IN THE CASE OF:	   

		BOARD DATE:	  1 October 2015

		DOCKET NUMBER:  AR20150012984 


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, correction of his military personnel records by removal of the annual DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report (NCOER)) covering the period 5 August 2011 through 
4 August 2012 (hereafter referred to as the contested NCOER) from his Official Military Personnel File (OMPF) and the period declared nonrated.

2.  The applicant states that the appeal is based on both administrative and substantive inaccuracy.  He was given the erroneous contested NCOER based on a report of false information.

3.  The applicant provides the following documents:

* the contested DA Form 2166-8 (NCOER)
* his NCOER appeal

CONSIDERATION OF EVIDENCE:

1.  After having prior honorable enlisted service in the Regular Army, U.S. Army Reserve, and Army National Guard of the United States, the applicant enlisted in the Regular Army on 21 June 2001.  Through a series of reenlistments he has continued to serve in the Regular Army.  He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 December 2009 in military occupational specialty (MOS) 92F (Petroleum Supply Specialist).

2.  A review of his records revealed a copy of the contested NCOER is filed in the performance folder of the applicant's OMPF.  It shows he was assigned to Company C, Warrior Transition Battalion, Fort Campbell, KY.  It also shows in:

	a.  Part I (Administrative Data):

* block g (Reason for Submission):  02 – Annual
* block h (Period Covered) – 5 August 2011 through 4 August 2012
* block i (Rated Months) – 12
* block j (Non-Rated Codes) – no entry (is blank)
* block k (Number of Enclosures) – 1

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

* Rater – Sergeant First Class (SFC) A___ M. M____, Platoon Sergeant
* Senior Rater – First Sergeant (1SG) O___ R____, First Sergeant
* Reviewer – Captain (CPT) D___ C. M____, Company Commander

	c.  Part III (Duty Description):

* block a (Principal Duty Title) – Squad Leader
* block d (Areas of Special Emphasis) –

* Medical Evaluation Boards
* MOS/Medical Retention Boards
* Army Warrior Care and Transition System Monitor

* block f (Counseling Dates) –

* Initial – 29 March 2012
* Later – is blank (no entries)

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

		(1)  block a (Army Values), he received "Yes" ratings and bullet comments, as follows:

* totally committed to the unit and the mission
* puts the welfare of the Soldiers and their Families above his own
* outstanding problem solver
    
   	(2)  He received "Excellence" ratings for Values/NCO Responsibilities in block b (Competence), block d (Leadership), and block e (Training).
	
    	(3)  block c (Physical Fitness and Military Bearing), is marked "Success" and shows the bullet comments:

* profile does not hinder duty performance
* displayed a confident and enthusiastic attitude that motivated his Soldiers despite physical or mental limitations

		(4)  block f (Responsibility and Accountability), is marked "Success" and shows the bullet comments:

* enforce all safety policies resulting in zero incidents for the rating period
* maintained 100% accountability of his Soldiers classified documents and upheld the Health Insurance Portability and  Accountability Act policy with zero violations
* NCO took responsibility for the improper use of a social media website resulting in a temporary suspension of his duties

	e.  Part V (Overall Performance and Potential):

		(1)  the rater marked "Fully Capable" with the bullet comments:

* has the potential but requires more mentorship to perform at the [sic] a higher level of responsibility; currently not ready for the next level of leadership
* send to next NCO Educational System course when seats become available
* Soldier's views and beliefs toward another Soldier's lifestyle generated inappropriate and unprofessional conduct; had a negative impact on the overall unit mission
* assign to positons where he can grow professionally; struggled with integrity during one isolated incident that snowballed into issues with respect and loyalty

		(2)  the rater listed three positions in which the applicant could best serve the Army at his current or higher grade:

* Service School Instructor
* Recruiter
* Platoon Sergeant
		(3)  The senior rater marked "Fair (4)" for overall performance and "Fair (4)" for overall potential for promotion and/or service in positons of greater responsibility.

	f.  The reviewer indicated with an "X" in Part II, block d, that he non-concurred with the rater and/or senior rater evaluations.

	g.  The NCOER was digitally signed by the rater, senior rater, and reviewer on 12 September 2012.

   h.  a Non-Concurrence Memorandum for NCOER pertaining to the applicant shows:

* "As the reviewer during the period in question, I non-concur with the [rater and/or senior rater] evaluation of the [applicant].  I submit the following to clarify the situation and indicate what I consider to be the proper evaluation of performance and/or potential."
* "On 23 July 2012, [applicant] willfully admitted to a Platoon Sergeant in the 2nd Platoon, C Company, Warrior Transition Battalion, Fort Campbell, KY, that he did display a photograph of himself displaying an obscene gesture, while in uniform, on a social media website.  This obscene gesture was directed at an organization directly related to a family member of a fellow NCO within the unit.  This incident immediately caused a hostile work environment and resulted in the implementation of a No Contact order and an Informal Commander's Inquiry.  It was later determined that [applicant] willfully engaged in conduct that disrupted the good order and discipline of the unit, but chose to retract his statement admitting to the incident, which displayed a lack of integrity.  His actions displayed disloyalty and disrespect to his unit and fellow NCOs by engaging in conduct that required his suspension from his duties and placed an undue burden on his platoon and the rest of the unit."
* CPT D___ C. M____, Commanding Officer and Reviewer, signed the document on 12 September 2012.

   i.  The rated NCO (applicant) signed the NCOER on 14 September 2012.

