BOARD DATE:	21 May 2013  

		DOCKET NUMBER:  AR20130003912 


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 that a Relief for Cause (RFC) Noncommissioned Officer Evaluation Report (NCOER) for the period 1 February 2009 – 15 July 2009 be removed from his file and his file be placed before a Standby Advisory Board (STAB) for promotion to master sergeant (E-8).

2.  The applicant states that in July 2009 a fabricated or falsified RFC NCOER was annotated in his Official Military Personnel File (OMPF) (currently known as the Army Military Human Resource Record (AMHRR) file).  That same year he was placed on the Qualitative Management Program (QMP) list after his rebuttal to the NCOER was returned without action.  He submitted a memorandum from one of the officers along with character and performance statements to the QMP board.  These documents removed him from the QMP list with a letter stating he was to be retained on active duty.  However, the RFC NCOER is still in his AMHRR files but the letter of retention is not.  He believes the falsified RFC NCOER is the reason why he did not make any of the E-8 promotion boards and was denied assignments he requested.  An investigation into the false accusations in his RFC NCOER was not conducted to determine whether or not the actions did in fact take place.

3.  The applicant provides copies of the RFC NCOER, a 24-page packet related to his NCOER appeal, four documents related to his QMP processing, and a Letter of Appreciation.



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.  The applicant, a retired sergeant first class, enlisted in the Regular Army on 20 November 1990 and served continuously until 30 April 2013 when he retired based on longevity. 

3.  He had served for 16 years and 9 months in military occupational specialty 13F (Fire Support Specialist) and then for 5 years and 3 months as a 35M (Human Intelligence Collector).  

4.  His NCOER (for the period ending 31 January 2009) after transferring to the Military Intelligence branch shows his rater marked him in the exceeds standards or meets standards block and overall as fully qualified.  His senior rater marked his overall performance as middle block successful and his overall potential in the top block.  His NCOER's following the 2009 RFC NCOER are similar to the January 2009 NCOER.

5.  The applicant received a RFC NCOER for the period ending 15 July 2009.  It provides the following at:

	a.  Part IIIc (Daily Duties) - he was serving as Platoon Sergeant and Operational Management Team (OMT) Noncommissioned Officer in Charge (NCOIC) for a forward deployed Tactical Human Intelligence (HUMINT) Company in a Battlefield Surveillance Brigade (BfSB) supporting the Multi-National Corps - Iraq;

	b.  Part IVa - Army Values; he was marked NO for loyalty, duty, selfless-service, honor, and integrity with the bullet comments:

* failed to display courtesy, loyalty, or respect to chain of command and unit
* conducted himself in a manner which caused others to question his honesty and integrity
* did not set a good example through his actions, for junior leaders to emulate

	c.  Part IVb – Competence, he was marked in the lowest block Needs Improvement (Much) with the bullet comments of:

* failed to understand the role or the legal aspects of HUMINT which led to violations of HUMINT procedures in a deployed environment
* failed to present the technical and tactical leadership required to effectively manage a HUMINT Collection Team leading to supported unit losing confidence in his team
* shifted blame for mistakes and mishaps on others; never fully accepted responsibility for his actions or his mission

	d.  Part IVd – Leadership, he was marked in the lowest block Needs Improvement (Much) with the bullet comments of:

* relieved of his duties as a Platoon Sergeant during OIF 09-11; lost trust and confidence of his Soldiers and Command
* displayed poor decision making in his actions and conduct; resulted in his Soldiers questioning his guidance and orders
* failed to properly mentor subordinates due to his inability to adhere to basic Army Values and leadership principle

	e.  Part IVf - Responsibility and Accountability, he was marked in the lowest block Needs Improvement (Much) with the bullet comments of:

* the rated NCO has been notified of the reason for the relief
* failed to properly report a Commanders Critical Information requirement through his chain of command in a timely manner; resulted in the loss of a company vehicle

	f.  Part V - Overall Performance and Potential, his rater marked him as marginal and his senior rater as fair with the bullet comments of:

* do not promote to Master Sergeant; retain in current grade for further development
* send to ANCOC once further leadership development has been completed
* does not currently have the potential to become an effective leader

6.  The applicant appealed the RFC NCOER on 24 October 2009.
7.  On 13 May 2010, the Army Special Review Board (ASRB) administratively closed the appeal and returned it to the applicant without action.  It was determined that the applicant had not provided evidence of a clear and convincing nature in support of his allegations of substantive inaccuracies in the RFC NCOER and he provided only self-authored statements in support of his contentions of several unproven derogatory statements.

8.  The applicant's file was reviewed under the QMP process with a determination commencing in November 2010.  In March 2011 the QMP board recommended the applicant be retained and allowed to remain on active duty until his retention control point unless separated under another regulation.

9.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and tasks for the Evaluation Reporting System.  It provides the following:

	a.  An evaluation report accepted by Headquarters, Department of the Army and included in the official record of an officer is presumed to be administratively correct; have been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. 

	b.  The burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) 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 or 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.

	c.  Appeals of contested OER's must be submitted within 3 years of the thru date of the OER.

10.  Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  This regulation or any part of it may be made applicable to investigations or boards that are authorized by another directive, but only by specific provision in that directive or in the memorandum of appointment.  In case of a conflict between the provisions of this regulation, when made applicable, and the provisions of the specific directive authorizing the investigation or board, the latter will govern.  Even when not 
specifically made applicable, this regulation may be used as a general guide for investigations or boards authorized by another directive, but in that case its provisions are not mandatory. 

DISCUSSION AND CONCLUSIONS:

1.  Neither a formal nor an informal investigation was or is mandated by any regulation to justify an RFC NCOER.  Therefore, the applicant's contention that this case requires an investigation, in accordance with Army Regulation 15-6, is without merit.  

2.  The comments set forth in RFC NCOER are the opinions and judgment of the rating officials at the time of its preparation.  The applicant has not provided and the record does not contain any clear and convincing evidence that the RFC NCOER contains any material errors, inaccuracies, or injustices.  

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)                                         AR20130003912



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ABCMR Record of Proceedings (cont)                                         AR20130003912



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