BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20130010494 


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 removal of the evaluation in Part IVe (Training) and Part V (Overall Performance and Potential) of her DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 1 May 2010 through 30 April 2011, known hereafter as the contested NCOER, from his Army Military Human Resource Record (AMHRR).  As an alternative, he requests the removal of the entire NCOER from his AMHRR.

2.  The applicant states:

	a.  In Part IVe of the contested NCOER, the first bullet states he "failed to integrate a full spectrum training plan that tied individual skills into a collective team effort; resulted in the ODA [Operational Detachment Alpha] not having solid SOPs [Standing Operating Procedure] prior to deployment."  This was not an accurate statement as the detachment deployed less than a month after his removal and used the same SOPs that were developed under his guidance while successfully operating in the Sangin District of Helman Province, Afghanistan.  The ODA was ready because they deployed and had solid SOPs they used throughout their deployment.  They were trained on critical tasks because they all returned home safely at the end of the deployment.

	b.  The overall evaluation was unjust as it makes several inaccurate statements about his actual performance during the rating period in question.  Time has shown that these statements are inaccurate and were written to justify 

actions that had already been taken.  The perception that formed was based on preconceived notions and a poor understanding of events leading up to the end of the rating period.  The statements made are unsupported and inaccurate and resulted in an unjust evaluation.

	c.  There was also a problem with Part Ve (Senior Rater Bullet Comments).  In addition both the "4 - Fair" ratings he received in Part Vc (Senior Rater-Overall Performance) and Part Vd (Senior Rater-Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) are an inaccurate representation of his actual performance.  The first comment in Part Ve stated "do not promote at this time; further develop leadership skills" and the last comment stated "poor management skills limited ODA's success while transitioning from an OPE [Operation Preparation of the Environment] focus to a Special Forces [SF] tactical-mission focus."  He oversaw a major refocusing of mission priority and he successfully transitioned the team in a 5-month time span from a very specific mission in one country to a very different mission in another country with a high personnel turnover rate in the detachment during the rating period.

	d.  If this evaluation report remains in his AMHRR, his follow-on assignments will be severely limited and he might be forced out of the Army.  He is now in the process of having to request a waiver to reenlist because of the "4" ratings he received.  In the current climate, he might not be granted a waiver and if he is his future promotion prospects will be dismal.

	e.  On 29 April 2011, he was replaced as the operations sergeant on ODA 5333.  The reason he was given was that the battalion commander had lost faith in his ability to lead the detachment during an upcoming deployment to Afghanistan.  The battalion commander's only exposure to the detachment was a full mission profile (FMP) he observed on 14 April 2011 and a briefing he received on 26 April 2011 of the upcoming mission.  He had just returned from Iraq on or about 10 April 2011 and his limited exposure to the detachment did not allow for an accurate picture of his (the applicant's) management skills in transitioning the detachment from an operational preparation of the environment (OPE) focus to a broader full-spectrum operations focus.  The data points he used, the detachment's performance during the FMP and briefing he received, were significantly skewed by preconceived notions and poor, inaccurate guidance from the company leadership.

	f.  One of the central reasons for his removal was that he failed to prepare the detachment for the upcoming mission.  However, this was not the case as the detachment deployed less than a month after his removal and conducted a
6-month rotation in the Sangin district, Afghanistan.  They used the same SOPs developed under his direction, to successfully execute the mission and return without any casualties.

	g.  The claim that the team did not have refined SOPs was made because the SOPs were not what the company and battalion leadership were used to.  At the time, SOPs were focused on Iraq.  The shift from urban to rural operations resulted in SOPs that were assumed to be wrong.  None of the company or battalion leadership attended the regular intelligence briefing the detachment conducted that drove the SOP development process.  They (the applicant and other detachment leaders) had a good understanding of the operational environment they would be facing and developed the SOPs accordingly.

	h.  He planned to train the simulated host nation (HN) on the tactical call-outs (TCO) and conduct one during the FMP.  Members of the B-team made a trip to their training site and let him know they tweaked the scenario and it would be a good idea to focus the HN on a more traditional direct action (DA) raid.  Sergeant Major (SGM) S was there and he (the applicant) got the distinct impression that the SGM was not familiar with the TCO.  Following his removal, the SGM told him that one of the things he could have improved on was to avoid doing "swoopy" stuff such as the TCO.