3.  In support of his request the applicant provides the following documents.

   a.  An email of an article titled, "Soldier's Wife Campaigns to Raise PTSD [Post Traumatic Stress Disorder] Awareness" written by A___-___ F____, The Leaf Chronicle, Clarksville, TN, dated 24 June 2012.  It describes, in pertinent part, the actions of a military wife (A___ W____) to draw attention to her husband's diagnosed PTSD by posting on Facebook a picture of "The Pledge" written on her back and the ensuring "Battling Bare" mission and campaign to combat PTSD.
   
   b.  "I Dare You to Battle Bare" from www.facebook.com/BattlingBare with the middle finger of a left hand pointing upward and what appears to be the image of an individual in uniform in the background.

   c.  Transcription of Audio File Between [Applicant] and 1SG O___ R____ 
(21 pages) of a recording taken on 6 September 2012 at Fort Campbell, KY, and transcribed by D___ M. W____, Byrnes Transcription Services, Clarksville, TN.
A review of the document shows that it recounts a discussion of the applicant's actions, efforts to resolve professional matters, and his NCOER ratings and bullet comments.  This review failed to show 1SG O___ R____ was advised that the conversation was being recorded or that he agreed to the recording.  It shows, in pertinent part the applicant stated –

* "I apologized numerous times" and "I have totally accepted responsibility for my gesture" (page 5)
* "It is a hostile work environment."  (page 7)
* "All I wanted to ever do is just sit down as NCOs, yeah, what I did was wrong.  Would I do it again?  Absolutely not.  Have I learned my lesson?  Absolutely." (page 9)
* "As far as my integrity, I don't know - - honestly I don't understand."  (page 15)

   d.  DA Form 2823 (Sworn Statement), dated 11 September 2012, that shows CPT A___ G. L____, Commander, Company A, Warrior Transition Battalion, described an incident where a former Soldier of the unit verbally expressed his ideation to commit suicide to an NCO.  The applicant was present and accompanied the commander and NCO to help locate and "talk the Soldier down."  It also shows another incident when the applicant was present in the commander's office and an NCO appeared to suffer a cardiac event.  The applicant and another NCO administered assistance.

   e.  DA Form 2823, dated 18 September 2012, that shows SSG B___ K. O____, indicated that he and the applicant spoke to 1SG O___ R____ on 25 July 2012 about some of their concerns.  He stated that 1SG R___ told the applicant the reason he was "getting a less than stellar award" was because SFC M____ (the applicant's supervisor) did not submit an award recommendation on him.  Consequently, due to time constraints and a lack of information about the applicant's performance, the 1SG prepared a generic award recommendation.  SSG O____ added that he did not know of any actions by the applicant, during the period 24 July to 30 August 2012, that created a hostile work environment.

   f.  Three NCOERs that span the period 1 November 2009 through 4 August 2011 and one NCOER that spans the period 6 August 2012 through 5 August 2013 pertaining to the applicant.  The rater on each NCOER evaluated his overall potential for promotion and/or service in positons of greater responsibility as "Among the Best."  The senior rater on each NCOER evaluated his overall performance as "Successful – 1" and overall potential for promotion and/or service in positions of greater responsibility as "Superior – 1."  They also show the reviewer concurred with the rater and senior rater evaluations.

   g.  Headquarters and Headquarters Company, 2nd Brigade Special Troops Battalion, 2nd Brigade Combat Team, 101st Airborne Division (Air Assault), Fort Campbell, KY, memorandum, dated 18 September 2014, subject:  NCOER for [applicant] for the period 5 August 2011 to 4 August 2012.  It shows that the applicant's appeal was based on both administrative and substantive inaccuracy.  In pertinent part, he contended, the NCOER contained:
   
* unverified derogatory information (i.e., that the applicant's actions "immediately caused a hostile work environment" and "disrupted the good order and discipline of the unit")
* references to issues with integrity (i.e., he declined to make a statement, which is not the same as retracting his statement)
* an evaluation by the senior rater who knew nothing about him and was unable to properly evaluate him
* an assessment that relied solely on a minor isolated incident (i.e., his disagreement with the "Battling Bare" campaign was not a judgment on anyone's lifestyle)
* references to an incomplete investigation and that the NCOER was delayed to await the results of a Commander's Inquiry

   h.  Headquarters, U.S. Army Human Resources Command (HRC), Fort Knox, KY, memorandum, dated 16 October 2014, subject:  Evaluation Report Appeal 
(5 August 2011 – 4 August 2012), that shows an official at the Appeals and Corrections Section notified the applicant that his appeal was returned without action due to insufficient evidence.  He was advised that the burden of proof was upon him to establish, through clear and convincing evidence, that the contested report is incorrect (e.g., published rating schemes, statements from rating officials, etc.).  He was also informed "certified true" third party statements that identify the individuals, their occupied positions at the time, and observations of the applicant's performance are necessary to support a substantive appeal.
   
