IN THE CASE OF:	  

		BOARD DATE:	    13 October 2015

		DOCKET NUMBER:  AR20150013880 


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 20110711-20120928 (contested NCOER #1) from his official military personnel file (OMPF)
* removal of the DA Form 2166-8 for the rating period 20130330-20140107 (contested NCOER #2) from his OMPF
* removal of all related negative material in his OMPF
* promotion to the next higher grade (master sergeant (MSG)/E-8) as required by previous order
* revocation of the denial of continued service

2.  The applicant's also requests to speak with the Under Secretary of the Army based on open door policy. 

3.  The applicant states the underlying basis for the erroneous NCOERs and subsequent actions are the illegal actions by members of his chain of command. He also requests to speak with the Under Secretary of the Army under open door policy prior to a decision being rendered by this Board regarding his pending administrative separation under the Qualitative Management Program (QMP).  He wants to discuss the unjustness of this action.

4.  The applicant provides:

* NCOERs for the rating periods 20070212-20070710 and 20140108-20140707 and contested NCOER # 2
* Memorandum for Record (MFR), subject:  Legal Disposition of Cases Involving [Applicant], 242nd Explosive Ordnance Battalion 
* Memorandum, subject:  Rebuttal to Memorandum of Reprimand, [Applicant]
* Memorandum, subject:  Notification of Denial of Continued Active Duty Service under the QMP
* Statement of Options, QMP
* Memorandum, subject:  Request for Reconsideration in Retaining [Applicant] on Active Duty
* Memorandum, subject:  Letter of Request for Reconsideration in Retaining [Applicant] on Active Duty
* Memorandum, subject:  Letter of Support for Consideration in Retaining [Applicant] on Active Duty
* Memorandum, subject:  Letter of support for [Applicant's] QMP Board
* Character reference statements 
* Enlisted Record Brief 
* Memorandum for the Commander, U.S. Army Human Resources Command (HRC), subject:  [Applicant's] Personal View and Explanation for the QMP Board's Review
* Memorandum, subject:  Headquarters, Department of the Army (HQDA) Standby Advisory Board (STAB), [Applicant]
* Email exchange related to the STAB
* Memorandum, subject:  Request for Redress under Article 138, Uniform Code of Military Justice (UCMJ)
* Memorandum, subject:  Response to Request for Redress under Article 138, UCMJ
* DA Forms 4856 (Developmental Counseling Form)
* DA Forms 268 (Report to Suspend Favorable Personnel Actions (Flag))
* Partially complete DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)
* Multiple DA Forms 2823 (Sworn Statement)
* Congressional correspondence
* Memorandum, subject:  Request to Conduct a Commander's Inquiry – [Applicant]
* Memorandum, subject:  Commander's Inquiry Report on NCOER for [Applicant] from 20130330 thru 20140107
* E-mail correspondence related to the Commander's Inquiry
* MFR, subject:  Final Action for Commander's Inquiry Referencing Allegations of Misconduct from the Rating Chain on the NCOERs of [Applicant]
* MFR, subject:  Findings and Recommendations for Commander's Inquiry Referencing Allegations of Misconduct from the Rating Chain on the NCOERs of [Applicant]
* Letter of reprimand and allied documents (statements, acknowledgement, rebuttal ,and general officer filing instructions) 
* Memorandum, subject:  [Fiscal Year (FY) 2015 Active Component (AC) Master Sergeant (MSG)] Promotion Board
* Letters of support (for retention) from his chain of command

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant be allowed to continue his service in the Army by removing the derogatory information from his record. 

