IN THE CASE OF:	  

		BOARD DATE:	  30 April 2015

		DOCKET NUMBER:  AR20150004596 


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, in effect, his Change of Rater DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period 9 October 2010 through 3 September 2011 (hereafter referred to as the contested NCOER) be removed from his Official Military Personnel File (OMPF).

2.  The applicant states the basis for the appeal is both administrative and substantive error of the contested NCOER.

	a.  He states that he received an unjust General Officer Memorandum of Reprimand (GOMOR).  This resulted in the contested NCOER that contains several inconsistencies and false accusations.

   b.  He states that one month before he and his wife were deployed to Afghanistan they were burdened with family difficulties.  His ex-wife unlawfully took custody of their children and refused to provide him information on their location.  In addition, his wife had given birth four months prior to deployment which added additional stress to the deployment.  Their children's well-being was the primary cause of their stress.

   c.  Prior to the incident (that occurred on 26 June 2011), the applicant sought counseling and guidance regarding his mental state and other issues through the Combined Joint Task Force-1 (CJTF-1) Chaplain.  Shortly afterwards, his wife began attending the counseling sessions.

   d.  On the date of the incident, there were several statements given that provided contradictory information.  The statements were not taken by law enforcement officials, but rather by the command.  He adds that he believes the investigation was not handled by proper procedure and the results are tainted.  He offers that a proper sworn statement would allow the individual to give a narrative with follow-up questions/answers and clarifying statements.  However, the command's questioning of the witnesses did not allow for this process.  As a result, they were denied the opportunity to explain what actually occurred.  His wife asked if she could clarify what she had originally stated, but she was denied the opportunity.  On 14 July 2014, she clarified her original statement in a letter to the Commanding General, Major General (MG) Daniel B. A_____.

   e.  Chief Warrant Officer Two (CW2) R____ S____ (his original rater) also provided further explanation of his original statement in a follow-up statement to MG A____.  The applicant states, "[h]e stated that the facts were that there was a brief argument in his office, he was the only one who witnessed it, and that it did not turn physical between the two of us---something which was completely inaccurately portrayed in both the GOMOR and NCOER.  He also noted that we [the applicant and the applicant's spouse] were the only two witnesses to the earlier argument we had, and yet when my wife tried to clarify her original statement during the 24-hour no contact period, her request was denied and punishment was threatened.  Furthermore, I was repeatedly denied the opportunity to speak with my chain of command under the open-door policy."

   f.  The applicant states that his statement closely resemble those of both his wife's and CW2 S____'s follow-up statements clarifying that he did not choke her or try to cause her any bodily harm.  He adds that during the no-contact period, his wife told CW2 S____ that her original statement was untrue and she wanted to clarify it with the military police (MPs), but Major (MAJ) C____ L. D____ (the senior rater) denied her request and threatened her with nonjudicial punishment if she changed her statement.  He adds that Master Sergeant (MSG) P____ N____ (the rater) and MAJ D____ wanted his wife to take an oath of not discussing a domestic violence cycle with the applicant, which placed his wife in an ethical dilemma.

   g.  Colonel (COL) C____ T____, the brigade commander who initiated the request for GOMOR predetermined that he intended to request permanent filing in the applicant's OMPF without considering matters submitted in rebuttal.  The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) was incomplete, no crimes record case was initiated, and there was no Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation by the command to consider all the evidence of the alleged offenses.  In addition, the statement by Captain (CPT) C____ L____ indicating
"a pattern of behavior when he works around his spouse is detrimental to mission" is contradicted by statements from everyone within the Division Deployment Operations Center (DDOC).

   h.  He states that the contested NCOER was due to the GOMOR received by the command team.  In addition, neither the rater (MSG N____) or the senior rater (MAJ D____) were part of his rating chain at any time during the rating period.  He adds the statement by CW2 S____ (his original rater) attests to this fact, along with the email messages that he provides in support of his appeal.  In addition, CPT J____ R. H_____ offers a statement that shows the applicant was being forced to sign the contested NCOER.

