IN THE CASE OF:	  

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110018943 


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 removal of the Change of Rater (CR) DA Form 2166-8 (NCO Evaluation Report [NCOER]) for the period 1 September 2007 through
8 July 2008 from his Official Military Personnel File (OMPF).

2.  The applicant states he received a CR NCOER for the period 1 September 2007 through 9 June 2008.

   a.  A subsequent unfavorable CR NCOER, completed on 8 September 2008, for the period 1 September 2007 through 8 July 2008, was processed without his knowledge and filed in his OMPF in violation of Army regulatory guidance.

   b.  He submitted an application to the Army Board for Correction of Military Records (ABCMR) on 24 June 2011, but it was returned because there was no evidence he had appealed the NCOER to the U.S. Army Human Resources Command (USA HRC).  He submitted an appeal to USA HRC on 12 August 2011; however, it was returned because it was not submitted within the 3-year timeframe.

3.  The applicant provides copies of his NCOER appeal with 13 enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted and entered active duty in the Regular Army on
23 August 1996.

2.  He was promoted to sergeant first class (SFC)/pay grade E-7 on 1 February 2007 in military occupational specialty (MOS) 42A (Human Resources Sergeant).

3.  A review of the applicant's OMPF maintained in the interactive Personnel Electronic Records Management System (iPERMS) shows:

   a.  a DA Form 1613 (Records Cross Reference) is filed in the performance section of his OMPF and that a hardcopy of a classified CR NCOER for the period 1 September 2007 through 8 July 2008 is filed in his OMPF [the classified NCOER is not available for review]; and
   
   b.  a DA Form 1613 is filed in the restricted section of his OMPF and that a hardcopy of a classified DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 5 August 2008, is filed in the restricted section of his OMPF [the classified Article 15 is not available for review].

4.  In support of his application, the applicant provides the following documents:

   a.  U.S. Army Intelligence and Security Command, Fort Belvoir, VA, memorandum, dated 12 August 2011, subject:  Evaluation Report Appeal for the period 1 September 2007 through 8 July 2008 (pertaining to the applicant), dated 8 September 2008.  The applicant states:

    	(1)  he discovered the unfavorable NCOER was processed and submitted without his knowledge and signature;

    	(2)  the rater and senior rater did not inform him or counsel him about the NCOER; and

    	(3)  he had previously received an NCOER for the period 1 September 2007 through 9 June 2008.

    	(4)	 He received a field grade Article 15 on 5 August 2008 with a charge of "Privacy Act Violation."

   		(a)	 A Soldier in the Military Personnel Division (MPD) informed him that an NCO in the MPD had fake college credentials;

    		(b)  the applicant found the NCO's name on the website for "Diploma Mill Degree Recipients"; and

    		(c)  he provided information to his commander under the assumption the Department of Defense (DoD) Whistleblower Protection Act protected him.

    		(d)  A Commander's Inquiry was initiated and substantiated the fake degree.  On 2 May 2008, he was notified he was under investigation for "Failure to Obey Regulation" by violating Privacy Act Protections.  (His duties in MOS 42A afforded him access to personnel records and it was assumed that is how he obtained the information.)  The applicant states:

* when he was asked the source of his information, he refused to provide the Soldier's name
* he had received reassignment orders for Wiesbaden, Germany, in March 2008, with a report date of 10 June 2008
* on 2 May, he consulted with Trial Defense Services (TDS) and sought legal advice
* on 5 May, he signed out on leave
* on 22 May, he communicated via email with Captain (CPT) Thomas E. B---- Jr., Company Commander, but he was not "specifically" informed about the status of the investigation or notified that he was not to proceed to his next duty station
* on 9 June, he contacted TDS; denied being aware of any action against him to stop him from being reassigned to Germany; and was given advice to comply with his reassignment orders
* on 10 June, he arrived in Germany
* on 13 June, his new senior rater informed him that he had to return to his former unit to take care of unfinished business
* on 15 June, he was instructed to report to the battalion commander the following day
* on 16 June, the battalion commander instructed him to see the unit's first sergeant and the applicant's rater
* on 17 June, he was counseled by his rater and informed he was flagged
* on 18 June, he printed a copy of his Enlisted Record Brief (ERB) and found no flag action
* on 22 June, he verified that his award was processed and approved while he was on leave
* on 26 June, he was counseled by his rater and notified he was flagged and pending UCMJ under Article 15; he asserts the flag was backdated to 5 May 2008
* on 5 August, he received a field grade Article 15



    		(e)  He cites DoD Directive 7050.06 (Military Whistleblower Protection), dated 23 July 2007, that provides, "[m]embers of the Armed Forces shall be free to make a protected communication and shall be free from reprisal for making or preparing to make a protected communication."

