IN THE CASE OF:    

		BOARD DATE:  12 February 2015	  

		DOCKET NUMBER:  AR20140021047 


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 a relief of cause noncommissioned officer evaluation report (NCOER) covering the period 11 June 2011 through 1 December 2011 from his official military personnel file (OMPF).

2.  The applicant states, in effect:

* he is a sergeant first class (SFC) who was serving as the Senior Paralegal Noncommissioned Officer (NCO) in the headquarters of a Brigade Combat Team (BCT)
* he became romantically involved with a promotable specialist, also assigned to the headquarters but in a separate section and not part of his supervisory chain
* he is now married to this person
* their relationship did not adversely affect discipline, authority, morale, or the ability of the command to accomplish its mission
* their relationship was personal and took place outside of work
* he believes he was in compliance with Army policy as prescribed in Army Regulation 600-20 (Army Command Policy), in effect at the time
* he was never told of a BCT policy prohibiting relationships like his; had there been one he would have better understood the unit's need for adverse treatment
* he was never counseled regarding his relationship with his now-wife, and was never given the chance to repair what the command viewed as wrong
* he feels he rightfully relied on the provisions of Army Regulation 600-20, and his conduct and relationship were proper under the circumstances
* he feels the command applied a strict liability analysis that was not supported by policy, regulation or otherwise
* he received the NCOER one month after his unit deployed, while he remained in the rear detachment
* he provided a letter response to the NCOER, never heard back, then saw his NCOER indicated he had refused to sign
* he was moved to installation Staff Judge Advocate office after being relieved
* when he received the rating in question, his rater told him, although the rating was not good, it would not put me at risk for removal from active duty under a qualitative management program (QMP); this is no longer true in today's Army
* also, he neither took any action to appeal the NCOER nor requested a Commander's Inquiry because he feared reprisal not only for himself, but, more importantly, for his future wife, who, at that time, was deployed with the unit

3.  The applicant provides a letter from his former rater.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 30 September 1998.  After completing initial training, he was awarded military occupational specialty (MOS) 55B (Ammunition Specialist).

3.  He reenlisted, on 23 June 2000, under the Army Training Reenlistment Option so he could be awarded MOS 71D (now 27D) (Legal Clerk).  He successfully completed 71D training and has since been assigned in various positions as a paralegal.  He was promoted to SFC on 1 November 2006.  He is currently on active duty.

4.  During July 2010, he received an "Annual" NCOER covering 12 months of rated time from 11 June 2009 through 10 June 2010 for his duties as senior paralegal NCO.  His rater was Captain (CPT) AKK, BCT judge advocate, his senior rater was Lieutenant Colonel (LTC) MDM, executive officer, and his reviewer was Colonel (COL) CRT, brigade commander.  The NCOER shows:

* his rater rated his 7 Army values as "Yes," his NCO responsibilities as "Success" or "Excellence," and his overall potential for promotion as "Among the Best"
* his senior rater rated his overall performance as "Successful/1" and his overall potential as "Superior/1"

5.  He received a "Relief for Cause" NCOER covering 5 months of rated time from 11 June 2010 through 1 December 2010 for his duties as senior paralegal NCO.  His rater was CPT AKK, BCT judge advocate, his senior rater was LTC MDM, executive officer, and his reviewer was COL CRT, brigade commander.  This NCOER shows he was initially counseled on 21 June 2010 and he also received a subsequent counseling on 17 September 2010.  It shows the following entries:

	a.  In Part IVa (Army Values), the rater placed an "X" in "No" blocks for "Honor" and "Integrity."  The rater entered the following bullet comments.

* engaged in an inappropriate relationship with junior enlisted Soldier from within the unit
* demonstrated full commitment to mission and the needs of others

	b.  In Part IVb (Competence), the rater placed an "X" in the "Excellence" and entered appropriate comments.

	c.  In Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Success" and entered appropriate comments.

	d.  In Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" and entered the following bullet comments

* failed to set the example of moral and ethical excellence by violating the Army Regulation against fraternization
* his leadership molded eight paralegal Soldiers into quality performers, enabling them to provide a full range of legal support to their assigned battalions
* motivated a subordinate NCO to pass the APFT and re-enlist, allowing the section to maintain strength level and experience prior to deployment

	e.  In Part IVe (Training), the rater placed an "X" in the "Success" and entered appropriate comments.

	f.  In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Some)" and entered the following bullet comments:

* the rated NCO has been notified of the reason for the relief
* engaged in an inappropriate relationship with junior enlisted Soldier from within unit
* displayed meticulous attention to detail and took responsibility for the quality of his section's work product

	g.  In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Marginal" block.  He also entered three positions in which the applicant could best serve the Army at his current or next higher grade. 

	h.  In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Fair/4" block.

	i.  In Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an "X" in the "Fair/4" block.

	j.  In Part IVe (Senior Rater Bullet Comments) the senior rater entered the following bullet comments:

* Soldier refused to sign
* do not promote at this time
* demonstrated incredibly poor judgment for a Non-Commissioned Officer in his unique position when he engaged in an inappropriate relationship with a junior Soldier
* exhibited outstanding technical competence and provided substantial value to the mission of the BCT
* displays the potential to serve at all grades of higher responsibility if he renews his commitment to living Army values

6.  The NCOER shows the rater, senior rater authenticated this form by placing their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place.  The entry for the applicant's signature as rated NCO is blank.

