IN THE CASE OF:  	  

		BOARD DATE:  24 February 2015	  

		DOCKET NUMBER:  AR20140009431 


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:

The applicant defers his request and statement to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previous request to remove a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rated period 1 February 2009 through 20 November 2009 (hereafter referred to as the contested NCOER) from the applicant's Official Military Personnel Record (OMPF).

2.  Counsel states in the applicant's previous request he asked that a General Officer Memorandum of Reprimand (GOMOR), dated 16 December 2009 (i.e., 20 November 2009), and the contested NCOER be removed from his OMPF.  An Army Board for Correction of Military Records (ABCMR) decision, dated 25 July 2013, denied his request and stated he had not proven that the GOMOR was untrue, unjust, or that it had served its purpose.  Although the applicant denies having a sexual relationship with an officer and a fellow NCO while his divorce was still pending, he can live with that decision of the Board.  However, in regards to the contested NCOER she (counsel) is providing new arguments that were not previously considered.

3.  Counsel provides an ABCMR Record of Proceedings (ROP) with attachments that were previously provided, a letter, and a memorandum.


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 AR20130000795, on 25 July 2013.

2.  As a new argument, counsel states:

	a.  The contested NCOER was written in violation of Army Regulation 623-3 (Evaluation Reporting Systems (ERS)) in that it was the product of unlawful command influence.  The applicant's rater for the contested NCOER, Chief Warrant Officer Four (CW4) WS denied writing the report and stated on several occasions he refused to write a relief for cause (RFC) NCOER [for the applicant]. He told Command Sergeant Major (CSM) Wxxxx that for a final NCOER, or in the case of the applicant a retirement NCOER, the NCO had the option to accept or refuse the evaluation, and the applicant made it very clear that he did not want a final NCOER (emphasis added).

	b.  After his last conversation with the CSM, he (CW4 WS) was ordered by Lieutenant Colonel (LTC) WBW to sign the RFC NCOER.  He was told that if he refused to sign it, he would be facing charges for disobeying a commissioned officer and possibly of a relief for cause.  CW4 WS further stated that he had a high opinion of the applicant, thought his duty performance was outstanding, and despite the allegations he still represented the Army Values.

	c.  The ABCMR used the wrong standard of proof in deciding his case.  Army Regulation 15-185 (ABCMR), paragraph 2-9, stated the burden of proof rests with the applicant to show error or injustice by a "preponderance of the evidence."  This standard is often described as a greater than 50 percent (%) certainty but does not rise to the level of "clear and convincing" or "beyond a reasonable doubt" standards applied in civil and criminal court cases.

	 d.  The ABCMR used the term "clear and convincing evidence" throughout the ROP opinion and, while that terminology may apply to an administrative authority such as the Department of the Army Suitability Board or the Army Special Review Board, counsel contends the only standard of proof that applies to the ABCMR is "by a preponderance of the evidence" and that the Board is placing an unreasonably high burden on an applicant to overcome the presumption of administrative regularity.

   e.  The Board misstated the evidence and regulatory authorities.  The ROP stated, in part, that during the month of November 2009, while the GOMOR was unfolding, the applicant received the contested RFC NCOER.  This is ridiculous considering the GOMOR had not been finalized, the NCOER was not signed by the rating officials until January 2010, the NCOER stated the applicant had already retired, and the NCOER was not filed in his OMPF until after he retired from the service.

3.  The applicant entered active duty as member of the U.S. Army Reserve (USAR) on 11 December 2006.  He was assigned to Headquarters, Special Operations Command South (SOCSOUTH), Homestead Air Reserve Base, FL, as an Anti-Terrorism (AT)/Force Protection (FP) NCO.  On 1 December 2008, he was promoted to the rank/grade of master sergeant (MSG)/E-8.

4.  On 6 October 2009, an investigating officer (IO) was appointed to conduct an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation into allegations of improper relationships between the applicant and a U.S. Navy lieutenant (LT) and between the applicant and a U.S. Army sergeant first class (SFC).

