IN THE CASE OF:	  

		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110013227 


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 2 June through 11 August 2010 (hereafter referred to as the contested Relief For Cause (RFC) NCOER) from his records.

2.  The applicant states the Enlisted Special Review Board (ESRB) did not have a copy of the Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers Investigations) investigation when it reviewed his case.  The AR 15-6 investigation shows the Commanding General (CG), U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS), Fort Bragg, NC, supports the removal of the contested RFC NCOER from his official records.

3.  The applicant provides:

* the contested RFC NCOER
* an application to the ESRB and supporting documents
* a denial letter from the U.S. Army Human Resources Command
* a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* a Memorandum for Record from the USAJFKSWCS


THE APPELLANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Having had prior service in the Regular Army and the Army National Guard, the applicant enlisted in the U.S. Army Reserve (USAR) on 18 January 2002 in military occupational specialty 38B (Civil Affairs Specialist).  He served through multiple reenlistments in a variety of stateside or overseas assignments and he was promoted to sergeant first class/E-7 on 1 September 2003 and to master sergeant (MSG)/E-8 on 1 June 2008.

2.  It appears he entered active duty in an Active Guard Reserve status in or around November 2004 and he was assigned to the Special Operations Command (Airborne), MacDill Air Force Base, FL.  He was reassigned to Fort Bragg, NC, in or around September 2008.

3.  In June 2009, he was assigned to Company A, 3rd Battalion, 1st Special Warfare Training Group, Fort Bragg, NC, as an advanced individual training (AIT) first sergeant (1SG).  

4.  On 9 June 2010, an investigating officer (IO) was appointed by the battalion commander, 3rd Battalion, 1st Special Warfare Training Group (Airborne), Fort Bragg, NC, to investigate the applicant's jump log for accuracy and validity from 1 June 2008 to the present. 

5.  The IO sufficiently determined the applicant's DA Form 1307 (Individual Jump Record) was inaccurate.  Between 29 September 2008 and 2 December 2009, at least five entries were determined to be inaccurate.  The IO substantiated that the applicant validated all of these entries as true and accurate on three separate occasions despite having not participated in five airborne operations that were reflected on his DA Form 1307.  The IO recommended that the battalion S-3:

   a.  Reconstruct the applicant's jump log, delete the inaccurate entries, and detail all irregularities.

   b.  Determine whether the applicant knowingly violated Airborne regulatory requirements which may have put himself and other Soldiers at risk.

   c.  Review his entitlement to airborne proficiency pay with assistance from the battalion S-1.

   
   
   
   
   d.  The applicant be reprimanded for:

* Falsely representing five airborne operations that he did not perform
* Attempting to mask receipt of airborne proficiency pay without having performed airborne operations
* Failing to keep his chain of command informed of his medical status and ability to perform airborne operations

6.  On 22 July 2010, by memorandum, the applicant's battalion commander stated that a commander's inquiry had sufficiently determined the applicant validated five entries on the DA Form 1307 jump log despite not having participated in five airborne operations.  He requested authority to dispose of the alleged misconduct.  

7.  On 28 July 2010, the group commander reviewed the commander's inquiry and the alleged misconduct and recommended approval of the battalion commander's request for authority to dispose of the alleged misconduct.  

8.  On 3 August 2010, the CG, USAJFKSFCS, approved the battalion commander's request for authority to dispose of the alleged misconduct.

9.  During the month of August 2010, the applicant received the contested RFC NCOER which covered 2 months of rated time from 2 June 2010 through 11 August 2010, during the period that he performed the duties of an AIT 1SG.  His rater was Major RRB, the company commander; his senior rater was Lieutenant Colonel BB, the battalion commander; and his reviewer was Colonel JJJ, the group commander.  The RFC NCOER shows the following entries in:

	a.  Part IVa (Army Values), the rater boxes are marked "No" for "Duty," "Selfless Service," "Honor," and "Integrity" and inserted are the comments "improperly claimed five jumps on which he did not participate," "always looking out for the welfare of the Soldiers and well-being of the cadre," and "passionately supports EO/EEO." 

	b.  Part IVbc (Value/NCO (Noncommissioned Officer) Responsibilities - Competence), the rater marked "Needs Improvement (Some)," and inserted the comment "displayed poor judgment by erroneously claiming five jumps he did not make to support a request for his Master Parachutist Badge." 

	c.  Part IVd (Leadership), the rater marked "Needs Improvement (Some)," and inserted the comment "failed to set the example by submitting a false statement to his command."

