IN THE CASE OF

		BOARD DATE:    19 August 2014

		DOCKET NUMBER:  AR20140010793 


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 removal of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), for the period October 2004 through July 2005, from his official military personnel file (OMPF).  Hereafter, this NCOER will be referred to as the contested NCOER.

2.  The applicant states:

	a.  In June of 2005, he received a field-grade Article 15 (nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)).  The following month he received a relief for cause NCOER.

	b.  The NCOER contains several errors:

		(1)  In Part IV (Army Values/Attributes/Skills/Actions), sub-section a. (Army Values), a checkmark is placed in the "Yes" blocks pertaining to "Duty," "Respect," "Selfless Service," and "Personal Courage," of which "Respect" should have been checked “No.”

		(2)  The initial counseling is dated 13 December 2004, which is more than 
30 days after the beginning to the rating period.  The next counseling is dated 
29 May 2005; this exceeds the required three-month interval for quarterly counseling.  

		(3)  The contested NCOER states he violated Army Regulation 600-5; however, to his knowledge, there is no such Army Regulation. 
		
		(4)  In the leadership portion of the NCOER it says that he set a poor example with acts of fraternization with squad members; however, he received NJP for fraternization with one Soldier, not multiple members of his squad. 

		(5)  Violation of Army Regulation 600-5 appears twice on the NCOER and in the senior bullets comments; it appears to have been typed in after the NCOER was signed. The font used is different from the computer font used to write the NCOER.

	c.  The NCOER was written when he was no longer in Headquarters and Headquarters Company, 3rd Brigade Special Troops Battalion (HHC, 3rd BSTB). The report was rushed and poorly written because he was deploying with HHC, 1st BSTB.  It quotes a regulation that does not exist.  The first bullet in the leadership block is not supported and is false.  The same incident is documented five times.  In the Senior Rater bullets block, it can be seen that a typewriter was used to add the third bullet in a different font.  This was done after he signed the NCOER.

	d.  During a records check of all of his evaluations it was discovered that the NCOER in question has the wrong regulation quoted.  Upon further evaluation, he noticed the other discrepancies.  Prior to considering a possible removal, he spoke to his first sergeant who advised him to appeal this evaluation.  His J1 noncommissioned officer in charge (NCOIC) contacted the U.S. Army Human Resources Command (HRC) and was advised he could not appeal an evaluation older than three years.  Furthermore, he was advised to seek assistance from the Army Review Boards Agency.

3.  The applicant did not provide any supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a staff sergeant (SSG)/E-6, currently serving in the Regular Army at Fort Drum, NY. 

2.  On 9 June 2005, while serving as a sergeant (SGT)/E-5, he accepted NJP for wrongfully violating a lawful general regulation by engaging in a prohibited fraternizing relationship with a junior Soldier, a member of his team. 

3.  During August 2005, the applicant received a relief for cause NCOER which covered 8 months of rated time from October 2004 through July 2005 for his duties as a Team Leader.  His Rater was the Squad Leader, his Senior Rater was the Platoon Sergeant, and his Reviewer was the Platoon Leader.  The NCOER shows the following entries:

	a.  In Part IV, sub-section a., the Rater placed a checkmark in the "No" blocks pertaining to "Loyalty," "Honor," and "Integrity," indicating he was deficient in those rated areas, and made the following comment:  

* relieved of his duties for violating AR 600-5 (Fraternization)

	b.  In Part IV, sub-section b. (Competence), the Rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comment "poor sound judgment led to fraternization with a Soldier within the squad";

	c.  In Part IV, sub-section d. (Leadership), the Rater placed an "X" in the "Needs Improvement (Much)" block and entered the bullet "set a poor example with his acts of fraternization with squad members";

	d.  In Part IV, sub-section f. (Responsibility and Accountability), the Rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet "failed to do what was right by violating the fraternization policy"; 

	e.  In Part V (Overall Performance and Potential), sub-section a. (Rater), the Rater placed an "X" in the "Marginal" block;

	f.  In Part V, sub-section c. (Senior Rater – Overall Performance) and sub-section d. (Senior Rater – Overall Potential), the Senior Rater placed an "X" in the "5-Poor" blocks and entered the bullets:

* Soldier should not lead troops
* Soldier has reached his leadership potential
* violated AR 600-5 (fraternization)

6.  The NCOER shows the Rater, Senior Rater, and applicant authenticated the contested NCOER by placing their signatures in the appropriate places, and 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 commander's inquiry (CI) regarding the contested NCOER.  Likewise, there is no indication he appealed the contested NCOER. 

8.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  The 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 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to 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 applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his relief for cause NOCER should be removed from his official records.  

2. The applicant, then a SGT serving in a leadership position as a Team Leader, violated a lawful general regulation by engaging in a prohibited fraternizing relationship with a junior Soldier, a member of his team.  He received NJP and a relief for cause NCOER for this conduct. 

3.  Although the NCOER contains some minor administrative errors, there is no evidence that the report contains any 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 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)                                         AR20140010793



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