the chain of command.”

(2) Part IVb (Rater – Values/NCO Responsibilities – Competence), the “Needs Improvement (Some)” box check and the bullet “unauthorized departure from Afghanistan caused overuse of scarce lift to return,” and “failed to follow up on numerous tasks, placing self-interest over that of the mission during OEF-A XV.”

(3) Part IVf (Responsibility and Accountability), the “Needs Improvement (Some)” box check and the bullet “failed to obey a lawful order from his Company Commander by departing a combat zone without his chain of command’s permission.”

(4) Part Va (Rater – Overall potential for promotion and/or service in positions of greater responsibility), the “Marginal” box check.

(5) Part Vc (Senior Rater – Overall performance), the box check “Successful/3.”

(6) Part Vc (Senior Rater – Overall potential for promotion and/or service in positions of greater responsibility), the box check “Fair/4.”

(7) Part Ve (Senior Rater Bullet Comments), the bullet comment “failed to perform as a NCO during a combat deployment to OEF-A.”

d. His chain of command failed to inform him that he was no longer authorized to temporarily return to the United States on 21 April 2010.

e. He wanted to try out for the Special Mission Unit (SMU) while he was in Afghanistan in 2010. He received an invitation in January 2010 from the SMU, but when he approached his chain of command, they told him that he could not do so at the time because they had just arrived in country. However, they agreed to send him to the May 2010 tryouts on the condition that the company supply was operating smoothly and he had a Soldier to backfill him for the battalion S-4.

f. By 2010, the company supply operations were running efficiently, and he had a Soldier to backfill him while he attended the SMU tryouts. He submitted a DA Form 1610 [Request and Authorization for TDY Travel of DOD Personnel] that was signed off on by his Company Commander, Major (MAJ) J.M. and Sergeant Major (SGM) J.H., who even provided him with advice about the tryouts.

g. He received a Letter of Release form Colonel (COL) DB authorizing him to depart the country and a NATO Travel Order was generated authorizing him to leave the country. He states he could not have received these documents without his chain of command actively working to help him return to the United States. He completed all of the requisite paperwork before he departed on 21 April 2010.

h. When he departed on 21 April 2010 for Fort Lewis, WA, he was confident that his chain of command had acquiesced to his brief return to the United States. Nevertheless, he was contacted shortly after arriving in Kuwait and told to return to Afghanistan immediately. He was shocked because he had believed his chain of command had acquiesced to his trip and when he returned was told by MAJ J.M. that he had not been authorized to leave.

i. He knew boarding a plane for the United States from a deployment without prior authorization was a dereliction of duty to say nothing of a potential punishment under the Uniform Code of Military Justice. Under no circumstances would he have left Afghanistan unless he believed he was authorized to do so.

j. The contested NCOER he subsequently received was a product of this misunderstanding. The draft NCOER that was prepared prior to his departure in June 2010 was rated a “2/2.” This draft NCOER was subsequently revised to reflect his chain of command’s displeasure with him after they authorized him to attend the SMU tryouts and then changed their minds without notifying him. Therefore, the NCOER he received was a direct product of his alleged unauthorized departure from Afghanistan.

k. He deployed again to Afghanistan in February 2013 and again in April 2015 being hand-picked to help train the Afghanistan National Army. He turned in an exemplary performance before he redeployed in September 2015. His NCOER for that period (19 April 2015 through 1 September 2015) as well as his letters of support from senior leaders who deployed with him are proof of his abilities in a deployed environment.

l. No credence should be given to the contested NCOER because his chain of command had previously authorized his departure from Afghanistan, but failed to inform him of the change in plans. Therefore, the contested NCOER should be removed from his OMPF or in the alternative, the appropriate bullets (as described above) should be redacted from his contested NCOER.

m. He was not counseled during the rating period and he never received any type of negative action during the rating period. The only negative reflection of his work performance was his alleged unauthorized departure from Afghanistan. Therefore, this incident is the only basis of his negative bullet comments and block checks.

