BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140007579 


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:

* adjustment of his date of rank (taken to mean his date of rank for staff sergeant (SSG))
* back pay
* removal of negative "marks" from his record
* all awards he did not receive

2.  The applicant states his previous leadership hid evidence and lied about an incident resulting in his being flagged, losing his promotable status, and not being promoted.  He states he obtained a copy of documents supporting this and has the support of his former battalion commander who oversaw his Uniform Code of Military Justice (UCMJ) hearing.  He further states he did not have the evidence (sworn statements and investigation inquiries) until after he left the unit; he did not know they existed.  He took them to the Inspector General (IG) but his former first sergeant works there and she is implicated in his complaint.  He has finally been able to present the information to his former battalion commander to review. 

3.  The applicant provides:

* December 2009 promotion board proceedings for promotion to sergeant (SGT) and SSG
* Course Reservation Verification
* three DA Forms 2823 (Sworn Statement)
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* DA Form 4856 (Developmental Counseling Form)
* DD Form 200 (Financial Liability Investigation of Property Loss)
* two DA Forms 268 (Report to Suspend Favorable Actions (FLAG))
* DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report)
* memorandum of recommendation addressed to the Board

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as a SSG/pay grade E-6.  An order promoting him to SSG is not available for review.  A DA Form 2166-8 shows his SSG date of rank as 1 January 2014.

2.  He has not stated what awards he didn't receive and there is no evidence he was recommended for an award that he did not receive or that he was denied an award.  Paragraph 2-5, Section II, Army Regulation 15-185 (Army Board for Correction of Military Records), the regulation under which this Board operates, states that the Board will not consider an application if it determines the applicant has not exhausted all available administrative remedies.  There is no evidence that he requested relief through his chain of command and was denied relief.  Therefore, this portion of his request will not be further discussed in this record of proceedings.

3.  The applicant submits:

	a.  A memorandum, dated 30 December 2009, issued by the 395th Combat Sustainment Support Battalion, subject: December Promotion Board Proceedings for Promotion to SGT and SSG.  Paragraph 3b lists the applicant's name among those Soldiers considered and recommended for promotion and integration into the recommended list.

	b.  A Course Reservation Verification printout, dated 18 March 2011, showing a reservation was entered into the Army Training Requirements and Resources System for the course:  "SF ASSESSMENT AND SELECTION (SFAS)."

	c.  A DA Form 2823 completed by Sergeant First Class (SFC) ASR on 27 April 2011.  It states, in essence, that on or about 24 March 2011, 23 Soldiers to include the applicant had to have their bunks and gear moved to make room in the tent for additional Soldiers from other units.  At no time did he observe any personnel from any other unit come into contact with the applicant's gear.  At the time of this move, the applicant was out on a mission.  There was no mention of any missing gear after the move.  On 27 March 2011, the applicant received orders to attend the "SFAS" course and left Fort Irwin.  On 29 March 2011, while loading equipment for the return trip to the home station, an inquiry was made in regard to the applicant missing some equipment.  SFC ASR asked a couple of Soldiers if the applicant had said anything about missing any equipment.  The response was that he had been missing one item but had borrowed a similar item from another Soldier.  When SFC ASR returned to the home station he was further told the applicant had lost a piece of equipment during his rotation to training at Fort Irwin.  He was also told the applicant had an incomplete piece of equipment at home and he would have to do a report of survey.

	d.  A DA Form 3881, dated 28 April 2011, showing he was to be questioned about the suspected/accused offense of "lying in the DD Form 2823."

4.  On 9 May 2011, he received developmental counseling for failing to inform his chain of command that he was due to receive orders to attend an "SFAS" course prior to completion of a field mission.  Doing so would have allowed enough notification for the applicant's chain of command prior to the National Training Center (NTC) rotation to take him off the mission to allow for proper preparation to attend the course.

5.  On 10 May 2011, he completed a DA Form 2823 wherein he provided his statement regarding his loss of personal gear, specifically an Advanced Combat Helmet (ACH), which was allegedly stolen in March 2011 while he was at NTC.

6.  On 11 May 2011, he was flagged for adverse action.

7.  A DD Form 200, dated 30 May 2011, shows that on 24 March 2011 while at NTC he noticed his ACH was missing from the tent he was staying in.  It states that he believed his ACH was misplaced during the movement of gear within the tent.

