IN THE CASE OF:	  

		BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20130005855 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's DA Form 2166-6 (Noncommissioned Officer Evaluation Report (NCOER)) for the period of 31 August 2009 through 1 May 2010 (hereinafter referred to as the contested NCOER) be removed in its entirety from his Army Military Human Resource Record (AMHRR).  

2.  In the alternative, counsel requests the below-specified comments and conclusions which contain unproven derogatory information related to actions and/or investigations that had not been processed to completion, adjudicated or had final action taken, be redacted from the evaluation and his AMHRR.

	a.  Part IVa. (Army Values), "No" entries in items a(4) through a(7), Selfless-Service, Honor, Integrity, and Personal Courage; and the bullet comments "demonstrates a serious lack of integrity, legally and morally failed as an NCO, and was indicted for criminal charges by the Japanese Government" and "departed the scene of a crime resulting in a major international incident with significant strategic implications."

	b.  Part IVb. (Rater - Values/NCO Responsibilities - Competence), the "Needs Much Improvement" box check and the bullet "failed to report to his Chain of Command a vehicle accident he committed which resulted in the death of a local Okinawan National."
	c.  Part IVf (Responsibility and Accountability) the "Needs Much Improvement" box check and the bullet "wrongfully appropriated two vehicles; failed to take responsibility for personal actions resulting in vehicular manslaughter charges from the Japanese Government."

	d.  Part Va (Rater - Overall potential for promotion and/or service in positions of greater responsibility), the "Marginal" box check. 

	e.  Part Vc (Senior Rater - Overall performance), the box check "Fair." 

	f.  Part Vd (Senior Rater - Overall potential for promotion and/or service in positions of greater responsibility), the box check "Fair."

	g.  Part Ve (Senior Rater Bullet Comments), the bullet comments "do not promote" and "do not assign to positions of higher responsibility."

2.  Counsel states the contested NCOER is erroneous and unjust because it includes unproven derogatory information.  The inclusion of unproven derogatory information may adversely affect retention, promotion, selection for military schools, future assignments, and violates Army Regulation 623-3 (Evaluation Reporting System).  The following facts are relevant:

	a.  On 7 November 2009, the applicant was involved in a car accident.  While returning home in the dark along an unlit section of road, the applicant thought he struck something.  He stopped and got out of the car.  Not finding anything, he drove home.  He returned to the area when it was light to further investigate, and found no signs of an accident; as such, he took the car into a local auto repair shop.  The applicant was unaware he hit a pedestrian who was out walking along the road, dressed in dark clothes, and wearing headphones.  The body was found later that day in the dense vegetation along the side of the road.  

	b.  An investigation by the Japanese police ensued and focused directly on the applicant.  His command was immediately aware of the investigation.  The applicant met with the police several times during the course of the investigation. This investigation concluded with the issuance of an indictment.  There was no independent investigation conducted by the Army or Department of Defense. 

	c.  The applicant signed the contested NCOER on 13 May 2010.  This is the date for notice of wrongs for purposes of this petition.  

	d.  The applicant was convicted of the charges and sentenced in the Japanese case on 15 October 2010.  
	e.  The subsequent NCOER for the period 1 May 2010 through 30 April 2011 was completed during October 2011.  

3.  Counsel furthers states that paragraph 3-19 of Army Regulation 623-3, dated 5 June 2012, discusses unproven derogatory information being placed in evaluation reports.  Paragraph 3-19a states "no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier" and paragraph 3-19b provides that references will be made only to actions or investigations that have been processed to completion, adjudicated and had final action taken before submitting an evaluation report to Headquarters, Department of the Army (HQDA).  This subparagraph does allow rating officials to comment on a court-martial if it has been completed.