5.  On 17 November 2009, the Chief of Staff, SOCSOUTH issued the applicant an order to cease and desist sexual relations with members of the command while his divorce was pending and stated his behavior was degrading the command climate.

6.  On 20 November 2009, the IO submitted his findings and recommendations.  The IO found, in part:

* the LT admitted to having an intimate sexual relationship with the applicant several times in September 2009 and that he never informed her that he was married
* the LT admitted under oath to having an improper sexual relationship with the applicant in violation of fraternization policy and conduct unbecoming 
* the LT to be credible, truthful, and accurate
* the applicant had an improper sexual relationship with the LT based on her admission under oath of having sex with him several times
* the applicant also had an improper relationship with the SFC, a person not his wife, over a 3-year period
* the applicant engaged in an improper sexual relationship with the SFC while legally married

7.  The IO recommended, in part, the applicant be administratively separated with an under other than honorable characterization of service and issued a GOMOR.

8.  In a GOMOR, dated 20 November 2009, the Commanding General (CG), SOCSOUTH, reprimanded the applicant for his actions.  The GOMOR stated, in part, it had been determined that he, a married man, had engaged in a sexual relationship with a female commissioned officer, a person not his wife.  His conduct was prejudicial to the good order and discipline of the U.S. Armed Forces and was a violation of Article 134, Uniform Code of Military Justice (UCMJ), for adultery.  It was also determined that he was also involved in a sexual relationship with an NCO, a person not his wife, for a period of about 3 years.  This conduct was prejudicial to the good order and discipline of the U.S. Armed Forces and was a violation of Article 134, UCMJ, for adultery.  His conduct caused the CG to seriously consider whether he was suitable for continued service as a Soldier.

9.  On 20 November 2009, the applicant acknowledged receipt of the GOMOR and subsequently submitted a rebuttal.  In the rebuttal he stated, in part:

* he denied the allegations against him but that he did have an encounter with the LT and that at the time of the encounter, he was married
* the encounter consisted of a mentoring relationship whereas she would seek guidance from him as a senior NCO
* during a boat outing with the LT, he passed out and when he briefly came to, he found the LT on top of him; he pushed her off but does not recall having a sexual encounter with her
* the LT lied; she was faced with UCMJ action and appeared to have deflected the attention off her in exchange for leniency
* the SFC also lied; she used her deception skills to compel the LT to tell the truth about the nature of her relationship with him

10.  The issuing authority subsequently directed the GOMOR be filed in the applicant's OMPF and it is currently filed in the performance folder of his OMPF.

11.  His record contains the contested RFC NCOER that covered 10 months of rated time for the period 1 February 2009 through 20 November 2009 for his duties as an AT/FP NCO.  His rater was CW4 WS, the Officer in Charge of the AT/FP Cell; his senior rater was LTC WBW, the Director of the Joint Training and Exercise Division; and his reviewer was Colonel (COL), the J3 Director.  The NCOER shows in:

	a.  Part IVa (Army Values/Attributes/Skills/Actions), the rater checked the "Yes" blocks for "Loyalty," "Duty," "Respect/EO/EEO," "Selfless-Service," and "Personal Courage."  He checked the "No" blocks for "Honor" and "Integrity" and entered the comment "Soldier was relieved for a pattern of misbehavior that was prejudicial to the good order and discipline of the command."
	b.  Parts IV (Values/NCO Responsibilities) b (Competence) and d (Leadership), the rater checked the "Excellence" blocks and commented, in part:  "deployed over 70% of rating period in13 countries conducting vulnerability assessments for Special Operations Forces (SOF) team locations without incident or loss to equipment" and "flawlessly planned and executed multiple AT/FP conferences; made key contributions."