8.  A review of the applicant's Official Military Personnel File failed to reveal any documentation of the adverse action taken against him.  A copy of a DA Form 2627 (Record of Proceedings under Article 15 (UCMJ)) from his previous Board case shows that on 13 June 2011, the applicant, then a SGT/E-5, received
nonjudicial punishment (NJP) for falsely reporting on or about 30 March 2011 that he had all of his TA-50 (Army-issued individual equipment).

9.  On 14 June 2011, the imposing commander found him guilty of the above charge and directed the DA Form 2627 be filed in the performance section of his OMPF.  The following punishment was imposed:

* reduction to specialist/E-4 (suspended, if not vacated before 7 July 2011)
* a forfeiture of $1,000.00 pay for 2 months
* extra duty for 24 days
* restriction to the limits of the company area
* oral reprimand

10.  The commander also advised the applicant of his right to submit an appeal to the next superior authority within 5 calendar days.  An appeal made after that time may be rejected as untimely.  The applicant indicated his desire to submit such an appeal.

11.  In a Memorandum for Record, subject: Appeal of Article 15, dated 16 June 2011, the applicant stated, in part, that:

	a.  he was found guilty of the charge of signing a clothing record on 30 March 2011, in which he stated he was in possession of all issued gear;

	b.  on the following day he filled out a sworn statement saying he was missing one item;

	c.  he stated he was guilty of signing the document indicating he had all of his gear and he should receive some level of punishment but he had no intent of defrauding anyone;

	d.  he has never been in trouble here and he has performed well for the unit and the Soldiers, as verified by his performance evaluation; and

	e.  he would not be receiving an award when he departed the unit.

12.  He provides a DA Form 2823 completed by SGT R on 16 June 2011.  SGT R stated that when second platoon was at Fort Irwin the applicant had told him that he was missing his ACH or individual body armor when they had rearranged the living area due to other units returning from the box.  SGT R stated that he informed SFC ASR that the applicant had told him that he was missing some gear. 

13.  On 30 June 2011, the NJP was reviewed and found to be in accordance with law and regulation and the punishment was neither unjust nor disproportionate to the offense committed.

14.  On 30 June 2011, the applicant's appeal was denied.

15.  A DA Form 2627-2, dated 30 June 2011, shows the suspension of the punishment of reduction to specialist/E-4 was vacated because he, without authority, failed to go to his extra duty from on or about 26 to 29 June 2011.
16.  He provides a DA Form 2166-8 for the evaluation period 1 August 2010 through 30 June 2011 showing his rank as specialist.  During a review of his record, the only "negative marks" found were those contained on a corrected copy of the above NCOER.  This NCOER shows his rank as SGT and shows the following entries:

	a.  In Part IV (Army Value/Attributes Skills/Actions) his rater checked the "No" blocks for loyalty, duty, selfless-service, and integrity.  His rater entered the following negative bullet comments:  "placed his integrity in question" and "did not live up to the Army Values."

   b.  In Part IVb (Values/NCO Responsibilities) he received a "Needs Some Improvement" rating.  His rater entered the following negative bullet comment:  "showed lack of sound judgment in regards to borrowing equipment from a subordinate."
   
   c.  In Part IVd (Leadership) he received a "Needs Some Improvement" rating.  His rater entered the following negative bullet comment:  "mishandled his authority by not setting a good example for his Soldiers to follow."
   
   d.  In Part IVf (Responsibility and Accountability) he received a "Needs Some Improvement" rating.  His rater entered the following negative bullet comments:  "failed to maintain his personal equipment and equipment belonging to one of his Soldiers" and "displayed dishonesty on an official document in regards to lost equipment."
   
   e.  In Part V (Overall Performance and Potential) he received a "Marginal" rating from his rater.  His senior rater entered the following bullet comments:  "do not promote; do not send to Advanced Leaders Course"; "does not execute duties with professionalism"; "lacks the potential of higher levels of responsibility"; "tactically and technically proficient"; and "Soldier refused to sign."
   
   f.  In Part Vc (Overall Performance) and in Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) he received "Fair" ratings from his senior rater.

17.  In a memorandum, dated 22 September 2011, the applicant requested that his battalion commander set aside his NJP and restore his rank.  He provided a senior defense counsel as his point of contact.  There is no evidence that this request was ever submitted through or acted upon by his chain of command.