4.  Counsel further states that unproven derogatory information has no factual basis for the rating officials to consider, and is therefore improper.  At best, this information spawns from a secret and independent investigation conducted by the Japanese police without any involvement from the command.  The challenged comments and conclusions relate to actions and/or investigations that had not been processed to completion, adjudicated and had final action taken which is in violation of Army Regulation 623-3.  The following comments and conclusions constitute unproven derogatory information that was erroneously and unjustly included in the contested NCOER:

	a.  The bullet comments in Part IVa are merely superfluous comments about the unfortunate accident.  The applicant thought he hit an object in the road and took reasonable steps to investigate what happened.  Lieutenant Colonel (LTC) BJS (U.S. Military Trial Observer/Staff Judge Advocate (SJA)) expressly acknowledged the applicant's explanation was plausible, and that "leaving the scene without knowing what [he hit] is likely for most people."  Both the applicant and his command found out about the investigation at the same time.  The applicant cooperated in the investigation consistent with his legal rights under Japanese law and with the full knowledge of his command.  This was a tragic accident for all; but does not reflect moral failure of an NCO.  Even under U.S. law, the issuance of an indictment has no adverse legal meaning.  It merely means that you are being charged with a crime.  Because of the political climate in Okinawa and the general public's dislike of U.S. military forces in their country, any incident occurring in that area at the time would have created a "major international incident."  Each of these comments addresses actions and/or investigations which had not been processed to completion, adjudicated and had final action taken which is in violation of Army Regulation 623-3.

	b.  The boxes checked "No" in Part IVa are based entirely on the inappropriate bullet comments in Part IVa.  Each of these bullet comments relates to and/or addresses actions and/or investigations that had not been processed to completion, adjudicated and had final action taken which is in violation of Army Regulation 623-3.

	c.  The bullet comments challenged in Part IVb are an extenuation from the challenged bullet comments in Part IVa.  The applicant thought he hit an object in the road.  He investigated this belief and found nothing to suggest that what he hit was a body.  He had no obligation to report a simple accident to his command.  Both the applicant and the command found out about the criminal investigation virtually at the same time, and he readily admitted to having been involved in accident in the area where the body was found.  These comments address actions and/or investigations that had not been processed to completion, adjudicated and had final action taken which is in violation of Army Regulation 623-3.

	d.  The bullet comments challenged in Part IVf are completely improper for numerous reasons.  There is absolutely nothing that the raters can use to justify the assertion that the applicant wrongfully appropriated two vehicles.  Furthermore, the bullet comments challenged in Part IVf distort the truth regarding the applicant's efforts to take responsibility for his actions.  In LTC BJS's letter, he specifically acknowledges the applicant's numerous attempts to settle with (take responsibility) and offer his condolences to the aggrieved family. In his own assessment, LTC BJS states that the family will not see that this was an accident which to some degree was caused by the decedent's own conduct and will not accept apologies from the applicant because he is an American.  For his own command to criticize him under these facts is completely unjust.  This is clearly unproven derogatory information and is why Army regulations prohibit inclusion of this type of material in a personal evaluation.  It smears the applicant's name and creates a permanent blemish on his record with virtually no recourse unless it is removed through this petition.  Ultimately, the bullet comments in Part IVf address actions and/or investigations that had not been processed to completion, adjudicated and had final action taken which is in violation of Army Regulation 623-3.

	e.  The challenged box checked in Part IVf is based entirely on the inappropriate bullet comments and box checks in Part IVa through Part IVf (bullet comments).  This box check relates to and/or addresses actions and/or investigations that had not been processed to completion, adjudicated and had final action taken which is in violation of Army Regulation 623-3.

	f.  The challenged boxes checked in Part Va, Part Vb, and Part Vd are based entirely on the inappropriate bullets and box checks in Part IVa through Part IVf.  Each of these bullets and box checks relates to and/or addresses actions and/or investigations that had not been processed to completion, adjudicated and had final action taken which is in violation of Army Regulation 623-3.

	g.  The challenged bullet comments in Part Ve are based entirely on the inappropriate comments and conclusions in Part IVa through Part Vdf.  Each of these bullets and box checks relates to and/or addresses actions and/or investigations that had not been processed to completion, adjudicated and had final action taken which is in violation of Army Regulation 623-3.

