IN THE CASE OF:	  

		BOARD DATE:	  16 October 2012

		DOCKET NUMBER:  AR20120002988 


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.  removal of the relief-for-cause DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the rating period 1 March through 5 July 2009 (hereafter referred to as the contested NCOER) from his Army Military Human Resource Record (AMHRR) and

	b.  promotion to sergeant first class (SFC)/E-7 with a date of rank of October 2009.

2.  The applicant states:

	a.  In February 2009, he was selected for promotion to SFC, but has not been promoted due to receipt of a relief-for-cause NCOER on 5 July 2009 after he requested to be assigned to a new position while serving as the brigade civil affairs (S-9) NCO in charge (NCOIC) in Afghanistan with no formal training or guidance.

	b.  He started showing signs of combat stress as this was his third tour within 4 years, but once properly medicated his anxiety and stress were better managed.

	c.  On 14 June 2009, he realized he would not be successful as the brigade combat team (BCT) S-9 and requested to be reassigned.  However, his rater became furious and told him, "fine, you quit," and gave him four counseling statements – his initial, quarterly, and two for performance – all dated the same date even though he started working for his rater in January of that year.
	d.  He was told he would receive a relief-for-cause NCOER and his record would undergo a suspension of favorable actions, yet the professional he was, he remained in the position for another month.

	e.  He submitted his packet, along with his excellent record and character references, to the standby advisory board (STAB) and Enlisted Special Review Board (ESRB) which indicated there was not enough evidence to appeal.  He feels his record should have played an important part in the decision to remove the NCOER and reinstate him to the SFC promotion list.

3.  The applicant provides:

   * six DA Forms 2166-8, including the contested NCOER, dated 18 July 2009
   * three pages of a DA Form 2823 (Sworn Statement)
   * three DA Forms 1059 (Service School Academic Evaluation Report)
   * two letters of recommendation
   * one character reference

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted his application, he was serving in the Regular Army in the rank of staff sergeant (SSG)/E-6 in military occupational specialty (MOS) 11B (Infantryman).

2.  His record contains the contested NCOER which shows he was rated for duty as the BCT S-9 NCOIC in duty MOS 38B4P (Civil Affairs-Parachutist) while he was assigned to Headquarters and Headquarters Company, 4th BCT (Airborne), Forward Operating Base Salerno, for the rating period 1 March through 5 July 2009.  The form shows in:

	a.  Part Ig (Reason for Submission), the entry "relief of cause."

	b.  Part II (Authentication), his rater was the BCT S-9 and his senior rater was the BCT Executive Officer.

	c.  Part III (Duty Description (Rater)), he was rated for principal duty as the BCT S-9 NCOIC.

	d.  Part IIIf (Counseling Dates), he was counseled on 15 February and 15 May 2009.

	e.  Part IVa (Army Values), "No" was selected for Part IVa2 (Duty) and "Yes" was selected for all other values.
	f.  Part IV (Army Values/Attributes/Skills/Actions), the bullet comment section contains the entry "Soldier requested to be relieved from assigned position of BCT S9 NCOIC."

	g.  Part IVb (Competence),"Needs (Some) Improvement" was selected and "Soldier was verbally and administratively counseled on several occasions for failing to complete assigned tasks to standard" was entered in the space provided for bullet comments.

	h.  Part IVc (Physical Fitness and Military Bearing), "Success (Meets Standard)" was selected.

	i.  Part IVd (Leadership), "Needs (Some) Improvement" was selected and the following was entered in the space provided for bullet comments: 

		(1)  "Soldier was verbally and administratively counseled on several occasions for failing to place mission before personal time" and 

		(2)  "not committed to mission in a combat zone."

	j.  Part IVe (Training), "Success (Meets Standard)" was selected.

	k.  Part IVf (Responsibility and Accountability), "Success (Meets Standard)" was selected and the comments:

   	(1)  "maintained accountability of assigned equipment" and

   	(2)  "NCO has been notified of reasons for relief."

	l.  Part V (Overall Performance and Potential):

		(1)  his rater rated him as marginal;

		(2)  his senior rater rated his overall performance and potential for promotion and/or service in positions of greater responsibility as fair; and

		(3)  Part Ve (Senior Rater Bullet Comments), his senior rater entered the following:

		(a)  "do not promote to SFC,"

		(b)  "has potential to be a good NCO but fails to execute," and

		(c)  "overall fair performance."

3.  The contested NCOER shows the rating officials authenticated it with their electronic signatures.  The reviewer concurred with the rater and senior rater evaluations.  Furthermore, the applicant signed the form on 18 July 2009, verifying the rating officials, duty description, counseling dates, and Army Physical Fitness Test/Height/Weight entries were correct; that he had seen the completed report; and that he was aware of the appeal process of Army Regulation 623-3 (Evaluation Reporting System (ERS)).

4.  He submitted an unnotarized DA Form 2823, dated 15 September 2009, from Captain P____ T____ C____ who states he met the applicant during their deployment, had discussions with him regarding his previous deployments, the psychological issues they were experiencing, and the applicant's unhappiness with his duties.

5.  His record contains a memorandum from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 4 January 2011, subject:  HRC Referral to a STAB, which informed the applicant that a Headquarters, Department of the Army, Promotion Selection Board, recommended the applicant for promotion to SFC on 2 February 2010.  He was subsequently identified for referral for removal consideration from the SFC standing list because he received a relief-for-cause NCOER and had until 1 February 2011 to submit evidence in his behalf.

