IN THE CASE OF:	  

		BOARD DATE:	  21 July 2015  

		DOCKET NUMBER:  AR20150000074 


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 Evaluation Report (NCOER)) for the rating period 20110102 through 20110820 from his official military personnel file (OMPF).

2.  The applicant states he wants a substantive type review of his Relief for Cause (RFC) NCOER and the NCOER be removed from his permanent record.  This request has been forwarded to the U.S. Army Human Resources Command (HRC) three times within the time limits and returned each time without any decision either way.  HRC recommended that he send his request to this Board.  The basis of this appeal is substantive inaccuracy from the rater.  The events on the NCOER are not only inaccurate but are downright lies and were the result of the rater's redirection in blame to avoid his loss of command responsibilities while deployed.  These ratings were designed to shift blame and exonerate himself from his aggressive behavioral actions towards his Soldiers while in command, which led to an Inspector General (IG) investigation against him and resulted in his immediate loss of command by the U.S. Army Psychological Operations Command Commander.  His prior NCOERs were among the best until the commander found himself in an investigation causing him to point the blame.  

3.  The applicant provides:

* Appeal memorandum to HRC
* HRC returned without action memorandum
* Army Regulation (AR) 15-6 (Procedures of Investigating Officers and Board of Officers) Investigation Findings and Recommendation and allied documents
* Contested NCOER 
* Other NCOERs prior to the contested NCOER
* NCOER Counseling and Support Form
* Emails to other individual 

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.  Having had prior service in the Regular Army, the applicant was reassigned from the U.S. Army Reserve (USAR) Control Group (Reinforcement) to a USAR troop program unit on 16 December 1994.  He held military occupational specialty (MOS) 11B (Infantryman).   

3.  He served through multiple reenlistments and/or extensions, the last of which was for an indefinite period, in a variety of assignments including active duty service.

4.  He served on active duty from 27 January 2003 to 18 September 2003, 27 August 2004 to 6 January 2006, and from 21 September 2007 to 1 June 2010.  He also held MOS 42A (Human Resources Specialist) during this period. He was promoted to master sergeant/E-8 on 1 March 2009. 

5.  He was ordered to active duty on 2 January 2011 in support of Operation Enduring Freedom and subsequently served in Afghanistan from 20 February 2011 to 25 August 2011.  He was assigned to the 307th Tactical Psychological Operations (PSYOPS) Company, in MOS 37A (Psychological Operations Specialist). 

6.  During August 2011, the applicant received an RFC NCOER covering 8 months of rated time from 2 January 2011 through 20 August 2011 for his duties as Company First Sergeant (1SG).  His rater was Major CAH, the Commander; his senior rater was Lieutenant Colonel CRP, the Information Operations PSYOP Chief; and his reviewer was Colonel JDS, the Effects Chief.  This NCOER shows the following entries:

	a.  In Part IVa (Army Values), the rater placed an "X" in the "No" block for "Duty" and "Respect/EO/EEO" blocks and entered the following comments:

* did not fulfill his obligations as Company 1SG in regards to Soldier development, management, and individual training
* through his actions, he lost the respect of the chain of command and Soldiers in the unit, contributing to a toxic command climate 

	b.  In Part IVb (Competence), the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments:

* disregarded the Commander's open door policy by directing Soldiers that they could not talk with the Commander about issues, creating a negative command climate
* has limited technical and tactical knowledge of PSYOP; this limits his ability to serve as the senior NCO trainer and mentor to the NCO chain of command 
* did not always display and utilize sound judgment; was counseled for language when speaking to female Soldiers in regards to sexual innuendo and comments 

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

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

* on several occasions, his lack of communications and specific guidance led to Soldiers executing missions in an incorrect manner, creating confusion within the unit
* lost the confidence of the leaders and Soldiers of the company in regards to EO comments, personal temperament, decision making, and reaction when under stress 
* contributed to a toxic command climate through negative comments, actions, and decisions; failed to motivate a subordinate NCO to follow standards of the unit
	e.  In Part IVe (Training), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments:

* failed to execute position requirements of 1SG in accordance with the commander's guidance; he did not oversee the management of individual Soldier training 
* did not oversee the company Army Physical Fitness Test (APFT) program to ensure that remedial Soldier training was performed; this example was indicative of all individual training 
* when given a task of overseeing Driver's Directive Training, he failed to ensure that training was conducted to standard and falsely reported that it was completed

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

* the rated NCO has been notified of the reason for the relief 
* failed to report significant Commander's Critical Information Requirements under the guise of NCO business, breaching the trust within the chain of command 
* did not execute sound judgment to prevent a hazing incident involving NCO and lower enlisted Soldiers under his direct responsibility 

	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 "Poor/5" 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 "Poor/5" block.

