IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20110003700 


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 the removal of the DA Form 2166-8 [Noncommissioned Officer Evaluation Report (NCOER)] covering the rating period 29 March 2008 through 5 December 2008 (hereafter referred to as the contested NCOER) from his records

2.  The applicant states his application should be assigned the highest priority because he received a QMP (Qualitative Management Program) notice.  His records will be considered by the QMP board on 6 June 2011.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests removal of the contested NCOER) from the applicant's records.  

2.  Counsel chronicles the applicant's military service, awards and decorations, combat experience, and education.  He states:

	a.  The applicant was assigned on 27 April 2008 as a senior Human Resources (HR) Advisor/Trainer to National Police Transition Team (NPTT) Number 2106, Iraqi Assistance Group (IAG), 1st Infantry Division, Iraq.  During this assignment, he was rated by three different raters.  He was rated by the Team NCOIC (NCO In-Charge), master sergeant (MSG) JAS from 15 August to 10 October 2008.  When MSG JAS was promoted and reassigned to another unit, the applicant became the Team NCOIC.  At the time, captain (CPT) LT (now a major (MAJ)) was the Team Executive Officer (XO) and he became the applicant's rater.  The applicant requested the Team Officer In-Charge (OIC), MAJ DAR be his rater since the OIC rated the previous NCOIC, but MAJ DAR declined.  CPT LT then served as the rater for a little over 45 days but realized he had little interaction with the applicant to rate him.  MAJ DAR then decided CPT ML, a senior HR Advisor, would be the rater.

	b.  The applicant requested to leave the team after an altercation with CPT LT and due to the constant changes in his raters and duty position.  His request was granted.  When he left the team, he did not expect to receive an NCOER because no one qualified to be his rater.  He was later surprised to find the contested NCOER in his records and even more surprised that it was a relief for cause (RFC) NCOER.  

	c.  The applicant does not contend his behavior was above reproach during the rating period.  But he challenges the procedure in which the report was issued and challenges it validity.  By regulation, the minimum rating period of 30 days for the rater and the senior rater was not met.  A waiver of the 30-day requirement, which is normally authorized in writing by a general officer in the chain of command, is not available.  Additionally, he was not notified of this relief.

	d.  He appealed the contested NCOER to the Army Special Review Board (ASRB) but his appeal was denied.  With this appeal, he asked sergeant major (SGM) BOB, Detachment NCOIC, Multi-National Corps – Iraq, Security Forces Assistance, to submit a timeline of who was assigned as his rater and the length of time.  This timeline clearly shows that CPT LT was the only rating official who met the 30-day rating requirement.  Yet, the contested NCOER was submitted by CPT ML who only had 16 days as a rater.  The ASRB relied on a statement submitted by MAJ DAR, the team OIC, which is a "memory of events." Additionally, the ASRB relied on the counseling that occurred between CPT ML and the applicant on 20 November 2008 as the initial, face-to-face counseling. 

	e.  The applicant and CPT ML had a verbal altercation on 3 December 2008.  The issue centered on the applicant's additional appointed duties of "interpreter manager."  CPT ML notified the applicant of the relief during this counseling.  However, the applicant's primary duty was senior HR Advisor/Trainer.  The applicant was notified during this counseling that he was being relieved from the additional duties of "interpreter manager" and not of his entire duties as a senior HR Advisor/Trainer.  Relying on this counseling statement to fulfill the regulatory requirement of notifying the rated NCO of his relief is improper.  Additionally, MAJ LT also counseled the applicant on the same date and stated he was recommending the applicant for further administrative action.  This cannot be construed as evidence that the applicant was aware of his relief.  

	f.  The ASRB stated it reasonably concluded the senior rater, upon the recommendation of CPT ML and MAJ LT, relieved the applicant.  There is no documentary evidence to support this position.  In available evidence suggests the presumption of regularity weighs in favor of the applicant.  The NCOER should be removed from his records.

