BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100009858 


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:

The applicant defers his request and statement to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the applicant's DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 January 2006 through 6 September 2006 from his Official Military Personnel File (OMPF).

2.  Counsel states, in effect, that the basis for this request involves both administrative error and substantive inaccuracy as follows:

* the NCOER was a relief for cause based on an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation wherein the applicant was denied due process 
* the rater stated there was no point in requesting a commander’s inquiry as it would be denied
* the senior rater was not the proper senior rater
* initial counseling was not conducted as required
* the rater instigated the applicant's removal based on a personality conflict

3.  Counsel provides the following documents:

* the applicant's self-authored statement, dated 16 February 2010
* the contested DA Form 2166-8
* a memorandum appointing an investigating officer (IO), dated 9 August  2006
* five statements of support, dated between September 2007 and April 2008
* a memorandum requesting reduction in COTTAD (Contingency Operations Temporary Tour of Active Duty), dated 6 September 2006
* an assumption of command memorandum, dated 12 September 2006
* five DA Forms 2823 (Sworn Statement), dated between August and September 2006
* a copy of use of force guidelines
* three emails, dated 7, 8, and 14 September 2007
* a DA Form 2166-8 for the period 5 August 2008 through 4 August 2009
* a copy of his Bronze Star Medal award, dated 2 December 2008
* a copy of an honorary diploma, dated 28 November 2008

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.  The applicant’s records show he enlisted in the Regular Army on
22 September 1987 and he held military occupational specialty (MOS) 95B (Military Police).  He was honorably released from active duty on 29 January 1992 and transferred to the U.S. Army Reserve (USAR).

3.  He is currently serving in the USAR and holds the rank/grade of command sergeant major (CSM)/E-9.

4.  On 26 June 2006, his unit, the 324th Military Police Battalion, Chambersburg, PA was mobilized and sent to Fort Bliss, TX where he served as the Battalion CSM.


5.  On 9 August 2006, an Army Regulation 15-6 IO was appointed to conduct an investigation into a sexual harassment charge.

6.  On 15 September 2006, based on the results of the Army Regulation 15-6, the Commander, First U.S. Army, reprimanded the applicant for making inappropriate sexual comments, displaying an inappropriate level of force, and falsifying a signature.  A General Officer Memorandum of Reprimand (GOMOR) was imposed as an administrative measure and the imposing authority directed the GOMOR be filed in his OMPF.

7.  During the month of October 2006, he received a relief for cause NCOER which covered 9 months of rated time, from January 2006 through September 2006 for his duties serving as “Command Sergeant Major.”  His duties included setting and enforcing Army standards for Soldier discipline and training; conducting enlisted promotion boards; and conducting or assisting in command inspections, assessments, and facility visits.  He was responsible for inculcating the enlisted Soldiers with Army values and mentoring the NCOs of the battalion.  His rater was a lieutenant colonel (LTC), his senior rater was a colonel (COL), and his reviewer was a colonel (COL).  The NCOER shows the following entries:

	a.  in Part IIe (Authentication) he signed the block that reads, “Rated NCO:  I understand my signature does not constitute agreement or disagreement with the evaluations of the rater and senior rater.  I further understand my signature verifies that the administrative data in Part I, the rating officials in Part II, the duty description to include the counseling dates in Part III, and the APFT and height/weight entries in Part IVc are correct.  I have seen the completed report.  I am aware of the appeals process of AR [Army Regulation] 623-3 [Evaluation Reporting System].”

	b.  in Part IVa (Army Values/Attributes/Skills/Actions) he received a “No” for block 2 (Duty), block 3 (Respect/EO/EEO), block 5 (Honor), and block 6 (Integrity).  His rater entered the following bullet comments:  “did not fulfill his responsibilities as the senior NCO of the battalion,” “treated subordinate with disrespect,” and “showed lack of integrity.”

