IN THE CASE OF:	  

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120018537 


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 removal of his noncommissioned officer evaluation report (NCOER)) for the period June 2008 through May 2009 from his Army Military Human Resource Record (AMHRR) and/or its transfer to the restricted fiche and deletion of the following inappropriate remarks annotated on this report:

* "received a Commander's Report of Disciplinary as [sic] Administrative Action for spousal abuse"
* "received a Report of Disciplinary or Administrative Action for spousal abuse"

2.  He states:

	a.  According to the military regulation, the NCOER in question is unjust and erroneous due to the fact he was the victim in the incident.  He was never charged or convicted for any wrong doings.  The warning letter only pertained to eviction if his wife were to cause any more disturbances.  He never received a copy of the letter.  The incident should not have been annotated on the report because the investigation was still being conducted during the rated period.  NCOER's are not to state unresolved issues.  The investigation was concluded months after the rating period.

	b.  He has been instructed to "ETS [expiration of term of service]" on 17 December 2012.  The report in question contains information from outside the work performance.  Evaluations are to rate performance and potential for the next level of responsibility.  In accordance with Army Regulation 623-2 (Evaluation Reporting System), paragraph 1-8, it is his understanding there's an appraisal philosophy that recognizes that a single evaluation report will not normally, by, itself, determine a Soldier's Army career (whole file concept) and emphasized continuous professional development and growth that will best serve the Army and the rated Soldier.

	c.  He intends to reenlist and continue to serve his country in an indefinite status.  This NCOER should not be the career ending document as opposed to having multiple evaluations having the same poor ratings from a single person.  He spoke with the former rater and senior rater (SR) asking them to submit an affidavit verifying the statements on the NCOER were force-fed to them.  Both men failed to do so.

3.  He provides:

* DA Form 3975-1 (Military Police Report – Additional Offenses)
* DA Form 3975-2 (Military Police Report – Additional Subjects)
* DA Form 3975 (Section VII – Narrative)
* DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) page 2 of 2
* 2008-2009 NCOER
* excepts of Army Regulation 623-3, paragraphs 3-18 and 3-19

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he enlisted in the Regular Army in pay grade E-3 on 10 September 1996 for 3 years.  He completed training and he was awarded military occupational specialty 63M (Bradley Fighting Vehicle System Maintainer).  He was promoted to pay grade E-6 on 1 February 2008.

2.  A DA Form 3975-1, dated 6 December 2008, shows he was involved in an offense of spousal abuse on post and simple assault.

3.  A DA Form 3975-2, dated 6 December 2008, identified a female by the name of Y____ R. J____ as the subject of the incident.  The individual was categorized as a family member.

4.  In a DA Form 3975, the Law Enforcement Division Chief, reported the following:

	a.  On 6 December 2008, at 0353 hours, that station was notified by 911 dispatch of a "physical domestic" in progress at quarters.  Upon arrival, contact was made with Y. J____ who stated she and K. J____ (applicant) were involved in a verbal altercation which turned physical when K. J____ placed his hands around her neck.  She then struck K. J____ in the back of head with a ceramic coffee mug.  K. J____ then left the quarters and proceeded to the hospital where he was treated for a laceration to his head.

	b.  Y. J____ became disorderly by disregarding the military police's (MP) order to remain downstairs to wait arrival of MP investigators.  She refused and proceeded up the stairs stating, "You are not cops, you can't tell me what to do."  Upon arrival of Unit 8-1, she was apprehended and transported to the station where she was advised of her legal rights – which she invoked, requesting a lawyer.  She did not sustain any apparent injuries and did not request medical treatment.  She was further processed, issued two DD Forms 1805 (Violation Notice), a 72-hour no-contact order, and released on her own recognizance on a DD Form 2708 (Receipt for Inmate or Detained Person).

	c.  K. J____ was released from the hospital and transported to the station where he was advised of his legal rights – which he waived, rendering a written sworn statement detailing the incident.  He was further processed, issued a 
72-hour no-contact order, and released to his unit on a DD Form 2708.  Alcohol was not a contributing factor in the incident.  K. J____ had not been deployed in the past 12 months.

	d.  Staff Judge Advocate Captain (CPT) N____ was contacted and briefed on all aspects of the investigation.  CPT N____ opined that sufficient evidence existed to title Y. J____ with simple assault and K. J____ with assault.

	e.  K. J____ was referred to family advocacy and given a written reprimand (filed locally).  He also received a warning letter from the garrison commander's office stating he could be evicted from post housing.  Mrs. Y. J____ refused to sign the garrison commander's 's warning letter because she said she did nothing wrong and because she was a civilian, the military could not make her move.  K. J____ was required by the company commander to attend the Violence Management Program for men until further notice and to participate in individual counseling sessions.  He was given an adverse counseling and a letter of concern.

	f.  On 21 May 2009, Y. J_____ appeared before the U.S. Magistrate District Court Knox, KY, and the charges of simple assault and disorderly conduct were dismissed without prejudice for 6 months.  She was placed on pretrial diversion.