   i.  An investigating officer (IO) in the applicant's rating chain was initially appointed for the Commander's Inquiry (CI), which was in violation of the regulatory guidance.  The appointing authority/rater subsequently appointed one of his company commanders as the IO.  The IO only interviewed MAJ D____ who claimed in a sworn statement that the change in the rating chain was approved by the battalion command group.  The applicant states, "[h]owever, it is common knowledge that rating schemes are approved by the company commander."  He adds CW2 S____ (his original rater) and Warrant Officer One (WO1) E____ G____ (his subsequent rater) were never interviewed.  This demonstrates the bias of the CI and motive to avoid a thorough and impartial investigation.

   j.  He has had his NCOER appeal reviewed by his former commanders, battalion command sergeant major (CSM) who serves as the Commandant of the Drill Sergeant Academy, and G3 Sergeant Major (SGM), 101st Airborne Division.  Each one of them has indicated it is their belief that the GOMOR and contested NCOER were unjust and not warranted (in whole or in part).

   k.  He has consistently sought to improve his personal and professional career by completing self-enrolled counseling programs in an on-going effort of self-improvement.

   l.  After being reassigned to Fort Campbell, KY in 2012, he was selected as the First Sergeant (1SG), Company E, 801st Brigade Support Battalion (BSB), despite the GOMOR and NCOER.  He has also served in several other leadership roles.  He adds that he sought counsel through the Legal Services Offices, but he was ill-advised on the appeal process for both the GOMOR and contested NCOER.

   m.  He admits that he was very upset at the time of the incident.  He adds that he has taken numerous steps to mitigate what happened and ensure that he never puts himself in the position of being under such pressure again.  He and his wife remain together as a dual military couple raising their family and they have reassignment orders to Alaska in July 2015.

3.  The applicant provides copies of 46 documents that he identifies in an "Outline of Enclosures" submitted with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 30 September 1999.  Through a series of reenlistments he has continued to serve in the RA.
He was promoted to sergeant first class (SFC)/pay grade E-7 on 1 September 2010 in military occupational specialty 88M (Motor Transport Operator).

2.  A review of the applicant's OMPF revealed a copy of a GOMOR dated 
29 July 2011 is filed in the performance folder of his OMPF.  It shows Brigadier General G____ J. V____, Deputy Commanding General (DCG) - Maneuver, CJTF-1, Regional Command – East, Bagram Airfield, Afghanistan, issued the GOMOR to the applicant for, on 26 June 2011, assaulting his (the applicant's) wife (Staff Sergeant (SSG) N____ T____) by grabbing her around the throat with one hand and confining her in a choke hold.  It also shows that once he released her, she fled the area and reported the incident.

   a.  The commander advised the applicant that the reprimand was administrative in nature and he was considering filing it as a permanent document in the applicant's OMPF, but he would consider any written matters he wished to submit prior to his final filing decision.

   b.  The applicant was instructed to reply within 7 days of receipt of the GOMOR by submitting any statement or documentation in extenuation or mitigation.

   c.  On 1 August 2011, the applicant acknowledged receipt of the GOMOR and indicated his intent to submit a written statement in his behalf within 7 days.

   d.  A DA Form 2823 (Sworn Statement), attached as an enclosure to the GOMOR, shows SSG N____ R. T____ (the applicant's spouse) made a sworn statement at 0005 hours, 27 June 2011.  It shows, in pertinent part, "He [the applicant] followed behind me, attempting to argue and grabbed me by my neck with one hand.  He pulled me in a chock [sic] hold with the same arm and pulled me from in front of the truck to the walkway in between the B-Huts.  He released me and I began to just stand and cry.  He started saying, 'What, is there a problem?' to someone next to the B-Hut who may have witnessed what happened."

   e.  On 3 August 2011, the applicant submitted his written statement along with 20 enclosures.  The applicant's statement shows, in pertinent part:

* "While it was the most severe argument we had ever had, I never remember choking or hitting her."
* "After we argued, we walked back into CW2 S____'s office.  This was when she first said that I better not put my hands on her."
* "Later, when I spoke with my wife she told me that I had grabbed her when she was walking away.  I told her that I did not remember doing this, but she told me it happened."

   f.  On 15 August 2011, the DCG indicated that he had reviewed the GOMOR, the applicant's acknowledgement, chain of command recommendations, and all matters submitted.  He directed that the GOMOR be filed in the applicant's OMPF.

