IN THE CASE OF:	  

		BOARD DATE:	    29 September 2011

		DOCKET NUMBER:  AR20110004183 


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 reconsideration of his previous request for correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his foreign service in Afghanistan and any appropriate awards associated with that deployment.

2.  As new issues, he requests:

* removal of a Noncommissioned Officer Evaluation Report (NCOER) (DA Form 2166-8) covering the rating period May 2002 through August 2002 (hereafter referred to as the contested NCOER) from his record
* entries in Item 18 (Remarks) of his DD Form 214 to show his service for Operation Just Cause, Operation Desert Shield/Storm, and Iraq and Afghanistan (Operation Enduring Freedom (OEF)), and all appropriate awards

3.  He states that he needs to at least get the Afghanistan deployment annotated on his DD Form 214 in hopes of obtaining some sort of credit for having to deploy when he was physically non-deployable and not being able to recover properly from surgery.  A Certificate for “Operation Just Cause” shows he was in Panama prior to the invasion on a mission preparing for the invasion.  

4.  He also stated that he is requesting removal of this unsigned NCOER due to substantive unjust rating, bias, or prejudice of rating officials.  This is a very difficult subject to discuss while there is still anger there.  The battalion
commander told him once he agreed to retire that he would be retired with honors.  Only after he returned to the Continental United States did he learn about the NCOER in his records, full of untruth and with no factual evidence from an Equal Opportunity (EO) investigation in which they bypassed altogether.  In hindsight, he would have fought it.

5.  He provides:

* DA Form 2-1 (Personnel Qualification Record – Part II)
* Army Achievement Medal certificate for November to December 1989
* Certificate for “Operation Just Cause” Republic of Panama for December 1989 to January 1990
* A statement in support of bias of the contested NCOER
* Army Board for Correction of Military (ABCMR) Record of Proceedings

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100019146, on 25 January 2011.

2.  His military record shows he enlisted in the Regular Army on 22 July 1981 and served on active duty through several reenlistments in a variety of stateside and/or overseas assignments, including Germany from 23 June 1982 through 21 October 1983 and Korea from 6 November 1985 through 5 November 1986.  

3.  He provides a copy of an Army Achievement Medal certificate issued for his meritorious achievement during deployment to the Republic of Panama from 15 November 1989 to 19 December 1989.  

4.  He also provides a copy of a Certificate for “Operation Just Cause” Republic of Panama, issued for his participation in the Defense and Stabilization of the Republic of Panama from 20 December 1989 to 20 January 1990.  

5.  Item 5 (Overseas Service) of his DA Form 2-1 shows he served in Saudi Arabia from 9 August 1990 through 25 March 1991.  Item 27 (Remarks) of his DA Form 2-1 contains the entry, “Duty in Imminent Danger Pay Area (Panama) (20 December 1989 through 5 January 1990) and Saudi (9 August 1990 through 25 March 1991).”



6.  On 28 December 2010, a staff member of the Defense Finance and Accounting Service (DFAS) verified he received hostile file pay/imminent danger pay (HFP/IDP) for 11 August 2002 to 1 September 2002 for service in Afghanistan.

7.  He was issued a Relief for Cause NCOER, the contested report, for his duties as a First Sergeant (1SG) while assigned to the Army’s only Airborne, Assault Helicopter Battalion.  The NCOER shows the following entries:

	a.  In Part III(f) (Duty Description) (Counseling Dates), the entries "Initial – 1 May 2002" and "Later – 31 August 2002." 

	b.  In Part IV (Army Values/Attributes/Skills/Actions), the rater placed an “X” in the “"No” block of number 4 (Selfless-Service) and number 5 (Honor).  The rater entered the comments, “engaged in inappropriate conduct with subordinates concerning sexual harassment” and “dishonored the NCO Corps by sexually harassing the several female Soldiers in the battalion.”