	i.  When the detachment leadership tried to explain the process that was used to develop the SOPs the relationship became confrontational and the new SOPs were dismissed as "swoopy" and not tactically sound.  Examples of this were the TCO during urban operations and an emphasis on long-range marksmanship rather than automatically maneuvering towards threats.  The company leadership's perception of the detachment unfairly colored the battalion leadership's perception of the detachment and of the applicant.

	j.  They received inaccurate guidance from the company leadership and that greatly contributed to the battalion commander's perception that the detachment and he were tactically deficient.  The battalion commander verbally berated him for his task organization during the FMP because he wanted to see how the detachment performed as an independent unit.  The company commander had not mentioned that the battalion commander wanted to see this and had he (the applicant) been informed of this the task organization for the FMP would have been very different.

	k.  The applicant believes there was a confluence of factors that led to an unfair assessment of his performance from May 2010 to April 2011.  The 

contested NCOER, especially the previously mentioned bullets, were written to justify action that had already been taken.  That is why it was 3 months late.  The thru date was 30 April 2011 and he did not receive it for signature until 27 July 2011.  It was sent back to his rater several times to be reworked so the assessment would reflect action already taken.  Before he was removed from his position, his rater had submitted another NCOER for the rating period with a "1/1" rating; after his removal, the NCOER was reworked with a "4/4" rating.  The reason he was given for this was they could not have a success, or "3/3" block for someone who had been removed from their position.  He only received the explanation that he came across as too "needy," too focused on doing "swoopy" things, and that he ran a decentralized team.

3.  The applicant provides five DA Forms 2166-8, nine memoranda, orders, and an award recommendation.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 July 2000 and he holds military occupational specialty 18Z (SF Senior Sergeant).  At the time of the contested NCOER, he was assigned to the 3rd Battalion, 5th SF Group (SFG), Fort Campbell, KY.  He was promoted to the rank/grade of master sergeant (MSG)/E-8 on 1 March 2011.

2.  The applicant provides a memorandum, dated 10 June 2011, wherein his battalion commander, Lieutenant Colonel (LTC) MVE, highly recommended the applicant be assigned to the Regional Support Detachment (RSD).  LTC MVE stated, in part, the applicant has the diverse background and experiences that would make him an ideal candidate to serve in the RSD.  The applicant had deployed in numerous combat operations and earned a reputation as the unit's subject matter expert concerning Advanced Special Operations (ASO).  He was mature, intelligent, detailed-oriented, and a self-motivated Soldier.

3.  The applicant also provides a memorandum, dated 13 June 2011, wherein Major (MAJ) DHS strongly recommended the applicant be assigned to the RSD.  MAJ DHS stated, in part, the applicant exceeded the highest standards of professionalism and integrity.  His leadership accomplishments during his over 7 years of service with the 5th SFG demonstrated his flexibility and adaptation to today's contemporary operation environment while always being committed to his war-time mission accomplishment and the welfare of his Soldiers and their families.  He was a trusted and a proven combat leader with a wide variety of experience, successfully accomplishing difficult missions under demanding circumstances.

4.  During the month of July 2011, the applicant received the contested NCOER, an annual NCOER, that covered 12 months of rated time from 1 May 2010 through 30 April 2011 for his duties while serving as a detachment operations sergeant.  At the time, his rater was Captain (CPT) CPL, his senior rater was MAJ DHS, and his reviewer was LTC MVE.  The NCOER shows the following entries:

	a.  In Part IVa (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all of the seven values.  This block, in part, contained the following comment:

* maintains a positive climate where subordinates are able to learn and grow through success or setbacks
* demonstrates the will and courage to face any challenge and conquer adversity
* highly dedicated to the unit; consistently commits personal time to ensure team success

	b.  In Part IV (Values/NCO Responsibilities), the rater placed an "X" in the "Success" blocks of IVb (Competence), IVc (Physical Fitness & Military Bearing), and IVd (Leadership).  These blocks, in part, contained the following comments:

* earned his master's degree in international relations, maintaining a 3.97 grade point average while deployed overseas
* represented the United States with daily interaction with civilian and military international leaders
* exudes high confidence and professionalism that is the hallmark of the Green Beret
* took the initiative in laying the foundation for Special Operations Command Forward in Lebanon

	c.  In Part IVe, the rater placed an "X" in the "Needs (Some) Improvement" block.  This block, in part, contained the following comments:

* failed to integrate a full spectrum training plan that tied individual skills into a collective team effort; resulted in the ODA not having solid SOPs prior to deployment
* failed to provide mission focused training that incorporated critical tasks that the ODA would need for an upcoming deployment

	d.  In Part IVf (Responsibility & Accountability), the rater placed an "X" in the "Excellence" block.  This block, in part, contained the following comments:

* accounted for the proper use and accountability of all special mission funds as the military liaison element paying agent without incident
* ensured all safety policies and procedures were executed, resulting in no injuries or accidents during the rating period 

	e.  In Part V, the rater placed an "X" in the "Marginal" block.  

	f.  In Part Vc, the senior rater placed an "X" in the "4 - Fair" block and in Vd, he placed an "X" in the "4 - Fair" block.  

	g.  In Part Ve, the senior rater entered the following comments:

* do not promote at this time; further develop leadership skills
* not ready to attend the U.S. Army Sergeants Major Academy (USASMA)
* great potential within small element ASO assignments
* poor management skills limited ODA's success while transitioning from an OPE focus to a basic SF tactical-mission focus

5.  This NCOER was signed by the applicant's rater on 8 July 2011 and his senior rater on 14 July 2011.  The reviewer concurred with the rating officials evaluations and signed the NCOER on 25 July 2011.  The applicant signed the NCOER on 27 July 2011 and it is currently filed in the performance section of his AMHRR.

6.  In late 2012, the applicant submitted an appeal to the U.S. Army Human Resources Command (HRC) requesting Part IVe and Part V be removed from the contested NCOER or the entire contested NCOER be removed from his AMHRR.

7.  With his appeal to HRC the applicant submitted a statement of support from MAJ CDB, dated 15 July 2011, wherein MAJ CDB stated, in part:

   a.  He had been the ODA commander from 3 January 2008 to 30 September 2010.  During this period, he supervised the applicant as the detachment's operations sergeant from 1 July 2010 to his departure on 30 September 2010.  He had daily interaction with him regarding the day to day operation of the ODA while conducting combat operations in support of Operation Iraqi Freedom.  The 

applicant's performance as the ODA operations sergeant, while under his command, was nothing but exemplary.  He confidently operated with minimal guidance or oversight in a stressful and ambiguous environment.

	b.  Upon his arrival, the applicant immediately evaluated the team SOPs to identify tactical and technical shortcomings.  During his tenure as detachment commander that spanned 33 months and four different operations sergeants, the applicant demonstrated his ability to competently lead and mentor junior members of the detachment, as well as provide him with valuable advice on sound operation techniques that allowed the detachment to successfully maintain a high operations tempo in a high threat environment with an ODA manned with only seven men.  He was a consummate professional, intelligent individual, and a supremely competent NCO that he would gladly serve with again.

8.  With his appeal to HRC, he also submitted a statement of support from SFC PAB, dated 17 October 2011, wherein SFC PAB stated, in part:

	a.  He served as ODA's communications sergeant from May 2010 to the present and observed the applicant as the detachment's operations sergeant from July 2010 to 29 April 2011.  He had daily interaction with the applicant and the applicant's rater.  He also observed regular interactions between the applicant and his senior rater and reviewer.

	b.  The applicant implemented a training plan specifically tailored to developing mission-focused SOPs.  During several months of training and SOP development conducted by ODA, no company or battalion leadership observed the training until the final exercise.  With the benefit of hindsight, the training plan the applicant developed and implemented from the time they returned from Iraq in September 2010 to the time they redeployed in May 2011 was exactly what was needed to train the ODA for the current deployment.  The SOPs developed under the applicant were incorporated into a detachment SOP book and were still being used in Afghanistan.  It was his opinion that the applicant provided exactly the kind of mission focused training necessary to ODA's current deployment.

9.  With his appeal to HRC, he also submitted a statement of support from Staff Sergeant (SSG) CDC, dated 19 October 2011, wherein SSG CDC stated, in part, as ODA's senior medical sergeant, he observed the applicant during his tenure as ODA's operations sergeant.  He interacted daily with the applicant and his rater and he directly observed regular interactions with the applicant and his senior rater.  It was his belief that the applicant's vision for training emphasis was the correct one.

10.  With his appeal to HRC, he also submitted a statement of support from his rater and ODA's detachment commander, CPT CPL, dated 20 October 2011, wherein CPT CPL stated:

	a.  With regard to the first and second bullets on the applicant's contested NCOER, the applicant implemented a training plan specifically tailored to developing mission-focused SOPs.  It was unknown during pre-mission training what the ODA's specific mission was going to be so the applicant focused on the combat skills the detachment had not developed.  It had become apparent that these key tasks were vital to mission success on the current combat deployment. The detachment developed SOPs prior to deployment that were legitimate and effective as a baseline but continued to develop during training and implementation in Afghanistan.  The was no way to develop specific SOPs to fit the current mission, but the SOPs the applicant developed are the foundation for what the detachment currently uses in combat in Afghanistan.

	b.  With regard to the first and fourth bullets of the senior rater's comments, he believed the applicant was a well-developed and effective leader.  He was not aggressive or overly-vocal, which some considered traits of a good combat leader.  He also believed the applicant fully succeeded in transitioning the detachment from OPE focus to a detachment fully capable of conducting full-spectrum operations.  He attributes the detachment's success to the quality of the Soldiers and the pre-mission training planned and implemented by the applicant.

