AR20160007203

IN THE CASE OF:

BOARD DATE: 19 May 2016

DOCKET NUMBER: AR20160007203

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: AR20160007203

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: 19 May 2016

DOCKET NUMBER: AR20160007203

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 DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 4 October 2012 through 3 October 2013 from his official military personnel file (OMPF).

2. The applicant states that he believes the NCOER is unjust. He appealed the NCOER to the Enlisted Special Review Board (ESRB), but it was determined that there was not enough evidence to remove the NCOER from his OMPF. The Army Board for Correction of Military Records (ABCMR) is his next level of redress.

3. The applicant provides a copy of his NCOER appeal.

CONSIDERATION OF EVIDENCE:

1. At the time of the subject NCOER the applicant was a Regular Army (RA) staff sergeant (SSG) with about 10 years of active service.

2. At the time of his application, he was assigned as a platoon sergeant in military occupational specialty (MOS) 25U (Signal Support Systems Specialist) at Fort Campbell, Kentucky.

3. The applicant received an annual NCOER covering 12 months of rated time from 4 October 2012 through 3 October 2013 for his duties as a Signal Support NCO in the 1st Engineer Battalion, Fort Riley, Kansas. His rater was First Lieutenant (1LT) G____ T. W________, Executive Officer, his senior rater was Captain (CPT) W______ R. H_____, the Company Commander, and his reviewer was Lieutenant Colonel (LTC) T_____ B. H________, Jr, the Battalion Commander. This NCOER shows the following entries:

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

* lost accountability of communication equipment in excess [of] $10,000 upon and during the deployment; costing the unit countless man hours to locate or investigate the loss
* frustrated the chain of command with inability to effectively track or communicate the locations or status of two [route clearance patrols (RCPs)] during the eight month deployment
* failed to hold subordinates or himself accountable when tasks were not completed or communication systems were prepared incorrectly for RCP missions

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

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

e. 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:

* promote to Sergeant First Class with peers
* send to Senior Leader Course with peers
* lacks the understanding of the importance of accountability regardless of the situation of the mission
* demonstrates potential; best serves the Army in his current position

8. The NCOER shows the rater, senior rater and the applicant authenticated this form by placing their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place.

9. There is no available evidence showing the applicant requested a Commander’s Inquiry regarding the subject NCOER.

10. An HRC memorandum, subject: Evaluation Report Appeal 20121004 – 20131003, dated 2 April 2016, notified the applicant that his appeal of the NCOER was denied.

11. He provides a copy of his NCOER appeal indicating the appeal is based on administrative and substantive error. He specifically offered that:

a. The rater was not an eligible rater because he was not the applicant’s immediate supervisor.

b. The bullet comment in Part IVf stating he “lost accountability of communication equipment in excess $10,000 upon and during the deployment; costing the unit countless man hours to locate or investigate the loss” is unproven derogatory information and in violation of AR 623-3 (Evaluation Reporting System), paragraph 3-19. He asserts he never received a negative counseling statement and it was discovered his unit never took possession of the equipment. Further, there was no formal investigation.

c. The bullet comment “frustrated the chain command (sic) with inability to effectively track or communicate the locations or status of two RCPs during eight month deployment” contradicts the bullet comment in Part IVb stating he “implemented a battle tracking plan during the OEF 12-13 that allowed the TOC to relay critical information during night route clearance operations.”

d. The bullet comment “failed to hold subordinates or himself accountable when tasks were not completed or communication systems were prepared incorrectly for RCP missions” is unproven derogatory information and is not supported by his “Daily Duties and Scope.” He states he should have been counseled had he not performed his duty.

12. He also provided a letter of support from the rater listed on the report, dated 28 July 2015, which reflected the stated purpose was to clarify the Responsibility and Accountability bullet on the contested report. The SR stated it was determined the missing equipment was not the appellant’s fault. After an investigation it was concluded the previous unit handed the equipment over without the component hand receipt. Almost all the components were located during an exhaustive search and the monetary loss to the Army was negligible.

REFERENCES:

1. Army Regulation 623-3 (Evaluation Reporting System), prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.

a. Paragraph 3-2i (Evaluation Report Requirements) states rating officials have a responsibility to balance their obligations to the rated individual 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 individual 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.

b. Paragraph 3-23 (Unproven Derogatory Information) states that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA. If the rated individual is absolved, comments about the incident will not be included in the evaluation.

c. Paragraph 3-39 (Modification to Previously Submitted Reports) states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the 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 administrative error or factual inaccuracy. The burden of proof rests with the appellant.

DISCUSSION:

1. The applicant is appealing his NCOER for the period 4 October 2012 through 3 October 2013 on the basis of administrative and substantive inaccuracy. In order to justify deletion or amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that (a) the presumption of regularity should not be applied to the report under consideration and (b) action is warranted to correct a material error, inaccuracy, or injustice.

2. His contention that the contested NCOER was not prepared by the proper rating official is without merit. He did not provide an approved rating scheme or any other evidence to support this contention. Additionally, by signing the report he verified the administrative data in Part I and that the rating officials were correct.

3. He contends that the NCOER is based on unproven derogatory information that he was never counseled on. However, he did not provide any compelling evidence to show the derogatory information was not true. He did provide a letter from the rater who offered clarification on the events surrounding the derogatory statement. The rater indicated that the unit concluded, after an investigation, that the applicant was not responsible for the loss of the property specified and that the unit then took measures to correct accountability procedures. Far from absolving the applicant, this supports the bullet comment that accountability was lost and countless man hours were spent to locate or investigate the loss of equipment.

4. The applicant did not provide any evidence to show the bullet comment regarding his failure to hold subordinates accountable was untrue. The rater did not address this in his letter of support.

5. The applicant has not provided clear and convincing evidence showing that the ratings on the contested report were in error or that they were anything other than the considered opinions and objective judgments of the rating officials at the time the report was rendered. Additionally, there is no evidence in the available records and the appellant has not provided evidence showing that the contested report was inaccurate, unjust, or otherwise flawed.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160007203

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160007203

5

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2