IN THE CASE OF:	 

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20110018830 


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.  reconsideration of an earlier appeal for removal of a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 20080701 (1 July 2008) through 20090303 (3 March 2009) (hereafter referred to as the contested report) from his official military personnel file (OMPF),

	b.  promotion consideration to master sergeant (MSG) by a Standby Advisory Board (STAB), and

	c.  any and all retroactive pay and allowances that would have been afforded to him if he had not received the contested report.

2.  He states the basis for this case is administrative and substantive inaccuracy.

	a.  Part I(h) (Period Covered) indicates the rating period of the contested report is from 20080701 through 20090303.  The appropriate through date is 20090217 (17 February 2009).

	b.  He was given permission to report to his new section on 17 February 2009 and began working as a quality assurance noncommissioned officer (QA NCO) at the Department of Academic Support and Quality Assurance (DASQA) on that date.

	c.  The Army Board for Correction of Military Records (ABCMR) previously cited several paragraphs from Army Regulation 623-3 (Evaluation Reporting System).  In accordance with paragraph 2-12, the rating chain failed to provide him with his initial support forms at the beginning of the rating period.  The scope of his duty description should have been explained to him no more than 30 days after the beginning of the rating period.

		(1)  He was not provided a copy of his initial support forms until 101 days into the rating period on 9 October 2008.

		(2)  The support forms were sent to his Army Knowledge Online (AKO) email account.  Neither his rater nor senior rater ever discussed his duty description with him throughout the rating period.

		(3)  The only time that he was made aware of his performance objectives was when the rater sent his initial support forms on 9 October 2008 and later support forms on 6 January 2009 to his AKO email account.  The later support forms indicated he had successfully met the rating chain's expectations in the performance of his scope of duties.

		(4)  The rating chain never provided additional information regarding his job description or performance in the preparation of his NCOER.

		(5)  Initial and follow-on counseling sessions were never discussed with him using all reasonable means necessary, to include personal contact with him throughout the rating period.

	d.  The Emergency Medical Training (EMT) Branch Chief Instructor, Sergeant First Class (SFC) Z, provided a memorandum for record that states no such incident occurred.

	e.  The memorandum for record, dated 15 January 2009, was a pre-dated and pre-signed document that the rater directly and unlawfully ordered him to sign on 13 January 2009, stating that she would destroy it should he meet her 14 January 2009 suspense.  He informed SFC Z of this incident on 13 January 2009 and still met the rater's suspense.  The rater did not destroy the memorandum for record and used it as a matter of record.

	f.  He communicated all concerns he had with the rater and Mr. F to SFC Z throughout the rating period.  SFC Z assured him that he had been keeping the senior rater informed and that she was aware of his concerns.

	g.  The memorandum for record, dated 13 February 2009, was a chronologically documented sequence of events that was completed after the end of the rating period.  It identified various incidents that supposedly occurred throughout his assignment as the Senior Instructor/Writer and noncommissioned officer in charge (NCOIC) of EMT Team 2.

3.  The applicant contends the rating chain failed to prove that they appropriately documented supposed infractions whereby they made many allegations of wrongdoing by him throughout the rating period.  They chronologically completed memoranda for record listing supposed dates that incidents had taken place, mostly after the end of the rating period.

	a.  Nearly every memorandum for record submitted by his rating chain was completed after the end of the rating period.  He never received written or verbal counseling informing him of any of the listed deficiencies.

	b.  If he was performing as identified by this rating chain, a formal investigation under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) would have been conducted or there would have been some sort of investigation by the Inspector General (IG) regarding allegations of some sort of misconduct.

4.  He adds that the incomplete DA Form 4856, dated 13 February 2009, is incorrect as he was never relieved of duty by the battalion commander at the time.

	a.  The former battalion commander provided a memorandum for record that clearly supports that he was never relieved at any time and also overwhelmingly discredits the integrity of this rating chain by identifying that they were, in fact, deceitful in their completion of the contested report they rendered to him.

	b.  He requested a Commander's inquiry (CI).  The battalion commander's summary stated he recommended that the contested report be revised and resubmitted or completely removed.  However, the senior rater submitted the contested report to the U.S. Army Human Resources Command (AHRC) Evaluations Branch before the CI was complete.

	c.  The memorandum for record from the senior rater on 28 April 2009 was completed after the end of the rating period.  The senior rater did not present the contested report to him until 62 days after the end of the rating period.

5.  The applicant states the "NO" entry in Part IV(a)3 (Respect/Equal Opportunity (EO)/Equal Employment Opportunity (EEO), and the associated bullet comment, "demonstrated a consistent lack of respect for seniors, Soldiers, and civilians during various situations involving inappropriate language, jokes, and other provoking or humiliating comments" are not true.  It was the senior rater's responsibility to evaluate the applicant from a broad organizational perspective.

6.  He argues that the previous ABCMR record of proceedings contended that "failure to comply with any or all support for[m] requirements will not constitute the sole grounds for appeal of an evaluation report."  Not only did the rating chain fail to properly counsel him, the rating chain didn't have any interaction with him until after the rating period ended.

