BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20100008106 


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 that his Noncommissioned Officer Evaluation Report (NCOER) for the period December 2003 through November 2004 [hereafter referred to as the contested report] be removed from his records.  The applicant also requests that upon removal of the contested report, his records be forwarded to a special selection review board for promotion consideration to master sergeant.

2.  The applicant states he believes that the contested report was influenced by a series of events which were misunderstandings.  These misunderstandings caused animosity and ultimately an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation which was documented in Part IV (Rater - Values/NCO Responsibilities), block f (Responsibility and Accountability), of the contested report.

3.  In support of his request, the applicant provides:

* a copy of the contested report
* a memorandum of support from his rater during the time period of the contested report
* two DA Forms 1059 (Service School Academic Evaluation Report)
* eight NCOER's ranging from 1 January 2001 through 21 November 2008
* a series of tabs which include professional milestones, worldwide service, awards and decorations, and comments from the troops
* a copy of his Enlisted Record Brief

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Army expunge the contested report from the applicant's records and further send his record before a special selection board for promotion to master sergeant.

2.  Counsel states the applicant has been unable to file due to an overseas tour in a combat zone.  The date of discovery is based on the results of the Enlisted Special Review Board (ESRB) appeal denial conducted in April 2006.  Counsel also points out the following:

* the applicant has no disciplinary problems and his record is impeccable
* before the contested report in 2004, his ratings were always "excellent" and "among the best"
* he is highly respected by the troops
* the applicant was under an Army Regulation 15-6 investigation for accusations of sexual harassment
* the applicant has grievances that the investigation in December 2003 adversely affected the unit's morale and readiness
* in December 2003, the accuser retracted her comments
* the investigating officer surmised that the applicant's plain speaking style of leadership may have unintentionally put off junior Soldiers; he was a by-the-book NCO
* there is no evidence to sustain a claim of sexual harassment or a hostile work environment and no unwelcomed advances or quid pro quo conduct occurred
* the Army Regulation 15-6 investigation is extremely flawed

3.  Counsel provides a 17-page brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 20 September 1989 and was trained in and awarded military occupational specialty 63B (Light Wheeled Vehicle Mechanic).  A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired on 28 February 2010 and placed on the Retired List effective 1 March 2010.

2.  The applicant's military records also show that while serving on active duty as a sergeant first class performing duties as a motor sergeant, he was given the contested report.

* Army values were indicated by the "Yes" block being marked in all the designated blocks in Part IV – Army Values/Attributes/Skills/Actions
* in Part IV (Rater) – Values/NCO Responsibilities, the applicant was rated as "excellence" in the areas of Competence, Physical Fitness and Military Bearing, and Leadership
* the applicant was rated as "success" in Training
* the applicant was rated as "needs improvement (some)" in Responsibility and Accountability for a substantiated Army Regulation 15-6 investigation
* his rater ranked his Overall Potential for Promotion and/or Service in Positions of Greater Responsibility as "fully capable"
* the applicant's senior rater stated that the applicant is a dependable NCO who consistently accomplishes his assigned mission and should be promoted with peers and assigned to a battalion or brigade staff to develop his overall understanding of the Army and tactical operations
* for his overall performance and potential, the applicant's senior rater rated him as "successful" in the second block of a 5-block rating system

3.  This NCOER was properly authenticated by the applicant's rater, a first lieutenant; his senior rater, a captain; and his reviewer, a major.

4.  On 26 November 2005, under the provisions of Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), chapter 6 and appendix F, the applicant appealed to the ESRB to have part IVf and the senior rater's comments completely removed from the NCOER.  He alleged that the contested report contained substantive inaccuracies due to the fact that the incomplete investigation affected the rater's and senior rater's comments.

5.  The ESRB adjudicated the applicant's request for appeal of the contested report on 10 April 2006 and found that the evidence presented did not justify altering the blocks in question.

6.  A review of the applicant's records shows four NCOER's preceding and five subsequent to the contested report had all ratings of "excellence."

