IN THE CASE OF:	  

		BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110025075 


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 correction of his military records to remove his relief for cause (RFC) Noncommissioned Officer Evaluation Report (NCOER).

2.  The applicant states the NCOER contains a falsified rating chain, falsified counseling dates, and rater and senior rater comments that are unjustified and unsubstantiated.  He further states he completed the appeal process but was informed he had not provided enough evidence to support his case.  He now contends that he was not afforded the opportunity at the time to gather any supporting documents.  The only people who can provide such evidence are the same individuals who were in the chain of command when the NCOER was rendered.

3.  The applicant provides no additional documents.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army in the rank of master sergeant, pay grade E-8.

2.  In a memorandum dated 16 September 2009, the investigating officer (IO) stated that he had been appointed on orders on 27 August 2009, to investigate allegations of inappropriate behavior involving Soldiers and NCOs.  Of particular interest was any conduct deemed contrary to good order and discipline of the unit, any discriminatory behavior against minorities, and failure of the enlisted chain of command to address these issues.
	a. The IO found that the applicant had been involved in an inappropriate superior/subordinate relationship with one of his subordinates.  The applicant and his subordinate had been seen together prior to their deployment from Fort Hood, where they hung out at the clubs together.  The subordinate received a battlefield promotion on 1 September 2009.  There was a sense of partiality and unfairness within the unit concerning this and other battlefield promotions awarded at the time.  The applicant was the unit first sergeant at the time.

	b.  The IO found that the applicant had taken actions that could be deemed as reprisal for individuals who had brought issues up to the chain of command.  The applicant had made a statement in front of a sergeant first class saying that individuals who brought up the video were going to pay the price.  The applicant also directed another NCO in his unit to have a specialist destroy evidence pertinent to the IO's investigation.

	c.  The IO found that the applicant 's statement that corrective action had been taken was not entirely true.  The applicant had failed to take reasonable action when made aware of situations.  He failed to keep the battalion chain of command informed.  He failed to provide feedback to those individuals who made him aware of the issues, and his actions led to a perceived sense of reprisal towards those who brought issues before the chain of command.

	d.  The IO recommended the appointing authority, through the chain of command, relieve the applicant of his duties as first sergeant, render a RFC NCOER, and redeploy him to his home station.  These recommendations were based on the IO's belief that the applicant had lost the trust and confidence of his superiors and subordinates to lead his unit effectively as the first sergeant.

3.  An RFC NCOER rendered on the applicant for the period from 1 December 2008 through 18 October 2009 shows:

	a.  his principal duty was as first sergeant of an air defense artillery company;

	b.  his Army values/attributes/skills/actions concerning duty, honor, and integrity failed to meet standards;

	c.  he needed some improvement in the areas of leadership and responsibility and accountability;

	d.  his overall potential for promotion and/or service in positions of greater responsibility was marginal;

	e.  his senior rater considered his overall performance as poor and his overall potential as fair; and

	f.  his senior rater stated to not select him for attendance at the U.S. Army Sergeants Major Academy or to promote him to the rank of sergeant major.  The applicant's bad decisions placed undue hardship on Soldiers; limited his potential for future service and made him a prime candidate for consideration under the Qualitative Management Program.

4.  On 22 September 2011, the Enlisted Special Review Board (ESRB) considered the applicant's appeal concerning the subject RFC NCOER.  The ESRB determined, by unanimous vote, that the applicant had not provided sufficient evidence to show that the subject NCOER contained a material error, inaccuracy, or was unjust.  On 9 November 2009, the appropriate authority approved the ESRB determination.

5.  Army Regulation 623-3 (Evaluation Reporting System):

	a.  This regulation prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the NCOER.

	b.  NCOERs accepted for inclusion in the official record of a Soldier is presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation.  To justify deletion or amendment of the report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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.  The burden of proof rests with the applicant.

6.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) governs the composition of the OMPF and states the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Table 2-1 states the DA Form 2166-8 (NCOER) is filed in the performance section of the OMPF.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to remove his RFC NCOER because it contains a falsified rating chain, falsified counseling dates, and rater and senior rater comments that are unjustified and unsubstantiated.  He now contends that he was not afforded the opportunity at the time to gather any supporting documents.  The only people who can provide such evidence are the same individuals who were in the chain of command when the NCOER was rendered.

2.  The evidence of record clearly shows that an investigation into allegations concerning the applicant's conduct and performance of duty was conducted.  The IO concluded that the applicant: 

	a.  had been involved in an inappropriate superior/subordinate relationship with one of his subordinates;

	b.  had taken actions that could be deemed as reprisal for individuals who had brought issues up to the chain of command;

	c.  had failed to take reasonable action when made aware of situations;

	d.  had failed to keep the battalion chain of command informed;

	e.  had failed to provide feedback to those individuals who made him aware of the issues; and

	f.  had by his actions brought about a perceived sense of reprisal towards those who brought issues before the chain of command.

3.  Accordingly, the IO recommended the applicant be relieved of his duties as first sergeant, rendered a RFC NCOER, and be redeployed to his home station.

4.  The evidence of record clearly shows that the applicant appealed his RFC NCOER and that the ESRB denied his request due to a lack of supporting documentation to prove his contentions.  The applicant has also failed to provide this Board with any additional documentation that would convincingly support any of his contentions.

5.  In view of the above, the applicant's request should be denied.



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)                                         AR20110025075





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ABCMR Record of Proceedings (cont)                                         AR20110025075



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