3.  Counsel submits:

* Contested NCOER
* ASRB Record of Proceedings, 24 June 2010
* SGM BOB memorandum of raters' timeline, 4 June 2009
* MAJ DAR memorandum of applicant's rating period, 16 December 2008
* Applicant's initial counseling, 20 November 2008
* DA Form 4856 (Developmental Counseling), 3 December 2008
* Second DA Form 4856, 3 December 2008

THE APPELLANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant's records show he initially enlisted in the Regular Army on 22 June 1989 and held military occupational specialty 42A (HR Specialist).  He served through multiple reenlistments, within and outside continental United States, and he was promoted to MSG/E-8 on 1 August 2008.

2.  He was assigned to the NPTT Number 2106, IAG, 1st Infantry Division, Iraq, as a senior HR Advisor/Trainer.  The team had trained at Fort Riley, KS, from 27 April to 10 July 2008.  While at Fort Riley, the applicant had an outburst with CPT LT during which he was disrespectful, showed a complete lack of discipline, and displayed disdain for the Officer Corps.  Additionally, during the Capstone exercise, the applicant left his team on multiple occasions to do what he wanted to do thus leaving the team short one person and vulnerable. The team members were very unhappy and complained to the battalion commander that the applicant was a "wild card."  He was disrespectful, undisciplined, and could not be trusted. 

3.  The team arrived and stayed in Kuwait from 11 to 24 July 2008.  It moved to Baghdad on 25 July 2008.  The applicant was counseled by the outgoing NCOIC, MSG JAS on 15 August 2008 and by the team XO on 11 October 2008.

4.  He appears to have been assigned as the Team NCOIC on 11 October 2008 after MSG JAS departed.  At some stage, it was decided CPT LM, also a senior HR Advisor/Trainer, would become his rater.  CPT LM provided the applicant his initial face-to-face counseling on 20 November 2008.  The counseling focused on all aspects of his primary duties, including being an interpreter manager.  
5.  On 1 December 2008, the applicant had a confrontation with his acting team chief, MAJ LT.  When MAJ LT asked him to cancel next day's medical training due to an important mounted combat patrol (MCP) that had to be conducted instead, the applicant questioned why the medic could not stay back from the MCP.  When the team chief explained that other alternatives were considered, the applicant persisted to question the decision.  When he was told the decision was final, he again questioned the officer's authority in front of others, including Iraqi interpreters.  When the team chief again explained that the applicant's concerns were noted, he continued to argue and raise his voice.  When he was ordered to the position of attention, the applicant refused the order and replied "Hell no, I'm not going to go to attention for you - and you can't talk to me like that.  I'm a grown man and you will respect me."  When he was ordered to "at ease" again, he still refused.  When the team chief went to see the deputy commander (also NCOER reviewer), the applicant refused the order to wait outside.  His actions were in violation of:

* Article 89, disrespecting a senior commissioned officer
* Article 90, willfully disobeying an order

6.  On 3 December 2008, he was counseled by MAJ LT, the Team XO, regarding this behavior and it was stated that this was not the first time he had been counseled about his unprofessional behavior.

7.  Also on 3 December 2008, he was counseled by CPT ML, the senior HR Advisor, regarding this unprofessional behavior and disrespect.  CPT ML stated that he had verbally counseled the applicant regarding these issues on multiple occasions in the past and offered to continue to assist him in any corrective action.  The counseling form shows that over the course of the past month, CPT ML received numerous complaints from the interpreters and other team members regarding disrespect and mistreatment toward interpreters.  Based on their concern and that of the team chief, CPT ML notified the applicant he was relieved from all duties and responsibilities as interpreter manager effective immediately.  

8.  During the month of December 2008, the applicant received the contested RFC NCOER which covered 8 months of rated time from 29 March 2008 through 5 December 2008, with codes Q (Non-rater qualification) and I (In-transit), for his duties as senior HR Advisor/Trainer.  His rater was CPT ML, the NPTT senior HR Advisor; his senior rater was MAJ DAR, the NPTT Team Chief; and his reviewer was lieutenant colonel (LTC) MFM, the NPTT Team Deputy Commander.  The NCOER shows the following entries:

	a.  In Part IVa (Army Values), the rater box-checked "NO" for "Loyalty" and "Duty" and inserted the following comments to support his rating:

* publicly disobeyed a lawful order from a senior officer
* consistently demonstrated little to no respect and concern for his team members and Team Chief
* refused to prepare for a combat patrol when directed by a senior officer

	b.  In Part IVc (Physical Fitness and Military Bearing), the rater box-checked "Needs Improvement (Much)," and noted:

