IN THE CASE OF:	  

		BOARD DATE:  2 February 2012

		DOCKET NUMBER:  AR20110018360 


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 a relief-for-cause noncommissioned officer evaluation report (NCOER) covering the period 1 June 2007 to 15 January 2008 from his official military personnel file (OMPF).

2.  The applicant states the contested NCOER actually covered only 89 days of rated time and is an unjust, unsubstantiated, and biased evaluation of his performance that does not reflect his true performance as an NCO.  He further states the U.S. Army Human Resources Command changed the report from a change-of-rater NCOER to a relief-for-cause NCOER based on a Congressional inquiry after his administrative appeal had been denied.  He continues by stating the through date of the report was arbitrarily changed to 18 January 2008 to make the rated time over 90 days after he initiated a commander's inquiry.  He also states he was not properly counseled or made aware of his shortcomings.  Additionally, he never saw the relief-for-cause memorandum until he received a copy of the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation.

3.  The applicant provides the supporting documents listed in his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 4 November 1992 for a period of 4 years, training as a water treatment specialist, and a cash enlistment bonus.  He completed his training at Fort Lee, Virginia, and he remained on active duty through a series of continuous reenlistments.

2.  On 7 August 1997, he reenlisted under the Bonus Extension and Retraining Program for training as a prime power production specialist and a selective reenlistment bonus.

3.  He was promoted to pay grade E-6 on 17 March 1999 and to pay grade E-7 on 1 May 2004.  The last professional development course he attended was the Advanced NCO Course.

4.  The applicant was reassigned from Hawaii to an engineer company in Gulfport, Mississippi, on 4 July 2007.  The company was an off-site engineer advanced individual training company providing inter-service training for carpentry and masonry specialists with the Navy and Air Force.  The parent battalion was located at Fort Leonard Wood, Missouri.  He was assigned as a first sergeant (1SG) on 27 July 2007 and was promoted to pay grade E-8 on 1 October 2007.

5.  On 29 January 2008, his brigade commander at Fort Leonard Wood published a memorandum directing the applicant's relief effective 15 January 2008.  He cited the applicant's continued lack of leadership and failure to provide effective command oversight as the basis for his relief.

6.  On 28 March 2008, the applicant was given a change-of-rater NCOER covering the period 1 June 2007 to 15 January 2008, evaluating him for a 
3-month period as a 1SG.

7.  In Part IVb under "Competence," his rater gave him a "Needs Improvement" rating and indicated the applicant knew the role of 1SG but failed to execute properly and was unable to provide mentorship and motivation to company NCO's.

8.  In Part IVe under "Training," his rater gave him a "Needs Improvement" rating and indicated the applicant's failure to train the drill sergeants and company NCO's on operational reporting procedures resulted in the company submitting reports and serious incidents late to battalion.

9.  In Part IVe under "Responsibility and Accountability," his rater gave him a "Needs Improvement" rating and indicated the applicant struggled issuing tasks, conditions, and standards to NCO's and did not follow-up and inspect which resulted in continual failure to meet barracks maintenance standards.

10.  In Part V, his rater gave him a "Marginal" rating for potential and his senior rater (his battalion commander) gave him a "Fair" rating under performance and potential and indicated the applicant should not be promoted or selected for attendance at the Sergeants Major Academy.  He further indicated the applicant has the potential to contribute as a technician, he failed to perform as a first sergeant, and he cared for Soldiers but could not effectively lead or manage as a member of the command team.  He recommended the applicant's assignment to technical positions that do not need strong leadership.  He also indicated the applicant refused to sign the report.

11.  The applicant also provides a copy of a relief-for-cause NCOER covering the period 1 June 2007 to 15 January 2008 which contains essentially the same ratings.

12.  A review of the applicant's OMPF shows the change-of-rater report covering the period 1 June 2007 to 18 January 2008 is the report of record.

