IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120008183 


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 reconsideration of the Board's denial of his previous request for amendment or deletion of a Noncommissioned Officer Evaluation Report (NCOER) for the period ending 14 June 2008 and promotion reconsideration to the rank and pay grade of sergeant first class (SFC)/E-7 under the 2009 and 2010 year criteria.  He additionally requests promotion reconsideration to the rank and pay grade of SFC/E-7 under the 2011 and 2012 year criteria.

2.  He requests an audience with the Army Board for Correction of Military Records (ABCMR) due to the extenuating circumstances regarding this case and the reprisal he has been the victim of.

3.  He states his first request addressed only what he saw as immediately pertinent and did not address the entire picture of reprisal that led to the appealed NCOER.  He now provides new facts and documents.

	a.  The appealed senior rater (SR) option NCOER states he misleadingly accused a Soldier (his SR) of an offense.  His accusation was not false.

   b.  He is not afraid to make decisions and stand by them.  He is a strong NCO.

	c.  He further states that when presented this NCOER by First Sergeant (1SG) R to sign he told him [1SG R] that the NCOER was not fairly written.  He told 1SG R the bullets were false and asked for an investigation on his behalf.  He was told that the command had wasted enough time on him already and he would not be granted a command inquiry into the NCOER.  He requested an investigation from the Inspector General and the next level of command appointed Lieutenant Colonel (LTC) K as an investigating officer.  She was in fact a friend of LTC M (his NCOER reviewer).

   d.  There are several memoranda written by members of the command who worked with or for him that attest to his performance in the area of values/attributes/skills and actions.  There is a conflict of interest in that it was this SR who committed the offenses who gave him a negative rating on potential.
   
   e.  His statements that were previously considered by the Board are not new arguments; therefore these will not be considered further in this record of proceedings. 

4.  He provides: 

* ten memoranda for record (MFR)
* pictures of a cat
* DA Form 2823 (Sworn Statement) 
* sworn statement by Staff Sergeant A-- M--
* fifteen MFR which were previously considered by the Board and are not considered new evidence; therefore will not be considered further in this record of proceedings

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100022020, on 14 April 2011.

2.  The additional ten MFR, pictures, and sworn statements provided by the applicant are new evidence which requires that the Board reconsider his request.

3.  His military records show he enlisted in the Regular Army on 12 November 1992.  He was promoted to staff sergeant/pay grade E-6 on 1 February 2007.

4.  On 3 December 2007, he acknowledged receipt of counseling for not being present for duty, not letting anyone in his branch know where he was, and being unreachable until 2 hours after the start of his duty day on 27 November 2007; failing to go to his appointed place of duty at the prescribed time; and a trend for being absent from duty on many occasions and receiving written counselings on 7 June, 24 September, 16 October, and 26 October 2007.  He stated he disagreed with the foregoing information.

5.  On 5 December 2007, he received event-oriented counseling for failing to follow through on a command he was given, which resulted in a significant hindrance in mission accomplishment in regard to the Vicenza Veterinary Treatment Facility (VTF) management.  He acknowledged receipt of the counseling and stated he agreed.

6.  In June 2008, the applicant received a SR-option NCOER for the period 1 November 2007 through 14 June 2008 which covered 7 months of rated time for his duties serving in military occupational specialty 68T (Animal Care Sergeant).  He served as the noncommissioned officer-in-charge, Vicenza Branch, VTF.  His rater was an SFC, his SR was a CPT, and his reviewer was an LTC.

7.  On 19 July 2008, the Senior Defense Counsel (LTC S) of the U.S. Army Trial Defense Service-Europe, Vicenza Field Office, submitted a memorandum to the President of the Army Special Review Boards (ASRB) discussing his version of the alleged Veterinary Command (VETCOM) reprisals against the applicant.  Based on his findings and opinions as they relate to his unofficial investigation he respectfully requested that justice be rendered and that the contested NCOER be removed from the applicant's OMPF.

