IN THE CASE OF:  

		BOARD DATE:  23 August 2012

		DOCKET NUMBER:  AR20120012065 


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 the annual Noncommissioned Officer (NCO) Evaluation Report (NCOER) for the period ending 29 February 2008 be transferred to the restricted section of his Official Military Personnel File (OMPF).

2.  The applicant states:  

	a.  He was accused of sexual harassment during the rating period.

	b.  A Commander's Inquiry was completed and the accusation was unfounded.  His punishment was a "local letter of reprimand" and he was mandated to attend the Equal Opportunity Leader (EOL) Course.  He later became the EOL for his unit.  

   c.  He attempted to have the NCOER for the rating period corrected after the accusation was unfounded and he was led to believe the NCOER would not hurt him in the long run because he was an E-5 when the NCOER was given to him.

	d.  He now knows the NCOER "carries weight" it may be the reason he has not been promoted with his peers and he may not be accepted for warrant officer school because of the NCOER.  Since the accusation of sexual harassment he has been an excellent Soldier and excelled in his responsibilities as an EOL. 

	e.  He believes the transfer of this NCOER will give him a fair chance at promotion and career advancement. 

3.  The applicant provides copies of:

* his letter to the President, Department of the Army Suitability Evaluation Board (DASEB)
* letter of recommendation from Mr. Tony T. C____
* letter of recommendation from Sergeant Major (SGM) A. ____
* memorandum for record from Sergeant First Class (SFC) M., H____

CONSIDERATION OF EVIDENCE:

1.  The applicant, a career Regular Army Soldier since 1999, was promoted to staff sergeant (SSG) on 1 June 2008.  

2.  While serving as a sergeant (SGT)/E-5, the applicant received an annual NCOER covering the period 1 March 2007 through 29 February 2008 for his duties as a Small Network Team Section Sergeant in Europe.  His rater was the section sergeant, a SSG.  His senior rater was the platoon sergeant, an SFC, and his reviewer was the platoon leader, a second lieutenant.  The NCOER shows the following entries:

	a.  In Part IVa (Army Values), Item 3 (Respect/EO/EEO:  Treats People as They Should be Treated) the rater placed an "X" in the "No" block and entered the bullet comment:  "was reprimanded for sexual harassment."

	b.  In Part IVd (Leadership) the rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comment:  "had a professional lapse of judgment and common sense, he displayed conduct unbecoming of a leader:  received a reprimand for unprofessional conduct."

3.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, this includes the DA Form 2166-8.  Chapter 6 (Evaluation Redress Program) provides in:

	a.  Paragraph 6-7 (Policies) places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an NCOER.
   
   b.  Paragraph 6-8 (Timeliness) shows that substantive appeals will be submitted within 3 years of an NCOER through date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant an exception.
4.  His appeal to the DASEB was apparently not processed because it is dated more than 3 years after the through date of the NCOER. 

5.  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.

6.  In support of his request, he submits copies of a:

	a.  Letter of recommendation from Mr. Tony T. C____, a former lieutenant who identified himself as the investigating officer who concluded the claim of sexual harassment was unfounded.  He states he "initiated a series of counseling sessions for SSG S____ (the applicant) to take part in order to address his differences with SSG M____ and SGT C____, as well as to become thoroughly educated on sexual harassment and preventative measures."

	b.  Letter of recommendation from SGM C____, who relates he has known the applicant 8 years, served with him on two separate assignments, and states he is a stellar NCO admired by many.  He states (the applicant) is the type of leader who realizes the importance of the Soldiers he leads.

	c.  Memorandum for Record from SFC M. H____, who was the senior rater on the NCOER ending on 29 February 2008.  He states the applicant was and still is an outstanding NCO:  

		(1)  During the rating period, the applicant was accused of sexual harassment.  The investigating officer concluded the accusation was unfounded, but he recommended that the applicant have EOL training focusing on sexual harassment.  The applicant received a formal counseling from the battalion commander and was sent to the EOL Course.

		(2)  He states "When it was time for SSG S____'s (the applicant's) annual NCOER I was told to change my ratings to reflect he was accused of sexual harassment by the command sergeant major (CSM).  I changed the NCOER in question because my CSM told me by regulations even though the investigation came back unfounded I had to make the change.  To my surprise and protest my platoon leader and I were told we would be relieved if we did not make the change to reflect the investigation of sexual harassment."
		(3)  He goes on to state "SSG S____ (the applicant) always conducted himself in a very professional manner and always upheld Army standards and values.  It would be an injustice and a loss to the Army to hold this over (the applicant's) career.  The NCOER in question should be removed from his official records and placed in his restricted file."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the 29 February 2008 NCOER should be transferred to the restricted section of his OMPF because, although he was accused of sexual harassment, the inquiry concluded the accusation was unfounded.  He received a "local letter of reprimand" and was mandated to attend the EOL Course.  He later became the unit EOL.

2.  The available evidence shows the applicant was accused of sexual harassment.  The applicant received a reprimand and the reprimand is reflected on the NCOER.

3.  Considering that, by his own admission, the applicant was reprimanded, his assertions and those of his supporters are simply unconvincing.

4.  In any case, NCOER are historical records.  Unless there is reason to remove an NCOER from the OMPF, there is no regulatory basis to transfer it to the restricted section.

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)                                         AR20110022522



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ABCMR Record of Proceedings (cont)                                         AR20120012065



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