5.  Page 2 of a DA Form 4833 reiterates the statements on the DA Form 3975 pertaining to the disposition of the case.

6.  He was issued an annual NCOER for his duties as an instructor/writer in the Bradley Fighting Vehicle System Maintainer Course.  The report was for the period 1 June 2008 through 31 May 2009.  His rater was a sergeant first class (SFC) instructor/writer, his SR was an SFC training management NCO, and his reviewer was a YC02 (GS-12) training specialist supervisor.  The NCOER shows in:

	a.  Part III(f) (Duty Description – Counseling Dates):

* Initial – 1 August 2008
* Later – 28 November 2008
* Later – 27 February 2009
* Later – 26 May 2009

	b.  Part IV (Army Values/Attributes/Skills/Actions), section a (Army Values), the rater placed an "X" in the "Yes" blocks of Loyalty, Duty, Selfless-Service, and Personal Courage.  The rater placed an "X" in the "No" blocks of Respect/Equal Opportunity (EO)/Equal Employment Opportunity (EEO), Honor, and Integrity.  The rater entered the following comments:

* "received a Commander's Report of Disciplinary as [sic] Administrative Action for spousal abuse"
* "accomplished all missions"
* "treated all Soldiers and peers with respect"

	c.  Part IV (Values/NCO Responsibilities), section b (Competence), the rater placed an "X" in the "Success" block;

	d.  Part IV, section c (Physical Fitness & Military Bearing), the rater placed an "X" in the "Excellence" block;

	e.  Part IV, section d (Leadership), the rater placed an "X" in the "Success" block;

	f.  Part IV, section e (Training), the rater placed an "X" in the "Success" block;

	g.  Part IV, f (Responsibility & Accountability), the rater placed an "X" in the "Needs Much Improvement" block and entered the following comments:

* "received a Commander's Report of Disciplinary or Administrative Action for spousal abuse; required to attend the Violence Management Program for men"
* "maintained the serviceability and accountability of training aids, general mechanics tools, and Test Management and Diagnostic Equipment valued at over $2 million"

	h.  Part V (Overall Performance and Potential), sections a and b (Rater), the rater placed an "X" in the "Marginal" block.  The rater commented that the applicant could best serve the Army at his current grade or next higher grade as a Maintenance Shop Foreman, Instructor, or Recovery NCO;

	i.  Part V, section c (SR – Overall Performance) and in Part V, section d (SR – Overall Potential), the SR gave a rating of "Fair" and placed an "X" in the "4" block for the applicant's overall performance and a rating of "Fair" and placed an "X" in the "4" block for the applicant's overall potential for promotion and/or service in positions of greater responsibility; and 

	j.  Part V, section e (SR Bullet Comments), the SR entered the following comments:

* "select for promotion after peers"
* "send to SLC [Senior Leaders Course] when slots are available"
* "performed well on duty with minimal supervision; lacks the ability to perform duties respectively as a Soldier while off duty"
* "this NCO is not ready for more responsibility at this time; retain at current rank"

7.  The NCOER was digitally signed by his rater and SR on 19 June 2009.  It was signed by the reviewer and the applicant on 22 June 2009.  The reviewer marked the "Concur with rater and SR evaluations" block.

8.  He was discharged on 17 December 2012.

9.  Army Regulation 623-3 establishes the policies and procedures for the preparation and submission of NCOER's for corporals through command sergeants major.

	a.  Paragraph 1-18 states the Evaluation Reporting System (ERS) encompasses the means and methods needed for developing people and leaders.  An effective ERS involves the execution of leadership, the establishment of a rating relationship with personal interaction, the conduct of developmental counseling and reviews, and the determination of critical assessments.  The Army routinely reviews the ERS to ensure that it remains relevant and in support of its goals.

	b.  Paragraph 3-18 states appropriate bullet comments are required for NCOER's.

	c.  Paragraph 3-19 states no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  If the rated Soldier is absolved, comments about the incident will not be included in the evaluation.  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 AHMRR such as:  (1) charges that are later dropped and (2) charges or incidents of which the rated Soldier may later be absolved.

	d.  Paragraph 3-19(2)d states any verified derogatory information may be entered on an evaluation report.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's reference to verified derogatory information.

	e.  Paragraph 4-6 states alleged error, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's attention by the rated individual.  If the commander finds no fault with the evaluation, then the Commander's Inquiry is filed locally and a copy is given to the rated individual.

	f.  Paragraph 4-7 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.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must 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.

10.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policy for access to the interactive Personnel Electronic Records Management System and the AMHRR, formerly known as the Official Military Personnel File.  Paragraph 2-4 states that once a document is placed in 

the AMHRR 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 proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request was carefully considered; however, he has not shown that the contested NCOER contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  The report appears to represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the period in question.

2.  He has not provided convincing evidence that this NCOER was unjust, in whole or in part, to support removal from his record.  There is no substantive evidence of record and he has provided none to show the contested report is incorrect, inaccurate, or biased.  There is an insufficient evidentiary basis for deleting the report from his AHMRR or transferring it to the restricted fiche.

3.  Further, there is no evidence of record and none has been provided to show the marks chosen and the comments rendered by his rater and SR on the contested NCOER are inaccurate, unjust, or biased.  While the investigation may not have been complete, the derogatory information mentioned in the contested bullet comments had been verified.  In accordance with regulatory guidance, references to verified derogatory information may be mentioned in an evaluation. Therefore, he is also not entitled to their deletion from this report.

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 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)                                         AR20120018537



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ABCMR Record of Proceedings (cont)                                         AR20120018537



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