IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100016599 


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 a relief-for-cause Noncommissioned Officer Evaluation Report (NCOER) covering the period September 2003 through April 2004 and a memorandum of reprimand (MOR), dated 22 December 2003, be removed from his official military personnel file (OMPF).

2.  The applicant states he was given a relief-for-cause NCOER and an MOR using inaccurate information and false statements.  He outlines a timeline of events from 30 October 2003 when he was removed from the Green Bay Recruiting Station to 3 May 2004 when he received a relief-for-cause NCOER.  He states he received the NCOER without receiving any initial counseling or corrective action.  He states he has fought the validity of the sworn statement given by Command Sergeant Major (CSM) S____.  He states he believes CSM S____ had an undue influence on the outcome of his entire case.  He then spent 22 months in the Great Lakes Recruiting Battalion where he took his station to top station within the Lansing Recruiting Company.  He then returned to the Milwaukee Recruiting Battalion and was working for the same first sergeant as before.  He believes that during the previous investigation this same first sergeant was being forced from higher up to give him a relief-for-cause NCOER.

3.  The applicant states his wife of 10 years moved out with their 3-year old son during the month of September 2003.  He states this marital issue is mentioned in his relief-for-cause NCOER against regulation.  He states the battalion chain of command did not take any of his personal life into consideration during this period.

4.  The applicant provides copies of:

* a memorandum, dated 7 May 2010, from a Judge Advocate General's Corps captain
* his orders to the U.S. Army Recruiting Battalion (USARB) Milwaukee
* the contested NCOER
* a sworn statement by CSM S____
* a Report to Suspend Favorable Personnel Actions (Flag)
* a memorandum, dated 19 May 2004, from the Training Assessment Branch
* a Staff Judge Advocate comment, dated 21 May 2004
* a relief-for-cause letter, dated 22 May 2004, from Headquarters, U.S. Army 3rd Recruiting Brigade
* a memorandum, dated 15 June 2004, from Headquarters, U.S. Army Recruiting Command
* page 3 of a DD Form 2808 (Report of Medical Examination)
* his MOR, dated 22 December 2003, with his rebuttal

CONSIDERATION OF EVIDENCE:

1.  The applicant does not include any evidence that he submitted a request to the Department of the Army Suitability Board (DASEB) for removal of his MOR.  In the absence of such evidence, the applicant has not shown that he has exhausted his administrative remedies concerning this issue.  His request for removal of the MOR has been referred to DASEB for determination.  This issue will not be discussed further in this Record of Proceedings.

2.  The applicant's military records show he has been serving on active duty since 1 February 1990.  He currently holds the rank of sergeant first class and is now serving with the USARB Houston, Houston, TX.  He is assigned the military occupational specialty of 79R (Recruiter Noncommissioned Officer).  He received the contested NCOER in May 2004.

3.  The applicant was assigned to the USARB Milwaukee, Milwaukee, WI, on 20 January 2000.

4.  The applicant received five previous NCOERs as a staff sergeant from the USARB Milwaukee wherein he was rated as a station commander, an on-production station commander, and as a limited-production station commander.  He received "Among the Best" evaluations in Part Va (Overall Performance and Potential) on four of the NCOERs and "Fully Capable" on one.  In addition, his senior rater rated him in the "1 Successful" block in Part Vc (Overall Performance) and the "1 Superior" block in Part Vd (Overall Potential for Promotion and/or Positions of Greater Responsibility) of one report on four of the NCOERs.

5.  The contested NCOER is a relief-for-cause report covering the period September 2003 to April 2004.  His rater was First Sergeant L____.  Part IIIf (Counseling Dates) indicates the applicant was initially counseled on 30 September 2003 and received a later counseling on 31 October 2003.