5.  Counsel further states that the issuance of an indictment by the Japanese in this case is still an insufficient investigation to allow these comments and conclusions to be included in the applicant's NCOER.  As indicated by LTC BJS, this was a highly-politicized situation that was also racially motivated.  At one extreme, the accident was being used as leverage to shape high-level political discussions about the U.S. military presence in Okinawa and at the other, to extract money from the applicant's family to keep this case from going to trial.

	a.  The raters had no legitimate reason to trust the information that they may have been made privy to.  The majority of the unproven derogatory information contained in the contested NCOER is contradicted by LTC BJS who was the Command's SJA.  He writes in his email that this was clearly an accident and that the applicant's story that he did not know a person had been struck was plausible once emotion was removed.  He specifically encouraged the family to continue fighting this matter and to aggressively pursue resolution of this situation in the courts.

	b.  The irony of this whole situation and proof that the comments and conclusions set forth in the contested NCOER were not an accurate assessment of the applicant's performance during the rating period is the subsequent NCOER he was given.  The subsequent NCOER, for the period 1 May 2010 through 
3 April 2011, is a glowing report that was written after the true facts of the situation came to light through a trial and verdict in the judicial process.  Although the process did not acquit the applicant, it shed a true and unbiased light on what really happened on 7 November 2009.  The facts that were exposed by the applicant's defense caused his command to see that this was a horrible accident with no malicious intent.  Indeed, the NCOER that was completed following the applicant's trial gave the applicant the highest marks in virtually all areas of review; recommended that he be promoted ahead of his peers; and concluded that the applicant has "unlimited potential for promotion and increased responsibility."

6.  Counsel provides:

* Letter, dated 21 March 2013
* Memorandum, dated 21 March 2013
* Contested NCOER
* General Power of Attorney, dated 21 October 2010
* Email, dated 1 March 2011
* Court document, dated 15 October 2010
* NCOER for the period ending on 30 April 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 March 2006 and has served through one extension.  He currently holds military occupational specialty (MOS) 18D (Special Forces Medical Sergeant) and the rank/grade of staff sergeant/E-6.

2.  His records contain an NCOER for the period 2 May 2008 through 30 August 2009 which shows in Part Iva items 1-7 that each block has been checked "Yes," indicating he positively displayed all the Army values.  Additionally, his rater in Part Va checked a box indicating he was among the best and his senior rater in Part Vc through Vd checked the boxes marked "1," indicating his overall performance was successful and his overall potential superior.

3.  On 7 November 2009, the applicant was involved in a single-car accident which resulted in his striking and killing an Okinawan local national with his vehicle.  The full facts and details of investigations conducted by the Japanese government or the U.S. Army are not available for review in this case.  Additionally, other than the contested NCOER, his military record is void of this incident.

4.  The contested NCOER for the period 31 August 2009 through 1 May 2010 shows in:

	a.  Part IVa (Army Values), items 1-7:

* Loyalty - Bears true faith and allegiance to the U.S. Constitution, the Army, the unit, and other Soldiers - box checked "Yes"
* Duty - Fulfills their obligations - box checked "Yes"
* Respect/EO/EEO - Treats people as they should be treated - box checked "Yes"
* Selfless-Service - Puts the welfare of the nation, the Army, and subordinates before their own - box checked "No" 
* Honor - Lives up to all the Army values - box checked "No"
* Integrity - Does what is right - legally and morally - box checked "No"
* Personal Courage - Faces fear, danger, or adversity (physical and moral) - box checked "No" 

	b.  The rater entered the bullets "demonstrates a serious lack of integrity, legally and morally failed as an NCO, and was indicted for criminal charges by the Japanese Government" and "departed the scene of a crime resulting in a major international incident with significant strategic implications."

	c.  Part IVb (Rater - Values/NCO Responsibilities - Competence), the rater box checked the "Needs Much Improvement" and entered the following bullet comments:

* failed to report to his Chain of Command a vehicle accident he committed which resulted in the death of a local Okinawan National
* graduated Ranger school with a first time go in all phases
* graduated Special Operations Combat Medical Sergeants Sustainment Course (SOCMSS-C)

	d.  Part IVc (Physical Fitness and Military Bearing), box checked "Excellence."

	e.  Part IVd (Leadership), box checked "Success."

	f.  Part IVe (Training), box checked "Success."

	g.  Part IVf (Responsibility and Accountability), the rater box checked the "Needs Much Improvement" and entered the following bullet comments:

* wrongfully appropriated two vehicles; failed to take responsibility for personal actions resulting in vehicular manslaughter charges from the Japanese Government
* maintained 100% accountability of all medical equipment through a company change of command
* dedicated, hard working individual who shows his attention to detail through the [incomplete sentence]

	h.  Part Va (Rater - Overall potential for promotion and/or service in positions of greater responsibility), the rater box checked "Marginal." 

	i.  Part Vc (Senior Rater - Overall performance) and Part Vd (Senior Rater - Overall potential for promotion and/or service in positions of greater responsibility), the senior rater box checked "Fair" and entered the following bullets in Part Ve (Senior Rater Bullet Comments) - "do not promote," "do not assign to positions of higher responsibility," and "satisfactory performance as a Special Forces Sergeant."

5.  His records contain an NCOER for the period 1 May 2010 through 30 April 2011 which shows in Part IVa, items 1-7 that each block has been checked "Yes," indicating he positively displayed all the Army values.  Additionally, his rater in Part Va checked a box indicating he was among the best and his senior rater in Part Vc-d checked the boxes marked "1," indicating his overall performance was successful and his overall potential superior.

6.  Due to the absence of official documents related to the case, the information that follows is a brief compilation of purported facts pulled from newspaper articles discussing the incident triggering the applicant’s receipt of an adverse NCOER.  It appears that on 7 November 2009, the applicant struck an elderly Okinawan pedestrian who was out for a pre-dawn walk.  The applicant did not stay at the scene.  The victim’s body was discovered in bushes along the roadway some twelve hours after the accident.  An autopsy revealed the cause of death was a broken neck.  The applicant was arrested after taking his vehicle to an automobile repair shop with front end damage, a dented hood, and a cracked windshield.  DNA testing revealed blood and hair samples belonging to the victim matched those found on the applicant’s vehicle.  On 7 January 2010, Japanese authorities formally charged applicant with vehicular manslaughter and leaving the scene of an accident.  On 26 February 2010, he pled not guilty.  On 
15 October 2010, he was found guilty of all charges and sentenced to two years and eight months confinement at hard labor.  He was given forty days of pre-trial confinement credit.  

7.  Counsel provided an email from LTC BJS to the applicant's parents, dated 
1 March 2011, wherein LTC BJS stated:

	a.  The Japanese prosecuting attorney and (allegedly) the victim's family did not want to settle if it would reduce the sentence and the applicant's parents did not want to settle unless the applicant was reasonably assured he would not go to jail.

	b.  This issue was complicated because the plaintiffs/complainants wanted the applicant to say something he could not say without contradicting or even perjuring his testimony in his criminal trial.

	c.  In Japan, a settlement buys off prosecution in the pre-conviction period.  However, there were not enough recorded cases of settlements buying off the prosecution post-conviction to emphatically state the tendency was universally true.  The point of a settlement is for the victim to acknowledge the wrong has been righted.  When this happens the prosecutors decide justice was done and their services are no longer needed.  A key component in such a settlement is the apology, wherein the accused, whether wholly true or not, expresses their wrongdoing and accepts all fault.  Unfortunately, in the applicant's case, the victim's family did not think he was remorseful because he could not admit to what they wanted him to say.

	d.  LTC BJS could not understand why the victim's family was intent upon showing the victim's innocence or so enraged by the defending attorney indicating the victim was partially at fault.  The victim was dressed in dark clothes, on a dark unlit road, and wearing headphones at the time.  Whether the victim was in the traffic lane or on the shoulder, the family has failed to accept the victim's role in the accident.