13.  On 12 March 2008, an informal commander's inquiry was completed regarding allegations of discrimination on the part of the acting command sergeant major (CSM).  The investigating officer (IO) (a major) found that while there was no evidence of discrimination, the acting CSM's actions contributed to a validated perception of discrimination and lowered the morale of the battalion.  In regard to the applicant, he created an adversarial and dysfunctional working environment based on his public statements against the applicant and his actions.  He also created a perception of inconsistency in adjudicating drill sergeant punishment, undue command influence in NCOER's, and a perception of personal discrimination against the applicant.  The IO opined that it was incumbent on the brigade commander to ensure the applicant received a fair evaluation as a 1SG.

14.  On 16 May 2008, a colonel was appointed to conduct an informal investigation under the provisions of Army Regulation 15-6 into allegations of discrimination by the battalion chain of command against the applicant in regard to his relief from a 1SG position.  The IO found the applicant did not receive adequate counseling from his rating chain and there was no negative documentation to support a relief for cause.  The IO also found the applicant lacked the necessary leadership skills to be a successful 1SG; however, his rating chain failed to document the applicant's shortcomings.  The IO noted there were four different versions of the NCOER and all four had incorrect counseling dates.  The IO also noted the battalion commander informed the brigade commander of the applicant's shortcomings in August or September 2007; however, he never informed the applicant.  The IO recommended that the company and battalion commanders be reprimanded, that the acting CSM receive a general officer admonishment for his unprofessional comments and conduct displayed in front of subordinate NCO's and privates, and that the applicant be advised of the appeals process for his NCOER's.

15.  A review of the company and battalion commander's records failed to reveal any derogatory information such as a reprimand in their OMPF's related to the contested NCOER.  Additionally, the acting CSM's records do not reflect an action related to the applicant's relief for cause.  However, in August 2010, the CSM was relieved for cause in Iraq and received a memorandum of reprimand for creating a hostile work environment, directly affecting combat readiness.  His reprimand also indicated he impacted discipline, command authority, and morale of the unit by abusing his authority.

16.  On 9 November 2010, the Enlisted Special Review Board denied the applicant's appeal of the contested NCOER.

17.  A review of the applicant's OMPF and specifically his NCOER history shows the contested report is the only derogatory report in his file.  There are no ratings or comments of a derogatory nature in any of his previous reports.  His records also fail to show any indication of disciplinary action being taken against him during his career.

18.  Army Regulation 623-3 (Evaluating Reporting System) sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 6-7 states an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.

19.  Paragraph 6-7 of Army Regulation 623-3 also states that when submitting an appeal, the burden of proof rests with the appellant and the appellant must produce evidence that establishes clearly and convincingly 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the contested NCOER is unjust and contains substantive inaccuracies have been noted and appear to have merit.

2.  The contested NCOER on file in his OMPF shows he received a change-of-rater report for the period 1 June 2007 to 18 January 2008 that evaluated him for a 3-month period.  However, the evidence shows he assumed the role of 1SG on 27 July 2007, there was approximately 5 months of non-rated time during the period of the report, and he was relieved of his duties on 15 January 2008, with less than the 90 days required for a change-of-rater report.  In addition, the contested report was subsequently changed to show an ending date of 18 January 2008 which was an administrative change that altered the authenticity of the report.

3.  It is also noted that both the commander's inquiry and the Army Regulation 15-6 investigation concluded that the applicant was not properly counseled and mentored by his rating chain and the acting CSM created a dysfunctional environment and exerted undue command influence.  Both investigations also agreed that the applicant had not been properly relieved for cause and recommended that action be taken against the applicant's rating chain and the acting CSM.

4.  While no action was taken at the time, the acting CSM was subsequently relieved of his duties in Iraq for conduct similar to the conduct described in the two investigations which lends credibility to the applicant's claim that his NCOER is unjust.

5.  Therefore, since the applicant was not properly counseled and mentored or made aware of his shortcomings until he was relieved of his position, he did not qualify for a relief-for-cause report.  Additionally, since he was not in the position for a full 90 days or more, he did not qualify for a change-of-rater report. Therefore, the contested report be removed from his OMPF and declared non-rated time.

BOARD VOTE:

___X____  ___X ___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 NCOER ending 18 January 2008 from his OMPF and declaring the period non-rated time.



      __________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)                                         AR20110018360



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ABCMR Record of Proceedings (cont)                                         AR20110018360



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