AR20160008057

IN THE CASE OF:

BOARD DATE: 24 May 2016

DOCKET NUMBER: AR20160008057

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: AR20160008057

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: AR20160008057

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 change of rater DAForm2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), for the rating period 22 June 2012 through 27 November 2012 (hereinafter referred to as the contested NCOER), from his Official Military Personnel File (OMPF).

2. The applicant states the contested NCOER contains negative comments that the rater took from the applicant’s previous NCOERs in order to form a basis for his observation of the applicant’s duty performance. He did not have anyone to speak on his behalf in support of an appeal of the contested NCOER. As a result, he did not submit a timely appeal to the Army Special Review Board. He recently learned he could submit an appeal to the Army Board for Correction of Military Records (ABCMR), even if he did not have any supporting statements. He adds that he has served honorably in the Army for 27 years. He is now being considered for denial of continued service under the Qualitative Management Program (QMP).

3. The applicant provides:

* a self-authored statement
* the contested NCOER
* two subsequent NCOERs
* DA Form 1059 (Service School Academic Evaluation Report)
* QMP notification memorandum and acknowledgement

CONSIDERATION OF EVIDENCE:

1. A DA Form 5016 (Chronological Statement of Retirement Points) shows the applicant had qualifying creditable enlisted service in the Army National Guard and U.S. Army Reserve from 26 October 1988 through 18 September 2000.

2. The applicant enlisted in the Regular Army on 19 September 2000. Upon completion of training, he was awarded military occupational specialty (MOS) 27D (Paralegal Specialist). He was promoted to staff sergeant/pay grade E-6
on 1 July 2007.

3. A review of the applicant’s OMPF revealed a copy of the contested NCOER is filed in the performance folder of his OMPF. It shows he was assigned to Headquarters and Headquarters Company, 1st Brigade Combat Team,
1st Armored Division, Fort Bliss, TX. It also shows in:

a. PartI (Administrative Data):

* block g (Reason for Submission): Code 03 Change of Rater
* blockh (Period Covered): 22 June 2012 through 27 November 2012
* blocki (Rated Months): 4
* blockj (Non-Rated Codes): no entry (is blank)
* block k (Number of Enclosures): no entry (is blank)

b. PartII (Authentication) the rating chain as:

* Rater Sergeant First Class WMO, Jr., Senior Paralegal NCO
* Senior Rater Major RHB, Brigade Judge Advocate
* Reviewer Lieutenant Colonel CRA, Deputy Commanding Officer

c. PartIII (Duty Description):

* blocka (Principal Duty Title): Paralegal NCO
* blockd (Areas of Special Emphasis): Acting Senior Paralegal NCO
* blockf (Counseling Dates)

* Initial 25 July 2012
* Later 4 October 2012

d. Part IV (Army Values/Attributes/Skills/Actions Rater):

(1) blocka (Army Values), he received all “Yes” ratings, with one exception for line 2 (Duty: Fulfills their obligations), that shows an “X” in the “No” box and the following bullet comments:

* failed to use time wisely, consistently failed to complete duty assignments
* hid serious shortfalls until it was too late to correct them
* offers advice, but loyal to final decisions made by superiors

(2) He received “Needs Improvement” ratings for Values/NCO Responsibilities in:

* block b (Competence) with the following bullet comments

* has lost the command’s trust in providing statistical data and procedural guidance related to administrative separations
* did not make sound judgment
* unable to multitask in a high OPTEMPO area due to lack of technical knowledge

* block d (Leadership), with the following bullet comments

* lacked initiative and managerial skills
* lacked enthusiasm in his duties and has no pride in his performance
* had poor rapport with his subordinates and was ineffectual in supervision or delegation of responsibilities

(3) He received “Success” ratings for Values/NCO Responsibilities in:

* block c (Physical Fitness and Military Bearing)

* Army Physical Fitness Test (APFT): Pass, 25 April 2012
* Height/Weight: 71/187, Yes
* Bullet Comment: does not exude confidence and mental strength

* block e (Training), with the following bullet comments

* shared deployed experience which was valued by junior Soldiers
* did not use his free time to improve his knowledge of his MOS to become a more efficient and better leader