11.  The applicant provides an NCOER he received in December 2012, a change of rater report, that covered 10 months of rated time from 1 May 2011 through 1 March 2012 (should be 29 February 2012) for his duties while serving as a detachment operations sergeant in the 2nd Battalion, 5th SFG, Fort Campbell.  His rater was CPT BFC, his senior rater was MAJ ECC, and his reviewer was LTC KCL.  This NCOER shows:

	a.  His rater placed an "X" in the "Excellence" blocks of Part IVb through Part IVf and an "X" in the "Among the Best" block of Part V.  The rater comments, in part, included "orchestrated a joint Fort Knox training center for two ODAs" and "provided professional, candid developmental advice and counseling to subordinates."

	b.  His senior rated placed an "X" in the "Successful/1" block of Part Vc and an "X" in the "Superior/1" block of Part Vd.  The senior rater comments, in part, included "send to USASMA now" and "unlimited potential to serve at the highest levels within the regiment."

12.  On 2 January 2013, by memorandum, HRC denied the applicant's appeal and stated the Army Enlisted Special Review Board had determined that the evidence the applicant submitted did not justify altering or withdrawing the contested NCOER.

13.  The applicant provides an NCOER he received in May 2013, an annual NCOER, which covered 12 months of rated time from 1 March 2012 through 28 February 2013 for his duties while serving as a detachment operations sergeant in the 2nd Battalion, 5th SFG, Fort Campbell.  His rater was CPT AMW, his senior rater was MAJ ECC, and his reviewer was LTC JRD.  This NCOER shows the following:

	a.  His rater placed an "X" in the "Excellence" blocks of Part IVb through Part IVf and an "X" in the "Among the Best" block of Part V.  The rater comments, in part, included "set the example of what an SF NCO is" and "developed, resourced, and executed a stringent language improvement plan for the ODA resulting in a 100% improvement in passing scores."

	b.  His senior rated placed and "X" in the "1 - Successful" block of Part Vc and an "X" in the "1 - Superior" block of Part Vd.  The senior rater comments included "promote to SGM at earliest opportunity" and "surpassed all performance objectives during rating period."

14.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the DA 2166-8.  

	a.  Paragraph 3-2i states rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On one hand, this evaluation will give full credit to the rated Soldier for their achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army selection boards and career managers can make intelligent decisions.  

	b.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and 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 an administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	c.  Paragraphs 6-3 and 6-4 state, in pertinent part, that the primary purpose of a Commanders/Commandant's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at Headquarters, Department of the Army.  However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.

	d.  Paragraph 6-11d states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends Part IVe and Part V of the contested NCOER, or the whole NCOER, should be removed from his AMHRR because it was an unjust evaluation and the NCOER was returned to his rater several times to be reworked so the assessment would reflect action already taken.

2.  The governing Army regulation clearly states an evaluation report included in the official record of a rated Soldier is presumed to be administratively correct; to have been prepared by the properly designated rating officials who meet the 

minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

3.  In a statement from his rater the applicant submitted with his appeal of the contested NCOER to HRC, his rater did not support his [the applicant's] claim that he was made to rework his evaluation of the applicant or that his comments at the time he completed the report were unjust or inaccurate.  Rather, he stated the SOPs the applicant developed were effective as a baseline but continued to develop during implementation and, [after the fact], it was apparent the training the applicant focused on contributed to the detachment's success.

4.  The contested NCOER appears to be correct and appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question (emphasis added).  There is no evidence, and the applicant has not provided any evidence, to show his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  More importantly, the applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOER or that they exercised faulty judgment in evaluating him as they did.

5.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.

6.  The applicant's arguments provided in this case address his dissatisfaction with his rating and his belief that it was an unfair assessment.  However, he did not provide any evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Therefore, there is insufficient evidence to grant him the requested relief.

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)                                         AR20130010494



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ABCMR Record of Proceedings (cont)                                         AR20130010494



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