3.  A copy of the contested NCOER is filed in the performance folder of the applicant's OMPF.  It shows in:

   a.  Part II (Authentication) the rating chain as:

* Rater:  MSG P____ N____, DDOC 1SG
* Senior Rater:  MAJ C____ L. D____, DDOC Officer in Charge (OIC)
* Reviewer:  Lieutenant Colonel (LTC) R____ D. B____, Battalion Commander

   b.  Part III (Duty Description), block f (Counseling Dates), the initial and later counseling date blocks are blank (no entries).

   c.  Part IV (Army Values/Attributes/Skills/Actions):
   
    	(1)  block a (Army Values), line 6 (Integrity), is marked "No" and shows the bullet comment:  "failed to abide by Army Values by assaulting a fellow NCO."  He received "Yes" ratings for all remaining Army Values; and
   
    	(2)  block f (Responsibility and Accountability), is marked "Needs Improvement" and shows the bullet comment:  "failed to set the standard in regards to both professional and personal conduct."  He received four "Success" ratings and one "Excellence" rating for the remaining Values/NCO Responsibilities.
   d.  Part V (Overall Performance and Potential):
   
    	(1)  the rater marked "Marginal" with the bullet comments:

* promotion to Master Sergeant is not recommended at this time
* do not select for functional schools or consider selection to 
U.S. Army Sergeants Major Academy
* unstable duty performance at this time
* has potential for increased leadership positions
* counseling not accomplished in Part III, block f, prior to through-date due to service member being removed from duty position by chain of command for own adverse actions
* rating chain validated through Commander's Inquiry, service member refused to sign

    	(2)  The senior rater marked "Successful (3)" for overall performance and "Fair (4)" for overall potential for promotion and/or service in positons of greater responsibility.

   e.  The reviewer indicated with an "X" in Part II, block d, that he concurred with the rater and senior rater evaluations.

   f.  The rater digitally signed the NCOER on 28 November 2011.  The senior rater and reviewer digitally signed the NCOER on 30 November 2011.  The rated NCO (applicant) did not sign the NCOER.

4.  U.S. Army Human Resources Command, Fort Knox, KY, memorandum, dated 9 February 2015, subject:  Evaluation Report Appeal (Thru Date:  3 September 2011), shows the Appeals and Correction Section notified the applicant that his appeal was being returned without action because the Army Appeals Board does not grant waivers for the 3-year time restriction on the submission of substantive appeals.

5.  In support of his request for the applicant provides the following documents.
   
   a.  Two memoranda for records (MFR), one co-authored by SGM R____ T. B____ and MSG K____ B. H____, dated 9 January 2015, and the other authored by CSM L____ C____, dated 8 January 2015.  They show the applicant is serving in their command and they attest to his successful duty performance as staff duty operations NCO and security manager.  They also indicate that they have reviewed the applicant's NCOER appeal and, "[u]pon review, it became immediately obvious that there were several discrepancies within the items that may have influenced the board's initial decision; from the lack of proper investigation or actual witness leading to the GOMOR, to the ensuing NCOER's [being] written by individuals and none of whom were ever in his rating scheme."
   
   b.  An MFR authored by CPT M____ E. R____, dated 8 January 2015, that shows the applicant served under his command from 15 November 2012 to 
30 April 2014.    He attests to the applicant's excellent duty performance.  He adds, "[i]n my opinion, this was one occasion to his determent, unfairly so."

   c.  Lighthouse Counseling and Mental Health Services certificate that shows the applicant completed all requirements of the Anger Management training on 30 March 2013.