6.  Part IVa (Army Values) of the contested NCOER contains a "No" response to questions 2 (Duty), 5 (Honor), and 6 (Integrity).  Bullet comments indicated the applicant:

* failed to perform duties as station commander
* did not take responsibility for mistakes
* did not live all Army values

7.  In Part IV of the contested NCOER, the rater gave the applicant a "Needs Improvement (Some)" rating in:

	a.  Part IVb (Competence) with the bullets:

* spouse left him, severely impacted his ability to apply sound judgment to situations within his recruiting station and degraded his proficiency
* unable to perform basic tasks of recruiting station commander during this rating period

	b.  Part IVd (Leadership) with the bullets:

* failed to conduct Daily Performance Reviews with his subordinates
* failed to set goals and provide guidance to his subordinates
* did not demonstrate leadership to the DEPs [Delayed Entry Program members] entrusted to his care by failing to train them; no DEP promotions

	c.  Part IVf (Responsibility & Accountability) with the bullets:

* failed to monitor the DEP pool IAW [in accordance with] USAREC [U.S. Army Recruiting Command] Regulation 601-95, paragraph 1-4(1)
* demonstrated a gross inability to maintain accountability of his DEP pool by taking an unexplained and unexpected DEP loss

8.  In Part V (Overall Performance and Potential) the rater's evaluation of the applicant in Part Va was "Marginal."  The senior rater rated the applicant "Poor" in Part Vc and "Fair" in Part Vd and provided the bullets:

* do not promote now; consider future performance prior to promotion
* substandard performance for a seasoned career recruiter during this rating period
* limited potential

9.  The reviewer of the contested report concurred with the rater and senior rater evaluations.

10.  In his sworn statement, dated 6 January 2004, CSM S____ stated the applicant did not have any integrity, nothing he says can be believed, and he clearly is not doing even the most basic tasks required of a station commander as evidenced by statements from his own subordinates.  The statements referred to by CSM S____ were not available for review.

11.  On 8 April 2004, a flag on the applicant was removed effective 22 December 2003.  The reason for the flagging action is not indicated in the record.

12.  In a memorandum for record, dated 19 May 2004, the Training Assessment Branch submitted an evaluation of the relief packet for the applicant.  This apparently was in reference to the request being submitted by the 3rd Recruiting Brigade command for the applicant's relief from recruiting duties.  The packet provided by the USAREC Inspector General did not indicate that any training was provided to the applicant.  The Training Assessment Branch stated applicant was unable to get an accurate picture of the state of the recruiting station due to the failure of an inspection being conducted within 90 days of his assuming the position of station commander.  The Training and Assessment Branch stated a counseling form was not included with the packet, the applicant was not provided with a plan of action, and a follow-up assessment was not conducted to determine if the issue still existed.  The Training and Assessment Branch recommended the applicant not be relieved of duties.  It recommended that he be started on an intensive training program that would provide him with the guidance necessary to transition from an on-production recruiter to a limited-production station commander.

13.  On 21 May 2004, the Assistant Staff Judge Advocate (ASJA) submitted comments concerning the involuntary reassignment (unsuitable) of the applicant. 
The ASJA stated the file did not contain any evidence the applicant had been provided the training necessary to perform duties as the new station commander. 
It also stated that the file was devoid of evidence that the applicant was counseled regarding his job performance.  The ASJA recommended that the applicant not be relieved of recruiting duties.  It was recommended that he receive a rehabilitative transfer to another battalion and that he receive appropriate training and counseling in his new position.

14.  On 22 May 2004, the Commander, U.S. Army 3rd Recruiting Brigade, stated he had reviewed the commander's inquiry (not available for review) concerning recruiter misconduct; memorandum for concern, dated 17 December 2003; and the recommendations of the chain of command.  He determined that a preponderance of the evidence established that the applicant had been derelict in the performance of his duties as a station commander and as a recruiter by failing to properly manage his DEPs and by consistently failing to conduct daily performance reviews.  He stated the evidence showed the applicant had continually lied about his actions and performance to his chain of command.  The commander stated the compromise of his personal integrity and professional ethic rendered him unsuitable for recruiting duty.  He directed the applicant's relief from recruiting duty and that he be reassigned in accordance with the needs of the Army.

15.  On 15 June 2004, Headquarters, USAREC, Fort Knox, KY, returned the relief packet to the 3rd Recruiting Brigade without action.  USAREC stated the relief was held legally insufficient, the applicant should receive a rehabilitative transfer to another battalion, and he should receive appropriate training and counseling in his new position.

16.  The applicant was assigned to the USARB, Great Lakes, Lansing, MI, in May 2004 where he was assigned as the station commander of a three-person station from May 2004 to April 2005 and as the station commander of a two-person station from May 2005 to April 2006.  His NCOERs show he was rated as "Fully Capable" in Part Va during the first period and as "Among the Best" during the second period.  He had a different rater for each period.