	c.  Parts IVc (Physical Fitness and Military Bearing) and e (Training), the rater checked the "Success" blocks and commented, in part:  "increased physical training score over 25 points despite being deployed over 65% of the time"; "coordinated and conducted training for anti-intrusion systems for forward deployed SOF forces"; and "trained peers on essential AT/FP skills, multiplying the command's AT readiness."

	d.  Part IVf (Responsibility and Accountability), the rater checked "Needs (Much) Improvement" and inserted the following comment to support his rating: "displayed gross lack of judgment and conduct unbecoming an NCO through a pattern of misbehavior that was prejudicial to good order and discipline."

	e.  Part Va (Overall Performance and Potential) the rater checked "Marginal."

	f.  Parts Vc (Senior Rater - Overall Potential) and d (Senior Rater - Overall potential for promotion and/or service in positions of greater responsibility) the senior rater checked the "Poor" boxes and in Part Ve (Senior Rater Bullet Comments) commented:

* an outstanding performer who, unfortunately, cannot be relied upon to do the right thing
* despite his competence, Soldier has demonstrated he is constitutionally incapable of adhering to the Army values
* Soldier is unavailable for signature because he retired immediately upon investigation into his pattern of misbehavior

12.  He was honorably released from active duty on 18 December 2009 in the rank of MSG by reason of completion of required active service to the control of the USAR.  He was subsequently transferred from the USAR to the Retired Reserve.

13.  The contested NCOER was signed by the rater, senior rater, and reviewer on 6 January 2010.  The applicant did not sign the NCOER.  This contested NCOER is currently filed in the performance folder of his OMPF.

14.  Army Regulation 623-3 prescribes the policies for completing evaluation reports.  The version of the regulation in effect at the time stated, in part:

	a.  An NCOER report is required when an NCO is relieved for cause regardless of the rating period involved.  The published rating chain at the time of the relief will render the report.  RFC is defined as the removal of an NCO from a rateable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain.  An RFC occurs when the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army.  The NCOER must indicate the reason for the relief.  There is no requirement to refer an RFC report to the rated NCO for comment.  RFC will be the final action after all investigations have been completed and a determination made.  The date of relief determines the through date of the report. 

	b.  An evaluation report accepted for inclusion in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant, a senior NCO, was relieved for cause after it was found that while still married he engaged in adulterous sexual relationships.  As required by the governing regulation, he was issued a mandatory RFC NCOER.  The IO investigation was completed on 20 November 2009 and, although the filing decision had not been determined by the issuing authority, he received a GOMOR on 20 November 2009 which was the correct required through date of the report.

2.  It is noted that 3 years after the NCOER was completed the applicant's rater contended he did not write the report and was pressured to sign it; however, this contention is questionable.  Although the report did include only two required negative bullet comments that addressed the reason for the relief for cause in the section completed by the rater, it also included two "Excellence" and two "Success" ratings and numerous bullet comments by the rater that lauded the applicant's duty accomplishments during the rated period.  In addition, if the command had pressured the rater to complete and sign the report this was well within their authority and was the proper action to take as the report was a required report and the rater was obligated to render a report.


3.  While the contested report was not signed by the applicant as it was processed after he was released from active duty, it is presumed that prior to his departure he would have been informed as to the basis for the report and furnished a draft copy of the report.  However, whether this occurred or not is a moot point.  The NCOER was a required report and did not have to be referred to the applicant prior to the final administrative processing of the report.

4.  By regulation, in order 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 action is warranted to correct a material error, inaccuracy, or injustice.

5.  In this case, the preponderance of evidence does not show that the ratings in the contested NCOER were rendered in error or that they were not the considered opinions and objective judgments of all the rating officials at the time the report was rendered. The available evidence is insufficient to show the contested NCOER was inaccurate, unjust, or otherwise flawed to a degree that would warrant its removal from the applicant's record.

6.  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 to amend the decision of the ABCMR set forth in Docket Number AR20130000795, dated 25 July 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)                                         AR20140009431





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ABCMR Record of Proceedings (cont)                                         AR20140009431



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