7.  There is no available evidence showing the applicant requested a Commander's Inquiry regarding the subject NCOER.  Likewise, there is no indication the applicant appealed this NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board.

8.  During July 2011, he received a "Permanent Change of Station (PCS)" NCOER covering 8 months of rated time from 2 December 2010 through 18 July 2011 for his duties as senior paralegal NCO, with duty at the installation Office of the Staff Judge Advocate.  His rater was the chief paralegal NCO, his senior rater was the administrative law attorney, and his reviewer was the rear detachment commander.  This NCOER shows:

* his rater rated his 7 Army values as "Yes," his NCO responsibilities as "Success" or "Excellence," and his overall potential for promotion as "Among the Best"
* his senior rater rated his overall performance as "Successful/1" and his overall potential as "Superior/1"

9.  The applicant provides a memorandum from his former rater which essentially states:

* he was BCT judge advocate from 2009 to 2011 and the applicant's immediate supervisor
* more than anyone else, he was responsible for the applicant's relief for cause NCOER
* professionally, the applicant was, bar-none, the best paralegal with whom he has ever worked
* at the time the applicant's relationship was discovered, the BCT was addressing multiple incidents of prohibited relationships between senior NCO and junior enlisted Soldiers
* because of the applicant's unique position of trust and confidence, the leadership and the writer believed the applicant should be held to a high standard
* the decision was made to administratively remove him immediately and conduct a formal investigation
* when the investigation confirmed the relationship, apparently already widely known in the unit, the writer believed the only proper response was to permanently remove the applicant from his position
* the decision was agonizing for him; the applicant was an outstanding performer who served as the glue that held his team together
* the writer also knew that a legal analysis of whether the relationship violated Army Regulation 600-20 was not clear cut; the junior enlisted Soldier was not in the same chain of command as the applicant and was months away from becoming an NCO herself
* the extent to which the relationship would have disrupted good order and discipline was more of a subjective judgment than objective evaluation based on actual comments by members of the unit
* in retrospect the writer would have likely done things differently; approaching the applicant incrementally when rumors of the relationship first came out
* he actually confronted the applicant in a fairly combative posture and, when the applicant confirmed the existence of the relationship, he and the leadership jumped to an adversarial investigation leading ultimately to the relief for cause NCOER
* knowing the consummate professionalism of the applicant, had he (the writer) approached it differently, the applicant would have abandoned the relationship
* the writer feels it would be tragic for a relatively minor error in judgment to put an NCO of the applicant's caliber in jeopardy of separation
* he believes neither he nor the BCT leadership would have taken the course they did had they realized the consequences
* he feels the relationship was not of a nature that required relief for cause

10.  AR 623-3 (Evaluation Reporting System), effective 10 September 2007, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.

	a.  Paragraph 1-11 (Commander's Inquiry) 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 Commander's Inquiry 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 3-2i (Evaluation Report Requirements) states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On the one hand, this evaluation will give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions.

	c.  Paragraph 3-24 (Prohibited Comments) states a thorough evaluation of the Soldier is required.

	d.  Paragraph 3-39 (Modification to Previously Submitted Reports) 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, and represent the considered opinion and objective judgment of the 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 appellant.

11.  Army Regulation 600-20, in effect at the time, addresses relationships between Soldiers of different grades.

	a.  It states relationships between Soldiers of different rank are prohibited if they:

* compromise, or appear to compromise, the integrity of supervisory authority or the chain of command
* cause actual or perceived partiality or unfairness
* involve, or appear to involve, the improper use of rank or position for personal gain
* are, or are perceived to be, exploitive or coercive in nature
* create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission

	b.  All military personnel share the responsibility for maintaining professional relationships.  However, in any relationship between Soldiers of different grade or rank, the senior member is generally in the best position to terminate or limit the extent of the relationship.   Nevertheless, all members may be held accountable for relationships that violate this policy.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested NCOER should be removed from his records.

2.  The available evidence shows the applicant's conduct, while an NCO serving in a leadership position within a brigade headquarters, appears to have been below standard.  He received a relief for cause NCOER that covered 5 months of rated time.  His rating officials believed he did not perform to standard in multiple areas of NCO values and/or responsibilities.

3.  The applicant focuses his argument around his contention he was in compliance with the Army policy regarding relationships between Soldiers of difference rank, as prescribed in Army Regulation 600-20.  The regulation addresses both actual and perceived negative impacts on unit discipline and morale.  The applicant's unit was preparing for deployment at the time his relationship was discovered, and was having to address multiple cases of a similar nature.  In this context, the applicant provides no evidence that the shows the presence of his relationship did not adversely affect discipline, authority, morale, and had no impact on the ability of the command to accomplish its mission.

4.  The memorandum provided by the rater indicates he regrets the relief for cause action, and, he believes, both he and the chain of command, would have responded differently had they known the Army's current manning posture.  He does not maintain, however, the applicant's relationship with a junior enlisted Soldier was actually in compliance with the policies outlined in Army 
Regulation 600-20. 

5.  There is insufficient evidence that shows the contested report contains any administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies.  Furthermore, the applicant has not shown evaluations rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time the NCOER was prepared or that they exercised faulty judgment in evaluating him as they did.  In view of the foregoing evidence, there is insufficient evidence to grant him 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 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)                                         AR20140021047





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ABCMR Record of Proceedings (cont)                                         AR20140021047



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