* block f (Responsibility and Accountability), with the following bullet comments

* maintained office automation and equipment valued in excess of $75,000.00, with zero loss or damage
* followed orders under supervision, but cannot be relied on to comply with orders without guidance
* worked well under supervision, but needs to develop self-discipline and work independently

e. Part V (Overall Performance and Potential)

(1) the rater marked “Marginal” and listed three positions in which the applicant could best serve the Army at his current or higher grade

* NCO in Charge (NCOIC) Client Services
* NCOIC Trial Defense Service
* Criminal Law NCO

(2) The senior rater marked “Fair (4)” for overall performance and “Fair (4)” for overall potential for promotion and/or service in positons of greater responsibility. The senior rater also provided the following bullet comments:

* promote at the convenience of the Army
* send to Senior Leader Course when qualified to attend
* assign to positions that do not require direct supervision or responsibilities
* put forward much effort, but unable to progress; retention is not advised

f. Part II, block d, shows the reviewer placed an “X” in the box indicating,
“Concur with rater and senior rater evaluations.”

g. The NCOER was digitally signed by the

* rater on 7 January 2013
* senior rater on 7 January 2013
* reviewer on 11 January 2013
* applicant on 15 January 2013

4. A review of the available evidence fails to show the applicant requested a Commander’s Inquiry regarding the contested NCOER.

5. A review of the applicant’s OMPF failed to reveal any evidence that he appealed the contested NCOER. A further review of all 10 of the applicant’s previous NCOERs (spanning the period from 1 January 2004 through
29 February 2012) revealed the bullet comment “offers advice, but loyal to final decision made by supervisors” appears on a previously submitted NCOER in support of that rater’s favorable assessment of the applicant when he received all “Yes” ratings in Part IV, block a (Army Values).

6. In support of his application the applicant provides the following documents.

a. A self-authored statement, dated 20 April 2016, subject: NCOER Appeal, in which he states the contested NCOER is unfair and an unjust evaluation.

(1) He states the rater marked “No” for “Duty” pertaining to the applicant’s Army Values, which he disputes. He states the rater created a hostile work environment that made it difficult for him to perform his duties. He describes an incident pertaining to the transport of laptop computers to a training site, a mishap by the applicant that caused damage to one of the laptop computers, and the rater’s change in attitude toward the applicant. He states the rater was known for talking negatively about junior paralegals and he initiated numerous counseling statements about the applicant’s performance. He also told the applicant that his previous NCOERs were weak and that he had not shown any improvement. The applicant adds this shows the rater was judging him on his previous NCOERs, which was unfair.

(2) He states the rater was impatient and failed to provide him adequate time to learn the operation of the legal office. He acknowledges the rater provided some training during the first 90 days of his assignment to the unit. However, a deployment to the National Training Center during this period adversely impacted his opportunity to receive training from the rater in the area of managerial skills and the history of existing legal actions.
(3) He states the rater indicated that the statistical data and procedural guidance concerning administrative separations that the applicant provided caused the command to lose trust in his work products. The rater also indicated that the applicant lacked initiative, enthusiasm in his duties, and managerial skills. The applicant asserts that the rater failed to mentor him or provide feedback, and he was required to take the initiative to get things done on his own.

(4) Regarding physical fitness and military bearing, the applicant notes the rater indicated that he did not exude confidence and mental strength. He states he had a permanent physical profile and was exempt from the 2-mile run on the APFT.

(5) The rater made contradictory statements in the contested NCOER in the:

* training section, that the applicant did not use his time to improve in his MOS; however, this was not true because he completed military correspondence courses
* responsibility and accountability section, that the applicant

* could not be relied upon to comply with orders without guidance; however, he exercised initiative in the absence of orders
* needed to develop self-discipline and work independently; however, he demonstrated self-discipline and he worked independently

(6) He states he arrived at the unit in the summer of 2012, the Brigade Legal Office deployed to Afghanistan in December 2012, and the contested NCOER was presented to him after the rater and senior rater deployed to Afghanistan.

(7) He did not have time to overcome the deficiencies mentioned in the NCOER nor did he receive the appropriate technical training. He adds that he is not sure that he received the initial counseling on 25 July 2012.