10. The applicant submitted the following as evidence that has not been already addressed above:

a. DD Form 1610, dated 31 March 2010, authorizing the applicant to travel from Fort Lewis, WA to Fayetteville, NC and return with the purpose of a job interview.

b. An MFR from Combined Joint Special Operations Task Force – Afghanistan, dated 20 April 2010, subject: Letter of Release for (Applicant). This MFR was signed by the Commander, COL D.B., with an effective date of 20 April 2010, authorizing the applicant travel back to the Continental United States (CONUS). It also stated the applicant would return to Operation Enduring Freedom (OEF – Afghanistan) at a later date.

c. NATO Travel Order, dated 20 April 2010, authorizing the applicant to travel from Afghanistan to Fort Bragg, NC with a departure date on or about 21 April 2010 and an expected return date on or about 15 May 2010, signed by a Sergeant First Class (SFC) B.J.

d. DA Form 2823, dated 31 August 2010, signed by SFC B.J. stating the following:

* on 20 April 2010, he processed a Letter of Release for the applicant to depart theater on 21 April 2010, after receiving the request from the company
* he processed the request following all the proper operating procedures
* when the Letter of Release was approved, he briefed the applicant on all required out-processing requirements and he departed theater on 21 April 2010
* he was then informed by SGM T that the company didnt want the applicant to depart and to contact Kuwait to see if he was still in country
* he relayed instructions for the applicant to return back to Kandahar (Afghanistan) Airfield

e. DA Form 2166-8 for the period of 26 November 2009 through 30 June 2010; however, this NCOER was not forwarded or processed by U.S. Army Human Resources Command (HRC). It also contained a copy of email traffic between himself and SGM J.H., in reference to him signing his evaluation. The applicant informed SGM J.H. that he was refusing to sign the evaluation and he was going to contest the evaluation.

f. DA Form 2166-8 for the period 19 April 2015 through 1 September 2015 that depicts his duty in Afghanistan as a Liaison Officer for the Special Operations Task Force – Afghanistan. The rater, senior rater, and reviewer are all different than the contested NCOER. This report reflects a solid performance during the period.

g. Four letters of support for the applicant for the QMP board’s review. These letters speak highly of the applicant’s character and duty performance and recommend his retention in the Army.

REFERENCES:

1. Army Regulation 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 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 Pamphlet 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 2-17, every NCOER will be reviewed by the first sergeant, command sergeant major or sergeant major and signed by an official who meets the reviewer requirements of paragraph 28b. The reviewer is responsible for rating safeguard overwatch and will ensure that the proper rater and senior rater complete the report and examine the evaluations rendered by the rater and senior rater to ensure they are clear, consistent, and just, in accordance with known facts. Special care will be taken to ensure the specific bullet comments support the appropriate excellence, success, or needs improvement ratings in Part IVb-f. The reviewer will comment only when in disagreement with the rater and/or senior rater. The reviewer indicates concurrence or non-concurrence with rater and/or senior rater by annotating the appropriate box with a typewritten or handwritten X in Part II and adding an enclosure (not to exceed one page) if non-concurrence is selected.

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 (emphasis added).

e. Paragraph 6-11a states the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 339 and 67 will not be applied to the report under consideration, and action is warranted to correct a material error, inaccuracy, or injustice. The evidence presented must be of a clear and convincing, and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

2. Army Regulation 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. Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

4. 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 Article15, 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 30days or without compelling justification will continue to process for discharge; the DMPM is the final authority for disposition of appeals

DISCUSSION:

1. The applicant’s request to have the contested NCOER removed from his OMPF or in the alternative, to have the appropriate bullet comments deleted from the contested NCOER, was carefully considered.

2. The available evidence shows the applicant appealed the contested NCOER to the ESRB; however, his appeal was unanimously denied on 25 October 2012, as the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that a material error, injustice, or inaccuracy existed.

3. He contends the contested NCOER was a direct result of a misunderstanding of his alleged unauthorized departure from Afghanistan. He does provides evidence that he was initially given permission, based on a caveat that his duties and responsibilities were running smoothly; however, it is unknown at what point he was instructed that he was no longer authorized to depart the country.

4. After it was discovered he had departed, his chain of command immediately took action and instructed his return. It is unclear at what point the applicant was told that he was no longer authorized departure from the country. However, there is a presumption of regularity in the conduct of governmental affairs.

5. He failed to provide convincing evidence that shows the contested NCOER is unjust, in whole or in part, that it fails to accurately reflect the honest and valued judgments of his rating officials at the time the report was rendered, or that it fails to accurately portray his performance during the rating period. Additionally, he failed to submit evidence that definitively shows the contested NCOER contains material errors or substantive inaccuracies.

6. He provides third-party statements as a testament of his character and as proof of his superior abilities in a deployed environment. However, the authors of these statements were not in a position to fully understand or appreciate the expectations of the rating officials nor the circumstances and conditions at the time the contested NCOER was rendered. Based on that, these statements do not substantiate any sufficiently compelling evidence to overcome the presumption of regularity.

7. The purpose of maintaining the OMPF is to protect the interests of both the U.S.Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier’s service, conduct, duty performance, and evaluations, and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. In this case, there is no evidence the contested NCOER was unjust or untrue or inappropriately filed in the applicant’s 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) AR20160004750

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160004750

11

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2