* was relieved form his duties before the next scheduled APFT
* becomes insubordinate when counseled in regards to corrective criticism
* publicly displayed inappropriate military bearing to a senior officer

	c.  In Part IVd (Leadership), the rater box-checked "Needs Improvement (Much)," and inserted:

* his behavior adversely affected the morale of other team members prior to a combat mission
* failed to comply with instructions of superiors on several occasions during and prior to deployment to Iraq
* continued to advocate his own positions in opposition to that of the Team Chief

	d.  In Part IVf (Responsibility and Accountability), the rater box-checked "Needs Improvement (Some)," and supported his rating with the following:

* tends to put the blame on others for own shortcomings during counseling and after action reviews
* placed his own needs and requirements above the team prior to a combat mission
* the Rated NCO has been notified of reason for relief

	e.  In Part Va (Rater – Overall potential for promotion and/or service in positions of greater responsibility), the rater selected "Marginal."

	f.  In Part Va (Senior Rater (SR) Bullet Comments), the senior rater inserted the following bullet comments:

* limited potential; lacks the maturity and leadership skills normally found in a Master Sergeant
* do not promote to next rank
* do not send to the United States Army Sergeants Major Academy
* Rated NCO refused to sign

	g.  In Parts Vc and d (SR – Overall performance and potential for promotion and/or service in positions of greater responsibility), the SR selected "Poor/Fair – 5/4."

9.  CPT ML received an Extended Annual Officer Evaluation Report for the period 23 February 2008 through 24 May 2009, for his duties as an HR Advisor.  His rater was MAJ DAR, the Team Chief, and his Senior Rater was LTC MDM, the Team Deputy Commander. 

10.  The applicant was reassigned to Headquarters, IAG-Kuwait on 6 December 2008 where he remained until 5 June 2009.  He was ultimately reassigned to Fort Jackson, SC, where he is currently stationed.  

11.  On 24 June 2010, in response to his appeal of the contested NCOER, the ESRB determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice.  Therefore, by unanimous vote, the ESRB determined the overall merits of this case do not warrant the relief requested.

12.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the evaluation reporting system.   

	a.  Paragraphs 1-4b(3) and (4) state commanders at all levels will ensure that reports are prepared by the individuals named in the published rating chain.  Rating chains correspond as nearly as practical to the chain of command and supervision, are drawn up by names, given effective dates, published, and made available to each rated Soldier and each member of the rating chain.  Any changes to rating chains will also be published and distributed.  No changes may be retroactive.

	b.  Paragraph 2-2 states that rating chains will correspond as nearly as practicable to the chain of command and supervision within an organization, regardless of component or geographical location.  They will be established by name, given effective dates, published, and distributed manually or electronically to each rated officer, NCO, and civilian member of the rating chain.  Any changes to rating chains will also be published and distributed as required.  No changes may be retroactive.

	c.  Paragraph 2-12 stipulates, in pertinent part, raters will provide their support forms, along with the senior rater's support forms, to the rated Soldier at the beginning of the rating period; discuss the scope of the rated Soldier's duty description with the rated Soldier within 30 days after the beginning of the rating period; counsel the rated Soldier; advise the rated Soldier as to changes in their duty description and performance objectives, when needed, during the rating period; assess the performance of the rated Soldier, using all reasonable means, to include personal contact, records and reports, and the information provided by the rated individual on the applicable support forms; review the applicable support forms at the end of the rating period and, as appropriate, provide more information about the job description or performance objectives to other rating officials for use in preparing their evaluations; verify rated individual's APFT and height and weight data for entry on the evaluation report; and provide an objective and comprehensive evaluation of the rated Soldier's performance. 

	d.  Paragraph 3-59 states that a NCOER report is required when a NCO is relieved for cause regardless of the rating period involved.  Relief for cause is defined as the removal of a NCO from a rateable assignment based on a decision by a member of the chain of command or supervisory chain.  An RFC 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. 

	e.  Paragraph 3-59e states the minimum rater and senior rater qualifications and the minimum rating period are 30 rated days.  The fundamental purpose of this restriction is to allow the rated NCO a sufficient period to react to performance counseling during each rating period.  Authority to waive this 30-day minimum rating period and rater and senior rater qualification period in cases of misconduct is granted to a general officer in the chain of command or an officer having general court-martial jurisdiction over the relieved NCO.  The waiver approval will be in memorandum format and attached as an enclosure to the report.