7.  He states the previous ABCMR record of proceedings referred to paragraph 3-9 of Army Regulation 623-3 which states the proper rating officials preparing the NCOER are to be objective.

	a.  The rating chain was not objective in the preparation of the contested report.

	b.  The reviewer never worked with him to set up a meeting to discuss this NCOER.

	c.  The senior rater continued to demand his presence at her prescribed time with no common courtesy for DASQA or him.  The senior rater even went so far as to have the Brigade Command Sergeant Major (CSM) MIH call and direct his immediate presence at the DCMT.  He had to inform his new section of these interruptions which adversely affected him as a newly-assigned senior NCO to the DASQA.

	d.  He contends that when he reported to the DCMT, his senior rater browbeat, berated, and belittled him in the presence of other staff members who were not in his rating chain.

	e.  The senior rater and MSG H attempted to force him to sign the contested report.  Whenever he would attempt to speak to his senior rater, MSG H would not allow him to.  MSG H was newly assigned to the DCMT's Advanced Training Branch (ATB) and did not work for the senior rater or have any role in the applicant's rating chain.

8.  He also states that according to Department of the Army Pamphlet 623-3 (Evaluation Reporting System), paragraph 3-6 and table 3-3, counseling dates should have been entered on the contested report.

	a.  It was the senior rater's responsibility to explain why counseling was not conducted; however, she failed to do this as there is no explanation for missed initial or later counseling dates.

	b.  While the absence of counseling will not be used as the sole basis for an appeal, counseling may be used to help support other claims made in an appeal.  The senior rater failed to ensure the rater counseled him throughout the rating period, and failed to comply with the professional standards of the Army.

9.  He submits that the previous ABCMR record of proceedings underlined and quoted, "Failure to comply with any or all support form requirements will not constitute the sole grounds for the appeal of an evaluation report."

	a.  Army Regulation 623-3, paragraph 3-4, states the DA Form 2166-8-1 (NCOER Counseling and Support Form) provides an opportunity for the Soldier and his rating chain to communicate with one another.

	b.  At no time during the rating period did the rater or senior rater sit down and discuss the DA Form 2166-8-1 with him.

10.  He also states the previous ABCMR record of proceedings contended that the Table of Distribution and Allowances (TDA) was authorized 6 SFC/E-7s and 15 SSG/E-6s instructor/writers for each EMT team.

	a.  The DCMT Chief Instructor is also the 68W (Health Care Specialist) Career Management Field (CMF) Proponent SGM.  During the rating period there were only three SFC's assigned to EMT Teams 1, 2, and 3.

	b.  The first attempt to appeal the contested report through AHRC yielded that the principle duty title be changed from "Instructor Writer" to "Senior Instructor/Writer" supporting his identification of assigned manpower for the three EMT Teams.

11.  He adds that the "NO" entry in Part IV(c) (Physical Fitness and Military Bearing) is an administrative error.  The bullet comment, "not required to meet guidelines in accordance with Army Regulation 600-9 (The Army Weight Control Program) due to medical profile and is required to be medically reevaluated every 6 months," is an illegal and untrue comment.

	a.  The "NO" entry should reflect "YES" as he passed tape and met standards in accordance with Army Regulation 600-9.

	b.  According to paragraph 3-2(d) of Army Regulation 600-9, any physical profile associated with an underlying diagnosis in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 7, temporary or permanent, will not exempt Soldiers from the requirement to meet body fat standards; therefore, such profiles will be deemed invalid.

	c.  The bullet comment "passed the Army Physical Fitness Test (APFT)" is redundant and otherwise repetitive to the entry "PASS" which clearly indicates the applicant passed the APFT.

12.  He also adds that the following comments and ratings are inappropriate assessments and untrue misrepresentations of his performance during the rating period:

	a.  Part IV(d) (Leadership), the "X" in Needs Improvement and the bullet comments are untrue:

* was sporadically involved in conflicts with senior and subordinate unit members, one of which resulted in relief from duty by battalion commander for inappropriate language and actions
* set poor examples, made inappropriate jokes about staff members in the witness of trainees, and publicly made provoking comments in the witness of senior rater
* made inappropriate comments about staff personnel and demonstrated behaviors that did not support improving section morale or unit cohesion

	b.  All bullet comments in Part IV(e) (Training) and Part IV(f) (Responsibilities and Accountability) are not an accurate depiction of his true performance in correlation with his actual accomplishments.  The rater weakened these comments to justify a rating of "Success" instead of "Excellence."

	c.  In Part V(a) (Overall Performance and Potential – Rater), the rating of "Marginal" is not supported by any legal documentation that makes specific reference to unbecoming conduct or demonstrated future potential that would justify this rendering.

	d.  In Part V(c) (Senior Rater – Overall Performance) and in Part V(d) (Senior Rater – Overall Potential), the rating of "Fair" and the "4" and "4" blocks along with the bullet comments in Part IV(e) (Senior Rater Bullet Comments) do not accurately reflect his performance or true potential.

	e.  The contested report was a retaliatory written depiction of the applicant's performance and potential.

13.  He contends the administrative and substantive inaccuracies in this NCOER as well as the credibility of this rating chain are such that they clearly and convincingly overcome the regulatory presumption of correctness.  The contested report has caused him to be passed over for promotion to MSG/E-8 twice, and as long as this NCOER remains in his OMPF he is subject to the Qualitative Management Program (QMP) for mandatory separation every time a centralized promotion board convenes.

14.  The applicant provides:

* a copy of the contested report
* two DA Forms 2166-8-1
* his Enlisted Record Brief (ERB), dated 14 September 2011
* four letters of support

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 AR20110000175 on 13 April 2011.

2.  The applicant presents an updated ERB and four letters of support as new evidence which will be considered by the Board.

