IN THE CASE OF:	  

		BOARD DATE:	  2 July 2015

		DOCKET NUMBER:  AR20150008466 


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 15 March through 
15 August 2007 from his official military personnel file (OMPF).

2.  The applicant states:

	a.  His NCOER shows he was rated a "Success" and "Fully Capable" by his rater.  However, the NCOER contains several substantial errors and discrepancies.  The most notable is the rating given by his senior rater not aligning with the rating and bullet comments included by his rater.  This is a violation of the intent of Army Regulation 623-3 (Evaluation Reporting System) without cause or counsel.  The DA Form 2166-8 states, "This report is inconsistent, the rater and senior rater have stated different opinions on the promotion potential of this Soldier.  The reviewer should discuss the assessment differences between the rater and senior rater.  If both rating officials elect to leave the report as written, the reviewer will ‘non-concur’ with this report based on the inconsistent assessments.  In a non-concurrence memorandum, the reviewer clarifies this report stating the promotion potential for this rated NCO."  At a minimum, he requests the senior rater's section of the NCOER be deleted.  

	b.  The contested NCOER constitutes an error and should not have been included in his official performance file.  This NCOER was given to him while he was a member of a Reserve Component.  He did not file an appeal at that time because he was separated from the U.S. Army Reserve (USAR) 4 months later on 28 October 2008.  He remedied that by enlisting in the Regular Army (RA) on 24 February 2009, in pay grade of E-7.  He has received above average NCOERs from his date of enlistment until the present.  One of these includes a period of 9 months in which he was deployed in support Operation Iraqi Freedom.  The NCOER in question was given under a totally different branch of the Armed Forces and to a very different Soldier.  

3.  The applicant provides:

* Contested NCOER
* Notification of Potential Denial of Continued Active Duty Service under the Qualitative Management Program (QMP), dated 5 December 2014 
* Appeal and Request for Retention on Active Duty, dated 22 December 2014
* Notification of Denial of Continued Active Duty Service under the QMP, dated 8 May 2015
* Statement of Options, QMP
* DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Other NCOERs (15 June 2009-15 September 2009; 9 September 2009-
8 September 2010; 9 September 2010-8 September 2011; 9 September 2011-30 May 2012; 31 May 2012-30 May 2013; 31 May 2013-
31 December 2013; and 31 December 2013-19 October 2014)
* 2009 enlistment contract
* Order announcing award of the Army Good Conduct Medal 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the USAR on 29 October 1988 and he held military occupational specialty (MOS) 54B (Carpentry and Masonry Specialist).   

2.  He served through multiple extensions and/or reenlistments, the last of which was for 6 years executed on 22 July 2002, in a variety of assignments including active duty service from 27 January 2003 to 27 February 2005. 

3.  He reentered active duty in the Active Guard Reserve (AGR) program on 28 February 2005 and he was promoted to sergeant first class (SFC)/E-7 on 1 September 2006.  He was assigned to Headquarters, 9th Regional Readiness Command (RRC), Fort Shafter, HI, in MOS 21H (Construction Engineer). 

4.  On 15 November 2006, the applicant’s commander initiated a DA Form 268 (Report to Suspend Favorable Personnel Actions) against the applicant by reason of adverse action.  A formal investigation ordered by the Commanding General (CG), 9th RRC, determined the following: 
	a.  Findings:  There is substantial credible evidence that exists that indicates the applicant has violated the Army's policies with regard to harassment, assault, and consideration of others.  He appears to suffer from an Axis I diagnosis described by his psychiatrist as a foot fetish.  This behavior has led to several incidents of sexual harassment.  There are several sworn statements provided that show a pattern of misconduct during duty hours with females within the 9th RRC.  This behavior has continued even though the applicant was counseled and warned to cease this detrimental behavior.  There were at least 8 incidents, occurring between 2005 and 2006, that support such findings.  

	b.  Recommendations:  The applicant be discharged from the military under Chapter 12, Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) for misconduct for continuing incidents of assault and harassment involving the touching of feet of several different female civilians.  The incidents of assault and harassment have occurred even though he was charged informally, counseled by his supervisor, charged formally, given a summarized Article 15, and received psychiatric care.  

	c.  The applicant’s performance has been substandard as well.  This leads to a second basis that discharge should be considered under chapter 9 of Army Regulation 135-178 for unsatisfactory performance.  His duty performance as the Operations NCO in ARIM has been substandard.   This is his first AGR tour and he had been advised that he needed to concentrate on improving his job performance and that his continuation in the program would be based on total assessment of his performance and potential for service from his initial tour.  His ability to perform duties effectively and provide leadership in the future, including his potential for advancement, is unlikely based on his performance during this initial tour.