    		(f)  He maintains he acted in good faith as an NCO by reporting the suspected infraction; he was treated unfairly and did not have any leader support in the matter; and the Article 15 he received resulted in the NCOER being changed from a favorable to an unfavorable NCOER without his knowledge and signature.

   b.  A redacted CR NCOER for the period 1 September 2007 through
8 July 2008 for his performance while assigned as Senior Human Resources Noncommissioned Officer in Charge (NCOIC) that shows in:

    	(1)  Part II (Authentication), the rating chain at the time was:

* Rater - Sergeant Major (SGM) Nathan J. F----
* Senior Rater - Chief Warrant Officer Four (CW4) Yolanda M. P----
* Reviewer - Lieutenant Colonel (LTC) Jeffrey G. E----

    	(2)  Part III (Duty Description), section f (Counseling Dates), that he was counseled on 20 September 2007, 13 December 2007, 14 March 2008, and
17 June 2008.

	 	(3)  Part IV (Army Values/Attributes/Skills/Actions), section a (Army Values), line 6 (Integrity:  Does what is right - legally and morally), the rater placed an "X" in the "No" block and entered the bullet comment "[applicant] attempted to PCS [permanent change of station] despite notification of suspension of favorable actions."

	 	(4)  Part IV (Values/NCO Responsibilities), section f (Responsibility and Accountability), the rater placed an "X" in the "Needs (Some) Improvement" block.

	 	(5)  Part V (Overall Performance and Potential):

			(a)  the rater placed an "X" in the "Fully Capable" block for service in positions of greater responsibility, and

			(b)  the senior rater placed an "X" in the "2" (Successful) block for overall performance and an "X" in the "2" (Superior) block for overall potential for promotion and/or service in positions of greater responsibility.
    	(6)  The rater, senior rater, and reviewer signed the document on
8 September 2008.  The reviewer also indicated he concurred with the rater and senior rater evaluations.  The NCOER does not show the applicant's signature.

    	(7)  Part V, block a (Senior Rater Bullet Comments), shows the entry "soldier refuses to sign."

   c.  A CR NCOER for the period 1 September 2007 through 9 June 2008 for his performance while assigned as Great Skill Division Senior Human Resources NCOIC that shows in:

    	(1)  Part II, the rating chain at the time was:

* Rater - SGM Nathan J. F----
* Senior Rater - CW4 Yolanda M. P----
* Reviewer - LTC Jeffrey G. E----

    	(2)  Part III, section f, that he was counseled on 20 September 2007,
13 December 2007, and 14 March 2008.

	 	(3)  Part IV, the rater placed an "X" in the "Yes" block for all seven "Army Values" categories.

	 	(4)  Part IV, the rater placed an "X" in the "Excellence" block for all five "Values/NCO Responsibilities" categories.

	 	(5)  Part V:

			(a)  the rater placed an "X" in the "Among the Best" block for service in positions of greater responsibility, and

			(b)  the senior rater placed an "X" in the "1" (Successful) block for overall performance and an "X" in the "1" (Superior) block for overall potential for promotion and/or service in positions of greater responsibility.