3.  Docket Number AR20110000175 shows the Board concluded the following:

	a.  The substantive errors the applicant noted in the rater's portion appeared to be specific enough and showed he failed the Army Value of "Respect" by his use of inappropriate language, jokes, and other provoking or humiliating comments.

	b.  Part IV(b) and Part IV(d) specifically address his behavior (involved himself in conflicts with senior and subordinate unit members; inappropriate language; inappropriate jokes about staff members in the witness of trainees; and publicly made provoking comments in the witness of the senior rater).  The bullet comments were noted not to be prohibited by the regulation.

	c.  Although the investigating officer (IO) provided confirmation in the CI that the applicant was counseled on three occasions for substandard performance; she also opined that there was insufficient counseling to substantiate the many deficiencies noted on the NCOER.

	d.  The bullet comments directly relate to the applicant's behavior (a lack of respect for seniors, Soldiers, and civilians during various situations involving inappropriate language, jokes, and other provoking or humiliating comments).  This behavior was noted in the formal counseling sessions as well as in other documents submitted to the IO.

	e.  The letter provided by his battalion commander did not specify which derogatory bullet comments were not authorized by regulation and/or why he believed the comments were prohibited.  Additionally, he did not show how the referenced "inconsistencies" invalidate the contested report.

	f.  The other letters of support failed to address the numerous instances which required verbal and written counseling and they did not specifically address the negative bullet comments as listed on the contested report.  As a result, the letters were found to be insufficient for changing the contested report.

	g.  With respect to changing the through date on the report, listing his principal duty title as Senior Instructor/Writer, and argument that performance counseling was not conducted in a timely manner; the Board concluded that the evidence presented in support of these contentions was insufficient and did not warrant the requested relief.

4.  The updated ERB he provides was corrected to show he was assigned to Headquarters and Headquarters Company, 32nd Medical Brigade, as the QA NCO on 17 February 2009.

5.  An NCOER Counseling and Support Form shows his principal duty title as Senior Instructor/Writer.  This form also shows he was initially counseled by his rater on 9 October 2008 and again on 6 January 2009.  He was again counseled by his senior rater on 5 November 2008 and 8 January 2009.  The performance summary rendered by his rating chain provided the following comments with no indication of performance shortfalls:

	a.  Great enforcement of proper military courtesy, behavior, and attentiveness from Soldier medics.  Continue with this for our future students.

	b.  Great job in completing packet for EMT-B recertification.  Continue to seek improvement via advanced certifications.

	c.  Great job in choice of language when addressing the Soldier medics.  Continue to properly train Soldier medics.

	d.  Ensure good communication with upcoming cadre from upcoming E Company Class 04-09.

6.  A review of the applicant's records show the following counselings and memoranda for record were submitted to the Army Special Review Board (ASRB) with his initial appeal for removal of the contested report:

	a.  A DA Form 4856 (Developmental Counseling Form) was prepared by MSG M, DCMT Operations, on 26 November 2008.  This form shows in Part III (Summary of Counseling) that the applicant was asked to make corrections to his uniform.  He responded by saying, "Roger, got it" and proceeded to walk away.  The rater followed him and told him to make the corrections right away since he was a senior NCO and should know the proper wear of the uniform.  The applicant was said to have become very disrespectful by yelling at the top of his voice in the hallway in front of other NCOs.

	b.  A memorandum for record was prepared by his rater on 15 January 2009 to serve as a record of verbal counseling regarding a missed suspense date for a subject matter expert cardiopulmonary resuscitation memorandum which was due on 14 January 2009.

	c.  A DA Form 4856 was prepared by First Sergeant (1SG) T on 13 February 2009.  This document shows he was relieved from his staff duty NCO position on 13 February 2009 by the battalion commander, Lieutenant Colonel L.  While receiving his briefing for the assumption of his duties, the applicant and the NCO who was conducting the briefing were involved in a verbal altercation that had the possibility of becoming physical.  Both NCOs were noted to have used unprofessional language in front of Soldiers and conducted themselves inappropriately.

7.  His record also contains two memoranda for record which were prepared on 18 February 2009 by the applicant's rater.

	a.  Memorandum, subject:  Timeline of Various Incidents Concerning [Applicant], list 15 events occurring between 20 October 2008 and 8 February 2009.  Events show, in part:

* a verbal argument between the applicant and Mr. F
* incomplete preparation for training
* not attending various section meetings
* not returning from a late lunch
* making jokes about leadership in front of Soldiers
* writing with his finger on the windshield of the rater's car
* apologizing to the rater for writing on her windshield

	b.  The second memorandum for record from his rater shows a verbal argument occurred on 20 October 2008 between the applicant and Mr. F.  The argument involved the applicant's Rolex watch and Mr. F's $50.00 watch.  The applicant was stated to have become visibly upset.

8.  A memorandum for record prepared by his senior rater on 20 February 2009, subject:  Written Record of Conversation with [Applicant].  This document indicates a conversation took place on 6 February 2009 between the applicant, his senior rater, and SFC Z as a witness.  The dates of the infractions are not listed on the memorandum.  However, the document shows the applicant responded to each of the following questions or accusations as listed by his senior rater:

	a.  Not preparing the CPR equipment – he stated his rater gave him unreasonable deadlines to complete a task.  She only gave him a 2 to 3-day window to prepare the CPR equipment.

	b.  Not cleaning the one-way valves – he stated his rater had obsessive compulsive disorder and did not give him the opportunity to do his job.  The one-way valves were on the table for a few days and he was going to clean them.  His rater would give him something and expect him to jump up and do it right then.

	c.  Calling his rater "Captain (CPT) Quali" – the applicant stated that CPT T made up the name herself.  He was asked if CPT T permitted him to call her anything except by her name and he confirmed that he had not been given permission to call her "CPT Quali."

	d.  Joking about Mr. D's hair in front of Soldiers – he stated that everyone in the section joked around.  He understood he should refrain from joking with other leadership when Soldiers were present.

	e.  A Soldier making a comment about Chinese torture – the applicant confirmed he laughed with the Soldier instead of correcting him when the comment was made.  He understood the statement was not appropriate and he should have immediately corrected the Soldier.

	f.  Writing in the dust on his rater's car – he stated CPT T accused him of writing on her car and he denied seeing who did.  After further discussion, the applicant admitted he and SFC B wrote on the car as a practical joke and there were other NCOs present at the time.

	g.  Cursing and intimidating Soldiers – the applicant stated he was not aware that the other instructors did not want him in their classrooms.  He had always been very helpful and involved with the training team and instructors.  He also indicated the other instructors had talked with him about the issues they had with Mr. F as their supervisor.

