IN THE CASE OF:  	  

		BOARD DATE:  6 October 2015	  

		DOCKET NUMBER:  AR20150011897 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the following documents from the applicant's Official Military Personnel File (OMPF):

* DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the rating period 19 February 2008 (should read 2009) through 30 November 2009 (hereafter referred to as the contested NCOER)
* DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 12 September 2008

2.  Counsel states:

* the applicant did not believe the errors needed to be corrected at the time and he is currently going through the Qualitative Management Program (QMP) process based on the contested NCOER and Article 15
* the applicant has a potential future in the Army and he will continue to be an asset if he is allowed to continue his service
* the applicant's denial of continued service was based on the erroneous contested NCOER
* the applicant received an Article 15 that was filed in his restricted folder
* the applicant has had improved performance since his contested NCOER and Article 15
* the applicant's most recent NCOER is an example of his improved performance and his selection as the Battalion S-3 Operations Sergeant from 9 January 2013 through 8 January 2014
* the applicant spent much of his military career putting the mission first and his family second and this led to a breakdown of the family dynamic and manifested in family dysfunction
* the applicant took steps to relieve the conditions which created the negative behaviors
* the applicant developed a sleep issue and his family pressures have long since been relieved
* the applicant's immediate chain of command also supports his continued service in the military
* the contested NCOER contains substantive inaccuracies and all of the ratings and comments are unfounded and untrue
* the military should show some compassion when a Soldier's commitment to the military causes problems at home

3.  Counsel provides:

* statement from the applicant
* two character-references
* five DA Forms 2166-8

CONSIDERATION OF EVIDENCE:

1.  The applicant is presently serving in the Regular Army in the rank/grade of staff sergeant (SSG)/E-6.

2.  On 30 July 2008, he received a performance/professional counseling/initial NCOER counseling.  The DA Form 4856 (Developmental Counseling Form) shows he was briefed on the expectations as a team member, accountability, physical fitness, uniform, civilian/military education, duties, attitude, and personal issues.  He acknowledged he understood the expectations and he did not submit any statements or comments in his own behalf.

3.  On 26 August 2008, he was counseled on his failure to report at the prescribed time for his company's morning physical training (PT).  The DA Form 4856 for this counseling session shows this was his second time in four days to fail to report at the prescribed time.  He was reminded of his previous counseling on his responsibilities to keep his company commander aware of his whereabouts for maintaining accountability.  He was further counseled that continued unsatisfactory behavior or performance could result in punishment under Article 15, UCMJ.  He was directed to telephone his platoon sergeant at 0500 hours every duty morning for 2 weeks and to show up 15 minutes prior to morning formation each duty day.  He acknowledged he understood his orders and he did not submit any statements or comments in his own behalf.

4.  On 28 August 2008, he was counseled by his platoon sergeant, Staff Sergeant (SSG) T____, on his failure to report to his place of duty at the prescribed time, failure to contact anyone in his chain of command, and failure to follow a direct order.  He was given the following orders:

* report to his platoon sergeant at 0600 hours on 29 and 30 August 2008
* beginning on 2 September 2008, contact SSG Ha__ at 0500 hours for 2 weeks to report his status and report to PT formation at 0545 hours for 2 weeks
* always show up in the proper place, at the proper time, and in the proper uniform

5.  On 28 August 2008, he acknowledged his orders and he stated he had called Sergeant He__ at 0550 hours to inform him he was running late.  He received no answer and the voice mailbox was full so he could not leave a message.

6.  On 31 August 2008, he was again counseled by his platoon sergeant on his failure to report to his appointed place of duty and failure to obey an order or regulation.  He acknowledged he understood the following orders:

* report to Watts Field every 2 hours beginning at 0600 hours and ending at 2000 hours and in PT uniform with reflective belt at 0600 hours and in the Army combat uniform for all other reporting times
* beginning 2 September 2008 – contact SSG Ha__ at 0500 hours for 2 weeks to inform him of his status and to report to PT formation at 0545 hours for 2 weeks
* always show up in the proper place, at the proper time, and in the proper uniform
* inform his chain of command if there was a valid issue that prevented him from reporting to formation on time

7.  On 2 September 2008, his records were flagged pending adverse action.

8.  On 12 September 2008, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for:

* failing to go to his appointed place of duty at the prescribed time on or about 25 August 2008, 27 August 2008, 28 August 2008, and 31 August 2008
* disobeying an order on or about 27 August and 28 August 2008

9.  On 30 October 2008, the DA Form 2627 was filed in the restricted folder of his OMPF.

10.  The contested NCOER shows in:

	a.  Part IIIf (Counseling Dates), he was counseled on 4 March 2009, 18 June 2009, 25 August 2009, and 16 November 2009;

	b.  Part IVf (Values/NCO Responsibilities – Responsibility and Accountability), his rater checked "Needs Improvement (Some)" and entered the following bullet comments:

* showed exceptionally poor judgment in off duty behavior; his actions had a significant negative impact on section morale, cohesion, and mission capability
* recertified as Combat Life Saver; dedicated to Soldier safety
* served as NSA [National Security Agency] account auditor; enforced database access regulations resulting in zero security compromises

	c.  Part Vc (Senior Rater – Overall Performance), his senior rater rated him as "4 – Fair"; and

	d.  Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), his senior rater rated him as "2 – Superior."