8.  On 7 October 2008, his rater (SFC K) during the rating period of the contested NCOER submitted an MFR reference the command environment as it related to the applicant.  She stated his reviewer (LTC M) and 1SG R continuously verbalized their intent to force the applicant out of the Army before he left the command.  She further discussed circumstances and events to support her contention.

9.  On 28 May 2009, SFC K submitted a statement in support of his appeal of the contested NCOER.  She states she was forced to utilize input for the applicant's evaluation from 1SG R and the SR because she was not his supervisor.  She stated that she was misled and her rating of the contested NCOER was inaccurate.
  
10.  On 28 May 2009, he submitted an appeal of the NCOER to the U.S. Army Human Resources Command (HRC).

11.  On 21 January 2010, the ASRB determined the following administrative changes to his contested NCOER were warranted:  his duty military occupational specialty reflect 68T4O and designated changes to his appointed duties in Part IIIe.  The corrected copy of this NCOER shows the following entries:

	a.  In Part IV (Army Value/Attributes Skills/Actions) his rater checked the "No" blocks for loyalty, duty, and selfless-service.  His rater entered the following bullet comments:  "unreliable Soldier who consistently failed to perform"; "misleadingly accused Soldier of an offense by withholding pertinent information, resulting in an unnecessary investigation of incriminated Soldier"; and "repeatedly failed to report for duty."

	b.  In Part IV (Values/NCO Responsibilities) he received a "Needs Much Improvement" rating.  His rater entered the following bullet comments:  "frequently counseled for dereliction of duties and failure to obey a direct order by the officer in charge (OIC) and rater"; "consistently underperformed, and continuously failed to execute assigned tasks to standard specified by the OIC"; and "earned eight credits towards bachelor's degree with a 3.48 grade point average, placing him on the honor roll for two consecutive semesters."

	c.  In Part IV (Physical Fitness and Military Bearing) he received a "Success" rating.  His rater entered the following bullet comments:  "maintains composure in the toughest of circumstances" and "conducted a vigorous physical training program, resulting in a 100 percent pass rate."

	d.  In Part IV (Leadership) he received a "Success" rating.  His rater entered the following bullet comments:  "Material Control Process binder format was successfully utilized by another VTF within the unit alleviating duplication of work"; "assured that subordinates were enrolled in military or civilian education courses"; and "competed in unit NCO of the Quarter."

	e.  In Part IV (Training) he received a "Success" rating.  His rater entered the following bullet comments:  "implemented branch military occupational specialties cross training program"; "trained replacement to process MWD [military working dog] reimbursement through the International Merchant Purchase Agreement Card (IMPAC) system"; and "ensured 100 percent district winter drivers training."

	f.  In Part IV (Responsibility and Accountability) he received a "Success" rating.  His rater entered the following bullet comments:  "replaced commissary office furniture at no cost to the Army, increasing the efficacy of the space"; "consistently provided safety briefings to subordinates in preparation for extended weekends and holidays"; and "managed IMPAC card with a $15,000.00 quarterly budget."

	g.  In Part V (Overall Performance and Potential) he received a "Marginal" rating from his rater.  His SR entered the following bullet comments:  "do not promote at this time"; "select for ANCOC [Advanced NCO Course] if slots are available"; "failed to perform at a level commensurate with his rank"; "possesses potential to excel in leadership positions with greater responsibility but has failed to display the discipline necessary to realize it"; and "Soldier refused to sign."

	h.  In Part Vc (Overall Performance) and in Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) he received "Fair" ratings from his SR.

	i.  The ASRB determined the overall merits of the case did not warrant the following requested relief:

* change of the bullet comments to reflect new comments provided by the rater
* removal of the SR bullet comments
* removal of the contested NCOER
* promotion reconsideration

12.  The NCOER shows the rater and SR authenticated this form by placing their signatures in the appropriate places and the reviewer concurred with the rater and SR and authenticated this form by placing her signature in the appropriate place.

13.  There is no available evidence, aside from his statement, showing he requested a Commander's Inquiry or that he filed a complaint with the Inspector General regarding the contested NCOER.