	e.  The Community Relations Officer informed the chain of command that on or around 8 November 2009, the victim's family initially stated, "Oh, we told Grandpa not to go walking at that time of the day, but if it was an American, it is unforgiveable."  This shows the victim's family recognized even before the accident that Grandpa was engaging in risky conduct.  The family knew there were dangers to walking in the dark.  The second sentence also suggested their intransigence was biased and racially motivated.

	f.  Based on the available information, LTC BJS opined the best course of action would be for the defense attorney to press the civil court for direct settlement negotiations.  The court could mediate the family into realizing the applicant had already expressed his regrets and apologies.  LTC BJS was unsure of how forceful the court could be, but stated he knew they had the ability to dismiss the lawsuit and, therefore, might be able to force the family into deciding whether or not they wanted to accept a cash settlement or prosecute.  

	g.  The defense attorney's appeal made the fundamental point that if the applicant hit the victim on the edge of the road, he could not have stopped his car.  If the car was in the grass and bushes at that speed, it definitely would have lost traction when the brakes were applied.  Common sense indicated the car would have been wrecked and wound up in the bushes itself if the accident occurred where the prosecution says it did.  It was much more plausible that the accident occurred in the roadway rather than on the edge of the road.  As such, the accident would have been unavoidable due to the combination of things outside the applicant's control.  

	h.  The applicant's story was plausible when the emotional reaction was removed.  Given the fact that it was pitch dark and there was no trace of what was hit, it is likely a person would leave the scene without knowing what was hit. Further, most people would not wait until daylight and come back to check the scene for the object they struck.  Due to a cultural difference, Okinawan citizens cannot imagine a scenario where an individual has major vehicular damage but cannot find the cause, and unfortunately, most Okinawan judges fall into this category.  

	i.  LTC BJS opined the aggressive defense of the lawsuit and the aggressive defense of the appeal would communicate to the family that they should start being reasonable in their appraisal of Grandpa's level of responsibility and in their settlement demands.

8.  Counsel provided what appears to be a court document, dated 15 October 2010, and shows the judge ordered the defendant to stand and face him while he delivered the verdict.  The judge announced that the defendant had been found guilty of all charges and was sentenced to imprisonment at forced labor for a period of 2 years and 8 months and that 40 days of forced labor would be deducted from the sentence for time previously served.  The judge stated that no court fees would be assessed.

9.  The Army has seven core values: Loyalty, Duty, Respect, Selfless Service, Honor, Integrity, and Personal Courage, known as "LDRSHIP" where each letter denotes one of these seven values.  Soldiers learn these values in detail during basic combat training and from then on, they are expected to live them every day in everything they do, whether they are on or off duty. 

	a.  Loyalty - Bear true faith and allegiance to the U.S. Constitution, the Army, the unit, and other Soldiers.  Bearing true faith and allegiance is a matter of believing in and being devoted to something or someone.  A loyal Soldier supports the leadership and stands up for fellow Soldiers.  By wearing the uniform of the U.S. Army Soldiers express their loyalty.  And by doing their share, they show their loyalty to their unit.

	b.  Duty - Fulfill obligations.  Doing one’s duty means more than carrying out assigned tasks.  Duty means being able to accomplish tasks as part of a team.  The work of the U.S. Army is a complex combination of missions and tasks.  A Soldier's work entails building one assignment onto another.  Soldiers fulfill their obligations as a part of their unit every time they resist the temptation to take "shortcuts" that might undermine the integrity of the final product.

	c.  Respect - Treat people as they should be treated.  In the Soldier’s Code, Soldiers pledge to “treat others with dignity and respect while expecting others to do the same.”  Respect is what allows individuals to appreciate the best in other people.  Respect is trusting that all people have done their jobs and fulfilled their duty.  And self-respect is a vital ingredient with the Army value of respect, which results from a Soldier knowing they have put forth their best effort.  The Army is one team and each member has something to contribute.