18.  On 10 August 2011, his flag was removed for the reason that disciplinary action was taken.
19.  He provides a memorandum from his NJP-issuing former battalion commander addressed to the Board.  This commander stated the applicant stands out from among many of his peer NCOs and in his memory from battalion command 3-4 years ago was a respected leader and member of his unit.  The applicant is someone he would want to again serve with and that he would trust to lead Soldiers and accomplish logistics missions through the most trying combat conditions.  He states that any field grade Article 15, UCMJ proceeding as the battalion commander decision authority he made with regard to the applicant in the past, he made solely based on his knowledge of the situation presented to him at that time by his chain of command.  He stated that if statements which could have been matters of evidence in the applicant's favor were not brought to his attention, and if those matters could have influenced his decision at the time had they been presented, and if the Board is now in possession of such statements, then he recommends the Board's full attention to, and favorable consideration of the applicant's request.

20.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the preparation and submission of the NCOER's for corporals through command sergeants major.  Paragraph 4-2 provides that an evaluation report accepted for inclusion in the official record of the NCO is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4-7 states the burden of proof in an appeal of an NCOER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce 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. 

21.  Army Regulation 623-3, paragraph 2-15, states that when it is brought to the attention of commanders that a report rendered by one of their subordinates or by a member of one of their subordinate commands may be illegal, unjust, or otherwise in violation of the regulation, they will look into the allegation.  These matters may be brought to the commander's attention by the rated NCO or anyone having knowledge of the alleged illegality, injustice, or violation.  The Commander's Inquiry will be made by a commander (major or above) in the chain of command above the designated rating official(s) involved in the allegations.  The commander will confine the inquiry to matters relating to the clarity of the report, the facts contained in the report, the compliance of the report with the regulation, and the conduct of the rated NCO and rating officials.

22.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) establishes the policies and procedures for governing promotion and reduction of Army enlisted personnel.  Paragraph 4-13 states Standby Advisory Boards are convened to consider records of Soldiers whose records were not reviewed by a regular board or whose records were not properly constituted, due to material error, when reviewed by the regular board.  Reconsideration normally will be granted when an adverse NCOER reviewed by a board was subsequently declared invalid in whole or in part and was determined to constitute a material error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests adjustment of his date of rank to SSG.  He provides a memorandum showing that on 30 December 2009 he was recommended for integration onto a recommended list for promotion to SSG.  However, inclusion on such a list does not guarantee promotion.  Though a complete history of his reductions and promotions is not available, his NCOER for the period 1 August 2010 through 30 June 2011 does indicate that he had been reduced on the same day that the DA Form 2627-2 shows his suspended reduction was vacated, 30 June 2011.

2.  There is no evidence in the applicant's OMPF showing the imposing commander or a higher authority took any action regarding the applicant's September 2011 request to set aside his NJP and restore his rank to SGT.  He provides a memorandum from the NJP-issuing commander who indicated he supports favorable consideration of the applicant's case, only if the applicant has provided documentation which would overcome that which was available to him at the time he made his decision regarding imposition of NJP.  His former battalion commander does not state that there was an error.  The documentation provided by the applicant is insufficient to overcome the evidence contained in statements and evaluations available at the time.  Further, he admitted in his Article 15 appeal that he was guilty of signing the document indicating he had all of his gear.

3.  There is an incomplete history of what happened regarding his NJP and his rank from 30 June 2011 until his promotion to SSG.  He stated he requested the Inspector General make an investigation, but his former first sergeant who was implicated in his case worked at the IG office at that time.  There is no available evidence related to this claim.  However, even if there was sufficient evidence to show his NJP should have been set aside or if it was subsequently set aside, there is insufficient evidence showing he was improperly denied promotion to SSG prior to 1 January 2014.  As such, there is no basis for adjusting his date of rank to SSG.

4.  He has not specified what back pay he is requesting and there is no evidence he is due any back pay.  As such, there is no basis for granting this portion of his request.

5.  A review of his record revealed only one document containing negative "marks," which is an NCOER for the period 1 August 2010 through 30 June 2011, which he submitted.  It is presumed he is referring to this document.  This document contains multiple blocks with negative "marks" and negative bullet comments.  The NCOER appears to represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the period in question.

6.  The evidence shows the applicant received negative counseling statements covering deficiencies during the rating period.  There is no evidence his rating was anything other than an objective assessment of his performance and potential during the rated period.

7.  There is no evidence the NCOER contains any serious substantive deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, 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.

8.  An evaluation report accepted by Headquarters, Department of the Army, and 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, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  As such, there appears to be no basis for removing this document or amending the content therein. 

9.  In view of the foregoing, the applicant has not shown error, injustice, or inequity in this case.  Therefore, there is an insufficient evidentiary basis for granting his request.


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)                                         AR20140007579



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ABCMR Record of Proceedings (cont)                                         AR20140007579



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