6.  On 29 March 2011, he submitted a memorandum to HRC requesting to appeal the contested NCOER.

7.  On 25 August 2011, the ESRB denied the applicant's appeal of the contested NCOER.  His ESRB packet contains four DA Forms 4856, dated 15 and 16 June 2009, all signed on 16 June 2009 which show in:

	a.  Part II (Background Information), the purposes and periods of the counseling were for:

		(1)  initial counseling for the period 1 February to 5 July 2009,

		(2)  quarterly counseling for the period 12 January to 15 June 2009, and

		(3)  two negative performance counseling statements for 9 and 11 to 15 June 2009.

	b.  Part III (Session Closing – Individual Counseled), he indicated "I agree" with his initials and signature.
8.  He submitted:

	a.  NCOER's for the rating periods 1 June 2006 through 28 February 2007, 1 March 2007 through 29 February 2008, 1 March 2008 through 28 February 2009, 6 July 2009 through 5 July 2010, 6 July through 11 October 2010, and 12 October 2010 through 11 October 2011;

	b.  DA Forms 1059, which show he attended and completed the:

		(1)  Primary Leadership Development Course from 28 February to 14 March 1998,

		(2)  Basic NCO Course (Phase I) from 10 to 27 March 2008,

		(3)  Basic NCO Course (Phase II) from 7 April to 1 May 2008, and

		(4)  Maneuver Senior Leadership Course from 13 September to 28 October 2011;

	c.  two letters recommending he be reconsidered for promotion to SFC/E-7; and

	d.  a character reference/letter from his former commander stating the applicant was a squad leader and an exceptional leader who performed difficult duties and exceeded all expectations.

9.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the ERS.

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or NCO corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in other directives.

	b.  Paragraph 2-10 states the rated Soldier will participate in counseling and provide and discuss with the rating chain the duty description, performance objectives, academic standards, and/or course requirements with the rater, as appropriate.  This will be done within 30 days after the beginning of each new rating period and at least quarterly thereafter.  The rated Soldier will assess the validity of the objectives or compliance with academic standards with the rater throughout the rating period.  This may result in having to revise and update both objectives and duty description as the situation changes.  The rated Soldier may also have to develop new objectives with the rater.

	c.  Paragraph 2-12 states the rater will discuss the scope of the rated Soldier's duty description with the rated Soldier within 30 days after the beginning of the rating period; counsel the rated Soldier; advise the rated Soldier as to changes in their duty description and performance objectives, when needed, during the rating period; as well as other functions.

	d.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

	e.  Paragraph 3-55 states an NCO can be relieved for cause regardless of the rating period involved; however, a waiver is required to render relief-for-cause NCOER's covering a period of less than 30 days.  "Relief for cause" is defined as the removal of an NCO from a specific duty or assignment based on a decision by a member of the NCO's chain of command or supervisory chain.  A relief for cause occurs when the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army.

	f.  Paragraph 6-11d states to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

	g.  Paragraph 6-11d further states that 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 the appellant's performance firsthand 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.

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

	a.  Paragraph 4-13 states that STAB's are convened to consider records of those Soldiers whose records were not properly constituted due to material error when reviewed by the regular board.

	b.  Paragraph 4-17 provides that HRC will continuously review promotion lists against all information available to ensure that no Soldier is promoted where there is cause to believe that a Soldier is mentally, physically, morally, or professionally unqualified to perform duties of the higher grade.

	c.  Paragraph 4-17 further states that a Soldier may be referred to a STAB for reasons to include the receipt of a relief-for-cause NCOER.

	d.  Paragraph 4-18 provides that Soldiers may appeal a removal action when the underlying basis of the removal is subsequently determined to be erroneous.

11.  Army Regulation 600-8-104 (Army Military Human Resources Record Management), chapter 2, governs the composition of the AMHRR and states the performance section is used for filing performance commendatory and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from a section or moved to another part of the section unless directed by certain agencies, to include this Board.  Evaluation reports are required to be filed in the permanent section of the performance section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the contested report removed from his AMHRR and to be promoted to SFC/E-7 was carefully considered; however, there is insufficient evidence to grant relief.

2.  He states he received four counseling statements regarding his job performance on the same day.  However, he agreed with the comments contained in the counseling as indicated by his initials and signature.  In addition, Part IIIf of the contested NCOER shows he was initially counseled on 15 February and again on 15 May 2009.  The contested NCOER clearly shows, as attested to by his signature, 


that he verified the administrative data, to include the dates of his counseling.  As an NCO, he had an equal responsibility in seeking counseling from his chain of command.

3.  His contention that he requested to be relieved from the assigned position is noted.  It is noted as well that in Part IV of the contested NCOER, the required statement of "the rated NCO has been notified of reason for relief" is properly annotated in the contested NCOER.

4.  The applicant's contentions are noted; however, he did not provide any evidence which clearly shows a substantive error or injustice existed in the processing of his evaluation report.  There is no evidence the contested NCOER contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, he has not shown that the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOER, or that they exercised faulty judgment in evaluating him as they did.

5.  In the absence of compelling evidence which clearly and convincingly shows the presumption of regularity should not be applied to this report or that it contains material error, is inaccurate, or unjust, there is no basis to grant the relief requested.

6.  The evidence of record shows the applicant was selected for promotion to SFC during the SFC selection board that convened on 2 February 2010.  However, the evidence of record also shows the contested NCOER was not filed in his record until 12 October 2010 and was not available for review when the SFC promotion was in session.  Upon subsequent review of his AMHRR, he was removed from the promotion standing list and, as a result, is not entitled to further consideration and reinstatement for promotion to SFC by a STAB.

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 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)                                         AR20120002988



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ABCMR Record of Proceedings (cont)                                         AR20120002988



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