IN THE CASE OF:	  

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130013003 


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:

	a.  his DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period 1 September 2010 through 31 August 2011 with negative remarks be replaced with the revised NCOER for this period; or

	b.  removal of the DA Form 2166-8 covering the period 1 September 2010 through 31 August 2011 from the performance folder of his Army Military Human Resource Record (AMHRR).  
   
2.  The applicant states:

	a.  he was given a bad NCOER because the investigating officer found him liable of a crime that he didn't commit.  He proved his innocence against the charges, but not in enough time to stop the NCOER from being processed.

	b.  he has appealed to the Enlisted Special Review Board (ESRB).

	c.  he disputes Part IVa (Army Values/Attributes/Skills/Actions) of the NCOER which shows he received a "No" for integrity.  He was accused of falsifying three Army Physical Fitness Test (APFT) cards and three weapons cards.  On 
7 January 2012, he was found not guilty and cleared of all charges against him.  Further, his rater, senior rater, and reviewer all wrote letters stating the "No" block was solely based upon their belief that he submitted false documents; a belief that was disproved by subsequent evidence.  He was able to prove that the initials on the APFT and weapons cards were those of the Training Room noncommissioned officer (NCO), and that he had no part in the falsification.  Based upon the overwhelming evidence that he did not commit the alleged offense, his rater, senior rater, and reviewer all state that the "No" block should be changed to "Yes."

	d.  he disputes Part IVc (Physical Fitness and Military Bearing) of the NCOER for inaccurate and unjust information.  The first bullet states his permanent profile "hinders" his ability to perform his duties.  His previous NCOERs show a record of outstanding performance in all his assigned duties.  The third bullet states "possess the stamina to go the distance with every task given."  This statement directly conflicts with the statement that his profile "hinders" his ability, and shows that this statement is not accurate and should be removed from his NCOER.  He believes that this comment was made solely because of the alleged offense and should be removed from his record.

	e.  he disputes Part IVd (Leadership) of the NCOER because the NCOER rated him as "Needs Improvement" in this area, with the bullet comment "allowed integrity to be called into question over falsification of three APFT cards for Soldier attending promotion board."  When it was alleged that he committed wrongdoing, his first sergeant directed his rater to give him the "Needs Improvement" rating along with this bullet.  In fact, his first sergeant actually told his chain of command that he was found guilty of the charge.  His rater originally submitted an NCOER that reflected a "Success" rating, and made the change after believing that he was found guilty of the offense.  Because this rating was based only upon this accusation, which was later proven to be false, he requests this bullet be removed and his rating be changed from "Needs Improvement" to "Success."         

	f.  he disputes Part V (Overall Performance and Potential) of the NCOER.  The ratings he received in the entirety of Part V were based solely on the assumption that he was guilty of misconduct.  In fact, his reviewer acknowledged that fact and wrote a memorandum stating that he should receive a "2" for overall performance and for overall potential.  In that same memorandum, his reviewer stated that he proved his innocence.  The reviewer is referring to the fact that he was able to show unequivocally that another individual falsified the APFT and weapons cards.  The initials on the APFT and weapons cards match exactly with that of another member of the unit, the Training Room NCO.  The Training Room NCO provided his initials during the 15-6 investigation, which allowed the command to identify that it was actually him who signed the falsified cards.  Once the chain of command saw this evidence they immediately dropped the Article 
15 and any other adverse action against him.  

	g.  he was accused of a crime and his NCOER was completed under the assumption that he was guilty of that crime.  In fact, his first sergeant directed that his NCOER be completed under that assumption, even though he was not in his rating chain.  Once all the facts came out, and his innocence was firmly established, his rating chain acknowledged their mistake and wrote memoranda requesting that his NCOER be changed.  They requested the change because they understood the negative comments were based solely on the alleged crime, and were not reflective of his actual performance.  The NCOER unjustly represents his performance.   

3.  The applicant provides 12 enclosures outlined on page 2 of his memorandum, dated 8 July 2013.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 September 1998.  He has remained on active duty through continuous reenlistments.  He was promoted to staff sergeant on 1 December 2006.

2.  The contested NCOER covers the period 1 September 2010 through 
31 August 2011.  The rater and senior rater authenticated the report on 
8 November 2011 and the reviewer authenticated the report on 9 November 2011.  In Part IVa (Army Values), the rater placed an "X" in the "No" box for Integrity and entered the following bullet comments:

* "integrity compromised upon submission of false documents"
* "has good potential but requires more experience apply daily Soldier   leadership skills"

3.  He was rated as "Success" for "Physical Fitness and Military Bearing" by his rater with the following bullet comments:

* "profile partially hinders ability to perform his duty"
* "consistent high standards for personal appearance: enforced those standards on NCOs and soldiers"
* "possess [sic] the stamina to go the distance with every task given"

4.  He was rated as "Needs Improvement (Some)" for "Leadership" by his rater with the following bullet comments:  

* "allowed integrity to be called into question over falsification of three APFT cards for Soldiers attending promotion board"
* "energetically assumed role as Battle Captain: coordinated over 50 loads of mail: received and transported over 100 personnel, ammunition, and fuel by land and air"
* "established the motivation for education that encouraged three Soldiers to take college classes and earned over 20 credit hours"

5.  He was rated "Marginal" by his rater for his overall potential for promotion and/or service in positions of greater responsibility.

6.  He was rated "Fair-4" by his senior rater for overall performance and he was rated "Fair-4" by his senior rater for overall potential for promotion and/or service in positions of greater responsibility with bullet comments:

* "leadership and managerial skills need improvement to qualify for next rank"
* "this NCO had demonstrated a serious lack of integrity and poor judgment without consideration of results"

7.  Records show a Commander's Inquiry was conducted (dated 1 October 2011) and the investigating officer found the applicant falsified a Soldier's APFT by knowingly changing the dates on the documentation without properly administering the test.  He also knowingly changed the dates on the Soldier's weapon's card.  His actions were done with the intent to deceive members of the promotion board.   

8.  On 7 January 2012, nonjudicial punishment was imposed against him for signing false official records (APFT and fire scorecards).  He was found not guilty of all specifications.

9.  He provides a memorandum, dated 15 May 2012, from his rater at the time in question who states:

* the applicant is a very professional NCO who is competent in his job, and was the NCO he relied on to get the mission accomplished
* the initial part of the investigation found him liable, and because of this the bullets and ratings were prematurely documented on his NCOER
* he should receive a "Yes" for integrity
* his overall performance should be "Among the Best"
* his leadership block should be reverted to "Excellence"
* the rating he received was done in error and should not have been put on this NCOER  


10.  He provides a memorandum, dated 15 May 2012, from his reviewer at the time in question who states:

* after having his integrity called into question, the applicant proved his innocence and was acquitted of all charges in an Article 15 hearing
* he received a "No" for integrity
* at the time of the writing of the NCOER, he had been accused of falsifying documents
* he was, however, acquitted at an Article 15 hearing of all charges
* therefore, the "No" block for integrity should be changed to "Yes"
* the blocks for performance and potential should be adjusted to "2" 

11.  He provides a memorandum, dated 17 May 2012, from the senior rater at the time in question who states:

* the applicant is a professional and competent NCO
* on his last NCOER the integrity block was checked "No"
* the comments say "allowed integrity to be compromised upon submission of false documents"
* due to the outcome of an investigation, his "No" block for integrity should be changed to "Yes"
* the previous senior rater comments of "promote now," "continue to place in positions of increased responsibility," and "a dynamic performer and multifunctional NCO who is sought out across the BN [battalion] for vast technical knowledge" should be reverted
* he should receive an overall performance and potential rating of "2" and "2" 

12.  He also provides a revised NCOER covering the period 1 September 2010 through 31 August 2011.  The rater, senior rater, and reviewer authenticated the report on 11 June 2012.  In Part IVa (Army Values), the rater placed an "X" in the "Yes" box for Integrity and entered the following bullet comments:

* "a truly dedicated professional; exemplifies the "Be, Know and Do" leadership philosophy"
* "works efficiently and effectively with superiors and is selflessly committed to the unit's mission"
* "exercised mature judgment and meticulous attention to detail; accepts all challenges and responsibilities without hesitation"



13.  He was rated as "Excellence" for "Leadership" by his rater with the following bullet comments:  

* "was handpicked by the Battalion UMO to control the movement [of] 103 pieces of equipment valued in excess of 150 million dollars during Graf and Hohenfels rotations"
* "energetically assumed role as Battle Captain: coordinated over 50 loads of mail: received and transported over 100 personnel, ammunition, and fuel by land and air"
* "established the motivation for education that encouraged three Soldiers to take college classes and earned over 20 credit hours"

14.  He was rated "Among the Best" by his rater for his overall potential for promotion and/or service in positions of greater responsibility.

15.  He was rated "Successful-2" by his senior rater for overall performance and he was rated "Superior-2" by his senior rater for overall potential for promotion and/or service in positions of greater responsibility with bullet comments:

* "promotion is in arrears"
* "select for Battle Staff Course"
* "limitless potential; continue to place in positions of increased responsibility"
* "a dynamic performer and multifunctional NCO who is sought out across the Brigade for his technical knowledge"

16.  On 2 August 2012, the applicant submitted an appeal of the NCOER to the ESRB.  On 25 October 2012, the ESRB determined: 

   a.  the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice. 

   b.  the overall merits of the case did not warrant the relief requested. 

17.  A review of the applicant's performance section of his AMHRR on the Interactive Personnel Electronic Records Management System revealed a copy of the NCOER.





18.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  It provides that the purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.

19.  Army Regulation 600-8-104, appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System), states NCOER's will be filed in the performance and service sections of the AMHRR.

20.  Army Regulation 623-3 (Evaluation Reporting System) states that an evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity referred to in paragraphs 
3-39 and 6-7 should not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

21.  Paragraph 3-19 (Unproven derogatory information) of Army Regulation 
623-3 states:  
   
   a.  no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.
   
   b.  references will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters Department of the Army.  If the rated individual is absolved, comments about the incident will not be included in the evaluation.

   c.  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:

   (1)  charges that are later dropped.
   
   (2)  charges or incidents of which the rated individual may later be absolved.
   
   d.  any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of 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 OER (Officer Evaluation Report), NCOER, or AER (Academic Evaluation Report).  For all reports, if previously reported information later proved to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report in accordance with chapter 4.
   
   e.  reports will not be delayed to await the outcome of a trial or investigation unless the rated Soldier has been removed from his or her position and is in a suspended status.  Upon completion of the trial or investigation, processing of evaluation reports will resume.  Reports will be completed when due and will contain what information is verified at the time of the "THRU" date of the report.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's contention he was accused of a crime (signing false official documents) and his NCOER was completed under the assumption that he was guilty of that crime.  

2.  The applicant received the contested NCOER for the period 1 September 2010 through 31 August 2011 which rated his overall performance and potential as "Marginal" and "Fair," block 4.  

3.  The contested report includes derogatory information in regards to a serious lack of integrity and poor judgment over false documents.

4.  In January 2012, he was found not guilty of signing false official records.

5.  By regulation, no reference of signing false official records should have been made on the contested NCOER until the investigation was completed.  Therefore, it would be equitable to expunge the contested NCOER from the performance section of the applicant's AMHRR.

6.  Since the revised NCOER could be construed as retrospective thinking by his rating officials, it would not be appropriate to replace the NCOER covering the period 1 September 2010 through 31 August 2011 with the revised NCOER.   

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 expunging the NCOER for the period 1 September 2010 through 31 August 2011 from his AMHRR and replacing it with a nonrated statement.

2.  The Board further determined that the evidence presented was 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 replacing the NCOER for period 1 September 2010 through 31 August 2011 with the revised NCOER.  



      _______ _   _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)                                         AR20130013003





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ABCMR Record of Proceedings (cont)                                         AR20130013003



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