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

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

* Violated the trust and confidence of this command; retain at current rank
* Do not send to Sergeants Major Course at this time
* Place in supervised positions to gradually increase responsibility
* Limited potential for further service at higher levels within the Active Guard Reserve community

	f.  In Parts Vc and d (Senior Rater – Overall performance and potential for promotion and/or service in positions of greater responsibility), the senior rater selected "Fair/Fair – 4/4."

10.  On 16 November 2010, the incoming CG, USAJFKSWCS, appointed a new IO to:

* Ascertain the integrity of the DA Form 1307 and origin of discrepancies, if any
* Whether there was abuse of discretion in the RFC NCOER
* Whether the RFC NCOER was processed properly
* Any other significant issues regarding:

* The propriety of recouping the applicant's jump pay
* Removal of the contested RFC NCOER from the applicant's records
* Requisite number of jumps for the Master Parachutist Badge
* Alleged hostile work environment

11.  The IO submitted a DA Form 1574, dated 16 November 2010, with a Memorandum for Record, dated 28 February 2011, that show:

	a.  The RFC was based on the applicant's jump log submission and an affidavit that the jumps were correct while applying for the Master Parachutist Badge.  A financial adjustment to recover 25 months of jump pay (7 jumps) was initiated, even though another command's commander's inquiry found 5 jumps in question.  After the RFC NCOER, the applicant petitioned its removal from his records.  He also requested a commander's inquiry.  Due to the commander's inquiry spanning two commands, the investigation was transitioned to an AR 
15-6 investigation. 

	b.  The IO determined that the investigation was challenged by 2 years worth of mismanaged and confusing jump logs.  The units had numerous records with manifests, pre-manifests, final manifests, shadow logs for award submission, and forms missing annotations, incorrect dates, and storage problems; and the "jump records were difficult to ascertain what jumps were and were not made."  The IO recommended:

* The CG, USAJFCSWCS, support the applicant's request to remove the contested RFC NCOER from his records
* The applicant had no legal protection from an alleged hostile work environment and no further action would be taken regarding this issue
* The financial adjustment documentation removing 25 months of hazardous duty pay against the applicant be halted
* If the missing second page of a DA Form 1307 was found and substantiated no jumps during the quarter, his pay should be recouped
* The applicant's senior rater counsel him regarding accountability of paperwork
* The USAJFKSWCS G-3 inspect all unit S-3 NCOs

12.  On an unknown date, the CG approved the findings and recommendations of the IO’s investigation.

13.  On 12 May 2011, in response to his appeal of the contested RFC 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 did not warrant the relief requested.

14.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  This includes DA Forms 2166-8, and DA Forms 1059 (Service School Academic Evaluation Reports (AER)).

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pamphlet 623-3.  Consideration will be given to the following:  (a) the relative experience of the rated officer or NCO; (b) the efforts made by the rated officer or NCO; and, (c) the results that could be reasonably expected given the time and resources available.  Potential evaluations will be performance-based assessments of the rated officers or NCOs of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for HQDA. 

	b.  Paragraphs 6-3 and 6-4 state, in pertinent part, that the primary purpose of a commander's inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  

	c.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion of amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant served as a company 1SG from June 2009 through August 2010 until he was relieved.  The RFC NCOER was based on the applicant's DA Form 1307 submission and affidavits that indicated the jumps were correct while applying for the Master Parachutist Badge.  

2.  An IO conducted an investigation and found sufficient evidence the applicant's individual Jump Record was inaccurate.  Between September 2008 and December 2009, at least five entries were determined to be inaccurate.  The IO substantiated that the applicant validated all of these entries as true and accurate on three separate occasions despite having not participated in five airborne operations that were reflected on his DA Form 1307.  The battalion and group commanders requested authority to dispose of the misconduct within their command.  The CG approved their requests.  
3.  After the RFC NCOER was submitted, a subsequent investigation was ordered by the incoming CG.  The new IO determined that the investigation was challenged by 2 years worth of mismanaged and confusing jump logs.  The unit had numerous records with manifests, pre-manifests, final manifests, shadow logs for award submission, and forms missing annotations, incorrect dates, and storage problems; and the "jump records were difficult to ascertain what jumps were or were not made."  The IO recommended the RFC NCOER be removed from the applicant's records.  The CG approved the finding.

4.  Based on the second investigation and as a matter of justice, the RFC NCOER should be removed from the applicant's records and a memorandum of non-rated time should be inserted to account for the rating period.  

BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 RFC NCOER covering the rated period 2 June 2010 through 11 August 2010 from his records
* inserting a memorandum of non-rated time to account for the period 2 June 2010 through 11 August 2010 into his records



      _______ _   _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)                                         AR20110013227



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ABCMR Record of Proceedings (cont)                                         AR20110013227



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