IN THE CASE OF:	   

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20110022793 


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, in effect, removal of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period 12 April 2008 through 1 November 2008 from his official military personnel file (OMPF).

2.  The applicant states:

	a.  action is warranted to correct a great wrong and injustice in regard to his NCOER being in his OMPF for all to view.  The report was not placed in the restricted portion of his OMPF as directed by the Army Special Review Board (ASRB).  The ASRB also stated that the evidence at the time of review did not warrant removal or correction of the NCOER because the Department of Defense Inspector General (DODIG) had not completed their investigation.  

	b.  the DODIG Whistleblower Reprisal investigation is now complete and the results warrant his appeal to be reopened.  The evidence and investigation support his claim that reprisal was taken against him resulting in an unfavorable NCOER and end of tour award.

	c.  the Human Resources Command (HRC) is refusing to reopen his appeal due to the 3-year time frame.  However, Army Regulation 623-3 (Evaluation Reporting System) states failure to submit an appeal within this time may be excused if the applicant provides exceptional justification to warrant exception.  He points out since the DODIG investigation was recently completed, and the results support his claim, the appeal should be reopened.  
	d.  his career has already been damaged.

3.  The applicant provides:

* HRC memoranda
* Evaluation Report Appeal
* DODIG Whistleblower Reprisal Investigation
* Emails
* Service personnel records

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the Regular Army, U.S. Army Reserve (USAR), and Army National Guard, the applicant enlisted in the USAR on 7 December 1990. 

2.  He was ordered to active duty on 1 May 2006 in support of Operation Iraqi Freedom.  He served in Afghanistan from 10 May 2006 to 13 April 2007 and he was released from active duty on 30 April 2007. 

3.  He was promoted to sergeant major on 1 January 2008. 

4.  The contested NCOER is a 6-month NCOER covering the period 12 April 2008 through 1 November 2008.  He was rated as "Needs Improvement (Some)" for "Competence" with bullet comments:
  
* failure to adapt to the unique research challenges of this job led to inability to contribute to research
* lack of people skills resulted in harming relationships with supported unit personnel
* excellence in engineering and construction background led to briefing team in reconstruction and infrastructure in Iraq

5.  He was rated as "Needs Improvement (Some)" for Leadership with bullet comments:

* had a highly negative impact on the spirit to achieve of our team members
* failed to adapt to the unique leadership challenges posed by civilian contractor team members

6.  He was rated "Fully Capable" for overall potential for promotion and/or service in positions of greater responsibility by his rater.

7.  The senior rater rated him "Successful-3" for overall performance and overall potential for promotion and/or service in positions of greater responsibility with bullet comments: 

* send to Command Sergeant Major Designee Course now
* strong Sergeant Major leadership potential within MOS
* continues to improve on interaction and leadership development with civilian contractors
* efficient with logistical tasks as evidenced by establishing the team's sections in Fallujah and Ramadi
* Soldier refuses to sign

8.  In May 2009, he submitted an appeal of the NCOER to the ASRB.  In October 2009, his appeal for review of his NCOER was administratively closed and returned without action by the ASRB because he failed to provide evidence on whether the DODIG had taken any action on his requests. 

9.  In February 2010, he submitted an appeal of the NCOER to the ASRB and provided additional documentation.  On 13 May 2010, the ASRB determined: 

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

   b.  the overall merits of his case did not warrant the relief requested. 

   c.  the board's decision memorandum would be filed in the applicant's OMPF beside the evaluation report in question and the appeal documentation would be filed in the restricted section of his OMPF. 

10.  He was ordered to active duty on 10 April 2010 in support of Operation Enduring Freedom.  He served in Afghanistan from 17 April 2010 to 8 May 2011. On 20 June 2011, he was released from active duty. 

11.  He provided the DODIG Whistleblower Reprisal investigation, dated 
8 September 2011, which states: 

   a.  an investigation into his reprisal allegations (that he was denied Post Deployment/Mobilization Respite Absence leave, he received an unfavorable NCOER, and he was denied an end-of-war award for his protected communications to inspectors general and his command's information systems security manager) was completed. 
   b.  the investigation substantiated his allegations related to the NCOER and end-of-war tour award. 
   
   c.  the investigation concluded by a preponderance of evidence that the applicant was rated unfavorably which caused the denial of an end-of-war award in reprisal for his protected communications. 

12.  On 25 October 2011, he was transferred to the Retired Reserve. 

13.  In November 2011, HRC returned his appeal without action because he failed to submit the appeal within the time requirement. 

14.  A review of the applicant’s performance section of his OMPF on the Integrated Personnel Electronic Records Management System revealed a copy of the NCOER in question and the ASRB memorandum.  His NCOER appeal is filed in the restricted section of his OMPF. 

15.  Army Regulation 600-8-104 (Military Personnel Information Management/ 
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that an NCOER will be filed permanently in the performance section of the OMPF. 

16.  Army Regulation 623-3 states, in effect, that an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested NCOER was not placed in the restricted portion of his OMPF as directed by the ASRB.  However, the ASRB determined their decision memorandum would be filed in his OMPF beside the evaluation report in question (in the performance section) and the appeal documentation would be filed in the restricted section of his OMPF.  These documents were properly filed in his OMPF as directed by the ASRB. 

2.  However, based on the DODIG Whistleblower Reprisal investigation which concluded he was rated unfavorably in his NCOER for the period 12 April 2008 through 1 November 2008 in reprisal for his protected communications, it would be equitable to delete this NCOER and related documents from his OMPF.  In addition, a nonrated statement for the period 12 April 2008 through 1 November 2008 should be filed in his OMPF in place of this NCOER. 

BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing the DA Form 2166-8 covering the period 12 April 2008 through 
1 November 2008, ASRB memorandum, and appeal documentation from his OMPF; and   

	b.  filing a nonrated statement for the period 12 April 2008 through 
1 November 2008 in his OMPF.



      _______ _   _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)                                         AR20110022793





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ABCMR Record of Proceedings (cont)                                         AR20110022793



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