IN THE CASE OF:	   

		BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150001381 


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).


HE'S REQUEST, STATEMENT, AND EVIDENCE:

1.  He requests removal of his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the rating period 27 December 2007 through 25 August 2008 from his Official Military Personnel File (OMPF).

2.  He states:

* the unjust NCOER is filed in his records
* there was never any counseling or documentation to support any of the false accusations contained in the NCOER
* the NCOER was rendered in reprisal as he had an Inspector General (IG) complaint pending at the time
* he does not believe the IG case was ever finalized
* the NCOER is interfering with his career

3.  He provides:

* letter from the Deputy Legal Advisor, Records Release Office, Department of the Army Office of the Inspector General, dated 7 January 2015
* contested NCOER

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army and the Army National Guard, he enlisted in the U.S. Army Reserve on 6 November 1995 in the rank/grade of specialist four/E-4.

2.  He was promoted to the rank/grade of sergeant first class/E-7 effective 1 September 2004.

3.  U.S. Army Human Resources Command (HRC) Orders R-06-576308, dated 13 June 2005, ordered him to active duty in an Active Guard Reserve status effective 5 July 2005 with assignment to the 94th Regional Support Command, Ayer, MA, and an active duty commitment of 3 years.

4.  HRC Orders R-05-783975A01, dated 7 June 2007, amended HRC 
Orders R-05-783975 reassigning him to the 344th Military Police Company, New Haven, CT, to show his reporting date as 14 January 2008.

5.  Headquarters, 412th Engineer Command, Orders 045-01, dated 14 February 2008, directed his deployment as a member of the 344th Military Police Company in a temporary change of station status and assignment and attachment to the 340th Military Police Company, Fort Totten, NY, in support of Operation Iraqi Freedom (Iraq) for a period not to exceed 400 days.  These orders show he was directed to proceed to the home station in Jamaica, NY, on 18 April 2008 and to the mobilization station at Fort Dix, NJ, on 21 April 2008.

6.  The Department of the Army IG Action Request System shows he requested assistance on 31 March 2008 and stated his unit was threatening him with Uniform Code of Military Justice (UCMJ) action because he was issued a physical profile due to medical issues.  The physical profile had prevented him from deploying and his command believed he had hidden his medical condition and he only revealed it to avoid deploying.  A review of the IG case file notes shows he filed a U.S. Army Reserve Command IG complaint on the same date; however, the Department of the Army IG was designated as the responsible IG office for his complaint.  The case notes show:

	a.  He stated he was diagnosed with cancer in November 2006 and he underwent surgery to remove a cancerous tumor.  He was told by the Soldier Readiness Processing pre-screening doctor that unless he got a note from his physician clearing him for deployment, he would be designated as non-deployable.  He went to his doctor and tests were conducted to ensure he was still cancer free; however, issues were discovered and further testing was required.  He provided his commander with medical documentation and he was issued a temporary physical profile based on the recommendation of his doctor.  He stated he was new to his current unit and he was not attempting to conceal his issues, but he believed he was fine, deployable, and the surgery in 2006 resolved any medical issues.  He forwarded a copy of a memorandum from his doctor and his temporary physical profile from his commander.

	b.  On 8 April 2008, he advised the IG that his mobilization orders had been revoked and that his unit was still trying to punish him under the UCMJ.  He indicated he was going to file a Congressional inquiry, contact the Judge Advocate General Office, and contact the Equal Employment Opportunity Office. The IG advised against those actions.  The IG told him to allow the IG office ample opportunity to handle the case.  The IG also told him the Equal Employment Office was the civilian equivalent of the Equal Opportunity Office and provided telephone contact numbers for the Equal Opportunity Office and Judge Advocate General Office.  He stated he would stand down for now.  He also sent three sworn statements on unit issues and concerns.  The IG reviewed the statements but stated he would maintain focus on the applicant's current complaint.

	c.  On 21 May 2008, he advised the IG that his situation had escalated, things had gotten out of control, and it was nothing but a personal vendetta.  He indicated he had received three written counseling statements on 3 April 2008 and five written counseling statements on 18 May 2008.  The IG case file notes show he provided that office with documentation regarding:

* his allegation of retaliation from his commander
* his commander's attempts at charges for being absent without leave in May 2008
* false accusations of intimidating another Soldier
* meeting details between him and his battalion commander
* his bar to reenlistment
* email correspondence and sworn statements
* disobeying a direct order

7.  HRC Orders C-06-811758R, dated 25 June 2008, revoked HRC 
Orders C-06-811758, dated 18 June 2008, directing his transition reporting date of 3 July 2008.

8.  On 25 June 2008, HRC directed his retention in the Active Guard Reserve Program for the convenience of the government for the period 4 July 2008 through 4 August 2008 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 1-26.

9.  On 15 August 2008, he reenlisted for a period of 3 years.  The remarks block of his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he acknowledged the effective date of his reenlistment was 7 October 2008, 1 day following his current expiration of term of service of 6 October 2008, and his term of enlistment would expire on 6 October 2011.

10  HRC Orders R-08-887956, dated 19 August 2008, released him from active duty, discharged him for the purpose of reenlistment, and ordered him to active duty in an Active Guard Reserve status for an additional active duty commitment of 3 years effective 7 October 2008.

11.  On 27 August 2008, he acknowledged receipt of the contested NCOER.  The reason for the NCOER is shown as relief for cause.  The NCOER shows in:

	a.  Part III (Duty Description), block f (Counseling Dates), initial on 28 January 2008 and later on 3 April 2008 and 18 May 2008.

	b.  Part IV (Army Values/Attributes/Skills/Actions – Rater):

		(1)  block a (Army Values), "No" ratings for duty, honor, and integrity blocks and entered the following bullet comments:

* on several occasions failed to accomplish assigned tasks
* has difficulty adhering to the intent of the Army values
* failed to use the chain of command on many occasions

		(2)  block b (Competence), the rater checked "Needs Improvement (Much)" and entered the following bullet comments:

* failed to produce required product as training NCO
* taking classes to improve ASVAB [Armed Services Vocational Aptitude Battery] score
* needs improvement doing USR [Unit Status Report] turn in

		(3)  block c (Physical Fitness and Military Bearing), the Army Physical Fitness Test (APFT) block is blank; the rater checked "Needs Improvement (Some)" and entered the following bullet comments:

* conducted APFT for the unit at Camp Rell
* displays confidence in himself
* did not take APFT during this rating period

		(4)  block d (Leadership), the rater checked "Needs Improvement (Much)" and entered the following bullet comments:

* demonstrated borderline insubordination to unit leadership
* had difficulty following chain of command
* set poor example for lower enlisted Soldiers

		(5)  block f (Responsibility and Accountability), the rater checked "Needs Improvement (Some)" and entered the following bullet comments:

* failed to take responsibility for his actions
* cannot be trusted to do the right things when no one is around
* has not provided mentorship to any Soldiers in the unit

	c.  Part Va (Rater – Overall Performance and Potential), the rater checked "Marginal" and entered the following bullet comments:

* do not promote
* missed movement for combat tour
* places himself before his Soldiers or the mission

	d.  Part Vc (Senior Rater – Overall Performance) is checked "4 – Fair."

	e.  Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) is checked "5 – Poor."

12.  On 10 November 2008, the contested NCOER was accepted by HRC and filed in his OMPF.

13.  On 3 May 2011, the IG complaint was closed at the applicant's request.  The IG determined his complaint of possible UCMJ action based on his physical profile was unsubstantiated.

14.  On 1 September 2011, he reenlisted for a period of 6 years.  The remarks block of his DD Form 4 shows he acknowledged the effective date of his reenlistment was 7 October 2011, 1 day following his current expiration of term of service of 6 October 2011, and his term of enlistment would expire on 6 October 2017.

15.  Headquarters, 200th Military Police Command, Orders UF-052-0001, dated 21 February 2013, directed his deployment in a temporary change of station status and assignment to the 11th Military Police Brigade, Los Alamitos, CA, with attachment to the 56th Military Police Company, Mesa, AZ, in support of Operation Enduring Freedom (Afghanistan) for a period not to exceed 400 days effective 31 March 2013.  These orders show he was directed to proceed through Fort Bliss, arriving not later than 3 April 2013, and depart Fort Bliss on or about 3 May 2013.

16.  Headquarters, 200th Military Police Command, Orders UF-052-0001, dated 26 March 2013, amended Headquarters, 200th Military Police Command, Orders UF-052-0001, dated 21 February 2013, to change his arrival date at Fort Bliss to read not later than 31 March 2013 and his departure date from Fort Bliss to read on or about 3 May 2013.

17.  HRC Orders C-08-512900, dated 26 August 2015, released him from attachment to Headquarters and Headquarters Company, 11th Military Police Brigade, Los Alamitos, CA, and attached him to Fort Irwin, CA, effective 30 October 2015 for separation processing.  These orders show his scheduled date of separation as 1 November 2015.

18.  His available records are void of and he failed to provide a copy of the physical profile or any medical evidence showing he was unable to deploy or evidence he appealed the NCOER.  Additionally, his records are void of documentation and he has not provided documentation that shows he requested a commander's inquiry related to the contested NCOER.

19.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's ERS.

	a.  Paragraph 3-36 addresses requests for modifications to both completed evaluation reports that are filed in a Soldier's OMPF and reports that are being processed at Headquarters, Department of the Army (HQDA), prior to completion.  It states:

		(1)  An evaluation report accepted by HQDA 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 who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

		(2)  Requests for modifications to evaluation reports already posted to a Soldier's OMPF require use of the Evaluation Report Redress Program.

	b.  The commander or commandant may determine through inquiry that the report has serious irregularities or errors.  Examples include:

		(1)  improperly designated, unqualified, or disqualified rating officials (that is, a rating official not in the published rating chain; a rating official without the minimum required time to render an evaluation report; or a rating official who, through an official investigation, has had a substantiated adverse finding against him or her that results in his or her relief or calls into question the rating official's objectivity;

		(2)  inaccurate or untrue statements; and/or

		(3)  lack of objectivity or fairness by rating officials.

20.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports to HQDA and associated support forms that are the basis for the Army's ERS.  Table 3-4 (Army Values/Attributes/Skills/Actions and Values/Noncommissioned Officer Responsibilities for DA Form 2166-8) states the entry for Part IV, block c, of the NCOER will be left blank and the rater will explain the reason it has been left blank for Soldiers with permanent profiles whose profiles prohibit them from taking the APFT.  Soldiers with temporary profiles at the time of the unit's record APFT will enter "PROFILE" and the date the profile awarded in year, month, and day format.  The date of the profile must be within 12 months prior to the "Thru" date of the NCOER.  A comment on "PROFILE" entries will be made only if the rated NCO's ability to perform his or her assigned duties is affected.  The rater will explain the absence of an APFT entry.

DISCUSSION AND CONCLUSIONS:

1.  His request for removal of the contested NCOER from his records was carefully considered.

2.  Although he alleged the NCOER was the result of retaliation due to his physical profile, the IG was unable to substantiate this.  Further, his records are void of and he failed to provide any medical evidence showing he was issued a physical profile or was medically unfit to deploy.

3.  The evidence shows the NCOER was accepted by HRC and filed in his OMPF on 10 November 2008.  Once the NCOER was accepted by HQDA, the only way to modify that report was through the appeals process.  His records are void of and he failed to provide any evidence he appealed the contested NCOER.

4.  There is no evidence the contested NCOER contains any serious substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies.  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.  The governing regulation states an evaluation report accepted and included in the official record of a Soldier is presumed to be administratively correct.

5.  In view of the foregoing evidence, there is an insufficient basis for granting 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)                                         AR20150001381



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ABCMR Record of Proceedings (cont)                                         AR20150001381



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