	d.  Selfless Service - Putting the welfare of the nation, the Army, and subordinates before one's own welfare.  Selfless service is larger than just one person.  In serving one’s country, Soldiers must do their duty loyally without thought of recognition or gain.  The basic building block of selfless service is the commitment of each team member to go a little further, endure a little longer, and look a little closer to see how he or she can add to the effort.

	e.  Honor - Live up to Army values.  Soldiers who make honor a matter of daily living, develop the habit of being honorable, and solidify that habit with every value choice they make.  Honor is a matter of carrying out, acting, and living the values of LDRSHIP in every facet of life.

	f.  Integrity - Do what’s right, legally and morally.  Integrity is a quality Soldiers develop by adhering to moral principles.  It requires that Soldiers do and say nothing that deceives others.  As a Soldier's integrity grows, so does the trust others place in them.  The more choices a Soldier makes based on integrity, the more this highly-prized value will affect his or her relationships with family and friends, and finally, the fundamental acceptance of themselves.

	g.  Personal Courage - Face fear, danger or adversity (physical or moral). Personal courage has long been associated with the Army.  With physical courage, it is a matter of enduring physical duress and at times risking personal safety.  Facing moral fear or adversity may be a long, slow process of continuing forward on the right path, especially if taking those actions is not popular with others.  Soldiers can build personal courage by daily standing up for and acting upon the things that they know are honorable.

10.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS). 

	a.  Paragraph 1-9 states evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or NCO corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in Department of the Army Pamphlet 623–3 (ERS). Consideration will be given to the relative experience of the rated officer or NCO, the efforts made by the rated officer or NCO, and the results that could be reasonably expected given the time and resources available.  Potential evaluations will be performance-based assessments of the rated officers or NCOs of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for HQDA.

	b.  Paragraph 3-16 (Evaluation parameters) states rating officials’ evaluation of a rated Soldier will be limited to the dates included in the rating period of an evaluation report.  Each evaluation report will be an individual stand-alone evaluation of the rated Soldier for a specific rating period.  A report will not refer to performance or incidents occurring before or after the period covered or during periods of nonrated time.  The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, a finding of guilt, or the completion of an investigation. 

	c.  Paragraph 3-19 (Unproven derogatory information) states any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded.  No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to HQDA.  For example, rating officials are not prohibited from commenting on a court-martial (judicial), if completed, but the comments should focus on the behavior that led to the court-martial rather than the court-martial itself.  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 AMHRR, such as charges that are later dropped and/or charges or incidents of which the rated Soldier may later be absolved.  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.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an NCOER.  

	d.  Paragraph 3-25 (Evaluation of adverse actions) states adverse actions encompass a variety of situations that are not in accordance with the Army Values, acceptable leadership actions, skills, attributes, and/or good order and discipline, which need to be addressed appropriately in evaluation reports.  The following are a few of the items which may be mentioned in a Soldier’s evaluation report, when substantiated by a completed command or other official investigation by official military or civil authorities. 

* Criminal acts
* Conviction of a driving under the influence charge
* Inappropriate or unprofessional personal relationships
* Acts of reprisal
* Behavior that is inconsistent or detrimental to good order, conduct, and discipline

	e.  Paragraph 6-11a states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3–39 and 6–7 will not be applied to the report under consideration, and action is warranted to correct a material error, inaccuracy, or injustice.  The evidence presented must be of a clear and convincing, and compelling nature, not merely proof of the possibility of 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.

	f.  Paragraph 6-11d states that for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer 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 allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  The results of a Commander’s or Commandant’s Inquiry may provide support for an appeal request.