	c.  In Part IV(b) (Competence), the rater placed an “X” in the "Needs Improvement” block and entered the following comments, "increased the unit’s Operational Readiness Rate by 3 percent by eliminating maintenance distracters impeding efficiency,” “provided timely, accurate, and advanced information to the battalion staff without fail,” and “sm (service member) used poor judgment.”

	d.  In Part IV(c) (Physical Fitness & Military Bearing), the rater placed an "X" in the "Success" block.   

	e.  In Part IV(d) (Leadership), the rater placed an "X" in the "Success” block and entered the following comments, “supervised the movement of over 65 percent of the unit to Afghanistan in support of Operation Enduring Freedom (OEF)” and “successfully deployed his company to JRTC (Joint Readiness Training Center) 02-07.”

	f.  In Part IV(e) (Training), the rater placed an “X” in the "Success" block.

	g.  In Part IV(f) (Responsibility & Accountability), the rater placed an “X” in the “Excellence” block and entered the following comments, “assisted in the successful management of over $4.8 million in organizational equipment during JRTC 02-07 and OEF,” “stressed safety in all Soldier activities both on and off duty,” and “Soldier is aware of reason for relief.”

	h.  In Part V(a) (Overall Performance and Potential), the rater placed an “X” in the “Marginal” block.  The senior rater commented, “sm no longer had any promotion potential and should not be retained in the Army.”

	i.  In Part V(c) (Senior Rater – Overall Performance) and in Part V(d) (Senior Rater – Overall Potential), the senior rater gave a rating of “Fair” for the applicant's overall performance and a rating of “Poor” for the applicant's overall potential for promotion and/or service in positions of greater responsibility.  

8.  The contested NCOER was digitally signed by his rater, senior rater, and reviewer on 30 January 2003 and forwarded to the applicant on the same date.

9.  He retired in pay grade E-8 on 31 May 2003.  He was credited with completion of 21 years, 10 months, and 9 days of net active service and no time lost.  He was also credited with 3 years, 11 months, and 16 days of foreign service.  His awards were previously listed in the ABCMR ROP, dated 25 January 2011.

10.  Item 18 (Remarks) of his DD Form 214 does not list any deployments for Panama or Saudi Arabia.  It does not show any OEF awards.

11.  On 26 April 2011, he was issued a DD Form 215 (Correction to DD Form 214) adding the Global War on Terrorism Service Medal and Korea Defense Service Medal.

12.  He further provides a statement in support of removal of the contested NCOER.  He stated that he had surgery on his right knee in December 2001.  He initially put in a claim in 2004 for post traumatic stress disorder.  During the first few months of his physical therapy, his unit had been alerted for possible deployment to Afghanistan.  Prior to deploying he requested to be relieved of his 1SG duties due to his physical condition.  The request was denied.  He also stated:

   a.  about 3 weeks into the deployment, he had a female Soldier who was conducting personal business with other male Soldiers during duty hours.  He had discussed this with her on several occasions to no avail.  He asked the battalion command sergeant major (CSM) if he could move her and at the time the CSM displayed a suspicious smile.  At that moment, he felt something was up.  The female Soldier he asked the CSM to move did not like the move and apparently accused him of sexual harassment; and 


   b.  the CSM would not let the battalion EO NCO follow the proper procedures for an investigation.  The CSM took it upon himself to gather all the females in the task force, after the female Soldier whom he asked to move manipulated a few females to make false statements.  After hearing these actions, he knew he had been railroaded.  The battalion commander gave him a memorandum stating he needed to retire.  The Division EO office concurred that his rights had been violated and to seek legal counsel.

