IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100011490 


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 his relief-for-cause DA Form 2166-8 (Noncommissioned Officer Evaluation Report [NCOER]) covering the period September 2003 through April 2004 from his official military personnel file (OMPF).

2.  He states, in effect, the NCOER should be removed for the following reasons:

* He believes the NCOER was the result of his rating chain having personal issues with him and his spouse and that this is unjust
* A Commander's Inquiry (CI) initiated by his brigade commander determined the NCOER contained material errors
* He did not appeal the NCOER because his brigade commander told him the CI would result in its removal from his record
* When compared to his other NCOERs, this NCOER is an anomaly
* He believes this unjust NCOER halted his career progression and he needs it removed in order to be competitive for promotion

3.  He applicant provides a copy of the CI in support of his application:

CONSIDERATION OF EVIDENCE:

1.  The performance portion of his OMPF contains an NCOER rendered for the period September 2003 through April 2004 and is dated 10 August 2004.  This NCOER contains the following pertinent entries:

* Rank:  SFC [sergeant first class/pay grade E-7]
* Date of Rank:  1 June 2001
* Reason for Submission:  Relief for Cause
* Name of Rater:  H____; Rank:  First Sergeant (1SG); Duty:  First Sergeant
* Name of Senior Rater:  P____; Rank:  Captain (CPT);  Duty: Company Commander
* Name of Reviewer:  B____; Rank:  Lieutenant Colonel (LTC);  Duty: Battalion Commander
* Principal Duty Title:  Station Commander
* The Rater marked "Success" in all but one category in Part IV (Values/NCO Responsibilities), 
* Rater marked "Needs Improvement" in IVd (Leadership) and rendered the following comments:

* Station has met only 34% of its assigned Regular Army Mission
* During the last three months the station has averaged 3 recruiters that have failed to net one quality contract
* Station's retention rate of 72% was below the standard of 85%, and was mostly caused by noncompliance with USAREC REG 601-95 [U.S. Army Recruiting Command Regulation 601-95 (Delayed Entry and Delayed Training Program - DEP/DPT)]

* The Rater marked "Marginal" in Part Va (Overall potential for promotion and/or positions of greater responsibility)
* The Senior Rater marked "Fair" in Part Vc (Overall performance)
* The Senior Rater marked "Fair" in Part Vd (Overall potential for promotion and/or positions of greater responsibility)
* The Senior Rater rendered the following comments In Part Ve (Senior Rater Bullet Comments):

* Unable to meet mission standards
* Do not promote until he has more experience
* Send to Guidance Counselor class when seats are available

* The Rater, Senior Rater, and Reviewer all signed this NCOER and each entry contains the date 10 August 2004
* The Reviewer concurred with the Rater and Senior Rater evaluations

2.  On 29 December 2004, the applicant requested a CI and to have the relief-for-cause NCOER removed from his record.  His request contained the following pertinent points and allegations:

* His chain of command told him he would occupy a career enhancing Limited Production Station Command (LPSC) position
* The slot was actually coded as an On Production Station Command (OPSC) position; a job he had already held twice within the battalion
* Prior to assuming command, he requested assignment to the battalion's Recruiter Training section:

* because his current duty station was being closed
* in order to be closer to his wife who was 3.5 hours away, 4 months pregnant, and experiencing complications 
* to avoid the expense of maintaining two separate households

* Prior to receiving a decision on his transfer, his wife suffered a miscarriage on 23 September 2003
* His company and battalion level commanders recommended disapproval of his assignment request because they opined he was not qualified to be a Recruiter Trainer and needed LPSC time
* Following his wife's miscarriage, he requested a compassionate reassignment, which was also disapproved due to a lack of compassion
* He assumed command of a failing recruiting station
* On 4 November 2003 his wife had major surgery and he went on leave for 3 weeks while she recovered
* The outgoing station commander did not begin his transition leave until 20 December 2003, but he received a 90-day letter on 12 December 2003
* He felt he was targeted for being fired in retaliation because his wife had filed an Inspector General (IG) complaint against the battalion leadership in February 2004
* The station had taken so many DEP/DPT losses during his absence that the chain of command knew the task of making mission goal within 90 days was not feasible, but chose to fire him anyway in April 2004
* Following his relief, the Enlisted Standards Division investigated the entire company for recruiter improprieties and uncovered a testing scam involving every station except his
* He had the courage not to allow his Soldiers to get involved in any recruiter improprieties regardless of how poorly the station needed to make mission
* Had the other stations not been cheating his station would have been more competitive
* The chain of command was aware of the cheating and allowed it to continue because it resulted in more enlistment contracts
* His relief packet was incomplete because it did not contain letters from his brigade commander and the Staff Judge Advocate explaining his rights
3.  A CI was conducted based upon the applicant's allegations that he was wrongfully relieved as the Station Commander.  Based on interviews with rating officials, key leaders, and administrative personnel, the Investigating Officer (IO) made the following observations and findings:

* The Rater was implicated along with other station commanders during an investigation
* The Senior Rater had departed the unit, transferred to the Active Guard Reserve, deployed to Iraq, and was not contacted during the investigation
* The Human Resources Command (HRC) returned the NCOER to the unit because the type of report was wrong and bullet comments were not provided for marginal, fair, or poor markings
* The Senior Rater comment "Promote to MSG [master sergeant] when he has more experience" was changed to "Do not promote until he has more experience"
* The recruiting station was, in fact, an OPSC
* His wife was a key witness in a sexual harassment investigation against the Reviewer
* The Reviewer:

* Received a General Letter of Concern from the USAREC Commanding General as a result of the sexual harassment investigation
* Denied any connection between the applicant's requests for transfer, the applicant's relief, and the sexual harassment allegations.  Reviewer claimed the applicant's relief was based solely upon poor performance
* Claimed he denied the applicant's requests for transfer because he was holding a critical position as the station commander

* The data supporting the "Needs Improvement" rating in Part IVd on the NCOER was not correct:

* The station met 58% of its mission not 34%
* The station only failed to net quality contracts in January and February
* The station's retention rate was 82% not 72%

* The fact that the chain of command was involved in improper acts, in which he refused to participate, creates a situation that would support a reason for retaliation on the part of the guilty chain of command

4.  Upon conclusion of his investigation, the IO recommended that the applicant pursue an appeal of the NCOER in accordance with paragraph 6-4, Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) [in effect at the time], based upon the aforementioned observations.  The IO also recommended that the applicant be provided a copy of the CI.

5.  On 25 April 2005, the brigade commander sent a memorandum to the Evaluations Branch of HRC pertaining to the applicant's relief-for-cause NCOER.  He stated that after considering the results of the CI, he determined that the relief-for-cause NCOER was inaccurate.  He further stated that as commander in charge of the CI, he would inform the applicant of the results.  The IO concluded by stating he would also inform the battalion commander [the Reviewer] on the appeal procedures in accordance with paragraph 6-6 of Army Regulation 623-205, to determine why the errors occurred and to take corrective actions to prevent similar future occurrences.

6.  A review of his NCOERs for reporting periods from August 1999 through July 2010 shows he received:

* Predominantly "Excellent" ratings in Part IVb-f from his Raters
* Exclusively "Among the Best" ratings in Part Va from his Raters
* Predominantly the highest ratings in Parts Vc and Vd from his Senior Raters

7.  A review of the Rater's OMPF shows he received a General Officer Memorandum of Reprimand as a result of the investigation into recruiter improprieties within his company.

8.  References:

	a.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that an NCOER will be filed permanently in the performance section of the OMPF.

	b.  Army Regulation 623-205, in effect at the time, prescribed the policies for completing evaluation reports that support the Evaluation Reporting System, to include DA Form 2166-8.  Paragraph 3-59 (Relief for Cause DA Form 2166-8), provided that an NCOER report was required when an NCO was relieved for cause regardless of the rating period involved.

   c.  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.

	d.  Evaluation reports accepted for inclusion in the official record of a Soldier were 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.  Paragraph 6-10 stated, in relevant part, to justify deletion or amendment of a report, the appellant must have produced evidence that established 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 have been of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rested with the applicant.

	e.  Paragraph 6-6h(1) of Army Regulation 623-205 stated, in relevant part, that the rated NCO's signature verified the information in Part I.  It also confirmed that the rating officials named in Part II were those established as the rating chain and authenticates the accuracy of the Army physical fitness test performance and height and weight data entries made by the rater in Part IVc.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated NCO (Parts I, II, and IVc) would be accepted only under the most unusual and compelling circumstances.  The rated NCO's signature also verified the rated NCO had seen a completed NCOER minus Parts II d and e.