9.  His senior rater also noted the applicant became increasingly defensive and began to "point the finger" at CPT T and Mr. F during the conversation on 6 February 2009.

	a.  He stated he helped the two training teams and continually walked through the classrooms to assist in any way needed.  He added that CPT T was an inexperienced leader in that she wanted things done her way and only her way.

	b.  CPT T did not communicate with him and she should not have brought the issue to the senior rater, instead it should have been handled at the lowest level.

	c.  The applicant stated Mr. F was a "red neck racist" and was always making racial comments and slurs and there were perceptions of an inappropriate relationship between CPT T and Mr. F.  When asked who had those perceptions, the applicant did not respond.

10.  On 6 February 2009, the applicant's senior rater informed him she would talk with all the leaders on the EMT teams to determine their perceptions of the applicant, CPT T, and Mr. F.  She listed the comments made about each as follows:

	a.  CPT T was an outstanding officer, very smart, very organized, did not give unreasonable deadlines to [the applicant], and she is always walking through the classrooms and observing training.

	b.  Mr. F was strict with his employees, at times he was harsh with his disciplinary style, he did not make racial remarks or slurs, and he was very knowledgeable regarding EMT training.

	c.  The applicant was not working to his full potential; assisted the other NCOs when asked; was a yeller and curses too much when disciplining Soldiers; makes jokes that could be interpreted as racial slurs and states, "I can say that, I am married to a Mexican"; jokes too much; always talks about his accomplishments (Drill SGT, master's degree); he was proud but boasts too much.

11.  The poll document, dated 6 February 2009, shows the following additional comments were made by five members of EMT Team 2 regarding the applicant:

* helps pick up the slack from other EMT NCOs when asked
* has not let other EMT NCOs down
* great person
* walks around the classrooms
* he does not have his priorities straight
* doing too many things outside of the EMT team
* empowers others; delegates to others
* tries to mentor Soldiers
* good intent, but the intent does not always come across well
* his heart is in the right place, but mentoring does not always come through
* at times he could have handled situations better; over the top at times
* a few of the other NCOs could learn from his leadership style
* no racial slurs directed at others; calls self "white chocolate"
* makes racial slurs/comments but not demeaning or towards others
* at times other NCOs do not know where he is
* jokes and calls people names

12.  The poll also shows that the following additional comments were made in reference to CPT T:

* depends a lot on Mr. F and follows his guidance
* jokes around and when she puts her foot down, is not taken seriously
* talks to Mr. F about the applicant, then she and Mr. F seem to gang up on him

13.  The polls regarding Mr. F show the following additional comments:

* his team is squared away, perhaps because he keeps on the instructors
* shushes instructors
* aggressive
* at times he is too demanding
* can be harsh with employees
* there is no room for deviation; follows the rules straight from the book
* very strict and emotional
* talkative and overbearing at times; his way or no way
* very opinionated
* comments about political parties

14.  Another memorandum for record, subject:  Written Record of Verbal Counseling for [Applicant] shows the senior rater met with the applicant, his rater, and Mr. F on 9 February 2009.  She provided each with a word document summarizing the comments made by the five leaders on the EMT team.  She asked each to describe what they believed the job description to be for the others.  Each stated what they perceived as the responsibilities for each and all agreed.  Mr. F was dismissed and the applicant, CPT T, and SFC Z remained in the room.  The senior rater proceeded to tell the applicant about the numerous issues reported to her since his arrival at the EMT:

* going above the SGM at DCMT to meet with the brigade CSM and other SGMs; thus, not following his chain of command
* making allegations of racial discrimination toward DCMT leadership that were not founded with factual information
* not completing tasks in a timely manner
* not being accountable at work during duty hours
* making allegations against Mr. F stating that he was a racist red neck
* constantly joking around in the office, even if Soldiers were present
* joking in a way that could be interpreted as racial slurs and comments
* being disrespectful toward MSG M and raising his voice when addressing someone of higher rank
* cursing, yelling, and disrespecting Mr. F during a verbal altercation in the presence of a civilian contractor
* writing in the dust on CPT T's car and not realizing that those actions were inappropriate
* making an allegation of an inappropriate relationship between an officer and a civilian supervisor without any basis or factual information
* making comments like "CPT Quali" and "flipper" in front of Soldier medics
* being overly aggressive and cursing at Soldiers

15.  This memorandum shows the senior rater informed the applicant what she expected of him as a senior NCO and a role model, and explained to him that if his behavior continued he would be recommended for a relief-for-cause NCOER.  She concluded the counseling by telling him she believed he had the knowledge and expertise to complete the job.  She told him she did not envision any other problems would evolve and she wanted him to serve successfully as the senior instructor.