11.  Department of the Army Pamphlet 623-3 outlines the procedures, tasks, and steps pertaining to the completion of each evaluation report.  

	a.  Paragraph 3-7 states Army Values/NCO Responsibilities is completed by the rater.  Part IVa. contains a listing of the Army values that define professionalism for the Army NCO.  These Army values are needed to maintain public trust and confidence as well as the qualities of leadership and management needed to maintain an effective NCO Corps.  Table 3-4 states the rater will check either a "yes" or "no" in the values block.  Mandatory specific bullet comments are required for all "no" entries.  Base each entry on whether the rated NCO "meets" or "does not meet" the standard for each particular value. Quantitative and substantiated bullet comments are used to explain any area where rated NCO is particularly strong or needs improvement.

	b.  Table 3-4 states that in items IVb-IVf (Values/NCO Responsibilities) the rater must check one of three blocks.  For an "Excellence" block check the NCO must exceed standards by demonstrating by specific examples and measurable results; special and unusual feats achieved by only a few; and that they are clearly better than most others.  For a "Success" rating, the NCO must meet all standards and must be fully competitive for schooling and promotion.  The "Needs improvement" block is used for NCOs who missed meeting some standard(s).

	c.  Table 3-5, part Va states the rater must check one of three blocks.  The "Among the best" block will be used for NCOs who demonstrated a very good, solid performance and a strong recommendation for promotion and/or service in positions of greater responsibility.  The "Fully capable" block will be used for NCOs who have demonstrated a good performance and strong recommendation for promotion should sufficient if allocations are available.  The "Marginal" block will be used for NCOs who demonstrated poor performance and should not be promoted at this time.

	d.  Table 3-5, part Vc states the senior rater evaluates the overall potential by placing one "X" in the appropriate box.  The senior rater's box marks are independent of the rater's.  There is no specific box mark ratings required of the senior rater based on box marks made by the rater.  The following definitions will be used when completing Part Vd: "Successful/superior" number "1" rating represents the cream of the crop and is a recommendation for immediate promotion.  A number "2" rating represents a very good, solid performance and is a strong recommendation for promotion.  A number "3" rating also represents a good performance and, should sufficient allocations be available, is a recommendation for promotion.  A "Fair" number "4" rating represents NCOs who may require additional training/observation and should not be promoted at this time.  A "Poor" number "5" rating represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas. 
	e.  Table 3-5, part Vd states the senior rater rates the overall potential for promotion and/or service in positions of greater responsibility by placing one "X" in the appropriate box.  The senior rater's box marks are independent of the rater's.  There is no specific box mark ratings required of the senior rater based on box marks made by the rater.  The following definitions will be used when completing Part Vd: "Successful/superior" number "1" rating represents the cream of the crop and is a recommendation for immediate promotion.  A number "2" rating represents a very good, solid performance and is a strong recommendation for promotion.  A number "3" rating also represents a good performance and, should sufficient allocations be available, is a recommendation for promotion.  A "Fair" number "4" rating represents NCOs who may require additional training/observation and should not be promoted at this time.  A "Poor" number "5" rating represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas. 

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the contested NCOER is erroneous and unjust because it includes unproven derogatory information and makes references to an incomplete investigation.

2.  It appears the applicant’s version of events throughout the pendency of the investigation and trial, and now before this Board, is that he was not responsible for the accident and that he breached no duty of care owed the pedestrian.  Rather, it was the negligence of the victim who chose to walk in the dark, wearing dark clothes, and listening to headphones that caused the accident.  He did not fail to inform his chain of command of the accident.  They just found out from the Japanese authorities before he could tell them.  Had he realized he struck a pedestrian he would never have left the scene and he would have reported the accident to both civil and military authorities immediately.

3.  On 13 May 2010, the applicant acknowledged receipt of the contested NCOER.  In the Army Values portion of the NCOER, he received “NO” box marks in Selfless-Service, Honor, Integrity, and Personal Courage.  He also received several negative bullet comments throughout the contested NCOER which referenced the incident.  

4.  Unfortunately, counsel's submission is utterly lacking in substantive evidence. Though he argues the box checks and remarks on the contested NCOER were somehow unfair or premature, he does not provide a copy of the Japanese police report or judicial proceeding, translated or otherwise, nor does he provide any related U.S. Forces investigatory report or even a Trial Observer Report.  He does not provide any details surrounding the accident nor does he provide information that would seem to pertain directly to the contested NCOER’s reference to the applicant's wrongful appropriation of two vehicles.  Instead, he provided only an email which contains double and triple hearsay from an SJA official which does not contain any information relevant to the box marks or comments contained in the contested NCOER.  Moreover, he casts the applicant as the victim of Japanese racial bias and a pawn in political maneuvers between Japan and the United  States with respect to stationing issues.  

