IN THE CASE OF:	   

		BOARD DATE:	  2 December 2013

		DOCKET NUMBER:  AR20130017615 


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 his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 11 August 2010 through 10 August 2011 by:

	a.  showing an "X" in the "Yes" box for Part IVa(2) (Army Values - Duty).

	b.  removing the bullet comment "jeopardized the lives of four Soldiers by his decision not to secure an M9 pistol within his living quarters while deployed with MIST (Military Information Support Team) Colombia" in Part IVf (Responsibility and Accountability).

2.  The applicant states:

	a.  in July 2011, he drew a weapon for a mission that was then cancelled due to weather.  He received orders from a sergeant first class (SFC) and a captain (CPT) to not return the weapon to the Embassy and, instead, to secure it in the safe-house where he and other Soldiers were guarding the weapon.  He contends two Soldiers went out drinking and brought back two local female nationals to the safe-house and the Soldiers were drugged by the females.  The females stole personal belongings and equipment, including his Embassy weapon.

	b.  he asked the Soldiers not to do anything stupid since there was a weapon inside the safe-house.  He trusted the Soldiers and they let him down.  He made 


a huge error in judgment by bringing the weapon inside the safe-house under the orders of his superiors, but as a senior staff sergeant he should have known better.  He openly admits he was wrong and he took full responsibility for his actions.  He will utilize this incident not as a stopping block for his career, but as a lesson learned to improve on his judgment skills and decision making.

	c.  he believes he deserves the "No" on the Army Values.  His rater and senior rater did not agree with his NCOER, but his first sergeant and commander at the time forced them to make the changes on his NCOER.  He was supposed to receive a General Officer Memorandum of Reprimand (GOMOR), but the general officer asked him to write a letter, which he did.  As a result, the general officer downgraded it to a local letter because he believed he had a plan to secure the weapon, as one person was always with the weapon.

	d.  he has never been in trouble before; he wants to continue his career in the Army.

3.  The applicant provides:

* a self-authored letter
* NCOER for the period 11 August 2010 through 10 August 2011
* NCOER for the period 1 August 2012 through 31 July 2013
* GOMOR, dated 3 January 2012 with enclosed Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation and Enlisted Record Brief (ERB)
* Recommendation for Reenlistment, dated 23 July 2012
* seven letters of clarification/support between 30 August 2012 and
28 August 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 4 August 2004.  He was promoted to staff sergeant on 1 April 2009.

2.  The contested NCOER covers the period 11 August 2010 through 10 August 2011.  In Part IVa, the rater placed an "X" in the "No" box for Duty and entered the following bullet comments:

* "failed to maintain accountability of M9 pistol"
* "demonstrated loyalty to superiors, subordinates, peers and the unit"
* "driven to success by self-motivation and a strong sense of purpose"


3.  In Part IVf, he was rated as "Need Improvement (Much)" for "Responsibility and Accountability" by his rater with the following bullet comments:

* "failed to follow established policy for weapons accountability; resulted in the theft of a USMILGRP (United States Military Group) M9 pistol while deployed with MIST Colombia"
* "jeopardized the lives of four Soldiers by his decision not to secure an M9 pistol within his living quarters while deployed with MIST Colombia"
* "took responsibility for his actions and those of his subordinates"

4.  In January 2012, he received a GOMOR for violating USMILGP Policy
Letter #3 resulting in the loss of a team weapon and endangering the team and the mission.

5.  The Army Regulation 15-6 investigation, dated 18 August 2012, shows the investigating officer determined:

	a.  MILGRP weapons policies were violated directly and in a premeditated manner by [the applicant] and facilitated by the other MIST members.

	b.  the applicant "brought his weapon home the Friday night prior to his planned travel to La Macarena Saturday morning.  After the postponement of his flight [the applicant] had a second opportunity to return the weapon which he chose not to act upon, continuing to retain the weapon instead.  During this time it was stolen from Apartment A."

	c.  the investigating officer did not find that an SFC ordered the applicant to secure the weapon in the safe-house.  He did find the SFC was negligent in several other duties as the senior NCO.

6.  He provides a letter from his rater at the time in question, dated 27 August 2012, who states:

* the applicant was under investigation at the time his NCOER was due
* by regulation he was required to submit the NCOER and had to reflect his involvement in the incident
* after the investigation was completed the applicant was cleared of wrongdoing
* the applicant was acting under the orders of an SFC with regards to the handling of the M9 pistol
* the applicant is an outstanding Soldier and junior leader who would not violate his Army Values or put other Soldiers' lives in danger
* acting under the guidance from his chain of command he was unwillingly forced to put a "No" for Army Values on his NCOER

7.  He provides a letter from his senior rater at the time in question, dated
30 August 2012, who states the contested report was submitted before the due date, but was returned to the rater so that the report would be changed to reflect derogatory information regarding the incident.  He contacted the rater and inquired why he had changed the report.  The rater informed him he had received considerable pressure from the first sergeant and the company commander.  He informed the rater the choice of what to put on the report was his; however, he would support whatever decision he made regarding any changes.  He also received the same pressure from the first sergeant and company commander.  He begrudgingly made updates and signed the report.  He contends the applicant is one of the high potential NCO's and the Army should do whatever it must to keep him within its ranks.

8.  He provides a letter from his current commander, dated 30 November 2012, who spoke of the applicant's professionalism, outstanding leadership, job performance, work ethic, and future potential.

9.  On 10 April 2013, the applicant submitted an appeal of the NCOER to the Enlisted Special Review Board (ESRB).  On 18 July 2013, 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.

10.  He also provides several letters of recommendation from other senior members in support of his application.

11.  A review of the applicant's performance folder of his Army Military Human Resource Record (AMHRR) on the Interactive Personnel Electronic Records Management System revealed a copy of the contested NCOER.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he made a huge error in judgment by bringing the weapon inside the safe-house under the orders of his superiors.  He requests Part IVa and Part IVf of his NCOER be modified.

2.  In order to justify amendment of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity should not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

3.  The applicant has not provided sufficient evidence to show the rater assessment and comments on the NCOER accepted for inclusion in his AMHRR did not represent the considered opinion and the objective judgment of the rater at the time of preparation.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130017615



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ABCMR Record of Proceedings (cont)                                         AR20130017615



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