2.  Counsel states: 

* the applicant has future potential in the Army and would continue to be an asset if allowed to continue in the service
* the applicant disputes the underlying adverse actions that initiated or led to the QMP
* the denial of continued service is based on two erroneous NCOERs (from 20080219-20090130)
* the applicant received a company grade Article 15 which was directed to be filed in the restricted folder of his OMPF but the applicant has improved his performance since this action 
* improved performance and correction of errors that initiated the QMP should be considered on appeal
* the basis of the QMP was the negative NCOERs; the applicant took corrective action to remove the first NCOER and is currently appealing the second NCOER
* the applicant continues to demonstrate adherence to Army values and lead at the highest levels 
* he is currently working at the 52nd Ordnance Group and is a key member of that team; he has taken steps to eliminate the conditions that led to the QMP
* the relief for cause was based on a misunderstanding between the applicant and his leadership; it was not based on misconduct 
* the applicant has demonstrated through performance that he has improved himself and has potential in the Army
* he has been placed in a high position at the brigade level and his leadership relies on him to be a zero defect NCO
* he is essentially working at the corps level and he has shown he has unlimited potential in explosive ordnance disposal (EOD)
* his immediate chain of command supports his continued service as his performance remains at the highest level
* the recommendations for retention should be strongly considered because they come from the boots on the ground that can best evaluate him 
* the applicant has erroneous information filed in his OMPF which resulted in the denial of continued service

3.  Counsel provides: 

* Subsequent NCOERs
* Chain of command retention memoranda
* Letters of recommendation
* Personal letter

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the Regular Army on 21 August 1997 and he holds military occupational specialty (MOS) 89D (Explosive Ordnance Specialist).  

2.  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Afghanistan (July 2003-February 2004) and Iraq (April 2006-February 2007 and October 2007-January 2008) and he attained the rank/grade of sergeant first class (SFC)/E-7 on 1 July 2006. 

3.  During August 2008, he received an "Annual" NCOER (NCOER #3, not currently contested by the applicant but mentioned by his counsel) covering 7 months of rated time and Code Z for non-rated time, from 11 July 2007 through 10 July 2008 for his duties as EOD Team Leader while assigned to 55th Ordnance Company (EOD), Fort Belvoir, VA.  His rater was First Sergeant (1SG) MWG; his senior rater was Captain (CPT) MRK, the Company Commander; and his reviewer was Lieutenant Colonel (LTC) NRG, the Deputy Group Commander. This NCOER shows: 

	a.  In Part IVa (Army Values), the rater placed an "X" in "No" blocks for "Honor" and "Integrity."  He entered the bullet comments: 

* failed to properly secure explosives
* left an ammunition can of explosives next to his desk unsecured in the operations section for 2 months before he realized his drastic mistake
* went the extra mile to ensure Soldiers are trained to standard

	b.  In Parts IVb (Competence), IVd (Leadership), and IVe (Training), the rater placed an "X" in the "Success" or "Excellence" blocks and entered corresponding bullet comments.

	c.  In Part IVc (Physical Fitness and Military Training), the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comment:  "[Service member] failed to meet the minimum time for the two mile run event for his age category on two [Army Physical Fitness Test (APFT)] attempts." 

	d.  In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comment:  "left an ammunition can full of explosives unsecured next to his desk in a common use area for two months instead of securing the can in the company's Class-V bunker." 

	e.  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.  

	f.  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.

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

* promote when deficiencies are corrected
* send to [Advanced NCO Course] when slots area available
* put in positions of equal responsibility
* Soldier refused to sign

4.  The NCOER shows the rater and senior rater 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.  The applicant's signature block is blank.

5.  During September 2012, he received contested NCOER # 1, an "Extended Annual" NCOER covering 3 months of rated time and codes I, S, and Q for non-rated time from 11 July 2011 through 28 September 2012 for his duties as Instructor/Writer (Global Anti-Terrorism Operational Readiness (GATOR)).  His rater was Mr. TT, Division Chief; his senior rater was Sergeant Major (SGM) RJM, Department Sergeant Major, and his reviewer was LTC CGS, the Deputy Director.  This NCOER shows: 

	a.  In Part IVa, the rater placed an "X" in "Yes" blocks for all 7 Army values and entered bullet comments. 

	b.  In Part IVb, the rater placed an "X" in the "Success" block and entered supporting bullet comments.

	c.  In Part IVc, the rater placed an "X" in the "Needs (Some) Improvement" block, the entry "Fail" next to the APFT, and entered the following bullet comments: 

* failed to meet APFT standards for the two-mile run with a total score of 202 
* displayed no improvement on subsequent APFT two-mile run during this period 

	d.  In Parts IVd, IVe, and IVf, the rater placed an "X" in the "Success" blocks and entered corresponding bullet comments.  