   d.  Two memoranda authored by J____ L. A____, Licensed Clinical Social Worker, Family Advocacy Program Therapist, Fort Campbell, KY, dated 
30 October 2013 and 12 November 2014, that show the applicant completed all 28 sessions of the Domestic Abuse Group treatment session and four individual counseling sessions.

   e.  Memoranda authored by F____ E. W____, Sr., Pastor and Founder, New Way Community Church of God in Christ, Clarksville, TN, dated 8 January 2015, who states the applicant is a member in good standing and recommends his continued service in the U.S. Army.

   f.  DA Form 705 (Army Physical Fitness Test (APFT) Scorecard) that shows the applicant passed the APFT with a maximum score on both 28 May 2014 and 
30 December 2014.

   g.  Three NCOERs spanning the period 4 September 2011 through 1 March 2014 that document the applicant's successful performance of duty as first sergeant, section sergeant, and operations NCO.

   h.  Two Commonwealth of Kentucky, Hardin Circuit Court, Family Court –
Division I, documents that show the applicant was granted temporary emergency physical custody of his three minor children on 18 January 2011, and that he filed a motion for the court to suspend the parenting time of A____ T____ (ex-spouse) until such time as she avails herself before the court.

   i.  Email message from applicant's spouse to CPT S____ A____ , dated 
2 June 2011, in which she describes her marital situation at the time.

   j.  MFR authored by Chaplain (MAJ) E____ K____, Jr., CJTF-1 Family Life Chaplain, who states the applicant and his spouse began marital counseling with him in early June 2011 and that they had made strides in renewing their relationship.

   k.  Memorandum authored by applicant's spouse to the Commander, CJTF-1, dated 14 July 2011, to offer an understanding of the whole story regarding her husband (the applicant).  In pertinent part, she states, [t]his incident was an anomaly; my husband has never acted like this before" and "[a]fter arguing in my office, I walked outside and my husband followed behind me.  Once we were outside, he grabbed me by my shoulder and let go.  I do not believe that he wanted to hurt me."  She also states, "CW2 S____ was on the phone so I walked out saying, "He's going to learn to keep his hands to himself."  She concludes, "[s]ir, I know that things got out of hand, but there is a big difference between what happened that night and an abusive relationship."

   l.  Memorandum authored by CW2 R____ S____, to Commander, CJTF-1, dated 10 November 2011, offered in response to the GOMOR issued to the applicant.  He states that, on 26 June 2011, he was the supervisor of both the applicant and his spouse.

    	(1)  He notes that, "[t]he incident which led to [the applicant] being detained started with an argument outside the DDOC building, which only the two of them were present."  He states that when the applicant's spouse walked out of his office, "she made a statement towards [the applicant] which made him upset again" and "[the applicant] stated that what she said to him was a lie and at what point did I gabbed [sic] you when we were outside?"  (CW2 S____ does not comment on the statement the applicant's spouse made to the applicant.)

    	(2)  He added the applicant's spouse stated that she needed to clarify her statement to the MPs after she had processed everything that had happened, but her request was denied by MAJ D____.

    	(3)  He asserts that the GOMOR and contested NCOER that the applicant received as a result of the incident were not warranted because the incident did not turn physical between the two of them.  He states that he was the applicant's rater until the applicant moved to the mobility section, at which time WO1 G____ became the applicant's rater [date not specified].  He asserts that MSG N___ and MAJ D____ were never the applicant's raters. 

   m.  Email messages between the applicant and LTC R____ D. B____, subject:  Open Door Policy, dated 12 and 13 July 2011, requesting an  opportunity for the applicant and his spouse to speak with him by telephone; the commander's response that he would notify him of the date/time; and applicant's response that he would provide details regarding the issue when they talk.
   n.  An email message from the applicant's spouse to an equal opportunity NCO, dated 13 August 2011, in which she outlines a complaint regarding MAJ D____.  She alleged that he created a hostile work environment and requested her to sign a sworn statement regarding a meeting they had to discuss the domestic abuse cycle.  She added that the officer made a comment that included profanity as a means to insult her beliefs.

   o.  A memorandum authored by COL C____ T___ to MG D____ B. A____, subject:  Request for GOMOR, dated 11 July 2011, that shows he requested a GOMOR be issued to the applicant based on an incident on 26 June 2011, in which the applicant was involved in a verbal argument with his (the applicant's spouse) that turned physical when he grabbed her by the neck to prevent her from walking away from him.  He noted that, "[s]hould a GOMOR be issued, I intend to recommend that it be filed permanently."

   p.  DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), with a suspense date of 1 August 2011, pertaining to the applicant.  It lists the offenses of simple assault consummated by a battery on 27 June 2011 and domestic violence on 26 June 2011.  It does not show any disciplinary, judicial, or administrative action taken and it is not signed by the commander.

   q.  Command recommendation for GOMOR pertaining to the applicant, dated 10 August 2011, that shows CPT C____ S. L____, Commander, Company A, 201st BSB; MAJ W____ S. C____, Commander, 201st BSB; and COL C____ R. T____, Commander TF Duke all recommended the GOMOR be filed in the applicant's OMPF.

   r.  A letter authored by CPT J____ H____, undated, that shows he does not recall what day the events transpired.  He states he became involved in the event after the incident occurred, he had a conversation and assisted in arranging quarters for the applicant and the applicant's spouse, and then witnessed the applicant being arrested by the MPs.  He also attests to the applicant's good character.

   s.  Three DA Forms 2823 and three character reference letters in which the authors attest to the applicant's good character and professionalism.  None of the individuals witnessed the incident that occurred between the applicant and his spouse outside the DDOC on 26-27 June 2011.

   t.  Four pages of a rating scheme that shows the applicant assumed the duty of DDOC NCOIC effective 1 September 2010 and the "Thru Date" of his last NCOER was 8 October 2010.

    	(1)  It shows the rating chain as:

* Rater:  CW2 R____ S____, DDOC Battle CPT
* Senior Rater:  MAJ W____ S. C____, 201st BSB Executive Officer
* Reviewer:  LTC R____ D. B____, Battalion Commander

    	(2)  The document does not show a date that the NCOER rating scheme was verified nor the names or signatures of the first sergeant and commander.
   
   u.  Email messages between the applicant and WO1 E____ G____, dated 
20 August 2011, subject:  NCOER, that indicate the applicant provided input for the NCOER and WO1 G____ responded, in pertinent part, "The goal is to prevent your Command from wanting to add the 'GOMOR/NOs' in the front.  When I send this NCOER up, MAJ P____ will send it to the CSM for the BSB.  Let's not make situations worse than it is.  Help me help you fight the negative Counseling that the Command is trying to give you."

   v.  A draft NCOER covering the period 9 October 2010 through 19 August 2011 that shows in:

    	(1)  Part II the rating chain as:

* Rater:  WO1 E____ G____, Mobility Officer
* Senior Rater:  MAJ M____ E. P____, Brigade S-4
* Reviewer:  MAJ D____ A____, Brigade Executive Officer

    	(2)  Part III, block f, the initial and later counseling dates of 22 February 2011, 22 May 2011, and 20 July 2011.

    	(3)  Part IV contains all positive assessments ("Yes" markings) and comments.

    	(4)  Part V, the rater marked "Among The Best."

    	(5)  The senior rater marked "Successful (1)" for overall performance and "Superior (1)" for overall potential for promotion and/or service in positons of greater responsibility.

    	(6)  The NCOER is not signed or dated by the rater, senior rater, reviewer, or the rated NCO (applicant).

    	(7)  The NCOER is not filed in the applicant's OMPF.

   w.  An email message between the applicant and WO1 E____ G____, dated 
21 August 2011, subject:  NCOER, that shows the applicant provided more input.

   x.  A draft NCOER covering the period 9 October 2010 through 19 August 2011 that shows in:

    	(1)  Part II the rating chain as:

* Rater:  WO1 E____ G____, Mobility Officer
* Senior Rater:  MAJ M____ E. P____, Brigade S-4
* Reviewer:  MAJ D____ A____, Brigade Executive Officer

    	(2)  Part III, block f, the initial and later counseling dates as 22 February 2011, 22 May 2011, and 20 July 2011.