16.  After the meeting, his senior rater asked the applicant if he had any mental or emotional issues that needed to be addressed.  She told him she could not understand how a senior NCO who had been a drill sergeant and platoon sergeant was required to be counseled regarding so many issues.  The applicant denied having any mental or emotional needs at the time and stated he would continue to serve as the senior instructor.

17.  The period of the contested report is from 20080701 through 20090303.  This report was digitally signed by the rater and senior rater on 28 April 2009 and by the reviewer on 30 April 2009.  The applicant did not sign the report.

	a.  Part I(h) shows "20080701-20090303."

	b.  Part III(f) (Counseling Dates) shows he received initial counseling on 9 October 2008 and was later counseled on 6 January 2009.

	c.  Part IV(a) shows the rater checked box "NO" for "Respect/EO/EEO" and inserted the following comments to support his rating:

* demonstrated a consistent lack of respect for seniors, Soldiers, and civilians during various situations involving inappropriate language, jokes, and other provoking or humiliating comments
* displayed the personal courage to address issues and confront individuals with opposing view points

	d.  Part IV(b) shows the rater checked the "Success" block and noted the applicant:

* served as chief instructor for the EMT Branch during Exodus and 1 week of temporary duty in the absence of assigned leader for periods totaling approximately 30 days
* completed Advanced Cardiac Life Support and Advanced Medical Life Support courses and sustained MOS 68W qualifications
* demonstrated judgment that was sometimes questionable but never at [sic] the detriment of unit success and consistently accomplished tasks when directed

	e.  Part IV(c) shows the rater indicated the applicant passed the APFT on 24 October 2008, but he did not meet the height and weight standards (70/245).  She checked the "Success" block and noted the applicant:

* was not required to meet guidance in accordance with Army Regulation 600-9 due to medical profile and is required to be medically evaluated every 6 months
* passed the APFT
* sustained standards of grooming and the appearance of the Army uniform

	f.  Part IV(d) the rater checked the "Needs Some Improvement" block and noted the applicant:

* was sporadically involved in conflicts with senior and subordinate members, one of which resulted in relief by the battalion commander for inappropriate language and actions
* set poor example, made inappropriate jokes about staff members in the witness of trainees, and publicly made provoking comments in the witness of the senior rater
* made inappropriate comments about staff members and demonstrated behaviors that did not support improving section morale or unit cohesion

	g.  Part IV(e), the rater checked the "Success" block and noted he:

* participated in Army Research Institute and Army Accessions Command in selecting complex testing data base that identifies weaknesses in the skills of MOS 68W Soldiers prior to deployment
* assisted testing nearly 1,100 Soldiers during a National Registry of Emergency Medical Technician hands-on testing which resulted in a 98-percent rate
* aided in the preparation of Basic Life Support Certification Training for 960 Soldiers which resulted in a 96-percent certification rate for Bravo and Echo Companies

	h.  Part IV(f), the rater checked the "Success" block and noted he:

* maintained accountability of property and equipment valued at over $1,200,000.00
* enforced Army safety requirements which resulted in an accident-free training environment 
* assisted in the evaluation of civilian instructors which ensured quality of performance in accordance with the QA Evaluation Program for the Department of Combat Medical Training

	i.  Part V(a) and Part V(b) shows the rater checked the "Marginal" block and listed the three positions in which the applicant could best serve the Army as "Battalion Operations NCO," "Quality Assurance NCO," and "Brigade Medical NCO."

	j.  Part V(c) and Part V(d) show the senior rater checked the "Fair" block for overall performance and overall potential and inserted the following bullet comments in Part V(e):

* do not promote to MSG at this time due to reoccurring incidents of inappropriate language, behavior, accusations, and questionable judgment
* assign as a Battalion Operations NCO to ensure limited negative influence over subordinates and positive leadership reinforcement by senior NCOs
* performed tasks as directed but not always to fullest capability
* demonstrated potential for career success after weaknesses are overcome
* Soldier refused to sign

18.  His record shows a CI was conducted and the final results were presented to the battalion commander on 27 May 2009.  The findings of the CI show:

	a.  The contested report did not have sufficient supporting documentation to warrant the received evaluation.

	b.  The contested report was not rendered in accordance with Army Regulation 623-3, paragraph 2-12, which states that a rater must 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 officer on the DA Form 2166-8-1.

	c.  The applicant was not counseled appropriately and allowed the full opportunity to correct his deficiencies in performance.

	d.  He was only formally counseled regarding substandard performance on three occasions:  26 November 2008, 15 January 2009, and 13 February 2009.

	e.  His NCOER contains many listed deficiencies in performance not covered in these counseling sessions.

	f.  There were numerous memoranda for record detailing the applicant's deficiencies in performance, but none indicate he was ever made aware of these deficiencies.

	g.  The applicant's DA Form 2166-8-1 covering the same period did not indicate any short-comings or a plan for corrective action.

	h.  The applicant was not provided with the necessary counseling, mentoring, and leadership needed to improve his job performance, which is required by Army Regulation 623-3; therefore, the evaluation submitted on his NCOER is not sufficiently supported.

19.  On 7 June 2009, the battalion commander concurred with the findings of the CI and on 12 June 2009 he stated in a memorandum to the Commander, AHRC, that the findings of the CI showed the contested report was inconsistent and not supported by appropriate counseling.  The contested report contained inconsistencies as well as derogatory comments that were not authorized by regulatory guidance.  As a result, he recommended the report be revised and resubmitted.  If the rating chain was unwilling or unable to meet the requirements of the Army regulation, it would then be his recommendation to remove the contested report from the applicant's OMPF.