5.  The fact of the matter is whether negligently or not, whether wittingly or not, the applicant struck and killed a pedestrian with a motor vehicle.  His command found out about the accident not from the applicant but from Japanese authorities when they came looking for the applicant after having discovered the victim’s body hours earlier and linking it to the damaged vehicle dropped off at a repair shop.  The applicant was not formally charged by the Japanese until nearly two months after the accident.  Clearly, at that point their investigation had reached its conclusion.  

6.  Contrary to counsel’s assertions, Army Regulation 623-3, paragraph 
3-19 does not require that a criminal matter be finally adjudicated before the underlying facts can be referenced or that an investigation be conducted only by American authorities to have validity.  Further, even if counsel presented evidence other than argument alone, the underlying facts of the event are essentially uncontroverted.  The applicant simply disagrees with the conclusions reached by the investigators, his rating chain, and the Japanese court.  Accordingly, the only change required by regulation is that the language referencing the indictment and charges should be stricken from the NCOER since the trial was not concluded during the rating period.  

7.  Additionally, counsel's attempt to argue that the applicant's conduct did not violate Army Values and the box checks and comments are therefore inappropriate is beyond specious.  Soldiers are Soldiers twenty-four hours a day seven days a week.  Given that the vehicle the applicant was driving struck another human being with enough force to cause front end damage and that the victim’s body at some point also contacted his windshield with enough force to crack it, and that the applicant then left the scene, took the vehicle in for repair soon thereafter, wrongfully appropriated a second vehicle, and only told his command about the incident after Japanese authorities arrived many, many hours later, it is more than reasonable to believe he was engaged in protecting himself rather than doing the right thing.  Whether seeking to avoid potential criminal liability, civil liability, or just a hassle, the applicant could easily have been immediately forthcoming, but failed to do so.  Such conduct is antithetical to Army Values.  

8.  Finally, counsel's argument that the NCOER subsequent to the contested NCOER proves the comments and conclusions set forth in the contested NCOER were not an accurate assessment of the applicant's performance lacks merit.  Army regulations state each evaluation report will be an individual stand-alone evaluation of the rated Soldier for a specific rating period.  

9.  The applicant has not been wronged; therefore, he is not entitled to any relief beyond the language in the contested NCOER referencing the indictment and charges, which should be stricken from the NCOER since the trial was not concluded during the rating period.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 deleting from the contested NCOER in:

* Part IVa (Bullet Comments), the portion of the first bullet comment that states "and was indicted for criminal charges by the Japanese Government"
* Part IVf (Responsibility and Accountability), the portion of the bullet comment that states "resulting in vehicular manslaughter charges from the Japanese Government"

2.  The Board further determined that 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 removing the following: 

	a.  Part IVa, "No" entries in items a(4) through a(7) and:

* the portion of the first bullet comment:  "demonstrates a serious lack of integrity, legally and morally failed as an NCO" 
* the second bullet comment:  "departed the scene of a crime resulting in a major international incident with significant strategic implications"

	b.  Part IVb, the "Needs Much Improvement" box check and the bullet comment:  "failed to report to his Chain of Command a vehicle accident he committed which resulted in the death of a local Okinawan National."

	c.  Part IVf, the "Needs Much Improvement" box check and the first bullet comment:  "wrongfully appropriated two vehicles; failed to take responsibility for personal actions."

	d.  Part Va, the "Marginal" box check. 

	e.  Part Vc, the box check "Fair." 

	f.  Part Vd, the box check "Fair."

	g.  Part Ve, the bullet comments "do not promote" and "do not assign to positions of higher responsibility."



      ____________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)                                         AR20130005855





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ABCMR Record of Proceedings (cont)                                         AR20130005855



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