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

* do not promote; displayed poor leadership, judgment, and decision-making when leading/supervising Soldiers to include a hazing incident involving NCOs and lower enlisted Soldiers
* failed to perform duties as a 1SG; did not develop a Soldier training program such as remedial PT and tactical Driving Directive training as directed by the Commander
* ignored the Commander's guidance for counseling female Soldiers and avoiding appearances of sexual harassment; did not fully support the EO program 
* has the potential for success as a staff NCO; do not send to 1SG school 

7.  The contested NCOER shows the rater, senior rater, and applicant 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.

8.  He was released from active duty on 8 November 2011.  His DD Form 214 shows he completed 10 months and 7 days of active service. 

9.  There is no available evidence showing the applicant requested a Commander's Inquiry regarding the subject NCOER.  

10.  On 14 November 2014 (more than 3 years after the through date), the applicant appealed the contested NCOER.  However, on 3 December 2014, HRC returned his appeal without action because his appeal was not received within 3 years of the through date as required by AR 623-3 (Evaluation Reporting System). 

11.  He provides a redacted AR 15-6 investigation findings and recommendations.  An investigating officer (IO) was tasked to investigate whether an individual created a toxic command climate and whether he conducted himself in a manner that unduly jeopardized the safety of his Soldiers and the military mission.  The IO found the individual being investigated did create a toxic command climate and conducted himself in a manner that unduly jeopardized the safety of his Soldiers and the military mission.  The IO recommended (a) redacted; (b) the charges against one captain should be relooked; (3) Soldiers with issues should be advised of the redress procedures; and (4) this or a similar case of toxic command climate be presented in the U.S. Army Psychological Operations Command Commander's course. 

12.  He also provides emails from three individuals stating that the Soldiers rallied behind him after he left and believed the wrong person was sent home. 

13.  The applicant continues to serve in the USAR.  He is currently assigned to Headquarters, First Army, Rock Island Arsenal as an operations NCO. 
14.  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 that 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 2-17 (Review of NCOERs) states: 

		(1)  The reviewer is responsible for rating safeguard overwatch and will ensure that the proper rater and senior rater complete the report and examine the evaluations rendered by the rater and senior rater to ensure they are clear, consistent, and just, in accordance with known facts.  Special care will be taken to ensure the specific bullet comments support the appropriate excellence, success, or needs improvement ratings. 

		(2)  The reviewer will comment only when in disagreement with the rater and/or senior rater.  The reviewer indicates concurrence or non-concurrence with rater and/or senior rater by annotating the appropriate box with a typewritten or handwritten "X" in Part II and adding an enclosure (not to exceed one page).  When the reviewer determines that the rater and or senior rater have not evaluated the rated NCO in a clear, consistent or just manner based on known facts, the reviewer’s first responsibility will be to consult with one or both rating officials to determine the basis for the apparent discrepancy.  

	c.  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.

	d.  Paragraph 3-23 (Unproven Derogatory Information) states that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA.  If the rated individual is absolved, comments about the incident will not be included in the evaluation.

	e.  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.

DISCUSSION AND CONCLUSIONS:

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

2.  The available evidence shows the applicant, a senior USAR NCO, was serving on active duty in a combat environment.  He was relieved for cause from his duties as a company 1SG and he was informed of his relief.  He provides a redacted AR 15-6 that appears to have been conducted against an individual in his chain of command.  The IO found the individual being investigated did create a toxic command climate and conducted himself in a manner that unduly jeopardized the safety of his Soldiers and the military mission.  

3.  However, the IO's findings of a toxic environment had no relationship to the applicant's performance as a unit 1SG.  For example, overlooking an issue of hazing is a failure of leadership in or outside a toxic environment.  Likewise, failing to execute the position requirements of a unit 1SG, or oversee the APFT program, or initiate a remedial PT program, is a failure of leadership in any organization.  

4.  The NCOER reflects the objective judgment of the rating officials during a given rating period.  This Board does not substitute its own evaluation of the applicant to that rendered by his rating officials.  It appears this is how his rating officials judged his performance during the period in question.  There is no evidence he requested a Commander's Inquiry or appealed to HRC within the allotted timeframe.  There are no statements from individuals familiar with the facts at the time and there are no statements from his rating officials of an error.  He has the burden of proof.

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 the evaluation 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.  Any negative impact on his military career is a natural result of his own performance.   

6.  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)                                         AR20150000074



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ABCMR Record of Proceedings (cont)                                         AR20150000074



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