20.  On 16 July 2009, the Chief, Evaluation Systems Office, AHRC, provided a response to the letter dated 12 June 2009.

	a.  She noted the primary purpose of the CI was to provide a greater degree of command involvement in preventing obvious injustices before they become a matter of permanent record.  The second purpose was to document injustices after the evaluation had been accepted by Headquarters, Department of the Army (HQDA), and made a part of the Soldier's permanent file.

	b.  The Chief, Evaluation Systems Office, AHRC, also stated the evaluation connected with the CI had been received by HQDA and the CI memorandum written by the battalion commander would be filed together in the applicant's OMPF.  The CI would be retained on file by her office in the event of future appeal actions by the applicant and would provide valuable information about the circumstances and events about the evaluation in question.

21.  The applicant appealed the contested report to the ASRB and on 28 April 2010 that board found:

	a.  The evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the contested report or that action was warranted to correct a material error, inaccuracy, or injustice.

	b.  The ASRB determined the overall merits of his case did not warrant the removal of the contested report, any changes to the ratings, or bullet comments contained in the NCOER.

	c.  The ASRB determined that the evidence presented was sufficient to warrant an administrative change.  As a result, the Board determined Part III(a) (Principal Duty Title) would be changed to show "Senior Instructor/Writer."

	d.  The board also determined that promotion reconsideration was not warranted as a result of that action.

22.  He provided four new letters of support and his record also contains several other letters of support which were presented on his behalf during his previous request for removal of the contested report.  These letters were written and submitted by officials who had first-hand knowledge of the applicant's performance during the period of the contested report.

	a.  CPT PCW, Officer in Charge, Advanced Training Branch, stated he served as the applicant's rater for a 3-month period in 2008.  He has worked closely with him since then and had observed him conduct himself only with professionalism and mission-focused purpose.  He never observed him berate Soldiers or treat them unfairly.  Given the inconsistencies in the contested report compared with past performance, the multiple violations of Army Regulation 623-3 and his subsequent evaluations, one can see that the NCOER is severely flawed and warrants removal from his OMPF.

	b.  SGM EML, Senior Enlisted Advisor, U.S. Army Medical Department (AMEDD) Center and School, who was the applicant's mentor throughout the rating period, found the contested report was presented to the applicant 64 days after he departed that position.  In reviewing the NCOER, she discovered many inconsistencies between the documentation in the counseling packet, the DA Form 2166-8, and the support form.  The administrative and substantive errors on the contested report were so overwhelming that based on her personal observation of his performance during the rating period in question, she was shocked to see this happening to such a fine senior NCO.  In her 22 years of service, she can honestly say that a severe injustice has been committed by a rating chain.

	c.  SGM EGEK, Brigade Operations Sergeant Major, who served as his supervisor and mentor at one time, stated the applicant came into his office on several occasions for advice on how to deal with the various leadership issues he was having with his rating chain.  He provided him advice and after making continuous attempts to resolve these issues with his rating chain with no resolution, his only recourse was utilization of his NCO support channel.  He never once deviated from appropriate protocol or etiquette in the proper use of the chain of command or NCO support channel.  He personally witnessed the rater fail to communicate and counsel the applicant in accordance with prescribed regulatory guidance.  The rater and senior rater should have overlooked their personal subjective opinions in giving the applicant such a substandard NCOER.  The reviewer should have properly identified these inconsistencies as well as remaining neutral and non-concurring with an evaluation like this.  The applicant's exceptional performance, deploying multiple times as a combat medic, devotion to excellence, and untiring work ethic is reflected throughout his entire career.  Recommend removal of the contested report from the applicant's OMPF.

	d.  The other letters of support are consistent with one another and contain the following comments:

* he portrayed himself as a professional senior NCO who cared about taking care of Soldiers
* he displayed nothing short of true professional mentality to peers, seniors, and subordinates alike
* the applicant performed his leadership duties in a decisive and positive manner, always producing positive results
* the contested report contains many substantive errors and was written in an attempt to wrongfully malign this great leader of Soldiers
* as a recognized leader, the applicant was chosen over other senior NCOs to lead a section within the EMT Branch and eventually took over as the branch chief
* he instilled a sense of pride in whomever he came into contact with
* the applicant proved to be a true senior NCO by continuously placing the needs of others before his own
* just because the rater and senior rater completed a series of memoranda for record chronologically sequencing events does not warrant [sic] proper counseling
* the applicant is one of the best senior NCOs the retired CSM, now an operations specialist, ever had the privilege of knowing throughout his 30-plus years of military service
* after the passing of his father and while taking emergency leave, the applicant called his section on a daily basis to see how things were going
* the applicant never demonstrated a consistent lack of respect for seniors, Soldiers, and civilians by inappropriate language, jokes, and provoking or humiliating comments
* the applicant, his rater, and several other individuals in the section constantly joked with one another and no one ever complained and there was never anything said that would have been perceived as unprofessional in the presence of trainees or anyone else
* the rater was joking with the applicant and made the comment that "at least she didn't have to swim across the border," knowing that the applicant's wife was from Mexico
* on another occasion, the rater (an Asian National woman) initiated a conversation about Asian people and how everyone assumes they can't speak English and have names like "Quali"
* the applicant was asked to imitate an Asian person by saying the name "Quali" and he did, and everyone laughed including the rater but he never called his rater "Quali"
* the rater, senior rater, and a handful of civilian instructors did not like the applicant's leadership style and did everything in their power to give this outstanding senior NCO an undeserved bad evaluation report
* even though his tactics at times seemed hard, the Soldiers appreciated his discipline techniques in keeping over 500 students in line

23.  He submitted a memorandum for record from Colonel (COL) JPL, his former battalion commander during the period of the contested report.  COL JPL stated he did not relieve the applicant when he was the battalion commander.  In fact, he initiated a CI of the contested report and found that the NCOER was inconsistent and not supported by the appropriate counseling required by Army Regulation 623-3.  Based on the results of the CI, his recommendation at that time was to rewrite the contested report or remove it from the applicant's OMPF.  As the NCOER was apparently submitted to AHRC and not rewritten, he would now recommend that the NCOER in question be removed from the OMPF.

