RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2008
	DOCKET NUMBER:  AR20080000395 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his Noncommissioned Officer Evaluation Report (NCOER) for the period from September 2004 to March 2005.

2.  The applicant states, in effect, that the following bullet comments in Part IV of the subject NCOER are false: "often challenged by performance standards"; "often fell short in setting a good example for subordinates"; "was lax in enforcing uniform and appearance standards of subordinates"; "organizational skills needed some improvement"; "often struggled with setting priorities"; and "lacked the stamina to go the distance."  He states that these false bullet comments are the result of the poor relationship that existed between himself and his company commander.  

3.  The applicant states that a contentious relationship developed between him and the company commander for reasons that he still does not understand.  This relationship deteriorated to the point where almost everyone in the company felt that they could not trust the company commander.  He further states that the commander often stated one thing and then did another.  

4.  The applicant states that he was an excellent team sergeant.  He also was the acting team leader.  He had the responsibility of operating the day's mission, ensuring that his subordinates were prepared, that weapons were ready, and that communications were established.  With the assignment of a captain as the team leader, his responsibilities changed very little because the new team leader was involved, reasonable and provided encouragement and direction when needed.

5.  The applicant participated in a mortuary affairs recovery mission that required cleaning out the remains of three fallen Soldiers.  While washing out the vehicle, pieces of brain matter fell into his mouth.  It was a horrifying experience. Subsequently, he could barely sleep.  He had nightmares of the incident.  After a few days, the applicant referred himself to the medical officer, who referred him to the Combat Stress Control Clinic, where he was recommended for return to the United States for rest and recuperation.  The applicant contends that he did not want to leave Iraq, but rather wanted an assignment to another unit to get away from his company commander.  Instead, he was returned to the United States because he was no longer operationally required.




6.  The applicant contends that he requested his NCOER before leaving Iraq but did not receive it.  He never saw his NCOER prior to its posting to his records.  He also did not receive the Combat Action Badge or other theater award.  Seven months after returning to the United States, he received his NCOER and was shocked.  He immediately contacted his rater who stated that he had pre-signed the NCOER and that the company commander had written the bullet comments.  He left more than ten messages at the home of his former company commander, but never received a reply.

7.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214), reassignment orders, discharge orders, NCOER's, support letters recommending that the subject NCOER be corrected,  Service School Academic Evaluation Reports (DA Form 1059), Regent University Transcript,  a variety of training certificates and diplomas, award certificates, and letters of recommendation and commendation.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's NCOER to change inappropriate and unjust comments and evaluations.

2.  Counsel states that the subject NCOER was fraudulently completed, contains confidential medical information, and was not completed in a timely manner.  Counsel further states that the applicant never received any performance counseling or constructive leadership assessment.  The NCOER does not reflect the quality and character of the applicant's service during the rating period.  The NCOER reflects an unfair judgment of the applicant's performance after he referred himself for medical care.  Counsel further states that the subject NCOER should be reconstructed to reflect the proper performance of the applicant consistent with the enclosed recommendations. 

3.  Counsel provides proposed changes to the subject NCOER.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years 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.  At the time of his application, the applicant was serving as a member of the United States Army Reserve Medical Command, in the rank of staff sergeant, pay grade E-6.  

3.  On 30 August 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  He served in the Iraq Theater from 26 September 2004 to 11 March 2005, and in Kuwait from on or about 11 to 17 March 2005.

4.   On 5 March 2005, the Commanding General, 353rd Civil Affairs Brigade, signed a memorandum directing the applicant's early release from active duty.
The general indicated that the applicant was identified as no longer being operationally required.

5.  On 30 November 2005, a Change of Rater NCOER was completed and forwarded to the applicant for the period from September 2004 to March 2005.  This report evaluated the applicant for 7 rated months and was signed by the rater, senior rater, and reviewer on 1 July 2005.  It indicates that the applicant was not available to sign the report. The applicant was evaluated as a civil affairs team sergeant.  His duties included being an assistant to the team leader in the daily operations of the civil affairs team in supporting a maneuver battalion in Iraq.  He supervised Soldiers and ensured proper maintenance and accountability of all team equipment and sensitive items.  He assisted with civil military operations planning and project development and coordinated logistic support for the team.  

6.  The report reflected that he had received performance counseling on three occasions during the rating period, the last being only 10 days prior to his departure from the theater.  Part IVa of the NCOER reflected that the applicant was rated "Yes" in each and every "Army Values/Attributes/Skills and Actions."  In Part IVb-f, his rater, the team leader, a captain, indicated that the applicant was successful in the areas of competence, physical fitness and military bearing, and training.  He was rated as needing improvement in leadership and in responsibility and accountability.  The rater's comments regarding competence stated that he was often challenged by performance standards but was capable and proficient when focused.  The rater's comments regarding his leadership stated that he often fell short in setting a good example for his subordinates and was lax in enforcing their uniform and appearance standards.  The rater's comments regarding his responsibility and accountability stated that he often struggled with setting priorities and needed to improve his organizational skills.  The rater's overall evaluation of the applicant was marginal.  

7.  The senior rater, who was the company commander, commented in Part Vc that the applicant showed good intentions but lacked the stamina to go the distance; and that the applicant had left his assignment early as a result of a medical recommendation.

8.  There is no available evidence showing that the applicant requested a commander's inquiry regarding the subject NCOER.  

9.  Army Regulation 623-205, as in effect at the time, set forth the policies and procedures for the Enlisted Evaluation Reporting System.  It provided, in pertinent part, that an evaluation report accepted for inclusion in the official record of a Soldier was presumed to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  It further provides that the burden of proof rests with the applicant and that he must produce evidence that establishes clearly and convincingly 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.

10.  On 7 October 2006, the former Deputy Commander for Clinical Services, 55th Medical Company (Combat Stress Control) wrote a memorandum for record concerning the psychiatric treatment of the applicant in Iraq.  The memorandum states that it was readily apparent that a deleterious and hostile relationship existed between the applicant and his chain of command, and that many of their discussions involved the alleged abuses and false accusations that were continuously levied against the applicant.

11.  On 19 January 2007, the senior human resources sergeant [organization unknown] stated in a memorandum for record that the subject NCOER had to be returned to the rater and senior rater numerous times for corrections because it contained prohibited comments directly relating to his being seen at the Combat Stress Center.  Most of the prohibited comments were removed; however, the senior rater's comment was not.  The memorandum further states that the sergeant was told to submit the NCOER "as is." 



12.  In January 2007, the medical officer who referred the applicant to the stress clinic and the commander of the medical battalion wrote letters essentially stating that they disagreed with the comments made in the applicant's NCOER and that it should be re-evaluated.

13.  On 21 January 2007, the former commander of the infantry task force that the applicant's civil affairs team supported wrote a letter essentially stating that he disagreed with certain bullet comments made by the rater and found holding a Soldier responsible for medical issues that could not be avoided to be problematic because Soldiers needed to be free to seek medical help.  The former commander further stated that the applicant's raters were not able to evaluate his performance because "they were not located with the task force and rarely visited him and his team."  He served with the applicant at the time, who completed all missions to standard and went above and beyond to assist other members of his task force.  He further stated that he completely disagreed with the rater's comments about the applicant not setting a good example, lacking organizational skills, and setting priorities.

14.  In eight additional letters of support, the applicant is essentially described as an outstanding Soldier who was a true warrior not deserving of such a poor evaluation.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not substantiate the applicant's contention that the contested report is inaccurate, unjust, or that it was fraudulently completed. 

2.  The applicant has failed to provide sufficient, relevant, and convincing evidence showing that the rater's evaluations and comments in the subject NCOER are inaccurate or unjust and should be changed.

3.  However, the memorandum directing the applicant's early release from active duty specifically states the reason for this action as "not operationally required." This is not in agreement with the senior rater's comment "Soldier left early based on medical recommendations."  Therefore, this comment should be corrected to read "Solider identified for early release from active duty based on operational requirements."




4.  The many letters of support provided by the applicant’s former co-workers, medical personnel, and higher level commanders are noted.  However, none of these individuals were aware of the expectations of his rating chain or were in a better position to appraise the applicant’s performance than his rating chain.  Furthermore, there is no evidence substantiating the applicant's contention that his performance rating was the direct result of his medical condition.

5.  The applicant's contention that his rater pre-signed the NCOER and that the senior rater in effect rendered the entire evaluation is not supported by any corroborating evidence. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__CD ___  __JCR__  __LMD __  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting in Part V, of the applicant's NCOER for the period from September 2004 to March 2005, "Soldier left assignment early based on medical recommendations,” and replacing with "Solider identified for early release from active duty based on operational requirements."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the rater's evaluations or comments in the applicant's NCOER for the period from September 2004 to March 2005.  




__       Carmen Duncan___
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.