	c.  in Part IVb (Competence) he received a "Needs Much Improvement" rating.  His rater entered the following bullet comments:  “showed a lack of judgement by signing a training roster for another soldier who was not present at the time,” “showed a lack of judgement in the application of escalation of force measures,” and “refused to acknowledge errors in judgement.”

	d.  in Part IVc (Physical Fitness and Military Bearing) he received a "Success" rating.  His rater entered the following bullet comment:  “passed the APFT (Army Physical Fitness Test.”

	e.  in Part IVd (Leadership) he received a “Needs Much Improvement” rating. His rater entered the following bullet comments:  “used civilian-acquired interrogation techniques designed to be used on criminals on a Soldier assigned to HHC,” “saw nothing wrong with telling a female Soldier assigned to HHC that she was the cutest and prettiest female in the unit,” and “failed to earn respect of battalion leadership.”

	f.  in Part IVe (Training) he received a “Needs Some Improvement” rating.  His rater entered the following bullet comments:  “attended required training with Soldiers,” “failed to follow established training guidelines,” and “ignored EOF/ROE [escalation of force/rules of engagement] instruction.”

	g.  in Part IVf (Responsibility and Accountability) he received a “Needs Some Improvement” rating.  His rater entered the following bullet comments:  “saw nothing wrong with asking a Soldier assigned to HHC inappropriate question relating to her sex life,” “recommended not reporting that he had signed the training roster suggesting that no one else would know,” and “the rated NCO has been notified of reason for relief.”

	h.  in Part Va (Overall potential for promotion and/or service in positions of greater responsibility) he received a “Marginal” rating.

	i.  in Part Vc (Overall Performance) he received a “Fair” rating, in Part Vd (Overall Potential) he received a “Fair” rating, and in Part Ve (Senior Rater Bullet Comments) the senior rater entered the following comments:  “after several counselings both verbal and written, neglected to change or correct behavior,” “Soldier never acknowledged that his actions were inappropriate,” “Soldier lacks maturity for senior NCO position in the Battalion,” and “concur with rater comments and assessment.”

8.  The NCOER shows the applicant, rater, and the senior rater authenticated this form by placing their respective signatures in the appropriate blocks.  The reviewer concurred with the rater and the senior rater evaluations and also authenticated this form by placing his signature in the appropriate block.

9.  There is no available evidence showing he requested a commander's inquiry regarding the contested NCOER.

10.  On 8 March 2010, the Department of the Army Suitability Evaluation Board (DASEB) denied the applicant's request to remove the GOMOR from his OMPF.  He contended the GOMOR should be removed because he was not afforded due process during the Army Regulation 15-6 investigation.  The DASEB determined that he had not provided evidence of a clear and convincing nature that the GOMOR was untrue or unjust.

11.  Counsel provides the following:

	a.  In a self-authored statement by the applicant, dated 16 February 2010, he states in effect, the contested NCOER resulted because the rater misrepresented facts and inflamed three minor situations in order to remove him from the unit. The basis for the NCOER was an Army Regulation 15-6 investigation wherein he was denied the opportunity to review the report of investigation, the senior rater was not the proper senior rater, and he did not receive his initial counseling as required.

	b.  In a statement of support, dated 7 September 2007, Specialist (SPC) J---s stated that on 8 August 2006, while in a group setting, CSM W---s [the applicant] asked her a question related to sex and she was influenced by her squad leader to file an equal opportunity (EO) complaint against him.  She stated that later on she tried to drop the complaint but the battalion commander refused insisting an Army Regulation 15-6 needed to be completed.  She stated the remark CSM
W---s made about her status as the cutest female in the battalion was taken out of context as it was said in a joking manner and she would not hesitate to deploy with him.

  	c.  In statements of support, dated between November 2007 and April 2008, four officers who served with CSM W---s during the rating period stated he was a dedicated Soldier, he wanted the best for his Soldiers, he was a strong leader, and had earned their respect.

12.  Army Regulation 623-3 states reports accepted for inclusion in the official record of a Soldier 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.

