AR20160006924

IN THE CASE OF:

BOARD DATE: 24 May 2016

DOCKET NUMBER: AR20160006924

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: 24 May 2016

DOCKET NUMBER: AR20160006924

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: 24 May 2016

DOCKET NUMBER: AR20160006924

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, the removal of a DAForm2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rated period 14May 2011 through 13May 2012 (hereafter referred to as the contested NCOER) from his official military personnel file (OMPF).

2. The applicant states, in effect:

a. He would like the contested NCOER removed from his records. His appeal was denied by the Qualitative Management Program (QMP) board and he would like to remain in the Army. He has 13years of active service and he loves what he does. This is his last chance to stay in the Army so he is hoping someone can see the injustice in the contested NCOER. Every other NCOER that he received tells the Army how he soldiered and the person that he really is.

b. By military regulations the contested NCOER should not be valid. It only has one counseling date and states he was a troop program unit (TPU) Soldier when he had been an Active Guard/Reserve (AGR) Soldier since 2009. There was no counseling or documentation to support giving him a negative NCOER.

c. The only reason he did not appeal the contested NCOER was because his first sergeant (1SG) advised him that anyone could see that the contested NCOER was personal and a board would look past it since all his other NCOERs said he was successful and superior. He is submitting his QMP paperwork that justifies his request.
3. The applicant provides a QMP appeal packet consisting of:

* four draft versions of the contested NCOER
* five DAForms2166-8 for the rated periods 5May 2009 through 14May 2011 and 14May 2012 through 5May 2015
* orders, dated 16March 2012
* seven pages of email, dated between 10September and 6November 2012
* a self-authored memorandum for Congressional inquiry, dated 25November 2015
* a self-authored memorandum to the QMP board, dated 16December 2015
* memorandum, dated 15March 2016
* a letter of support to the QMP board, undated

CONSIDERATION OF EVIDENCE:

1. Having had prior service in the Regular Army, the applicant enlisted in the Army National Guard (ARNG) on 4August 2006 in the rank/grade of sergeant (SGT)/E-5. He held military occupational specialty (MOS) 92Y (Unit Supply Specialist).

2. On 5February 2009, he was discharged under honorable conditions from the ARNG in the rank of SGT for unsatisfactory participation and was transferred to the U.S. Army Reserve (USAR) Control Group.

3. On 24February 2009, he was voluntarily released from the USAR Control Group and was assigned to the USAR, 2ndBattalion, 323rdRegiment, TPU, Lumberton, NC.

4. On 4May 2009, he entered active duty as a member of the USAR in an AGR status and was assigned in MOS 92Y to Headquarters and Service Company (HSC), 11thPsychological Operations (PSYOPS) Battalion (BN), Marlboro, MD.

5. During August 2010, he received an annual NCOER covering 12months of rated time for the period 15May 2009 through 14May 2010 for his duties as unit supply sergeant while assigned to HSC, 11thPSYOPS BN. His rater was Sergeant First Class (SFC)CKH, the senior PSYOPS SGT; his senior rater was 1SGJNT, the company 1SG; and the reviewer was Major (MAJ)BLS, the company commander (CDR). His rater rated him as “Fully Capable” and his senior rater rated his overall performance as “Successful/2” and overall potential as “Superior/2.” Item12 (Status Code) of this NCOER contains the entry AGR.
6. During August 2011, he received an annual NCOER covering 12months of rated time for the period 15May 2010 through 14May 2011 for his duties as supply sergeant while assigned to HSC, 11thPSYOPS BN. His rater was Captain (CPT)RLB, the company CDR; his senior rater was Lieutenant Colonel (LTC)JES, the BN executive officer (XO); and the reviewer was LTCJBD, the BN CDR. His rater rated him as “Among the Best” and his senior rater rated his overall performance as “Successful/2” and overall potential as “Superior/1.” Item12 of this NCOER contains the entry AGR.

7. On 1April 2012, he was promoted to the rank/grade of SSG/E-6.

8. The applicant provides:

a. Four draft copies of the contested NCOER that vary from the final version of the contested NCOER that is filed in his OMPF.

b. An email, dated 10September 2012, wherein Command Sergeant Major (CSM)JDR, in part, asked the applicant to call him reference his refusal to sign the contested NCOER. He stated this was not how to dispute his evaluation, he needed to review Army Regulation 623-3 (Evaluation Reporting System) and search for the key words “disagree” and “appeal.” It would give him the opportunity to handle it professionally; refusing to sign the report sent a message to a board that he was unwilling to educate himself and further supported the evaluation his rating chain provided. It was his first NCOER as a SSG and he would have many more chances to put a good foot forward before he became eligible for consideration by a SFC promotion board so he should learn from it, even if he did not agree with all of it. He should also consider that it was so much better than the relief for cause NCOER he potentially could have received.

c. An email to the applicant’s rating chain, dated 12 September 2012, wherein, in part, CSMJDR stated he spoke with the applicant and asked him to supply a list of the accomplishments he could claim during the rating period. The achievements should have been documented all along and he (the applicant) now understood the relationship he was required to maintain with his rating chain. He (CSMJDR) wanted to ensure they were balancing the good with the bad in the rater’s comments. The applicant’s input may not change the rating but it makes the evaluation honest and fair.

d. An email from the applicant to his rater and senior rater, dated 13September 2012, wherein he stated, in part, he put his accomplishments on a DAForm2166-8 as it was easier for him to do it that way. He was not demanding they redo his evaluation based on his new input but he did hope they would consider and agree with some of the things he listed. He understood that he had not always done things the right way but he always tried his best. He knew he needed more mentorship and was learning from the whole ordeal. Some of the things on his NCOER were things that should have been on a counseling form. He refused to believe that he was so bad at his job that he should be rated a “3” or “4” in overall performance and potential. He knew he had made some mistakes but what NCO did not, that was part of learning and maturing. He hoped they could take the personal aspect out of the evaluation and rate him for what he really had accomplished during the period.

9. During November 2012, he received the contested NCOER, an annual NCOER covering 12months of rated time for the period 14May 2011 through 13May 2012, for his duties as supply sergeant while assigned to HSC, 11thPSYOPS BN. His rater was SFCRMR, the company 1SG; his senior rater was CPTJEB, the company CDR; and his reviewer was MAJIP, the BN S-3. This NCOER shows he was counseled on 13January 2012. Item12 of this NCOER contains the entry TPU. It also shows:

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

* never hesitates to voice an honest opinion
* good Soldier, but needs to work on tact and communication skills
* counseled for not complying with orders

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

* Soldier was counseled during this rating period for regularly failing to complete Army materiel status system (AMSS) inventory reports
* did not follow through on assigned duties within the motor section after repeated counseling on assigned responsibility

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

* projected confidence and enthusiasm when assisting Soldiers
* presented a confident, professional, and Soldierly appearance at all times
* displayed the ability to delegate tasks to subordinates
* trained his Soldiers to be proficient at his level
* provided valuable guidance and training to company and detachment leadership in the administrative and logistical aspects of the arms room and supply section
* frequently trained Soldiers on common tasks, making his subordinates more technically and tactically proficient

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

* was responsible for company not meeting training deadlines for weapons draw and Nuclear, Biological, and Chemical (NBC) draw
* his failure to follow orders and direction resulted in the company not able to train on prearranged tasks and plans
* refused to make himself available for mandatory counseling

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

f. 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.

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

* consistently missed regular reporting requirements and has difficulty understanding, acknowledging, and accepting constructive criticism, thus limiting his potential
* provide additional mentorship and training before selecting for advance leader course
* retain at current grade; not ready for promotion at this time

10. The NCOER shows the rater and senior rater digitally signed the NCOER on 15October and 25October 2012, and the reviewer concurred with the rater and senior rater evaluations and digitally signed the NCOER on 6November 2012. The applicant digitally signed the report on 8November 2012.