13.  Army Regulation 600-8-22 (Military Awards) states the Afghanistan Campaign Medal is awarded to members who served in direct support of OEF.  The area of eligibility encompasses all the land area of the country of Afghanistan and all air spaces above the land area.  The period of eligibility is on or after 24 October 2001 to a future date to be determined by the Secretary of Defense or the cessation of OEF.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  Approved campaigns are:

* Liberation of Afghanistan (11 September 2001-30 November 2001)
* Consolidation I (1 December 2001-30 September 2006)
* Consolidation II (1 October 2006-date to be determined)

14.  Army Regulation 600-8-22 also states only one award of this Afghanistan Campaign Medal may be authorized for any individual, and under no condition will personnel or units receive the Afghanistan Campaign Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, the Iraq Campaign Medal, or the Armed Forces Expeditionary Medal for the same action, time period, or service.

15.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the preparation and submission of NCOER's for corporals through command sergeants major.  

	a.  Paragraph 3-59 states an NCOER report 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.  The rating official directing the relief will clearly explain the reason for the relief in his/her portion of the NCOER.  


	b.  Paragraph 6-4 states alleged error, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander’s attention by the rated individual.  If the commander finds no fault with the evaluation, then the Commander’s Inquiry is filed locally and a copy is given to the rated individual.

	c.  Paragraph 6-7 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to 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.

	d.  Paragraph 6-8 states that substantive appeals will be submitted within 3 years of an NCOER.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. 

16.  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 the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. 

17.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that for:

	a.  Item 12f, enter the total amount of foreign service completed during the period covered by the DD Form 214; and

	b.  Item 18, for an active duty Soldier deployed with his/her unit during their continuous period of active service, enter the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant deployed to Panama from 20 December 1989 through 5 January 1990 and Saudi Arabia from 9 August 1990 through 25 March 1991 and Afghanistan from 11 August 2002 through 1 September 2002.  Therefore, Item 18 of his DD Form 214 should be corrected to show the entry, "Service in Panama from 19891220 – 19900105, Saudi Arabia from 19900809 through 19910325, and Afghanistan from 20020811 – 20020901."

2.  His requests award of the Afghanistan Campaign Medal with service stars.  The evidence of record shows he served in Afghanistan in support of OEF from 11 August 2002 through 1 September 2002 during one campaign.  Therefore, his is entitled to award of the Afghanistan Campaign Medal with one bronze service star and it addition to his DD Form 214.

3.  The evidence also shows he was issued a DD Form 215 on 26 April 2011 adding the Global War on Terrorism Service Medal to his DD Form 214.

4.  With respect to any awards or decorations related to his deployment in support of Operation Desert Shield/Storm, Item 13 of his DD Form 214 currently lists the Armed Forces Expeditionary Medal, Southwest Asia Service Medal with two bronze service stars, Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia, and Kuwait Liberation Medal awarded by the Government of Kuwait for his service in Southwest Asia.  

5.  His request that the NCOER for the period May to August 2002 be removed from his record was also carefully considered.  However, he has not shown the report contains any serious administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.

6.  He has not provided convincing evidence that this NCOER was unjust, in whole or in part, to support removal from his record.  Substantive appeals must be submitted with 3 years of the NCOER's completion date and failure to submit an appeal within this time may be excused only if the appellant provides
exceptional justification to warrant this exception.  There is no substantive evidence of record and he has provided none to show exceptional justification that the contested report is incorrect, inaccurate, or bias.
7.  Further, there is no evidence of record and none has been provided to show that the comments rendered by his rater and senior rater on the contested NCOER are inaccurate, unjust, or bias. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20100019146, dated 25 January 2011 and new issues.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  adding to Item 18 of his DD Form 214 the entry "Service in Panama from 19891220 – 19900105, Saudi Arabia from 19900809 – 19910325, and Afghanistan from 20020811 – 20020901"; and

	b.  adding to Item 13 of his DD Form 214 the Afghanistan Campaign Medal with one bronze service star.

2.  The evidence presented also does not demonstrate the existence of a probable error or injustice pertaining to the removal of an NCOER covering the rating period May 2002 through August 2002 from his record.  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)                                         AR20110004183



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ABCMR Record of Proceedings (cont)                                         AR20110004183



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