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

	a.  Appendix A lists Army Regulation 600-9 as a required publication and Army Regulation 40-501 is listed as a related publication for preparation of the NCOER.

	b.  Paragraph 1-11 states when a report rendered by a subordinate or by a member of a subordinate command may be illegal, unjust, or otherwise in violation of this regulation is brought to the attention of a commander, that commander will conduct an inquiry into the matter.  The CI will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policies and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain.  The official does not have the authority to direct that an evaluation be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.

	c.  Paragraph 2-17 states every NCOER will be reviewed by the 1SG, CSM, or SGM and signed by the reviewer.  In cases where neither the rater nor the senior rater is an NCO, the reviewer will get additional informal input from the senior NCO subordinate to the reviewer.

	d.  Paragraph 3-2i states that rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On the one hand, this evaluation will give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army selection boards and career managers can make intelligent decisions.

	e.  Paragraph 3-4 describes the support form communication process and states that the DA Form 2166-8-1 provides an opportunity for the rated individual, rater, and senior rater to communicate.  The rater will use the support form for input on the evaluation and forward the support form to the next person in the rating chain.  The senior rater will use the support form to complete an evaluation of the rated individual and forward the completed evaluation and support form to the reviewer.  Failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report.

	f.  Paragraph 3-25 states adverse actions encompass a variety of situations that are not in accordance with the Army values, acceptable leadership actions, skills, attributes, and/or good order and discipline, which need to be addressed appropriately in evaluation reports.  Army Regulation 600-20 (Army Command Policy) allows, in part, that the following items may be mentioned in a Soldier's evaluation report, when substantiated by a completed command or other official investigation (for example CI, Army Regulation 15-6 investigation, EO investigation, and/or investigations by official military or civil authorities):

* significant adverse deviations from EO or EEO Program goals, programs, and objectives
* acts of reprisal
* behavior that is inconsistent or detrimental to good order, conduct, and discipline
* activities or behavior otherwise prohibited by Army Regulation 600-20

	g.  Paragraph 6-5 states that the ERS establishes rating chains and normally relies on the opinions of the rating officials.  Rating officials will evaluate a rated individual and their opinions constitute the organization's view of that Soldier.  However, the commander may determine through inquiry that the report has serious irregularities or errors, such as, inaccurate or untrue statements and the lack of objectivity or fairness by rating officials.

	h.  For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  The results of a CI may provide support for an appeal request.

25.  Department of the Army Pamphlet 623-3 prescribes the procedures for completing evaluation reports that support the ERS.

	a.  Paragraph 3-6 states, in part, when counseling dates are omitted, the senior rater will enter a statement in Part V(e), explaining why counseling was not accomplished.  The absence of counseling will not be used as the sole basis for an appeal.  However, the lack of counseling may be used to help support other claims made in an appeal.

	b.  Table 3-4, Part IV(a) states mandatory specific bullet comments are required for all "No" entries.  Quantitative and substantiated bullet comments are used to explain any area where rated NCO is particularly strong or needs improvement.

	c.  Table 3-4, Part IV(c), shows the required action for "No" entries in Part IV(c).  It states to enter the rated NCO's verified height and weight as of the unit's last record weigh-in and an entry of "Yes" or "No" to indicate compliance or noncompliance with the provisions of Army Regulation 600-9.  To explain any entry of "No" indicating noncompliance with the standards of Army Regulation, comments will indicate the reason for noncompliance.  Medical conditions may be cited for noncompliance; however, the "No" entry is still required because medical waivers to weight control standards are not permitted for evaluation report purposes.  For pregnant NCOs only, the rater will enter the comment "exempt from weight control standards of Army Regulation 600-9."

	d.  Paragraph 6-2 states an appeal's success depends on the care with which the case is prepared, the line of argument presented and the strength of the evidence presented to support it.  Begin by specifically identifying those entries or comments to be challenged, the perceived inaccuracy in each entry or comment.  Provide any evidence that is thought to be necessary to prove the alleged inaccuracy.

	e.  Paragraph 6-2 also states third-party statements form the basis of most substantive appeals:  "Third parties" are persons who have official knowledge of the rated individual's duty performance during the period of the report being appealed.  Statements from individuals who establish they were on hand during the contested rating period, who refute faulting remarks on the evaluation report and who served in positions from which they could observe the appellant's performance and their interactions with rating officials, are both useful and supportive.  These statements should be specific and not deal in general discussions of the appellant.  Although third-party statements can be provided by knowledgeable subordinates, peers, and superiors, additional weight is normally given those statements where the authors occupied vantage points during the contested period that closely approximated those of the rating officials.

26.  Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Commanders and personnel officers are responsible for necessary personnel actions, including appropriate entries on personnel management records and the assignment of the individual to military duties commensurate with the individual's physical profile and recorded assignment limitations.  Neither a permanent nor temporary profile will be used to excuse Soldiers from the provisions of Army Regulation 600-9.