11. There is no evidence the applicant requested a commander’s inquiry in reference to the contested NCOER. This NCOER is filed in the performance folder of his OMPF.
12. The applicant was subsequently assigned in MOS92Y to Headquarters and Headquarters Company (HHC), 315thEngineer BN, CampPendleton, CA.

13. During September 2013, he received an annual NCOER covering 12months of rated time for the period 14May 2012 through 13May 2013 for his duties as supply sergeant while assigned to HHC, 315thEngineer BN. His rater was SFCBTL, the company operations NCO; his senior rater was 1SGDDC, the company 1SG; and the reviewer was CPTJMM, the company CDR. His rater rated him as “Among the Best” and his senior rater rated his overall performance as “Successful/1” and overall potential as “Superior/1.”

14. During May 2014, he received a change of rater NCOER covering 11months of rated time for the period 14May 2013 through 31 March 2014 for his duties as supply sergeant while assigned to HHC, 315thEngineer BN. His rater rated him as “Among the Best” and his senior rater rated his overall performance as “Successful/1” and overall potential as “Superior/1.”

15. During June 2015, he received an annual NCOER covering 12months of rated time for the period 6May 2014 through 5 May 2015 for his duties as supply sergeant while assigned to HHC, 315thEngineer BN. His rater rated him as “Fully Capable” and his senior rater rated his overall performance as “Successful/2” and overall potential as “Superior/2.”

16. In 2015, a board determined he should be involuntarily separated under the QMP. In a memorandum dated 16December 2015, subject: Matters of Extenuation or Mitigation to the Board President, the applicant appealed the QMP board’s decision and stated, in part, the contested NCOER had discrepancies, was done internally to try and destroy a Soldier’s career, and did not speak of the type of Soldier he was.

17. The applicant provides a memorandum, dated 15March 2016, subject: Appeal of Involuntary Separation under the QMP, from the Chief, Force Alignment Division, U.S. Army Human Resources Command (HRC). The chief stated, in part, Army policy identified that only cases with material error, newly discovered evidence, or the subsequent removal of documents from the Soldier’s Army Human Resource Record (AMHRR) are eligible for QMP appeal. His appeal did not meet the criteria and was being returned without action. However, he could apply to the Army Board for Correction of Military Records (ABCMR) to correct errors in or remove injustices from his Army military records.

18. On 1May 2016, he was honorably discharged from the Army and USAR with entitlement to half separation pay.
REFERENCES:

1. Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. The version of the regulation in effect at the time stated:

a. In paragraph 1-10 that the rated individual has considerable responsibility in the evaluation process. The rated Soldier will participate in counseling assessments and discuss the duty description and performance objectives with rater. This will be done within 30 days after the beginning of each new rating period and at least quarterly thereafter.

b. In paragraph 3-2i that rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On one hand, this evaluation will give full credit to the rated Soldier for their achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army selection boards and career managers can make intelligent decisions.

c. In paragraph 3-39 that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of an administrative error or factual inaccuracy (emphasis added). The burden of proof rests with the appellant.

d. In paragraph 6-11d that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials or other documents from official sources. Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.

2. Army Regulation600-8-104 (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.

DISCUSSION:

1. The applicant contends the contested NCOER should be removed from his OMPF because it has only one counseling date, shows his status as TPU when he was AGR, and there was no documentation to support giving him a negative rating.

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, appears to have performed below standard during the contested rated period. His rating officials believed he did not fulfill his duty obligations by not complying with orders and did not perform to standards, specifically demonstrating poor competence and not accepting responsibility for his actions.

4. The contested NCOER appears to be correct and appears to represent a balanced, fair, objective, and valid appraisal of the applicant’s demonstrated performance and potential during the period in question. While the NCOER may contain some minor administrative errors, there is no evidence, and the applicant has not provided sufficient evidence, to show his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner. More importantly, he has not shown the rating officials’ evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOER or that they exercised faulty judgment in evaluating him as they did.

5. By regulation, 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.

6. The applicant’s arguments provided in this case address his dissatisfaction with his rating and his belief that it was an unfair assessment. However, he did not provide any evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160006924

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160006924

9

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2