IN THE CASE OF:	  

		BOARD DATE:  13 November 2012

		DOCKET NUMBER:  AR20120015662 


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 Army Board for Correction of Military Records (ABCMR) decision denying his request to remove two DA Forms 4187 (Personnel Action) dated 28 June and 13 July 2004.

2.  He submits a new issue in requesting the comments submitted by his past commander, Lieutenant Colonel (LTC) C____, and the Noncommissioned Officer Evaluation Report (NCOER) for the period 1 June 2005 to 31 May 2006 (hereafter referred to as the contested report) be removed from his Army Military Human Resource Record (AMHRR).  LTC C____ was the reviewer for the contested report.

3.  The applicant states he was cleared of everything mentioned in the comments submitted by LTC C____ and there is no reason for it to be on his records.  No documents or counseling was found or presented to the boards to have sexual harassment charges and/or acts under the Uniform Code of Military Justice (UCMJ).  He states he was cleared and never charged.  The fact of the matter is it was all lies and was never brought up in the courts.

4.  The applicant provides a memorandum, dated 5 October 2011, he sent to the President of the Promotion Board.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Paragraph 2-15a of Army Regulation 15-185 (Army Board for Correction of Military Records) governs requests for reconsideration.  An applicant may request reconsideration of an earlier decision of the ABCMR if the request is received within one year of the original decision and it has not previously been reconsidered.  Such requests must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration.  ABCMR Docket Number AR20100027478, considered on 15 September 2011, denied his request to remove two DA Forms 4187, dated 28 June and 13 July 2004.  His request for reconsideration, although submitted within 1 year, did not provide new evidence and/or argument.  Therefore, this issue will not be discussed further in these Proceedings.

3.  He enlisted in the U.S. Army Reserve (USAR) on 13 September 1989.  He is currently a sergeant first class/pay grade E-7 serving on active duty in an Active Guard/Reserve (AGR) status.

4.  He signed the contested report on 5 December 2006.  The rater, senior rater, and reviewer all signed it on 7 November 2007.

	a.  Part IV (Army Values/Attributes/Skills/Actions) contains an "X" in all "Yes" items.

	b.  Part IV (Rater) – Values/NCO Responsibilities contains an "X" in the following blocks:

		(1)  Competence – Excellence

		(2)  Physical Fitness and Military Bearing – Success

		(3)  Leadership – Success

		(4)  Training – Excellence

		(5)  Responsibility and Accountability – Excellence

	c.  Part V (Overall Performance and Potential) - The rater rated him "Among the Best" in overall potential for promotion and/or service in positions of greater responsibility.  The senior rater rated him Successful (3) in overall performance and Superior (3) in overall potential for promotion and/or service in positions of greater responsibility.

5.  In item d of Part II (Authentication) of the contested report – LTC C____, the reviewer, placed an "X" in the box indicating she nonconcurred with the rater and/or senior rater.  She attached one page with her comments.

	a.  She strongly nonconcurred with the NCOER given to the applicant, stating the NCOER was not an accurate portrayal of his performance, military bearing, and leadership capabilities as an E-7.

	b.  As battalion commander she had the unique opportunity to observe his performance first hand.

	c.  He did not adhere to the Army values of loyalty, duty, respect, selfless-service, honor, integrity, and personal courage.

	d.  He was absent from his duty station many times with little or no apparent explanation.

	e.  He was insubordinate to senior officers.

	f.  He sexually harassed and attempted to intimidate subordinate Soldiers, in particular a female AGR staff sergeant.  Two AGR NCO's requested and were moved to other locations because of the chaotic working conditions he created.

	g.  Several Army Regulation 15-6 investigations concerning him were initiated and all found him to be at fault.  (These investigations and the results were not available for review).

	h.  "Before I left command I initiated a request to remove [the applicant] from the Army.  The documentation was sent through the chain of command to the 81st RRC JAG – to my knowledge no action has been taken to begin the process of removal."

	i.  He illegally wore the Combat Infantryman Badge.

	j.  His NCOER for the period 1 June 2006 through 31 May 2006 in no way reflects an accurate picture of his potential as an NCO, his value to the Army, and his attributes and skills as a Soldier.

6.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that 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.

7.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), in effect at the time, prescribed the enlisted evaluation function of the military personnel system.

	a.  The reviewer had to be a commissioned officer, warrant officer, command sergeant major, or sergeant major in the direct line of supervision and senior in pay grade or date of rank to the senior rater.

	b.  The reviewer's responsibilities included:

		(1)  Ensuring that the proper rater and senior rater completed the report.

