IN THE CASE OF:	  

		BOARD DATE:	    15 October 2013

		DOCKET NUMBER:  AR20130016644 


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 amendment of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period 20081106 through 20091105 as follows: 

* Part IV(a) (Army Values/Attributes/Skills/Actions) to remove the "No" entry in the "Integrity" block
* Part IV(d) (Values/NCO Responsibilities) to change the "Leadership" rating block from "Needs (Some) Improvement" to "Success" and the bullet removed
* Part V(a) (Overall Performance and Potential) to change the "Overall potential for promotion and/or service in positions of greater responsibility" from "Marginal" to "Fully Capable"
* Part IV(c) (Senior Rater – Overall performance) to change the rating from "Fair" to something more favorable

2.  The applicant states he believes the NCOER is unjust because a Commander's Inquiry (CI) was conducted and the investigating officer (IO) stated that "he did not believe that my [the applicant's] conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the unit and was not in violation of Article 134 [of the Uniform Code of Military Justice]."  He asks the Board to consider this injustice due to lack of knowledge and mentoring on his part.  This injustice affects his career progression. 

3.  The applicant provides:

* Contested NCOER
* Appointment to conduct a CI memorandum
* Chronology of investigation
* CI findings and recommendations
* Multiple privacy act statements
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* Copy of mailing envelope
* Document titled "Flag Day Ceremony Highlights Patriotism"
* Letter to a chaplain
* Multiple DA Forms 2823 (Sworn Statement)
* Extract of Army Regulation 600-3 (Unit Postal Operations)

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army on 14 February 2001 and he holds military occupational specialty 89B (Ammunition Specialist).  

2.  He served through multiple reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of staff sergeant (SSG)/E-6 on 1 January 2007.  He was assigned to the 664th Ordnance Detachment, 620th Combat Sustainment Support Battalion (CSSB), Iraq. 

3.  On 22 July 2009, an IO was appointed to conduct an informal investigation into allegations that the applicant and another Soldier (First Lieutenant (1LT) JB were involved with opening and reading a letter addressed to the Chaplain containing information pertaining to sergeant (SGT) Axxxn.

4.  On 28 July 2009, the IO rendered his findings and recommendations.  The IO concluded that the applicant did open and read parts of a letter addressed to the chaplain.  He then gave it to 1LT JB who informed another SGT that she had a letter for the chaplain that concerned his family.  She kept the letter for over 
7 days before giving it to the chaplain.  The SGT informed the chaplain who informed the chain of command.  

	a.  The IO found access to the 620th CSSB mail room was not restricted to a trained mail handler and that the applicant should not have been in the mail room.  The applicant stated he only read part of the letter because he thought it was for "Soldier's Morale."  He gave the letter to the 1LT once he realized that he made a mistake.  The IO did not believe the applicant's conduct was to the 

prejudice of good order and discipline or was of a nature to bring discredit upon his unit.  Therefore, there was no violation of Article 134. 

	b.  The IO recommended, in pertinent part, the applicant receive counseling in regards to proper handling of mail. 

5.  During November 2009, the applicant received an annual NCOER which covered 12 months of rated time, from 6 November 2008 through 5 November 2009 for his duties serving as Platoon Sergeant.  His Rater was the Platoon Leader, his Senior Rater was the Company Commander, and his Reviewer was the Battalion Commander.  The NCOER shows the following entries:

	a.  In Part IV(a), the Rater placed a "No" in the "Integrity" block and made the following comments:  

* compromised his integrity by opening Soldier's personal mail
* totally committed to the success of the Army
* takes pride in personal abilities and accomplishments 

	b.  In Parts IVb (Competence), IVc (Physical Fitness and Military Bearing), IVe (Training), and IVf (Responsibility and Accountability), the Rater placed an "X" in the "Success" block and entered comments in each block. 

	c.  In Part IVd, the Rater placed an "X" in the "Needs (Some Improvement" for Leadership and the following bullet comments: 

* showed lack of concern for Soldiers and failed to set the example by disregarding Federal laws concerning proper mail handling procedures
* assisted in the planning of a retrograde mission which resulted in the shipment of 64 463L pallets to Afghanistan in support of Operation Enduring Freedom

	d.  In Part Va, the Rater placed an "X" in the "Marginal" block.

	e.  In Part Vc, the Senior Rater placed an "X" in the "Fair" block and in Part Vd (Overall Potential) the Senior Rater placed an "X" in the "Superior/3" block.  The Senior Rater entered his comments. 

6.  The NCOER shows the rater, senior rater, and applicant authenticated this form by placing their signatures in the appropriate places, and that the reviewer concurred with the rater and senior rater and authenticated this form by placing his signature in the appropriate place. 

7.  There is no available evidence showing that the applicant requested a CI regarding the subject NCOER.  Likewise, there is no indication the applicant appealed this NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board. 

8.  Army Regulation 623-3 (Evaluation Reporting System), effective 10 September 2007 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  This regulation states in:

	a.  Paragraph 1-11 (CI) states when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter.  The CI will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by Headquarters, Department of the Army (HQDA), and the conduct of the rated Soldier and members of the rating chain.  The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.  

	b.  Paragraph 3-2i states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual 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, selection boards and career managers can make intelligent decisions.  

	c.  Paragraph 3-23 (Unproven derogatory information) states that 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 the evaluation to HQDA.  If the rated individual is absolved, comments about the incident will not be included in the evaluation (Prohibited Comments) states a thorough evaluation of the Soldier is required. 

	d.  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 administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends several blocks of his NCOER should be amended to remove the derogatory comments/blocks and insert favorable ones instead. 

2.  The applicant, a SSG, serving in a leadership position as a Platoon Sergeant violated the Army values when he opened someone else's mail.  An informal investigation was conducted and determined he did open someone else's mail without authorization, albeit he handed the letter to an officer upon realizing he made a mistake.  Although the IO did not believe the applicant's conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon his unit, the fact remains that he opened the letter. 

3.  The informal investigation referenced by the applicant is an administrative fact-finding procedure to inquire into the conduct or performance of a particular individual, board of officers.  A CI on the other hand is an investigation into a Soldier’s evaluation report made by an official in the chain of command or supervisory chain above the designated rating officials involved in the allegations to determine if an illegality, injustice, or regulatory violation has occurred.  The appointing official for an NCOER will normally be the Commander or civilian supervisor who rates the reviewer.

4.  The applicant received an annual NCOER that covered 12 months of rated time.  The governing regulation permits references to any verified derogatory information.  His rating officials believed he clearly exercised poor judgment as a leader and NCO by opening someone else's mail.  

5.  There is no evidence that the contested report contains any administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown that 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.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20130016644





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ABCMR Record of Proceedings (cont)                                         AR20130016644



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