	f.  Paragraph 6-7 of Army Regulation 623-205 stated that substantive appeals must have been submitted within 5 years of the NCOER's completion date.  Failure to submit an appeal within this time could be excused only if the appellant provided exceptional justification to warrant this exemption, for example, extended hospitalization.  Administrative appeals would be considered regardless of the period of the report and a decision would be made based on the regulation in effect at the time the report was rendered. 

	g.  Section IV (Processing Request for Standby Advisory Board (STAB) Consideration) of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), provides the Deputy Chief of Staff (DCS), G-1 or designee may approve cases for referral to a STAB upon determining that a material error existed in a Soldier's OMPF when the file was reviewed by a promotion board.  Error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his relief-for-cause DA Form 2166-8 covering the September 2003 through April 2004 should be removed from his OMPF was carefully considered and determined to have merit.

2.  The available evidence clearly shows the relief-for-cause NCOER was inaccurate.  The data supporting the "Needs Improvement" rating in Part IVd on the NCOER was not correct and appears to have been reported low in order to substantiate the relief-for-cause NCOER.

3.  The available evidence also shows the applicant's first sergeant/Rater and fellow station commanders were implicated in recruiter improprieties in which he refused to participate.

4.  The evidence shows the applicant's spouse was a key witness in a sexual harassment investigation against his battalion commander/Reviewer who was also the disapproval authority of his requests (two) for transfer.

5.  A review of the applicant's NCOERs for reporting periods 5 years before and 5 years after he received the relief-for-cause NCOER shows it was an anomaly in comparison to his usually stellar evaluations.

6.  Army Regulation 623-205 provided, in pertinent part, for the deletion or amendment of a report, when the appellant is able to produce evidence that establishes clearly and convincingly that action is warranted to correct an injustice.  The evidence supports a conclusion that the manner in which his relief for cause was rendered in and of itself created an injustice which can only be overcome by the removal of the report from his OMPF.

7.  The applicant has provided clear and compelling evidence which shows the contested NCOER was in error and that it was not the result of considered opinions and objective judgments of the rating officials at the time the report was rendered.  Therefore, the DA Form 2166-8 covering the period September 2003 through April 2004 is deemed to be improperly filed and should be removed from the applicant's OMPF.

9.  Army Regulation 600-8-19 provides that the DCS, G-1 or designee may approve cases for referral to a STAB upon determining that a material error existed in a Soldier's OMPF when the file was reviewed by a promotion board.  It is not unreasonable to presume that had the relief-for-cause NCOER not been in the applicant's file he may have been selected for promotion to MSG.  Based upon his 1 June 2001 date of rank for promotion to SFC, he was eligible for consideration for promotion by the Calendar Year (CY) 2005 through 2010 promotion boards.

10.  In view of the foregoing and in the interest of equity, it would appropriate to refer him to a STAB for promotion consideration based upon the CY 2005  and later, if necessary, selection criteria.  His file will be constructed as it should have appeared on the convening date of the promotion board.  If selected for promotion, he should be promoted retroactively and paid all retroactive pay and entitlements accordingly.  

BOARD VOTE:

____X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Removing the DA Form 2166-8 covering the period September 2003 through April 2004 from his OMPF
* Preparing and inserting a memorandum in the performance portion of the his OMPF annotating the above period as unrated time
* Removing all associated appeal documentation and directly related investigations and inquiries from his OMPF
* Having a STAB consider him for promotion to MSG/E-8 based upon his SFC/E-7 date of rank of 1 June 2001 (CY 2005 and, if necessary, later selection criteria)
* If selected for promotion, promoting him retroactively and paying him all retroactive pay and entitlements accordingly

2.  To ensure this decision results in no unintended harm to the individual concerned, following completion of the administrative corrections directed herein, this Record of Proceedings and associated documents and all other documents that are removed from the applicant's OMPF as a result of this action will be returned to this Board for permanent filing.  The aforementioned documents will not be filed in the individual's OMPF.



      __________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)                                         AR20100011490



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ABCMR Record of Proceedings (cont)                                         AR20100011490



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