7.  The Army Regulation 15-6 investigation results as outlined by the investigating officer show:

* the applicant asked one of the accusers if she'd like to get something to eat and persisted after she said no
* the applicant asked a third party, "Is she straight?"
* the applicant made a comment, "Your NCO is hot, too bad she is married"
* during a company physical training session the applicant made comments about needing variety in physical training and not doing it the same way every time

8.  The applicant provided evidence which shows he is a graduate of numerous professional development courses as well as courses for additional achievement.  His assignments and positions show him in various leadership positions, both stateside and abroad.  He has deployed eight times in support of humanitarian, operational, and contingency missions.  The applicant has earned a myriad of awards and decorations which include two Bronze Star Medals and two Meritorious Service Medals.

9.  The applicant received many accolades from various Soldiers.  An excerpt of the comments includes the following:

* best NCO in the company…he simply gets things done, keeps everyone informed, and takes care of his Soldiers
* he has always been there to help without hesitation
* mediocre troops could hold "a grudge against him because he makes them work hard and act like Soldiers"

10.  A letter of support from the rater, dated 29 May 2007, recommends granting relief.  The rater contends that he was coerced into putting the negative bullet on the contested report by the battalion executive officer and if he didn't put the comment on the report, things would be made worse for the applicant.  The rater contends that the company commander showed a visible disdain for the applicant and felt threatened by the applicant's outstanding leadership qualities.

11.  In the counsel's 17-page brief he argues that the Army Regulation 15-6 investigation was not properly conducted.  He also contends that the contested report contained substantive inadequacies which were not in line with regulatory guidance or governmental policy.

12.  Army Regulation 623-205, in effect at the time, prescribed the enlisted evaluation function of the military personnel system.  Paragraph 3-2 of this regulation stated that reports are submitted on all NCO's in the grade of sergeant through command sergeant major.  Paragraph 3-2d stated that rating officials directly affect a rated NCO's performance and professional development.  Thus, these officials must ensure the rated NCO thoroughly understands the organization, its mission, his or her role in support of the mission, and all of the standards by which performance will be judged.

13.  Army Regulation 623-205, paragraph 3-2g, stated that rating officials have a responsibility to balance their obligations to the rated NCO with their obligations to the Army.  Rating officials must make honest, fair evaluations of the NCO's under their supervision.  On the one hand, they must give full credit to the rated NCO for his or her achievement and potential.  On the other hand, rating officials are obligated to the NCO and the Army to be honest in their evaluations.  Selection boards and career managers need balanced evaluations in order to make intelligent decisions.

14.  Army Regulation 623-205, appendix F, paragraph F-2b3, concluded that statements from rating officials often reflect retrospective thinking or second thoughts prompted by an applicant's non-selection or other unfavorable personnel action claimed to be the sole result of the contested report.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis for altering or withdrawing an evaluation report.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel's request for removal of the contested report and forwarding of his records to appear before a special selection review board for promotion consideration to master sergeant was carefully considered and not supported by the evidence.

2.  Notwithstanding the applicant and his counsel's argument that the Army Regulation 15-6 investigation was not properly conducted, neither the applicant nor his counsel provided clear and compelling evidence which shows the ratings on the contested report were in error.  The final determination by the investigating officer is that the applicant did sexually harass members of the company.  The investigating officer based his findings on four separate incidents which contained alleged comments.

3.  Both the applicant and his counsel argued that the contested report contains substantive inadequacies.  Neither the applicant nor his counsel provided clear and compelling evidence which shows the ratings on the contested report were in error or that they were not considered opinions and objective judgments of the rating officials at the time the report was rendered.

4.  The rater had an obligation to fairly and objectively evaluate the applicant at the time the NCOER was prepared.  Although the rater indicates that he was coerced into providing inaccurate ratings, there is no evidence to support this statement.

5.  Based on the foregoing, there is insufficient evidence to support the applicant's request for removal of the contested report.

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)                                         AR20100008106



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont