IN THE CASE OF:	  

		BOARD DATE:	    4 November 2014

		DOCKET NUMBER:  AR20140000230 


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 reconsideration of an earlier request to remove Part IVe (Training) and Part V (Overall Performance and Potential) of his 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 official military personnel file (OMPF).  As an alternative, he requests the removal of the entire NCOER from his OMPF.

2.  The applicant states:

	a.  In Part IVe the first two bullets are not accurate statements.  The detachment deployed less than a month after his removal and used the same SOPs (standing operating procedure) that were developed under his guidance while successfully operating in Sangin District of Helmand Province, Afghanistan. Operational Detachment Alpha (ODA) was ready because they deployed, they had solid SOPs, which they used throughout their deployment, and they were trained on critical tasks because they all safely returned home at the end of their deployment.

	b.  The overall evaluation is unjust as it makes several inaccurate statements about his actual performance during the period of the contested NCOER.  Time has shown these statements are inaccurate and that they were written to justify actions that had already been taken.  The perception 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 [operational 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 OMPF, his follow-on assignments will be severely limited and he might be forced out of the Army.  He is now in the position 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 and 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 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.  The reason given for his removal was that he had failed to prepare the detachment for the upcoming mission.  However, this was not the case, the detachment deployed less than a month after his removal and conducted a 
6-month rotation in the Sangin District of 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 briefings 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.  Since it was different from the way detachments were operating in Iraq the company leadership automatically dismissed the SOPs as being wrong.  When the detachment leadership tried to explain the process that the detachment went through the relationship became confrontational and the new SOPs were dismissed as "swoopy" and not tactically sound.  Examples of this are the tactical call outs (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 himself.

	i.  The detachment's previous mission significantly influenced the perception of its capabilities and limitations in the eyes of the command.  Since 2006, Company C, 3rd Battalion, 5th SF Group (SFG) had conducted a Special Operations Command Central (SOCCENT) compartmentalized mission that was focused on conducting advanced special operations (ASO) across the U.S. Central Command area of responsibility.  A failure to understand exactly what the mission entailed continually led to friction between the detachments and the chain of command.  The root cause of the misunderstanding was the detachments were continuously deployed and under operational control of SOCCENT, while the company never deployed forward to participate in the mission.  The failure to understand what the mission entailed resulted in the command believing the detachment was incapable of conducting any non-ASO related mission.

	j.  This perception unduly influenced their reactions to different tactics, techniques, and procedures (TTP) and SOPs they were developing and employing specifically to address and counter threats unique to the Afghanistan Theater.  5th SFG had been almost exclusively focused on the Iraq Theater since 2003 with only a few detachments returning to Afghanistan to serve as SF Liaison elements.  As a result there was little knowledge about the difference in the operational environments teams faced in the Afghanistan and Iraq Theaters in 5th SFG at the time, with most historical knowledge being derived from the 2001 invasion.  The perception that the detachment was not tacitly proficient resulted in these new TTPs being dismissed out of hand.  Efforts to explain why these TTPs were being utilized only resulted in increased tension between the company and himself.

	k.  He planned to train the simulated host nation (HN) on the TCOs 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.

	l.  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.

	m.  The applicant believes there was a confluence of factors that led to an unfair assessment of his performance during the period of the contested NCOER.  The contested NCOER was written to justify actions that had already been taken.  That is why it was 3 months late.  The through 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 the actions already taken.  Following his removal, the contested NCOER was reworked several times and dictated top down rather than bottom up.  The last version of the contested NCOER that was sent up was the only NCOER with a
4, 4 rating.  The explanation he was given was they could not have a success 
(3, 3) block for someone who had been removed from their position.  He also believes this was done in order to "cool him down" and make it less likely for him to seek an appeal and for details to be forgotten with time.  He only received the explanation that he came across as being too "needy," too focused on doing "swoopy" things, and that he ran a decentralized team.

	n.  He feels the 4, 4 rating and the first two bullets in Part IVe (Training) of the contested NCOER do not reflect his job performance during the rating period.  A more accurate description of his duties, responsibilities, and accomplishments during his time as Mission Liaison Element (MLE) can be found in the narrative for his Defense Meritorious Service Medal.

	o.  Those who have observed him operate in combat, such as Major (MAJ) CDB, do not question his management skills or tactical proficiency.  Even Lieutenant Colonel (LTC) MVE, Battalion Commander and Reviewer on the contested NCOER, and MAJ CPL (Company Commander and his Rater) described him as "an extraordinary NCO who exceeds the highest standards of professionalism and integrity" in their letters of recommendation for assignment to the Group Regional Support Detachment (RSD), dated 10 June and 13 June 2011.

	p.  While the contested NCOER reflects the rater's and the senior rater's considered opinion and objective judgment at the time of the report, he feels he and others have outlined in their statements that the rater's opinion was flawed and the senior rater's objective judgment was compromised due to the central role he played in events leading up to his removal.  The reviewer, having just returned from Iraq, was uninformed of the events surrounding that led up to the back brief and rather than providing an accurate operational picture, the senior rater took action to distance himself from the guidance he had given and used his removal as a way to deflect criticism of his own failures.  His removal allowed him to wash his hands of the situation and to maintain a positive perception in the eyes of the reviewer.  While it is within their right to put whatever they want on an NCOER, a rater and senior rater's comments must be held to account to reflect the reality of the situation and not merely be used as an expedient to cover over their own unpleasant failures.  In a professional force everyone must be evaluated by their performance, not the perception of performance formed by those with ulterior motives.  

3.  The applicant provides:

* eight memoranda
* five DA Forms 2166-8
* recommendation, narrative, and orders for award of the Defense Meritorious Service Medal
* a letter, dated 2 January 2013, from the U.S. Army Human Resources Command (HRC)
* Proceedings from the Army Board for Correction of Military Records (ABCMR) Docket Number AR20130010494, dated 13 August 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130010494, on 13 August 2013.

2.  He provides new evidence, an additional statement, dated 20 November 2013, from his rater, Captain (CPT) CPL that requires consideration by the ABCMR.
3.  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 SFG, Fort Campbell, KY.  He was promoted to the rank/grade of master sergeant (MSG)/E-8 on 1 March 2011.

4.  Special Operations Command Central Permanent Order 172-001, dated 
21 June 2010, announced his award of the Defense Meritorious Service Medal for meritorious service for the period 20 August 2009 - 22 June 2010.

5.  During the month of July 2011, the applicant received the contested NCOER, as 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 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 comments:

* 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

6.  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 OMPF.

7.  On 30 March 2012, the applicant submitted an appeal to HRC requesting Part IVe and Part V be removed from the contested NCOER or the entire contested NCOER be removed from his OMPF.  HRC denied his appeal on 
15 November 2012 and he was notified on 2 January 2013.

8.  The applicant provided a memorandum, dated 20 November 2013, from his rater, CPT CPL who stated:

	a.  His bullet comments in Part IVe of the contested NCOER represented his considered opinion and objective judgment at the time of preparation.  But at the time of preparation he had been in the SF for only 6 months and his team sergeant had just been relieved by his battalion leadership a month before a combat deployment.  His opinion was influenced and his judgment was simply wrong.

	b.  The senior rater expressed to him that the intent of the contested NCOER was to remove the applicant from a team until he was fully prepared to take on the leadership role, then give him another team, which would allow him to excel in an otherwise very successful career.  

	c.  Both the senior rater and the reviewer wrote letters of recommendation for the applicant which state explicitly that they believed he was a capable NCO and exemplary leader.  The applicant has indeed fully succeeded as a team sergeant. However, the contested NCOER is preventing him from future career advancement and severely limiting the potential for this exceptional Soldier to contribute to the Army.  This is an injustice that must be corrected.

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

	a.  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 3-36a states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to: 

* be administratively correct 
* have been prepared by the proper rating officials 
* represent the considered opinion and objective judgment of rating 	officials at the time of preparation  
	
	c.  Paragraph 3-36c states requests that a completed evaluation report filed in a Soldier’s OMPF be altered, withdrawn, or replaced with another evaluation report will not be honored if the request is based on the following:

* statements from rating officials that they underestimated the rated 	Soldier
* statements from rating officials that they did not intend to assess the 	rated Soldier as they did
* requests that ratings be revised
* statements from rating officials claiming administrative oversight or 	typographical error in checking blocks for professional competence, 	performance, or potential.  Therefore, it is imperative that rating 
   officials ensure evaluation reports are accurately recorded prior to 
	signing
* statements from rating officials claiming OERs were improperly 	sequenced to HQDA by the unit or organization
* a subsequent statement from a rating official that they rendered an 	inaccurate evaluation of a rated Soldier’s performance or potential in 	order to preserve higher ratings for other officers (for example, those in 	a zone for consideration for promotion, command, or school selection)

	d.  Paragraph 4-11 states 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.

DISCUSSION AND CONCLUSIONS:

1.  He contends a more accurate description of his duties, responsibilities and accomplishments during his time as MLE can be found in the narrative for his Meritorious Service Medal.  However, his Meritorious Service Medal was awarded for service for a period prior to the period of the contested NCOER, overlapping by only 52 days.

2.  He contends both his rater and reviewer recommended him for assignment to the RSD describing him as "an extraordinary NCO who exceeds the highest standards of professionalism and integrity."  However, these recommendations were written after the ending date of the contested NCOER and would serve to show he overcame any shortcomings that had been noted on the NCOER.

3.  Completed evaluation reports filed in a Soldier’s OMPF will not be altered, withdrawn, or replaced based on:

* statements from rating officials indicating they underestimated the rated Soldier
* statements from rating officials indicating they did not intend to assess the rated Soldier as they did

4.  Although the applicant's rater now provides an opinion that the contested NCOER is unjust, it was his responsibility to provide an objective and comprehensive evaluation of the applicant's performance and potential at the time of the report.  His latest opinion appears to be retrospective thinking based on how he feels the contested NCOER may affect the applicant's career.  This in and of itself is not a basis for altering or removing the contested report.

5.  The applicant's dissatisfaction with the rating official's view of his performance is not sufficient to impeach the rating official's assessment of his performance.

6.  The contested NCOER appears to be correct and 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.

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 to amend the decision of the ABCMR set forth in Docket Number AR20130010494, dated 13 August 2013.



      _______ _   __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)                                         AR20140000230



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ABCMR Record of Proceedings (cont)                                         AR20140000230



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