    	(3)  Part IV contains all positive assessments ("Yes" markings) and comments.

    	(4)  Part V, the rater marked "Fully Capable."

    	(5)  The senior rater marked "Successful (2)" for overall performance and "Superior (2)" for overall potential for promotion and/or service in positons of greater responsibility.

    	(6)  The NCOER is not signed or dated by the rater, senior rater, reviewer, or the rated NCO (applicant).

    	(7)  The NCOER is not filed in the applicant's OMPF.

   y.  Email messages between the applicant and WO1 E____ G____, dated 
21 August 2011, subject:  NCOER with Spell Check, in which the applicant states, in pertinent part, "I will prove to myself, you and this command that this event that happen [sic] on 26 June is not who I am as a person or as a professional."

   z.  DA Form 4856 (Developmental Counseling Form), dated 20 July 2011, that shows the applicant was counseled by WO1 E____ G____, Brigade Mobility Officer.  It also shows, in pertinent part, advice for keeping personal business away from the work place and ensuring that his personal life does not interfere with his job performance.

   aa.  DA Form 705 that shows the applicant passed the APFT with a maximum score on 20 July 2011.
   bb.  Email message from WO1 E____ G____ to the applicant, the applicant's spouse, and another Soldier, date-time-group 0359 hours, 26 June 2011, expressing thanks to the TF Duke Mobility team.

   cc.  Email message from MAJ C____ L. D____, TF Duke DDOC, to the applicant, dated 15 July 2011, subject:  Performance Letter.  It shows, "I consulted with Legal.  Based on that conversation, I have determined that I have not been in the DDOC OIC seat long enough to make an accurate professional assessment of your performance that will have any bearing on the purpose of drafting such correspondence.  Therefore, in the interest of avoiding a conflict of interest, I am not able to provide you a written assessment.  I am not going to compromise on this decision and I expect you to respect it for the reasons I have identified above.  It is still my responsibility to ensure that you get a fair due-process and I will ensure that you do."

   dd.  An MFR authored by CPT J____ R. H____, dated 11 November 2011, subject:  Review of [applicant's] NCOER.  He stated that he was present when MAJ C____ L. D____ asked the applicant if he was aware that he must see 
MSG N____ about his NCOER before leaving the unit and also the conversation that occurred between MSG N____ and the applicant.  CPT H____ agreed to go into MSG N____'s office with the applicant and MSG N____ informed CPT H____ that his presence was not necessary.  MAJ D____ came to MSG N____'s office and then CPT H___ and MAJ D____ left the office.  The applicant asserted that the NCOER was administratively incorrect, he wanted someone present during the review process, and he refused to sign the NCOER.

   ee.  A memorandum authored by MAJ B____ P. A____, Brigade Judge Advocate, dated 5 November 2011, that shows he fully reviewed the Army Regulation 15-6 Investigation into the allegations that the applicant's NCOER was not completed in accordance with Army Regulation 623-3 (Evaluation Reporting System).  (The NCOER under review covered the period 9 October 2010 through 19 August 2011.)  He found the IO's investigation and findings legally sufficient and the recommendations consistent with the findings.  He found MSG P____ N____ satisfied the minimum period of 90 consecutive days for rater qualification (having assumed the role of rater in April 2011); MAJ C____ D___ satisfied the minimum period of 60 consecutive days for senior rater qualification (having assumed the role of senior rater on 2 June 2011); and the non-rated codes 
(i.e., I = Intransit and Q = Lack of Rater Qualification) were correct with 4 rated months (through 19 August 2011).  In addition, both the rater and senior rater affirmed that the information in the NCOER is accurate.

   ff.  A DA Form 2823, made by the applicant on 25 October 2011 in response to the IO's questions, in which the applicant states WO1 G____ informed him that he relinquished responsibility for completing his portion of the NCOER to 
MAJ D____ because he was tired of the BSB command trying to tell him what to put on the NCOER.  He recounts the events related to reviewing his NCOER in MSG N____'s office and the administrative errors.  Both CPT H____ and CW2 S____ were present and brought up the appeal process.  He asserts that he was not officially informed of changes to his rating scheme and learned of the change on 16 October 2011.
   
   gg.  Email message to the applicant from Gunny Sergeant C____ M. N____, CJTF-1, Inspector General, dated 26 October 2011, asking him to inform the IG once the inquiry into the NCOER has been completed by LTC B____.

   hh.  Copies of what appear to be three draft versions of the contested NCOER.  None of them are signed by the applicant nor are they filed in his OMPF.
   
   ii.  A copy of the final version of the contested NCOER that is filed in the performance folder of his OMPF.

7.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF.

	a.  Depending on the purpose, documents will be filed in the OMPF in one of three folders:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

   b.  The Authorized Documents list provides guidance for filing documents in the OMPF.  It shows the DA Form 2166-8 will be filed in the performance folder of the OMPF.

8.  Army Regulation 623-3, in effect at the time, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, this includes the DA Form 2166-8.

	a.  Chapter 1 (Introduction), paragraph 1-10 (Changes to an Evaluation Report), provides that members of the rating chain, the appropriate administrative personnel office, or Headquarters, Department of the Army (HQDA), will point out obvious inconsistencies or administrative errors to the appropriate rating officials.  After needed corrections are made, the NCOER will be sent to the appropriate HQDA processing office.

	b.  Chapter 2 (The Rating Chain), paragraph 2-17 (Review of NCOER) provides that every NCOER will be reviewed by the 1SG, SGM, or CSM and signed by an official who meets the reviewer requirements.  The reviewer is responsible for rating safeguard overwatch and will ensure that the proper rater and senior rater complete the report.

	c.  Chapter 3 (Army Evaluation Principles):

		(1)  paragraph 3-14 (Rater assessment), provides that the rater will assess the performance and potential of the rated NCO using all reasonable means to prepare a fair, correct report that evaluates the NCO's duty performance, values/ NCO responsibilities, and potential.

    	(2)  paragraph 3-15 (Senior rater assessment), provides that the senior rater's role is primarily to evaluate potential, overwatch the performance evaluation, and mentor subordinates.  The senior rater will use all reasonable means to become familiar with the rated NCO's performance throughout the rating period and prepare a fair, correct report evaluating the NCO's duty performance, professionalism, and potential.

    	(3)  paragraph 3-20 (Evaluation parameters), provides that rating officials' evaluation of a rated Soldier will be limited to the dates included in the rating period of an evaluation report.  Each evaluation report will be an individual stand-alone evaluation of the rated Soldier for a specific rating period.  An evaluation report will not refer to performance or incidents occurring before or after the period covered or during periods of nonrated time.  The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation.

		(4)  paragraph 3-37 (Preparation and submission procedures), provides that the rated Soldier will always be the last individual to sign the evaluation.  The rated Soldier's signature will verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the APFT and height and weight data; and that he/she has seen the completed report.  If significant changes are made to a final evaluation after the rated Soldier has signed it, the senior rater will ensure the rated Soldier has an opportunity to see the evaluation.


	d.  Chapter 6 (Evaluation Report Redress Program):

    	(1)  section II (Commander's or Commandant's Inquiry), paragraph 6–4 (Purpose), provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's or commandant's attention by the rated Soldier or anyone authorized access to the report.  The primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.

    	(2)  section II (Evaluation Appeals), paragraph 6-7 (Policies), places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an NCOER.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested NCOER should be removed from his OMPF because of both administrative and substantive errors.  He challenges the facts and accuracy of witness statements regarding the incident that led to him receiving the contested NCOER.  He also contends that the rater and senior rater were not officially designated as rating officials in his rating chain.