14.  He submitted additional third-party statements from other Soldiers attesting to his performance during the rated period of the NCOER.

15.  He submits an MFR, subject:  Retaliation and Reprisal by MSG/SGM L and VETCOM against [Applicant], dated 28 January 2009.  When he reported for duty at his new duty station in November 2007 he met with MSG L.  During this meeting he made a joking comment to MSG L for which he afterwards felt set up, embarrassed, and humiliated.  He believes MSG L took offense to this comment and did not like him very much.  He describes events and situations wherein he believes his family was made to feel unwelcome and when he was treated with reprisal by MSG/SGM L either directly or through his influence in the VETCOM over next 5 years.

16.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the preparation and submission of the NCOER's for corporals through command sergeants major.  Paragraph 4-2 provides that an evaluation report accepted for inclusion in the official record of the NCO is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4-7 states the burden of proof in an appeal of an NCOER rests with the applicant.  Accordingly, to justify deletion or amendment of a 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 and that action is warranted to correct a material error, inaccuracy, or injustice.  

17.  Army Regulation 623-3, paragraph 2-15, states that when it is brought to the attention of commanders that a report rendered by one of their subordinates or by a member of one of their subordinate commands may be illegal, unjust, or otherwise in violation of the regulation, they will look into the allegation.  These matters may be brought to the commander's attention by the rated NCO or anyone having knowledge of the alleged illegality, injustice, or violation.  The Commander's Inquiry will be made by a commander (major or above) in the chain of command above the designated rating official(s) involved in the allegations.  The commander will confine the inquiry to matters relating to the clarity of the report, the facts contained in the report, the compliance of the report with the regulation, and the conduct of the rated NCO and rating officials.

18.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) establishes the policies and procedures for governing promotion and reduction of Army enlisted personnel.  Paragraph 4-13 states Standby Advisory Boards are convened to consider records of Soldiers whose records were not reviewed by a regular board or whose records were not properly constituted, due to material error, when reviewed by the regular board.  Reconsideration normally will be granted when an adverse NCOER reviewed by a board was subsequently declared invalid in whole or in part and was determined to constitute a material error.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  It states the Director, ABCMR, will manage the ABCMR day-to-day operations.  The ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his NCOER for the period ending 14 June 2008 should be corrected or deleted, in part, because it reflects the outcome of reprisal.

2.  He has not shown the contested report was not prepared in compliance with applicable regulations and policy.  The contested report appears to represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the period in question.

3.  He submitted additional third-party statements from other Soldiers attesting to his performance during the rated period of the NCOER.  However, these individuals were not in a position to fully understand or appreciate the expectations of the rating officials for the applicant.

4.  In spite of his rater's recommendation which reflects her thoughts based on subsequent dealings with the applicant, the defense counsel’s request for removal of the NCOER, and other extensive documentation he submitted in support of his request he has not shown the report to be invalid.  The evidence shows the applicant received negative counseling statements covering multiple deficiencies during the rating period.  There is no evidence his rating was anything other than an objective assessment of his performance and potential during the rated period.

5.  There is no evidence the contested report contains any serious substantive deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown 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.

6.  There is no evidence to show  he requested a Commander's Inquiry at the time.  This is an individual's available right and option concerning NCOER's perceived to be unfair or unjust and could have made a difference based on the freshness of the rating with all involved, in place, to provide a concurrent investigation prior to the finalization of the report.  He stated he requested the Inspector General make an investigation, but he provided no Inspector General results of an investigation.  The applicant has not overcome his burden of proof to show error, injustice, or inequity.
7.  An evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. 

8.  In view of the circumstances in this case, the applicant is not entitled to promotion reconsideration/consideration to SFC under the 2009 and 2010 year criteria.  He has not shown error, injustice, or inequity.

9.  In view of the foregoing, there is an insufficient basis for granting his request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100022020, dated 14 April 2011.




      _______ _   __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)                                         AR20120008183





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ABCMR Record of Proceedings (cont)                                         AR20120008183



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