5.  During December 2006, prior to receiving the contested NCOER, the applicant received a "Change of Rater" NCOER covering 5 months of rated time from 1 April through 14 December 2006 for his duties as Construction Supervisor.  This NCOER shows: 

	a.  In Part IVa (Army Values), the rater placed an "X" in "No" blocks for "Respect," "Selfless Service," "Honor," and "Integrity" values and entered the following comments:  "substantiated complains of assault," "violations of the Uniform Code of Military Justice," and "does not respect laws and regulations of the U.S. Army."  

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

	c.  In Part IVd (Leadership), Part IVe (Training), and Part IVf (Responsibility and Accountability), the rater placed an "X" in "Needs Improvement (Some)" and entered appropriate comments.

	d.  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. 

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

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

* performance during the rating period has been substandard 
* Soldier does not demonstrate the initiative and discipline required to be successful 
* needs to concentrate on performance of duties and respect of others 
* Soldier is capable of improved performance, but needs a high degree of change to reach this potential 

6.  The 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.

7.  On 9 April 2007, he appealed the NCOER for the rating period 1 April through 14 December 2006 based on what he alleged were substantive inaccuracies and violations of the regulation.  His appeal was considered and in March 2008, he was granted partial relief in that the ESRB modified a portion of this NCOER, but left it in is file. 

8.  It appears at some point his chain of command initiated separation action against the applicant by reason of misconduct, under the provisions of chapter 14 of Army Regulation 635-200 (Active Duty Administrative Personnel Separation). The separation packet is not available for review.  However, entries made into the Soldier Management System and other documents on file show: 

* on 10 August 2007, received approved chapter 14 from U.S. Army Reserve Command (USARC), forwarded memorandum for approved chapter 14 to the Office of the Chief of Army Reserve (OCAR) for approval
* recommendation for approved chapter 14 forwarded, on 20 August 2007, to Sergeant Major LaB--, Office of the Chief, Army Reserve, for approval; he has over 18 years of service

9.  It also appears the applicant selected to appear before an administrative separation board.  A board convened and found by a preponderance of credible evidence that the applicant engaged in a pattern of misconduct.  Based on that finding, the board recommended that he be discharged from the U.S. Army.  The board further recommended that his service should be characterized as general under honorable conditions.  

	a.  The CG, 9th RRC, Fort Shafter Flats, HI, recommended approval of the board's findings and recommendations.

	b.  The CG, USARC, also recommended approval of the board's findings and recommendations.

10.  During August 2007, the applicant received the contested NCOER, a "Change of Rater" NCOER covering 5 months of rated time from 15 March through 15 August 2007 for his duties as construction supervisor.  His rater was Master Sergeant RAJ, the senior maintenance supervisor; his senior rater was Captain CCL, the maintenance officer; and his reviewer was DA Civilian GRB, Senior Logistics Management Specialist (SLMS).  This NCOER shows the following entries

	a.  In Part IVa (Army Values), Part IVb (Competence), Part IVc (Physical Fitness and Military Bearing), Part IVd (Leadership), Part IVe (Training), and Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Success" block and entered appropriate comments.

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

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

	d.  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.

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

* completed assignments when directed
* occasionally has challenges controlling his emotions and attitude
* has demonstrated a lack of decorum and acceptance of the military chain of command 
* would likely not be able to handle the stress of a deployment to a combat environment 

11.  The 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.

12.  There is no available evidence showing the applicant requested a Commander's Inquiry regarding the subject NCOER.  Likewise, there is no evidence he appealed the contested NCOER through HRC to the Enlisted Special Review Board. 

13.  In February 2008, by memorandum to the Army G-1, the Department of the Army Office of the Staff Judge Advocate (SJA) conducted a legal review into the applicant’s involuntary discharge under Army Regulation 635-200, chapter 14.  The SJA stated: 

* the file forwarded for review did not contain counseling statements that meet the regulatory requirements of Army Regulation 635-200
* the SJA advised that the action be returned to the subordinate unit to determine whether such evidence exists or to obtain an explanation of how the current separation packet meets the regulatory counseling requirements
* once his unit developed these facts the action could be resubmitted for a legal review

14.  On 5 February 2008, the CG, 9th RRC, issued a memorandum indicating in reference to the appointment of an enlisted administrative separation board, the referral of the applicant to the referenced separation board was withdrawn.   

15.  On 7 February 2008, due to his expiration of term of service (ETS), the applicant was authorized to and executed a 3-month and 5-day extension in the USAR.  His new ETS date was established as 28 October 2008. 

16.  On 21 February 2008, the applicant’s commander initiated a Bar to Reenlistment Certificate against him. 

	a.  In the block requesting that prior nonjudicial punishment be listed, the imposing officer wrote “Summarized Article 15 given to [Applicant] regarding his inappropriate behavior of unwanted touching of a civilian woman’s feet and talking about her feet to other women.” 

	b.  In the block that asks for the factual and relevant indicators of un-trainability, the imposing officer wrote, “[Applicant] has behaved in a very poor manner especially while wearing the Army uniform.  He touched and talked about touching several civilian women’s feet during the duty day, while in uniform, without their consent from 2005 to 2006.  One of the women was so offended by his touching of her feet that she filed a statement with the military police.  He was informed numerous times not to continue this behavior by his chain of command. On or about 5 July 2006, he was given a summarized Article 15 because of this inappropriate behavior.  Despite receiving the Article 15, he continued to behave in this assaultive manner.  

	c.  The applicant was furnished a copy of this bar and elected to submit a statement wherein he stated “I will seek counsel.”  The bar was ultimately approved by the CG, 9th RRC on 21 March 2008. 

17.  On 26 June 2008, the applicant's immediate commander counseled the applicant regarding an appeal of his bar to reenlistment.  The commander stated the applicant's appeal of the bar to reenlistment was denied by the Commander, 9th Mission Support Command.  He was advised that he was barred from reenlistment and he may appeal to the next higher authority, Department of the Army Suitability Evaluation Board (DASEB). 

18.  On 21 August 2008, the U.S. Army Human Resources Command (HRC) published Orders D-08-890179 ordering his discharge from active duty and from the USAR effective 23 October 2008 (amended to 28 October 2008). 

19.  The applicant was honorably discharged on 28 October 2008.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) cited the authority as chapter 4 of Army Regulation 635-200 (Enlisted Administrative Separations) and the reason as completion of required service (i.e., ETS), with a separation code of KBK (bar to reenlistment). 
20.  After a short break in service, on 24 February 2009, he executed a 3-year enlistment in the Regular Army in the rank/grade of SFC/E-7 and on 27 January 2015, he followed that with an indefinite reenlistment. 

21.  On 5 December 2014, by memorandum, HRC notified the applicant that a DA QMP board would convene on 10 February 2015 to consider him for separation as a result of derogatory information in his file.  He was advised of his right to submit matters of mitigation or extenuation. 

22.  On 22 December 2014, by memorandum, he submitted an appeal and requested retention on active duty.  He contended that the contested NCOER is in error and that he was unaware of the ability to appeal this NCOER and he was not given an opportunity to seek legal counsel to go through the process.  

23.  On 13 April 2015, by memorandum, HRC notified the applicant that the QMP board conducted a comprehensive review of his file and recommended that he be denied continued active duty service.  As a result, the Director of Military Personnel Management approved the board’s recommendation and he would be discharged from active duty no later than 1 November 2015. 

24.  Army Regulation 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): 

		(1)  Every NCOER will be reviewed by the first sergeant, command sergeant major or sergeant major and signed by an official who meets the reviewer requirements of paragraph 2–8b.  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 in Part IVb-f. 

		(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.  If the rater and/or senior rater acknowledge the discrepancy and revise the NCOER so that the reviewer agrees with the evaluation, the reviewer will check the concur box in Part II.  If the rater and/or senior rater fail to acknowledge a discrepancy and indicate that the evaluation is their honest opinion, the reviewer will check the nonconcur box in Part II.  The reviewer then will add an enclosure that clarifies the situation and renders his/her opinion regarding the rated NCO’s performance and potential.  The reviewer may not direct that the rater and/or senior rater change an evaluation believed to be honest.  In cases where neither the rater nor the senior rater is an NCO, the reviewer will get additional informal input from the senior NCO subordinate to the reviewer.  The reviewer’s enclosure will be submitted along with the completed DA Form 2166–8 and is limited to one page. The reviewer will notify the rating chain and rated NCO of non-concurrence with the report.  This will ensure that the rating chain and the rated NCO are informed of the completed report and may allow for a possible request for a Commander’s Inquiry or appeal if desired.  The reviewer’s enclosure will not be used as a third, reworded agreement with evaluations by the rater and senior rater.

	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.  Although his issue is the removal of the contested NCOER, his performance occurred during a series of inter-related events (investigation, Article 15, bar to reenlistment, and separation) that warrant being addressed.

2.  The available evidence shows the applicant, a senior NCO, was serving on active duty in an AGR position at Fort Shafter, HI when he was investigated for misconduct due to continuing incidents of assault and harassment involving the touching of feet of several different female civilians.  The incidents of assault and harassment continued to occur even though he was charged informally, counseled by his supervisor, charged formally, given a summarized Article 15, and he received psychiatric care.  His performance was determined to be substandard as well.  

3.  His chain of command initiated separation action against him and he appears to have elected an administrative separation board.  The board found by a preponderance of credible evidence that he engaged in a pattern of misconduct.  Based on that finding, the board recommended that he be discharged from the Army and his service be characterized as general under honorable conditions.

4.  While all this was taking place, he received the contested NCOER for his duties as construction supervisor.  His rater rated him "Success" in all areas of NCO values/responsibilities and rated his overall potential as "Fully Capable."  The rater supported this rating with bullet comments that match the rating.  The applicant's senior rater rated his overall performance as "Fair/4" and his overall potential as "Poor/5."  The senior rater also supported his rating with bullet comments.  The reviewer concurred with the rating.  The senior rater's portion is inconsistent with the rater's portion and the reviewer concurred anyway.  

5.  On the surface, it appears the ratings between the two rating officials (rater and senior rater) are inconsistent.  However, the NCOER reflects the objective judgment of the rating officials during a given rating period.  This Board is neither privy to his performance during the rating period nor is it an evaluating Board.  This Board does not substitute its own evaluation of the applicant to that rendered by his rating officials as the Board.  It appears this is how his rating officials judged his performance during the period in question.  Such rating is clearly supported by the events that took place and culminated in his discharge from active duty.   

6.  The reviewer is responsible for rating safeguard over watch and ensures the rating officials complete the report and examine the evaluations rendered by the rating officials to ensure they are clear, consistent, and just, in accordance with known facts.  Generally, when the rater and/or senior rater fail to acknowledge a discrepancy and indicate that the evaluation is their honest opinion, the reviewer will check the non-concur box in Part II and then adds an enclosure that clarifies the situation and renders his/her opinion regarding the rated NCO’s performance and potential.  The reviewer may not direct that the rater and/or senior rater change an evaluation believed to be honest.  Here, it appears the reviewer elected to agree with the rater and senior rater and concurred with the report as written.  In the absence of evidence to the contrary, it must be presumed that the reviewer was aware of his role to submit a non-concurrence statement but he appears to have elected not to do so.  

7.  There is no evidence he requested a Commander's Inquiry or an Army Investigation 15-6 (Procedures for Investigating Officers and Board of Officers).  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.

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

9.  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)                                         AR20150008466



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ABCMR Record of Proceedings (cont)                                         AR20150008466



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