2.  The evidence of record shows:

   a.  The applicant's spouse executed a sworn statement on 27 June 2011.  Her official statement was made very shortly after the incident in question.  In her official statement, she declared that the applicant grabbed her by the neck and pulled her into a choke hold.  In essence, it is this sworn statement (that of his spouse) that the applicant contends is factually inaccurate.

   b.  Approximately two weeks later, she submitted a memorandum to the Commander, CJTF-1, to offer the whole story.  She stated that the incident was an anomaly and she described it by stating "he [the applicant] grabbed me by my shoulder and let go."

   c.  Then, more than four months after the incident, CW2 R____ S____ (the officer to whom the incident was initially reported) submitted a memorandum to the Commander, CJTF-1.  He acknowledged he was not present (outside) where the incident occurred and offered information in support of the applicant.  He offered his conclusion that the GOMOR and contested NCOER that the applicant received as a result of the incident were not warranted because the incident did not turn physical between the applicant and the applicant's spouse.  However, it is not clear how CW2 S____ can be certain of this conclusion given he was not a witness to the incident (outside) and his conclusion is at odds with the applicant's spouse's original official sworn statement.

   d.  The evidence of record also shows:
   
    	(1)  that the rating scheme the applicant provides shows he assumed the duty of DDOC NCOIC effective 1 September 2010 and his rating chain was (at that time):

* Rater:  CW2 R____ S____, DDOC Battle CPT
* Senior Rater:  MAJ W____ S. C____, 201st BSB Executive Officer
* Reviewer:  LTC R____ D. B____, Battalion Commander

    	(2)  his rating chain appears to have changed at some point to:

* Rater:  WO1 E____ G____, Mobility Officer
* Senior Rater:  MAJ M____ E. P____, Brigade S-4
* Reviewer:  MAJ D____  A____, Brigade Executive Officer

    	(3)  the IO confirmed that the applicant's rating chain was changed to:

* Rater:  MSG P____ N____, DDOC 1SG (effective April 2011)
* Senior Rater:  MAJ C____ L. D____, DDOC OIC (effective 2 June 2011)
* Reviewer:  LTC R____ D. B____, Battalion Commander

   e.  On 5 November 2011, the Brigade Judge Advocate verified the validity of the findings and recommendations of the IO regarding the contested NCOER with a "Thru Date" of 19 August 2011, including the rating officials, non-rated codes, and rated months (i.e., "4").
   
   f.  Based on extension of the "Thru Date" of the NCOER (i.e., to 3 September 2011), it is concluded that the number of rated months (i.e., "5") is correct.

   g.  On 30 November 2011, the reviewer reviewed the contested NCOER and indicated his concurrence with the rater and senior rater evaluations.

   h.  Review of the applicant's NCOER appeal by officers and NCOs in his current/former chain of supervision/command who opine that the contested NCOER was unjust and unwarranted is noted.  However, their subjective opinions offer insufficient evidence to invalidate the contested NCOER.

   i.  In view of all of the foregoing, it is concluded by a preponderance of evidence that the contested NCOER was prepared by the proper rating officials and that the administrative data is correct.

3.  The contested NCOER is properly filed in the performance folder of the applicant's OMPF.

4.  The evidence of record shows the applicant failed to file a timely appeal within the 3-year time restriction for the submission of substantive appeals.

5.  An evaluation report accepted for inclusion in the official file of a rated NCO's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The evidence presented by the applicant in this case is primarily based on retrospective statements pertaining to the issue under review that were considered prior to the completion of the contested NCOER.  Thus, there is insufficient evidence to refute the presumption of administrative regularity with respect to the contested NCOER.

6.  The applicant's successful duty performance both before and after the period of service under review is acknowledged.  In addition, his personal efforts to learn from the incident and improve himself are noteworthy.  However, they do not provide a basis for removing the contested NCOER from his OMPF.

7.  By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal.  The applicant failed to submit evidence of a compelling nature to show that the DA Form 2166-8 filed in the performance folder of his OMPF is untrue, in error, or unjust.  Therefore, the DA Form 2166-8 is deemed to be properly filed and should not be removed from the applicant's OMPF.

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)                                         AR20150004596



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ABCMR Record of Proceedings (cont)                                         AR20150004596



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