13.  Army Regulation 623-3, paragraph 1-10, in pertinent part, provides that the rated individual has considerable responsibility in the evaluation process.  The rated Soldier will participate in counseling assessments and discuss the duty description and performance objectives with rater.  This will be done within
30 days after the beginning of each new rating period and at least quarterly thereafter.

14.  Army Regulation 623-3, paragraph 1-11, provides that 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 official does not have the authority to direct that an evaluation be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.  The results of the Commander’s Inquiry, however, may be provided to the rating chain and the rated Soldier at the appointing official’s discretion.

15.  Army Regulation 623-3, paragraph 3-59, in pertinent part, provides that an NCOER is required when an NCO is relieved for cause regardless of the rating period involved.  Relief for cause is defined as the removal of an NCO from a rateable assignment based on a decision by a member of the NCO's chain of command or supervisory chain.  A relief for cause occurs when the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army.

16.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  Paragraph 1-9 provides that the regulation does not require that an investigation be conducted before adverse administrative action, such as relief for cause, can be taken against an individual.  However, if an investigation is conducted using the procedures of this regulation, the information obtained, including findings and recommendations, may be used in any administrative action against an individual, whether or not that individual was designated as a respondent, and whether formal or informal procedures were used, subject to the limitations of paragraphs 1-9b (pertaining to civilian personnel) and 1-9c.

17.  Army Regulation 15-6, paragraph 1-9c, states that except as provided in paragraph 1-9d, when adverse administrative action is contemplated against an individual, including an individual designated as a respondent, based upon 


information obtained as a result of an investigation or board conducted pursuant to this regulation, the appropriate military authority must observe the following minimum safeguards before taking final action against the individual:

	a.  Notify the person in writing of the proposed adverse action and provide a copy, if not previously provided, of that part of the findings and recommendations of the investigation or board and the supporting evidence on which the proposed adverse action is based.

	b.  Give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material.

	c.  Review and evaluate the person's response.

18.  Army Regulation 15-6, paragraph 1-9d, states that there is no requirement to refer the investigation to the individual if the adverse action contemplated is prescribed in regulations or other directives that provide procedural safeguards, such as notice to the individual and opportunity to respond.  For example, there is no requirement to refer an investigation conducted under this regulation to a Soldier prior to giving the Soldier an adverse evaluation report based upon the investigation because the regulations governing evaluation reports provide the necessary procedural safeguards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the contested NCOER contains both administrative error and substantive inaccuracy was carefully considered.  However, there is insufficient evidence to support this request. 

2.  He contends the NCOER was based on an Army Regulation 15-6 investigation wherein he was denied the opportunity to review the report of 
investigation.  The regulation states there is no requirement to refer the investigation to the individual if the adverse action contemplated is prescribed in regulations or other directives that provide such safeguards.  

3.  The applicant was given a GOMOR for the same reasons that were listed as adverse comments on his NCOER.  He presumably was offered the opportunity to rebut that GOMOR before the decision was made to file it in his OMPF.  


Therefore, it appears that he was fully aware of the findings of the Army Regulation 15-6 investigation and he was provided all regulatory procedural safeguards concerning that NCOER.

4.  He contends the senior rater was not the correct senior rater.  However, he signed block Part IIe of the NCOER indicating he understood his signature verified the rating officials were correct.

5.  He contends the NCOER was administratively incorrect because the rater failed to conduct initial counseling within 30 days of the reporting period.  The regulation states the rated individual has considerable responsibility in the evaluation process and will participate in counseling assessments.  It is not the sole responsibility of the rater to ensure counseling is conducted when required.  As a CSM, he knew or should have known his personal responsibility in the counseling process. 

6.  By regulation, to support removal or amendment of a report there must be evidence that clearly and convincingly establishes that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.  The applicant’s arguments and statements of support he provided in this case address his overall performance but fail to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.

7.  Based on the applicable regulations, the contested NCOER is correct as constituted and the applicant has failed to meet the burden of proof to justify removing the contested NCOER.  Therefore, there is no basis for removing the contested NCOER.

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)                                         AR20100009858



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS