IN THE CASE OF:	  

		BOARD DATE:	       19 March 2009

		DOCKET NUMBER:  AR20080020002 


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 correction of his noncommissioned officer evaluation report (NCOER) for the period 1 March 2006 through 28 February 2007.  

2.  The applicant states that, after he filed a complaint about a prior NCOER,  the chain of command in Afghanistan started harassing him over insignificant issues. When the NCOER was first submitted, it contained fictitious counseling dates.  When he filed a complaint about that, he started getting harassed by his chain of command.  He made an official complaint about misuse of the Tactical-Special Compartmented Information Facility (T-SCIF).  The investigating officer was junior to one of those being investigated and the investigator allowed two of the accused individuals, but not the applicant, to read all of the sworn statements.  Eleven months after it all started "my case was finally dismissed by the Battalion Commander."  This happened the day after he finally went to the Inspector General.

3.  The applicant also states the final decision of the Enlisted Special Review Board was not completed in a timely manner and does not correspond to the facts submitted.  The results of the February 2009 Sergeant First Class (SFC) Promotion Board reflects an injustice.  He wonders why special security representatives should get punished for reporting security violations to their chain of command.  He questions the judgment of individuals in the military intelligence (MI) community by pointing out that a first sergeant in an infantry company and an armor major think he should be promoted, but a intelligence platoon sergeant and an MI captain think he should not.  

4.  The applicant provides, in support of his application, the following documents:

	a.  a memorandum to Human Resources Command (HRC) –Indianapolis, dated 29 June 2007, appealing the subject NCOER and attached documents.

	b.  a personal statement, undated, concerning the subject NCOER, including descriptions of the facts and circumstances surrounding that report, with attached documents.

	c.  documents related to rescheduling his attendance of the Advanced NCO Course (ANCOC).

 CONSIDERATION OF EVIDENCE:

1.  The applicant was a staff sergeant with a date of rank of 1 February 2000 and approximately 14.5 years of active duty service when the subject NCOER was completed in March 2007. 

2.  The applicant was the senior intelligence and electronic warfare (IEW) systems maintenance section sergeant with a deployed and redeploying unit of the 4th Brigade Combat Team, 10th Mountain Division in Afghanistan.    

3.  The applicant, then assigned as the Information Assurance Security Officer, was counseled about his duty performance on 27 May 2006.  His duties and accomplishments were reviewed with no discrepancies noted.  A plan of action was established and the applicant concurred.  The June 2006 monthly counseling noted several things that needed to be accomplished but concluded that he had "done well."  

4.  On 18 July 2006 the applicant was counseled about a violation of Article 134 of the Uniform Code of Military Justice for unlawful entry and he was barred from the T-SCIF and from access to classified information.  The applicant marked the "I agree" box and signed the counseling form.   

5.  A 20 July 2006 counseling statement accused the applicant of withholding the reporting of security violations until he himself was charged with an unrelated offense and of then improperly reporting those security violations outside of the normal channels in order to discredit his accusers.

6.  The applicant responded to the counseling by contending that he had reported the security violations outside the chain of command because he had no experience in such matters and misunderstood the procedures.  He also indicated that it seemed irregular for him to receive punishment from someone who was under investigation.

7.  A Suspension of Favorable Personnel Actions (Flag) was instituted on 29 July 2006.

8.  On 11 September 2006, the applicant was awarded the Army Achievement Medal for activities as a military intelligence systems integrator and maintainer during the period 9 March to 31 July 2006 while deployed. 

9.  In a 31 January 2007 "Letter of Continuity" the Headquarters and Headquarters Company (HHC) Commander, 2nd Battalion, 4th Infantry Regiment, stated that he had supervised the applicant at Forward Operating Base (FOB) Warrior.  That officer, Major K____, described the applicant's assigned duties while attached to base operations and praised his performance by stating, "SSG [applicant] excelled at every task…"

10.  An unsworn statement by Specialist J____ A. W____, dated 9 February 2007, relates that First Lieutenant (1LT) G____, the Special Security Officer, kept a personal foot locker, a digital camera, and thumb drives in the T-SCIF.  She also stated that this was the third statement that she had rendered on the subject and that Captain M____ had been upset with her because she reported the situation. 

11.  The applicant acknowledged seeing the completed NCOER on 9 March 2007.  The subject NCOER, for the period 1 March 2006 thru 28 February 2007, rated the applicant's performance as the senior IEW systems maintenance sergeant in charge of one Soldier and a Trojan Spirit Lite [a satellite communications system for worldwide, forward-deployed, quick-reaction reporting and analysis capability to Military Intelligence units] system worth $3 million.  The NCOER included the following specific markings and comments:

   a.  In Part IV - Army Values /Attributes/Skills/Actions of the subject NCOER the rater marked the "YES" box for all areas and provided the bullet comments: "commits his knowledge and expertise to mentoring peers and subordinates to meet all challenges with enthusiasm and confidence," and "respects all Soldiers regardless of sex, religion or ethnic origin.”

   b.  In Part IV – Values/NCO Responsibilities the rater marked the applicant as a "SUCCESS (Meets Std)" and included three bullet comments in each of the five areas. 

   c.  The rater marked the applicant's Overall Performance and Potential as "Fully Capable."
   
   d.  The senior rater provided bullet comments of "promote if sufficient allocations are available, send to ANCOC when slots are available, performed well in versatile roles and responsibilities, and NCO not counseled after initial due to transfer out of unit pending resolution of security clearance hold."  The senior rater marked the applicant's overall performance as "Successful" in the third box and his overall potential as "Superior," also in the third box. 

12.  In a signed statement, dated 1 May 2007, the applicant related that his security clearance had been suspended about 18 July 2006, that he had been barred from the T-SCIF and from handling classified materials.  He received four counseling statements in July and made a sworn statement about 1LT H____'s security violations.  He received a counseling statement from SFC D____ who had also been involved in security violations.  Ultimately, all the enlisted personnel who had submitted sworn statements against H____ and D____ received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice.  SFC D____ provided all the senior rater bullets for the subject NCOER and was directly responsible for the applicant being improperly rated.  The suspension of his security clearance resulted in the applicant's missing out on going to ANCOC.  The applicant points to the senior rater bullet comment, "NCO not counseled after initial transfer out of unit pending resolution of security clearance hold," and concludes that, if he had been transferred out of the unit then he should have received a change of rater NCOER or his parent command should have been communicating with Major K____ and First Sergeant G____ about his assignments and performance.  The applicant reports that he submitted the Letter of Continuity from Major K____ to substantiate his duty assignments and performance.  

13.  The applicant appealed the subject NCOER and provided a statement from the Base Operations NCO in Charge (NCOIC), First Sergeant, to the effect that, although the applicant's chain of command had not been concerned for his welfare, the applicant had performed admirably as the Billeting NCO and Preventive Medicine NCO at FOB Warrior.  The First Sergeant recommended that the applicant be promoted immediately.  

14.  Major K____ expanded on his previous letter.  Major K served as the Brigade S-8 (Comptroller).  He had daily contact with the applicant as his supervisor in Afghanistan from June to December 2006.  The applicant had direct supervision over 25 indigenous laborers, functioned as the Safety NCOIC, and had the responsibility for sewage, water and trash.  The applicant met or exceeded deadlines.  He constantly sought increased responsibility and performed all assigned tasks with diligence and professionalism.  

15.  A memorandum from a special security officer, dated 19 June 2007, reported the writer had been responsible for access to SCI during the period in question and that he had no record or recollection of there being any issue with the applicant's access.

16.  On 1 July 2007, the applicant was awarded the Army Commendation Medal with 2nd Oak Leaf Cluster for leadership, tactical and technical competence and outstanding performance of duty while deployed during the period 9 March 2006 to 1 December 2006.

17.  The NCOER appeal resulted in modification of the report by listing additional duties in Part IIIe by the insertion of the words "FOB Warrior Billeting NCO, FOB Warrior Safety NCO."   

18.  On 18 October 2007, the applicant was awarded the Good Conduct Medal (5th Award) for the period from 1 July 2004 to 30 June 2007.   

19.  Between 1 May 2007 and 15 June 2007, the applicant engaged in a series of communications about rescheduling his attendance at the ANCOC.  He attended and successfully completed ANCOC in November 2007.

20.  Army Regulation 623-205, in effect at the time, states that evaluation reports accepted for inclusion in the official record 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 administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was transferred out of his specialty and improperly rated because he reported security violations of senior individuals in his chain of command. 


2.  Aside from the unsworn statement by Specialist J____ A. W____, dated 
9 February 2007 and his own various assertions, there is no evidence that the applicant's transfer out of his primary assignment was related to anything except some question about his security clearance.   

3.  There is no basis for concluding that the NCOER did not reflect the considered judgment of the rating officials or that the applicant's judgment as to the proper rating marks should be substituted.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that 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.

ABCMR Record of Proceedings (cont)                                         AR20080020002



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ABCMR Record of Proceedings (cont)                                         AR20080020002



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