11.  On 24 February 2010, the contested NCOER was filed in the performance folder of his OMPF.

12.  He provided a self-authored letter to the QMP board members in which he explained:

* how his family issues interfered with his sleep and caused him to be late several times
* how he was falsely accused of having an affair with another Soldier's wife
* he was issued a no-contact order for the other Soldier and his wife which he happily complied with
* prior to his permanent change of station move he was shown a version of his NCOER with two "no" marks in the Army Values section and he was told the battalion commander was pushing for the negative rating
* the contested NCOER was changed to show all "yes" markings in the Army Values section
* the day before his final out-processing, his battalion commander told him to sign the contested NCOER, leave his unit, and this was the best rating he would get
* he was later told by his command sergeant major that there was no documentation of any investigation conducted against him

13.  Counsel provided:

	a.  a memorandum for record from the applicant's 2013 troop commander who stated he could personally vouch for the applicant and that the applicant was a value-added performer who always placed the mission above his own personal needs;

	b.  a character reference statement from the applicant's former roommate who stated he had known the applicant since 2006 and he could attest to the fact that the applicant:

* had requested help from his unit in dealing with personal family issues and his request was ignored
* had sleep issues and his unit did nothing to assist him

	c.  five subsequent NCOERs which show the applicant received "1 or 2 – Successful" and "1 – Superior" ratings from his senior rater.

14.  Army Regulation 601-280 (Army Retention Program) outlines procedures for immediate reenlistment or extension of enlistment and prescribes eligibility criteria and options for enlistment or transfer into the Reserve Component.  It states commanders should evaluate all potential reenlistees under the "whole person" concept.  Factors considered under the "whole person" concept include:

* recent nonjudicial punishment
* repetitive nonjudicial punishment
* low aptitude area scores
* low educational achievement in combination with a pattern of disciplinary incidents
* low evaluation reports
* slow rank progression resulting from a pattern of marginal conduct or performance
* potential for further service
* a combination of any or all of the above factors

15.  Army Directive 2014-06 (QMP), dated 10 April 2014, provides policy guidance for the QMP.  The objective of the QMP is to enhance the quality of the career enlisted force by selectively retaining the best qualified Soldiers and denying further service to non-progressive or non-productive Soldiers.

	a.  It is used to eliminate Soldiers who do not meet performance conduct and attitude standards and do not have the potential for advancement.

	b.  Soldiers in the rank of SSG through command sergeant major/sergeant major in the Regular Army and U.S. Army Reserve may be subject to the QMP process when:

		(1)  Headquarters, U.S. Army Human Resources Command (HRC), receives material from one of the following categories for permanent filing in the performance or restricted folder of a Soldier's OMPF:

* memorandum of reprimand from a general officer
* conviction by court-martial or punishment under Article 15, UCMJ
* NCOER based on a relief for cause
* annotation of "No" in Part IV, block A on a DA Form 2166-8
* ratings from the senior rater of 4 (fair) or (5) poor for overall performance or potential in Part V, blocks c or d on a DA Form 2166-8
* DA Form 1059 (Service School Academic Evaluation Report) indicating Noncommissioned Officer Education System course failure

		(2)  the Deputy Chief of Staff, G-1, or designee, approves a request from commanders with general court-martial convening authority, or their designees, or the Commander, HRC, or designee, for referral of a Soldier to a QMP screening board; and/or

		(3)  Soldiers fail to qualify themselves for promotion consideration to the next higher grade because they have not completed the appropriate level of Noncommissioned Officer Education System training.

16.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

17.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice.  Chapter 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.

18.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program.  It states that once placed in the OMPF, a document becomes a permanent part of that file.  The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's request for removal of the DA Form 2627 and contested NCOER from the applicant's OMPF was carefully considered.

2.  Army Regulation 27-10 states NJP may be set aside or removed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.  There is no evidence of a clear injustice in this case.  There is no documentary evidence indicating the applicant's NJP was improperly imposed or retaliatory in nature.  In the absence of substantive evidence showing error or injustice in the imposition of the NJP, there is an insufficient basis upon which to grant the requested relief.

3.  By regulation, in order to justify deletion or amendment of a report, the applicant or counsel must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice.  In this case, counsel did not provide sufficient evidence to warrant the removal of the contested NCOER.

4.  The bullet comments in the contested NCOER are not prohibited by the regulation.  They specifically address his responsibility and accountability (used exceptionally poor judgement in off duty behavior/actions had a significant negative impact).  Since his rating officials reported he demonstrated this behavior during the rating period, they apparently also determined he did not set a good example and that his judgment was questionable, which is a reasonable conclusion to reach based on their observations.

5.  There is an insufficient evidentiary 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)                                         AR20150011897



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ABCMR Record of Proceedings (cont)                                         AR20150011897



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