27.  Army Regulation 600-9 establishes policies and procedures for the implementation of the Army Weight Control Program.

	a.  Chapter 3 states that health care personnel will perform a thorough medical evaluation when a Soldier has a medical limitation, is pregnant, or when requested by the unit commander to rule out any underlying medical condition.  If health care personnel determine the condition is due to an underlying or associated disease process, action will be taken to refer the Soldier to an MEB.  Temporary or permanent physical profiles will not be granted to exempt Soldiers from the requirement to meet body fat standards; therefore, such profiles will be deemed invalid.

	b.  Only personnel who meet this regulation's standards and who become pregnant will be exempt from the standards for the duration of the pregnancy plus the period of convalescent leave after termination of pregnancy.  This procedure also applies to individuals in a medical holding unit who have been hospitalized for long periods.  No other provisions are given to exempt Soldiers from meeting the height and weight standards of this regulation.

28.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.

	a.  Paragraph 4-13 provides for STABs.  The HQDA, Deputy Chief of Staff, 
G-1, may approve cases for referral to a STAB upon determining that a material error existed in a Soldier's OMPF when the file was reviewed by a promotion board.  Error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected.

	b.  STABs are convened to consider records of those Soldiers whose records were not reviewed by a regular board; Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board; or for recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list.  Reconsideration normally will be granted when an adverse NCOER reviewed by a board which was subsequently declared invalid in whole or in part and was determined by the Enlisted Special Review Board to constitute a material error existed in the Soldier's OMPF at the time it was reviewed by a promotion selection board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested removal of the contested report for the period 1 July 2008 through 3 March 2009.  Notwithstanding the findings of the CI that the contested report should be corrected or removed in its entirety, there is insufficient evidence to support either action.

2.  The applicant has failed to show that the contested report does not reflect the considered opinion of his rating chain at the time the report was rendered.

3.  While the report may contain some discrepancies, if the report is corrected in accordance with the applicable regulation it would result in the applicant receiving a lower rating.  It is the policy of this Board that individuals not be made worse off than before they applied to the Board.  A specific example would be in Part IV(b) where he received a "Success" rating and one of the supporting comments states he "demonstrated judgment that was sometimes questionable but never at [sic] the detriment of unit success and consistently accomplished tasks when directed."  This comment alone supports a "Needs Improvement" rating.

4.  His contention that the report is not valid because of counseling dates has also been noted and found to lack merit.  

5.  He states the scope of his duty description should have been explained to him no more than 30 days after the beginning of the rating period.  He was not made aware of his performance objectives until 9 October 2008 and 6 January 2009.  The later support forms indicated he had successfully met the rating chain's expectations in the performance of his scope of duties.  Nearly every memorandum for record submitted by his rating chain was completed after the end of the rating period.  His arguments have been noted; however, assuming the dates are incorrect or the counseling never occurred, that in itself is not a fatal flaw that would require the report to be voided.  Regulatory guidance states the absence of counseling will not be used as the sole basis for an appeal.  

6.  It cannot be determined with any degree of certainty what occurred during the rating period that caused the rating chain to deviate their opinions of the applicant from the 9 October 2008 and 6 January 2009 performance counseling he received on those dates.  There is insufficient evidence to warrant a change to the contested report or to remove the report in its entirety as it appears to reflect the considered opinion of the rating official at the time.

7.  He contends Part I(h) indicates the rating period of the contested report is from 20080701 through 20090303; however, the appropriate through date is 20090217.  His contention is noted.  Although he provided an ERB which was corrected on 14 September 2011 to show he was assigned to Headquarters and Headquarters Company, 32nd Medical Brigade, as the QA NCO on 17 February 2009, this document is dated 2 years subsequent to the contested report.  There is the presumption of government regularity that the through date of the contested report is accurate as shown.  As a result, there is an insufficient basis to change the date.

8.  Army Regulation 600-9 states that physical profiles do not exempt a Soldier from meeting the height and weight standards.  Department of the Army Pamphlet 623-3 states medical conditions may be cited for noncompliance; however, the "No" entry is still required because medical waivers to weight control standards are not permitted for evaluation report purposes.  

	a.  The comment "not required to meet guidelines IAW AR 600-9 due to medical profile and is required to be medically reevaluated every 6 months" as entered in Part IV(c) should be deleted.

	b.  As a result of these deletion the bullet comment should be changed to reflect a more appropriate bullet.  "NCO has been diagnosed with an underlying medical condition which prevents him from meeting the height and weight requirements of Army Regulation 600-9."  

9.  In addition, the applicant originally requested from the ABCMR, in addition to correction or expungement of the contested NCOERs, promotion reconsideration by a STAB.  A STAB may be approved upon determining a material error existed in a Soldier's OMPF when the file was reviewed by a promotion board.  An error is considered material when there is a reasonable chance that, had the error not existed, the Soldier may have been selected. 

10.  Correction of the contested NCOERs to show he had an underlying medical condition would not have resulted in a reasonable chance he would have been selected for promotion (thereby warranting consideration by a STAB).  Therefore, his request for promotion consideration by a STAB should be denied. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR20110000175, dated 13 April 2011.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the comment "not required to meet guidelines IAW AR 600-9 due to medical profile and is required to be medically reevaluated every 6 months" as entered in Part IV(c); and

	b.  replacing it with a more appropriate bullet comment such as "NCO has been diagnosed with an underlying medical condition which prevents him from meeting the height and weight requirements of Army Regulation 600-9."  

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to completely removing the contested report and promotion consideration by a STAB.




      ___________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)                                         AR20110018830



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ABCMR Record of Proceedings (cont)                                         AR20110018830



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