		(2)  Examining the evaluations rendered by the rater and senior rater to ensure they were clear, consistent, and just, in accordance with known facts. 

		(3)  Indicating concurrence or nonconcurrence with rater and/or senior rater by annotating the appropriate box with a typewritten or handwritten "X" in part II and adding an enclosure (not to exceed one page), when the nonconcurrence
box was marked.

	c.  When the reviewer determined that the rater and or senior rater had not evaluated the rated NCO in a clear, consistent or just manner based on known facts, the reviewer's first responsibility was to consult with one or both rating
officials to determine the basis for the apparent discrepancy.

	d.  If the rater and/or senior rater acknowledged the discrepancy and revised the NCOER so that the reviewer agreed with the evaluation, then the reviewer checked the concur box in part II.

	e.  If the rater and/or senior rater failed to acknowledge a discrepancy and indicated that the evaluation was their honest opinion, the reviewer checked the nonconcur box in part II.  The reviewer then added an enclosure that clarified the situation and rendered his or her opinion regarding the rated NCO's performance and potential.

	f.  The reviewer could not direct that the rater and/or senior rater change an evaluation believed to be honest.

	g.  The reviewer notified the rating chain and rated NCO of nonconcurrence with the report.  This ensured the rating chain and the rated NCO had been informed of the completed report and allowed for a possible request for a Commander's Inquiry or appeal if desired.

	h.  No mention could be made of any punitive or administrative action taken (or planned) against a rated NCO.  No reference was to be made to an incomplete investigation (formal or informal) concerning an NCO.  References were to be made only to actions or investigations that had been processed to completion, adjudicated, and had final action taken.

	i.  An evaluation report accepted for inclusion in the official record of a rated Soldier was presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The rated Soldier or other interested parties who know the circumstances of a rating may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation.

	j.  The Noncommissioned Officer Evaluation Redress Program is both preventive and corrective in nature in that it is based upon principles structured to prevent and/or provide a remedy for alleged injustices or regulatory violations, as well as to correct them once they have occurred.

		(1)  Clear and convincing evidence will 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 appellant.  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.

		(2)  For a claim of inaccuracy or injustice of a substantive type, evidence must include statements from third parties, rating officials, or other documents from official sources.

		(3)  Third parties are persons other than the rated NCO 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 affording them good opportunity to observe the appellant's performance and interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual error, erroneous perception, or claims of bias.  To the extent practical, such statements should include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  

DISCUSSION AND CONCLUSIONS:

1.  He contends LTC C____'s comments are lies and he was never charged under the UCMJ.  However, he has provided no evidence to support his contentions.

2.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  Therefore, in the absence of evidence to the contrary, it must be presumed that:

	a.  When the reviewer of the contested report determined the rater and senior rater had not evaluated him in a clear, consistent or just manner based on known facts she consulted with them to determine the basis for the apparent discrepancy.  

	b.  The rater and/or senior rater did not acknowledge a discrepancy.  

	c.  She notified the rating chain and the applicant of nonconcurrence with the report, ensured they had been informed to the completed report, and allowed time for a possible Commander's Inquiry or appeal if desired.

3.  He has not submitted any evidence that would clearly and convincingly establish that the presumption of regularity should not be applied to the contested NCOER or that action is warranted to correct a material error, inaccuracy, or injustice.

4.  Clear and convincing evidence will 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 appellant.  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.

5.  For a claim of inaccuracy or injustice of a substantive type, evidence must include statements from third parties, rating officials, or other documents from official sources.

6.  In view of the above, there is an insufficient basis to remove LTC C____'s entire comments from his AMHRR.  

7.  However, the statement "Before I left command I initiated a request to remove [the applicant] from the Army.  The documentation was sent through the chain of command to the 81st RRC JAG - to my knowledge no action has been taken to begin the process of removal" should be removed from her comments.  The regulation states that references can be made in an NCOER only to actions or investigations that had been processed to completion, adjudicated, and had final action taken.  Because final action had not be taken on her request to remove him from the Army this statement should be removed from the reviewer's comments to the contested report.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X __  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 statement from the reviewer's comments to the NCOER for the period from 1 June 2005 to 31 May 2006:  "Before I left command I initiated a request to remove [the applicant] from the Army.  The documentation was sent through the chain of command to the 81st RRC JAG – to my knowledge no action has been taken to begin the process of removal."  

2.  The Board further determined the evidence presented is 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 the removal of the remaining reviewer comments to the NCOER report for the period 1 June 2005 to 31 May 2006.  



      _______ _   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)                                         AR20120015662



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ABCMR Record of Proceedings (cont)                                         AR20120015662



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