(8) He provides a summary of his military career beginning with his enlistment in the Army National Guard in 1988 and he discusses family problems that have occurred throughout the years.

(9) He states that he deployed to Iraq in April of 2013. He adds that the next two NCOERs he received during 2013 and 2014 show improvement and that he was progressing in his career.

b. He provides copies of two NCOERs covering the period 28 November 2012 through 2 July 2014 that show his raters’ and senior raters’ assessments of his performance and potential subsequent to the contested NCOER. He also provides a DA Form 1059 that shows he successfully completed the Senior Leaders Course (MOS 27D) on 15 April 2014.

c. U.S. Army Human Resources Command, Fort Knox, KY, memorandum, dated 8 December 2015, subject: Department of the Army Notification for Potential Denial of Continued Active Duty Service under the QMP, that shows he was notified a QMP Board would convene on 1 March 2016.

(1) It also shows he was notified of the process and procedures for submitting matters of mitigation or extenuation for consideration by the President of the Board not later than 5 February 2016. It also advised him that the ABCMR was the highest level of administrative review within the Department of the Army to correct errors in or remove injustices from Army military records.

(2) On 14 December 2015, the applicant indicated with his initials and his signature that he would submit matters of extenuation or mitigation to the Board President no later than 5 February 2016.

REFERENCES:

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

a. Paragraph 1-9 (Assessments of performance and potential on evaluations) states 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 Department of the Army Pamphlet 6233 (Evaluation Reporting System).

b. Paragraph 1-11 (Commander or Commandant’s Inquiry) states 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 commander’s 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, and the conduct of the rated Soldier and members of the rating chain. The results of the commander’s inquiry may be provided to the rating chain and the rated Soldier at the appointing official’s discretion.

c. Paragraph 3-2 (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.

d. Paragraph 3-4 (The support form communication process) shows shortly after assuming duties, the rater will provide the rated Soldier with copies of the support form and the senior rater’s support form with the unit’s mission, rating chain individual goals, and objectives. Within the first 30 days of the evaluation period, a rated NCO will discuss and fully understand or adjust goals and objectives discussed with the rater during the initial counseling session.

e. Paragraph 3-36 (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.

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 the ABCMR. NCOERs are filed in the performance section of the OMPF.

DISCUSSION:

1. The applicant contends that the contested NCOER for the period 22 June 2012 through 27 November 2012 should be removed from his OMPF and the period declared non-rated because it is unfair and an unjust evaluation with respect to the validity of the rater’s and senior rater’s evaluations and comments.

2. The evidence of record shows the applicant confirmed with his signature the validity of the rating chain. Thus, the evidence of record indicates the contested NCOER was prepared by the proper rating officials and that the administrative data is correct.

3. The contested NCOER shows the applicant was counseled twice by his rater (on 25 July 2012 and 4 October 2012) during the four rated months covered by the contested NCOER. In addition, in his statement to this Board, the applicant acknowledges that his rater counseled him on several occasions.

4. The rater entered two unfavorable bullet comments on the contested NCOER in assessing the applicant’s Army Values. He also entered another bullet comment on the contested NCOER that was the same as a bullet comment that was entered on a previous NCOER the applicant received in which he received all “Yes” ratings for his Army Values. As such, the bullet comment was actually offered as a favorable comment; not as an unfavorable comment, despite the applicant’s contention.

5. The applicant’s comments and contentions regarding the adverse ratings and comments rendered by the rater and senior rater on the contested NCOER are acknowledged.

a. He provides no other evidence to support his contentions (e.g., official documentary evidence contradictory to the ratings; letters of support from Army officers, NCOs, or Soldiers who were aware of the situation at the time; etc.).

b. The rater’s and senior rater’s ratings and assessments, coupled with the reviewer’s concurrence with their ratings and assessments, offers strong evidence of the accuracy and validity of the rating officials’ ratings and assessments on the contested NCOER.

6. The contested NCOER is properly filed in the performance folder of the applicant’s OMPF.

7. An evaluation report accepted for inclusion in the rated NCO’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.

8. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. The applicant failed to submit evidence of a compelling nature to show that the contested NCOER filed in the performance folder of his OMPF is untrue, in error, or unjust.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160008057

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160008057

10

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2