    	(6)  The rater, senior rater, and applicant signed the document; the blocks for the dates of their signatures are blank.  The NCOER does not show the reviewer's signature.

   d.  A SpokesmanReview.com, Diploma mill degree recipients printout, dated 5 August 2008, that shows the names of 11 individuals, two of whom completed 


their master's degree.  The narrative of the document shows, in pertinent part, "[t]he complete list of buyers, which the U.S. Department of Justice has refused to release to the public, has been obtained by the Spokesman-Review and published July 28."  It also shows, "[t]hese individual didn't necessarily buy degrees, but their names surfaced for various reasons during Operation Gold Seal, sources familiar with the investigation said….these individual should not be considered as confirmed degree buyers."

   e.  DA Form 3881 (Rights Warning Procedure/Waiver Certificate), that shows the applicant was informed of his rights by his commanding officer (CPT Thomas E. B----, Jr.) on 2 May 2008.  The applicant indicated he did not want to give up his rights, he requested a lawyer, and indicated he did not want to be questioned or say anything.

   f.  U.S. Army Consolidated Personnel Support Center, Washington, DC, Orders 016-02, dated 16 January 2008, that reassigned the applicant on PCS to the U.S. Army Element, Science and Technology, Wiesbaden, Germany, with a reporting date of 10 June 2008 (Early report not authorized).

   g.  DA Form 31 (Request and Authority for Leave), dated 11 February 2008, that authorized the applicant ordinary leave in conjunction with PCS from 5 May to 10 June 2008.  It shows the applicant was signed out on leave at 0700 hours, 5 May 2008 and signed in to his new unit at 1145 hours, 10 June 2008.

   h.  An email from the applicant to CPT B----, dated 22 May 2008, that shows, in pertinent part, the applicant stated, "I've been enjoying the much needed leave, and feel that a great pressure has been lifted from my shoulders.  CPT B-- responded, "I'm glad that you were able to recharge.  Don't sweat or fret.  It's almost over, and you'll be in Germany before you know it."

   i.  DD Form 1610 (Request and Authorization for TDY [Temporary Duty] Travel of DoD Personnel), Travel Authorization Number K14D/08-075, dated
13 June 2008, that shows the applicant was authorized to travel from Wiesbaden, Germany to Washington, DC, on 15 June 2008; one (1) day of TDY; and return to Wiesbaden, Germany.

   j.  DA Form 4856 (Developmental Counseling Form), dated 17 June 2008, that shows SGM Nathan J. F---- counseled the applicant and documented that the applicant was scheduled to PCS to Germany on 10 June 2008, but due to his conduct prior to PCS, a non-transferrable flag was initiated and his out-processing checklist was confiscated by the Commander, Army Field Support 


Center (AFSC).  On 4 June 2008, SGM F---- instructed the applicant not to report to his next duty assignment due to the on-going adverse action.  On 9 June 2008, the applicant proceeded on PCS without out-processing and despite being directed not to proceed on PCS.  The applicant indicated he disagreed with the information.  Both the applicant and SGM F---- signed the document on 20 June 2008.

   k.  The applicant's ERB, dated 18 June 2008.

    	(1)  Section I (Assignment Information), Flag Code/Start Date/Expiration Date, is blank.

        (2)  Section VIII (Awards and Decorations) shows one award of the Meritorious Service Medal.

   l.  DA Form 638 (Recommendation for Award) and DA Form 4980-12 (Meritorious Service Medal) that show Headquarters, U.S. Army Intelligence and Security Command, Fort Belvoir, VA, Permanent Order Number 149-29, dated 28 May 2008, awarded the applicant the Meritorious Service Medal (1st Oak Leaf Cluster) [2nd Award] for meritorious service from 3 April 2006 to 10 June 2008.  [The award is not filed in the applicant's OMPF or shown on his ERB.]

   m.  DA Form 4856, dated 26 June 2008, that shows CPT Thomas E. B---- Jr., counseled the applicant on pending administration of UCMJ for possible violation of the Privacy Act and Articles 86, 90, and 92, UCMJ.  CPT B---- documented that a flag for adverse action had been in place since 5 May 2008.  He encouraged the applicant to demonstrate positive attributes pending final resolution of the matter.  The applicant indicated he agreed with the information and noted that he "received/viewed [the] DA Form 268 for first time [and] made [a] copy for [his] personal file."  Both the applicant and CPT B---- signed the document on 27 June 2008.

   n.  DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 5 May 2008, that shows a non-transferrable flag (adverse action) was initiated on the applicant by the company commander (CPT Thomas E. B----, Jr.), effective 5 May 2008

   o.  Email message string, dated 5-21 September 2011, subject:  Evaluation Report Appeal, that shows the applicant submitted an appeal of his NCOER for the period 1 September 2007 through 8 July 2008 on 5 September 2011.  On


6 September 2011, an official at the Appeals/Corrections and Policy Section, Evaluations Branch, Evaluations, Selections, and Promotions Division,
USA HRC, advised the applicant his appeal was returned because it was not submitted within the 3-year timeframe.

5.  There is no evidence the applicant filed a whistleblower complaint via the Defense Hotline.

6.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.

	a.  Only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.

	b.  Depending on the purpose, documents will be filed in the OMPF in one of the three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

   c.  Table 2-1 shows the DA Form 2166-8 (NCOER) is filed in the performance section.

7.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting
System, this includes the DA Form 2166-8.

   a.  Chapter 3 (Army Evaluation Principles) provides in:

    	(1)  paragraph 3-23 (Unproven derogatory information) that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, Department of the Army.  Verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.  Reports will not be delayed to await the outcome of a trial or investigation.  Reports will be done when due and contain what information is verified at the time of preparation; and

    	(2)  paragraph 3-37 (Preparation and submission procedures) that rated Soldiers will always be the last individual to sign the evaluation.  In the event the rated Soldier is not available or refuses to sign, senior raters will provide an explanation in their narrative or bullet comments.

   b.  Chapter 6 (Evaluation Redress Program):

     	(1)  paragraph 6-7 (Policies), places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an NCOER; and
   
     	(2)  paragraph 6-8 (Timeliness), shows that substantive appeals will be submitted within 3 years of an NCOER through date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant an exception.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the CR NCOER for the period 1 September 2007 through 8 July 2008 should be removed from his OMPF because he was issued the NCOER without his knowledge and after he received a CR NCOER for the period 1 September 2007 through 9 June 2008.

2.  The applicant's contentions were carefully considered.

   a.  The CR NCOER with a "Thru" date of 9 June 2008 is not filed in the applicant's OMPF.  More importantly, the evidence of record indicates the NCOER was not processed to completion, as evidenced by the absence of the reviewer's signature and any signature dates.

   b.  The evidence of record shows the applicant's commander advised him of his rights on 2 May 2008; a non-transferrable flag was initiated on the applicant, effective 5 May 2008; and the applicant's out-processing checklist was confiscated by the Commander, AFSC.

   c.  There is no evidence the Meritorious Service Medal (that the applicant provides in support of his application) was officially presented to the applicant, recorded on his ERB, or filed in his OMPF.  Thus, it is reasonable to conclude the award was revoked.

   d.  On 4 June 2008, the applicant's rater instructed him not to proceed on PCS.  In effect, this invalidated the draft CR NCOER with a "Thru" date of 8 June 2008.  Nonetheless, the applicant ignored his rater's instructions and he 


proceeded overseas on 9 June 2007.  Consequently, the applicant was directed to return to his former unit.

   e.  On 27 June 2008, the applicant acknowledged being informed by his commander that he was pending NJP.

   f.  The applicant was issued NJP on 5 August 2008.

   g.  The CR NCOER with a "Thru" date of 8 July 2008 was completed and signed by the rater, senior rater, and reviewer on 8 September 2008.  The NCOER is not signed by the applicant; however, the senior rater noted that the applicant refused to sign the NCOER.  Thus, the evidence of record refutes the applicant's contention that the NCOER was processed without his knowledge and in violation of the Army regulatory guidance.

3.  The NCOER is properly filed in the performance section of the applicant's OMPF.

4.  The applicant provides no evidence of errors, discrepancies, or wrongdoing in the preparation of the contested NCOER by the rater or senior rater.

5.  There is no evidence of material error, inaccuracy or injustice in the contested NCOER, or that would support a conclusion the NCOER does not represent the considered opinions and objective evaluations of the rating officials.

6.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust. The applicant failed to submit sufficient evidence that the document in question that is filed in his OMPF is untrue or unjust.  Therefore, the NCOER in question is deemed to be properly filed and should be retained in the applicant's OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110018943



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ABCMR Record of Proceedings (cont)                                         AR20110018943



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