17.  The Department of the Army Enlisted Standby Advisory Board, which adjourned on 24 September 2004, recommended the applicant be retained on the promotion list to sergeant first class.  The applicant was promoted to sergeant first class with an effective date of 1 November 2003.

18.  In May 2006, the applicant returned to the USARB Milwaukee.  His rater for his first annual NCOER since returning was First Sergeant L____, the same person who rated him on the contested NCOER.  The rater rated him as "Fully Capable" in Part Va of the NCOER.

19.  There is no evidence the applicant appealed his contested NCOER to the Enlisted Special Review Board.

20.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), in effect at the time, set forth the policies and procedures governing the NCOER System.  It provided instructions for preparing, processing, and submitting the DA Form 2166-7 (NCOER).  It also provided guidance for appealing evaluation reports.

21.  Paragraph 3-19 of Army Regulation 623-205 stated that no evaluation comments, favorable or unfavorable, will be based solely on an NCO's marital status.  However, there are limited circumstances, involving actual and demonstrable effect on the rated NCO's performance or conduct, when comments containing reference to a spouse may be made.  These comments must be focused on the rated NCO's actions, not those of the spouse.

22.  Chapter 6, Section III (Appeals), of Army Regulation 623-205 contained guidance for the appeal of an NCOER.

	a.  Paragraph 6-6 stated an evaluation report accepted for inclusion in the official record of an NCO is presumed to:

* be administratively correct
* have been prepared by the proper rating officials
* represent the considered opinion and objective judgment of rating officials at the time of preparation

	b.  Paragraph 6-10 stated the burden of proof rested with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must have produced evidence that established clearly and convincingly that:

* the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration
* 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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his relief-for-cause NCOER covering the period September 2003 through April 2004 should be removed from his OMPF.  He also contends the bullet concerning his spouse entered in the contested NCOER is against the regulation.

2.  Army Regulation 623-205 stated that reference may be made to a spouse involving actual and demonstrable effect on the NCO's performance or conduct.  The comment stated the fact that his spouse had left him severely impacted his judgment and proficiency.  Therefore, the comment focused on his actions, not those of his spouse, and meets the criteria set forth in the regulation.

3.  The Training Assessment Branch and the ASJA concluded the applicant was not provided appropriate training necessary for him to perform duties as the new station commander.  However, he had received five previous NCOERs as a station commander, an on-production station commander, and as a limited-production station commander.  The evidence shows that during the period of the contested NCOER he was not in his first assignment as a station commander.  Therefore, it is reasonable to conclude the applicant was well aware of his duties and responsibilities as a station commander.  In his rebuttal to his written reprimand, the applicant indicated his wife left him in September 2003 and he admitted to having a lack of concentration during the short time period and that he may have made unintentional errors.  

4.  The Training Assessment Branch stated the applicant was not counseled regarding his job performance.  However, Part IIIf of the contested NCOER shows he was initially counseled on 30 September 2003 and received a later counseling on 31 October 2003.  Therefore, this statement is not supported by the evidence.

5.  It appears the memorandum from the Training Assessment Branch and the ASJA comments were submitted in support of the applicant when the battalion commander recommended that he be relieved of recruiting duties and reassigned according to the needs of the Army.  The applicant's relief-for-cause NCOER was not addressed in either the memorandum from the Training Assessment Branch or the ASJA comments.  Therefore, it is apparent these documents were not contesting or intended to interfere with the battalion commander's authority to relieve the applicant as station commander.  These documents were submitted to determine whether the applicant should be retained on recruiting duty.

6.  The five NCOERs wherein the applicant was rated as a station commander prior to the contested NCOER show he had prior experience and success as a station commander.  This also shows he was well aware of his responsibilities as a station commander.  NCOERs received subsequent to the contested NCOER show the applicant's continued success as a station commander following a rehabilitative transfer.  However, these factors do not support a modification or removal of the contested NCOER.

7.  The applicant failed to provide clear and convincing evidence of a strong and compelling nature to support a removal of the contested NCOER from his OMPF. Therefore, there is an insufficient evidentiary basis to support granting the applicant the requested relief.

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)                                         AR20100016599



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100016599



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1