IN THE CASE OF:	  

		BOARD DATE:	  17 May 2012

		DOCKET NUMBER:  AR20120003482 


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 1 August 2007 through 18 January 2008 from his official military personnel file (OMPF).

2.  The applicant states: 

	a.  In 2007 he received a relief for cause NCOER based on allegations of sale of government properly and larceny.

	b.  After a two year investigation he went to a general court-martial.  He was found not guilty of the sale of government property and larceny charges.  The NCOER was based on those charges.  He was reduced to specialist four/E-4, paid a $1,000 fine, and served 60 days of hard labor.

	c.  Prior to these events he was preparing for the E-7/sergeant first class board and building a warrant officer packet.

	d.  He has since deployed with the same unit and regained the rank of E-6.

3.  The applicant provides:

* General court-martial order
* NCOER in question

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 March 1995 and he has remained on active duty through continuous reenlistments.  He was promoted to staff sergeant on 1 November 2004.  

2.  The contested NCOER is a 4-month relief for cause NCOER covering the period 1 August 2007 through 18 January 2008.  The rater provided a "No" entry for honor and integrity in Part IV (Army Values/Attributes/Skills/Actions) with the bullet comments:  

* does not live up to Army values
* cannot be trusted in word or deed
* supports unit EO (Equal Opportunity) program

3.  He was rated as "Needs Improvement (Much)" for "Competence" with bullet comments:
  
* relieved by the Troop Commander for dereliction of duty and the misappropriation of government property
* lacks sound judgment; personally sold government property to Soldiers directly under his care

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

* used his influence as a supervisor to persuade his Solders to conspire to defraud the government
* lacked the moral fiber needed in today's Army to lead Soldiers

5.  He was rated as "Needs Improvement (Much)" for Responsibility and Accountability with bullet comments:

* the rated NCO has been notified of the reason for relief
* misappropriated $19,000 worth of government computers for personal profit

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



7.  The senior rater rated him "Poor-5" for overall performance and overall potential for promotion and/or service in positions of greater responsibility with a bullet comment: "potential for advancement is hindered by his personal off duty performance."  The senior rater bullet comments in Part Ve (Overall Performance and Potential) were:

* do not promote: lacks good moral character
* does not have potential for future military schooling or continued military service
* poor performance: falsified official documents and conspired to defraud the government

8.  His NCOER for the period 19 January 2008 to 18 January 2009 shows:

* he was rated "Fully Capable" by his rater
* he was rated "Successful" for his overall performance by his senior rater 
* he was rated "Superior" for his overall potential for promotion and/or service in positions of greater responsibility by his senior rater

9.  On 6 May 2009, contrary to his plea, he was convicted by a general court-martial of Article 81 for conspiring with two Soldiers (specialist and sergeant) to commit larceny of one or more computers (military property) between 21 August 2007 and on or about 1 November 2007 in Iraq.  He was found not guilty of selling military property and larceny of military property between 21 August 2007 and on or about 1 November 2007 in Iraq.  He was sentenced to be reduced to E-4, to forfeit $1,000.00 pay per month for 2 months, and to perform hard labor without confinement for 60 days.  On 26 August 2009, the convening authority approved the sentence.  

10.  There is no evidence which shows the applicant appealed the NCOER. 

11.  He was promoted to staff sergeant on 1 September 2010.

12.  His NCOERs for the period February 2010 through October 2011 show:

* he was rated "Among the Best" by his raters
* he was rated "Successful" for his overall performance by his senior raters 
* he was rated "Superior" for his overall potential for promotion and/or service in positions of greater responsibility by his senior raters



13.  A review of the applicant's performance section of his OMPF on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the contested NCOER.

14.  Paragraph 3-23 of Army Regulation 623-3 (Evaluation Reporting System) states:

	a.  No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.

	b.  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 (HQDA).  If the rated individual is absolved, comments about the incident will not be included in the evaluation.

	c.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  It will also prevent unjustly prejudicial information from being permanently included in a Soldier’s OMPF, such as 
(1) charges that are later dropped; or (2) charges or incidents of which the rated individual may later be absolved.

   d.  Any 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.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an Officer Evaluation Report, NCOER, or Army Evaluation Report.  For all reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report in accordance with 
chapter 6.
   
   e.  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.

15.  Army Regulation 623-3 states an evaluation report accepted for inclusion in the official record of a rated Soldier's official military personnel file was presumed to be administratively correct, to have been prepared by the proper rating officials, and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.  This regulation also states the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly establishes that the presumption of regularity should not be applied to the report under consideration and 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.

16.  Paragraph 6-9 of Army Regulation 623-3 states an appeal may be approved in whole or in part, or may be denied, depending upon the merits of the case.  The result of a partially approved appeal may not be that requested by the appellant.  For example, the board may decide that the evidence justifies removal of the rater’s evaluation, but that the senior rater’s evaluation will remain as it was, not proven inaccurate or unjust.  The board will not usually take action that might worsen an appealed evaluation report.  When the board grants an appeal, in whole or in part, resulting in the removal or substantive alteration of an evaluation report that was seen by one or more promotion boards that previously failed to select the appellant, the Headquarters Department of the Army Special Review Board will make a determination whether promotion reconsideration by one or more special boards is justified.

17.  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.  Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records, Department of the Army Suitability Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, OMPF custodian when documents have been improperly filed, Total Army Personnel Command as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.

18.  Army Regulation 600-8-104, Table 2-1 states that an NCOER will be filed in the performance section of the OMPF.

19.  Under Article 81 of the Uniform Code of Military Justice, "Any person…who conspires with any other person to commit an offense shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct."  
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his relief for cause NCOER was based on allegations of sale of government property and larceny but he was found not guilty of those charges.  

2.  Although he was found not guilty of selling military property or larceny, he was convicted by a general court-martial of conspiring with two Soldiers (specialist and sergeant) to commit larceny of one or more computers (military property) in Iraq.  

3.  There is no evidence he appealed the NCOER through the redress system and he did not explain why he did not use the NCOER appeals process within the 3-year time period.  After serving the 60-day sentence to hard labor he was still well within the time period to appeal the NCOER.

4.  Since the applicant was found not guilty of stealing and selling government property based upon the court-martial results, it would be equitable to delete the comments relating to theft and sale from the NCOER in question. 

5.  The governing regulation states NCOERs will be filed in the performance section of the OMPF.  The NCOER in question is properly filed in the applicant's military records in accordance with the governing regulation.  Therefore, there is insufficient evidence on which to remove the NCOER from the applicant's OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the following comments from his NCOER covering the period 1 August 2007 through 18 January 2008:

* "personally sold government property to Soldiers directly under his care" from Part IVb
* "misappropriated $19,500 worth of government computers for personal profit" from Part IVf 

2.  The Board further determined that the evidence presented was 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 removing the NCOER covering the period 1 August 2007 through 18 January 2008 from his OMPF.  




      _______ _   _x______   ___
               CHAIR PERSON
      
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)                                         AR20120003482





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ABCMR Record of Proceedings (cont)                                         AR20120003482



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