4.  A review of the applicant's OMPF failed to reveal any evidence that he resubmitted his appeal of the contested NCOER to the Department of the Army Suitability Evaluation Board (DASEB), U.S. Army HRC.

5.  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.

6.  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 2 (The Rating Chain):
   
    	(1)  paragraph 2-16 (Review of Evaluation Reports) shows for NCOERs, the review is conducted by a designated individual in the rating chain.  An additional, yet undocumented, review of completed NCOERs should be done by the senior NCO in the organization to ensure oversight of NCOs' performance.  In some instances, the review may need to document nonconcurrence with a report and/or inconsistencies between the rater's and senior rater's evaluations of a rated NCO.

    	(2)  paragraph 2-19 (Review of NCOERs), every NCOER should be reviewed by the 1SG, Sergeant Major, or Command Sergeant Major to ensure accountability of Soldiers' NCOERs and to oversee the performance of junior NCOs.  This is in addition to the review by the designated reviewer in accordance with paragraph 2-16, if applicable. 

	 	(3)  The reviewer will:

* ensure that the proper rater and senior rater complete the report
* 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 IV, blocks b through f of the NCOER.

    	(4)  The reviewer will comment only when in disagreement with the rater and/or senior rater. The reviewer indicates concurrence or nonconcurrence with rater and/or senior rater by checking the appropriate box in Part II and adding an
enclosure, not to exceed one page.

	b.  Chapter 3 (Army Evaluation Principles):

		(1)  paragraph 3-7 (Rater), 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 3-9 (Senior Rater), provides that the senior rater's role is primarily to evaluate potential, over watch 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 3-10 (Reviewer), the reviewer has the overarching role of validating the accuracy of NCOERs and instilling fairness within the evaluation process.
	 
	 	(4)  paragraph 3-33 (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.

	c.  Chapter 4 (Evaluation Report Redress Program):

		(1)  section II (Commander's or Commandant's Inquiry), paragraph 4-4 (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 commander's inquiry 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 III (Evaluation Appeals), paragraph 4-7 (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 for the period 5 August 2011 through 4 August 2012 should be removed from his OMPF and the period declared non-rated because of administrative and substantive errors.  In effect, he challenges the validity of the rating chain and the evaluations/comments of the rater, senior rater, and reviewer for the contested NCOER.

2.  The applicant does not provide a copy of the unit's official rating scheme for the period of service under review or any document that officially designated the NCOs/officers in his rating chain.  The evidence of record shows the applicant confirmed with his signature the validity of the rating chain.  Thus, the evidence of record indicates the contested NCOER was prepared by the proper rating officials and that the administrative data is correct.

3.  The contested NCOER is an annual report that provides an assessment of the applicant's performance as Squad Leader, Company C, Warrior Transition Battalion, including his areas of special emphasis.  He received "Yes" ratings for all Army Values, three "Excellence" and two "Success" ratings for Values/NCO Responsibilities, and he was rated "Fully Capable."  Thus, the contention that the contested NCOER relied solely on a minor isolated incident is not supported by the evidence of record.

4.  The evidence provided by the applicant (i.e., transcript of audio file) shows, in pertinent part, that he stated, "I have totally accepted responsibility for my gesture", "it is a hostile work environment", and "as far as my integrity, I don't know - - honestly I don't understand."  Thus, the transcript offers evidence in support of the rating chain's evaluation and comments in the contested NCOER that pertain to actions by the applicant during the period of service under review.

5.  The evidence of record shows the primary purpose of a commander's inquiry 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 (emphasis added).  The evidence of record also shows the contested NCOER was submitted after completion of the commander's inquiry.  Thus, the evidence of record does not support that applicant's contention that the contested NCOER contains references to an incomplete investigation.  The evidence of record also does not support the applicant's contention that the contested NCOER was based on unverified derogatory information, that it makes unfounded references to his integrity, or that the senior rater was unable to properly evaluate him.
	
6.  The contested NCOER is properly filed in the performance folder of the applicant's OMPF.

7.  An evaluation report accepted for inclusion in the 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.  Thus, there is insufficient evidence to refute the presumption of administrative regularity with respect to the contested NCOER.

8.  It is noted that the applicant failed to resubmit his appeal to DASEB with the suggested documentation necessary for a successful appeal.

9.  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 nor should the period of the report be declared non-rated.  As such, there is no 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 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)                                         AR20150012984



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ABCMR Record of Proceedings (cont)                                         AR20150012984



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