13.  DA Pamphlet 623-3, Table 3-1 (Administrative Data - NCOER Instructions) states that the number of rated months is computed by dividing the basic rating period by 30.  Do not use the "Period Covered" by the report, subtract all nonrated time.  If 15 or more days are left after dividing by 30, they will be counted as a whole month. (For example, 130 days is 4 months and 10 days and is entered as 4 months; 140 days is 4 months and 20 days and is entered as 5 months).   Tables 3-1 and 3-7 (Reason Codes for Non-Rated Time) state that code "I" will be used as a reason code for in transit between duty stations, including leave, permissive temporary duty, and temporary duty; and a code "Q" for Lack of Rater Qualification.  Paragraph 3-9 states, in pertinent part, the rating official directing the relief will clearly explain the reason for relief in Part IV, if the relieving official is the rater; if the relieving officer is the SR, in Part Ve.  Regardless of who directs the relief, the rater will enter the bullet "The rated NCO has been notified of the reason for relief" in Part IVf.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the rating officials, the applicant contends the minimum rating period of 30 days for RFC NCOERs was violated and that the senior rater did not obtain a 30-day waiver for a RFC NCOER from the general officer in the chain of command.  He provides a statement from SGM BOB who states that he conducted an investigation based on the applicant's leave form, his assignment orders, deployment orders, training certificates and initial counseling.  He determined that CPT ML was the rater for only 16 days, from 20 November to 8 December 2008.

2.  However, SGM BOB neither provided a copy of the rating scheme he contends was initially established on 14 August 2008 nor did he show evidence that he contacted the rating officials.  His investigation was conducted six months after the rating period ended.  Furthermore, CPT ML provided the applicant initial counseling on 20 November 2008, but this does not mean that CPT ML became his rater on 20 November 2008.  By regulation, a rater has 30 days in which to initiate the initial face-to-face counseling.  

3.  MAJ DAR ultimately determined the applicant was better suited for the job he was assigned (versus the Team NCOIC), as the senior HR Advisor/Trainer.  Since CPT ML was the senior HR Advisor/Trainer OIC, he was designated as the rater.  The contested NCOER shows the Non-Rated Codes of "I" and "Q" in Part Ij, indicating that rater qualifications were not met prior to CPT ML becoming the rater on or about 1 November 2008.  While an administrative change could be entered in part Ii (Rated Months) to show "2", this change would not materially affect the outcome of the ratings.

4.  The applicant and counsel also contend he was never officially notified of the relief, and that his rating officials cannot provide documentation to show that he was notified of the relief.  A review of the contested NCOER shows the required statement of "the rated NCO has been notified of reason for relief," is properly annotated in the contested NCOER.  There is no specific requirement in the governing regulations requiring that a NCO be notified of relief in writing.

5.  The available evidence shows he was counseled by both CPT ML and MAJ LT on 3 December 2008.  He was notified in writing that he was immediately relieved of all his duties and responsibilities as interpreter manager.  MAJ T advised him that he was recommending further administrative action to the Team Chief, MAJ DAR (the senior rater).  It is therefore reasonable to presume that MAJ DAR (the senior rater), upon the recommendations of CPT ML and MAJ T, relieved the applicant from his position.  

6.  Based on the available evidence, the applicant’s contention is without merit.  At a minimum, as a senior NCO, he should have been on notice (he was previously counseled on multiple occasions), that his behavior was unacceptable. He knew or should have known that he was being given more than one chance to improve his conduct and professionalism, and taken advantage of that opportunity.

7.  The rating and comments on this NCOER appear to be the considered opinion of the rating officials.  In the absence of more compelling evidence which clearly and convincingly shows that the presumption of regularity should not be applied to this report, or that it contains material error, is inaccurate, or unjust, there is no basis to grant the relief requested.

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)                                         AR20110003700



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ABCMR Record of Proceedings (cont)                                         AR20110003700



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