	e.  In Part Va, the rater placed an "X" in the "Fully Capable" block.  

	f.  In Part Vc, the senior rater placed an "X" in the "Successful/3" block and in Part Vd, the senior rater placed an "X" in the "Superior/3" block.

	g.  In Part Ve, the senior rater entered the following bullet comments:

* Soldier was never counseled in accordance with Army Regulation (AR) 623-3 (Evaluation Reporting System) 
* promote when sufficient allocations are available

6.  The NCOER shows the rater, senior rater, and applicant authenticated this form by placing their digital signatures in the appropriate blocks and the reviewer concurred with the rater and senior rater.

7.  On 4 October 2012, at Fort Lee, VA, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave from 24 July to 1 August 2012.  His punishment consisted of a forfeiture of pay.  He appealed and the next higher commander approved his appeal and ordered the sentence set aside.  He later appealed to the ABCMR (Docket Number AR20140000035, dated 10 April 2014) and the nonjudicial punishment was removed from his records.  

8.  During March 2013, he received a "Change of Rater" NCOER covering 6 months of rated time from 29 September 2012 through 29 March 2013, for his duties as Instructor/Writer (GATOR).  This NCOER shows: 

* his rater rated his 7 Army values as "Yes," his NCO responsibilities as "Success" and his overall potential for promotion as "Fully Capable" 
* his senior rater rated his overall performance as "Successful/3" and his overall potential as "Superior/2"

9.  In March 2013, he deployed to Afghanistan with the 705th Ordnance Company, 242nd Ordnance Battalion, which fell under the 82nd Sustainment Brigade when it was geographically located in Regional Command-South.  His unit relocated to Regional Command-East in December 2013.  

10.  On 2 April 2013, the ABCMR (Docket Number AR20120018787) rendered a decision regarding his appeal of the relief for cause NCOER for the rating period 11 July 2007 to 10 July 2008 (NCOER # 3).  The Board determined the evidence presented did not demonstrate the existence of a probable error or injustice and as such denied his request for removal of the NCOER from his records. 

11.  On 7 January 2014, he was relieved from his duties as Operations Sergeant, 705th Ordnance Company, Bagram Airfield.  He received a relief for cause NCOER (NCOER #2) covering 9 months of rated time from 30 March 2013 through 7 January 2014.  His rater was 1LT REA, the Operations Officer; his senior rater was CPT RBH, the Company Commander; and his reviewer was LTC GVM, the Battalion Commander.  This NCOER shows he was initially counseled on 31 May 2013 and he also received counseling on 10 September and 26 December 2013.  It shows the following entries

	a.  In Part IVa, the rater placed an "X" in "No" blocks for "Loyalty" and "Honor."  The rater entered the following bullet comments.

* failed to obey direct orders from commissioned officers and lawful orders from the 1SG
* did not live up to all Army values; displayed disloyalty to subordinates
* seeks challenges no matter the difficulty 

	b.  In Parts IVb, IVc, and IVe, the rater placed an "X" in the "Success" block and entered corresponding bullet comments.

	c.  In Part IVd, the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments: 

* lied to his platoon about a command climate survey and blamed them for the unit's low morale; he later denied this after the truth was presented to the platoon
* blatantly disobeyed Commander's orders not to remove printer cartridges; while in front of Soldiers, challenged Commander's authority and removed the cartridges

	d.  In Part IVf, the rater placed an "X" in the "Needs Improvement (Some)" and entered the following bullet comments:

* the rated NCO has been notified of the reason for the relief
* rated NCO verbally disrespected and yelled at the 1SG during a discussion about the rated NCO's poor behavior and mistreatment of another NCO
* failed to provide daily updates on mission essential equipment movement; this resulted in the [Commander's] and 1SG's involvement to ensure completion 

	e.  In Part Va, the rater placed an "X" in the "Marginal" block.  

	f.  In Part Vc, the senior rater placed an "X" in the "Fair/4" block.

	g.  In Part Vd, the senior rater placed an "X" in the "Poor/5" block.

	h.  In Part Ve, the senior rater entered the following bullet comments:

* do not promote
* do not send to any [NCO Education System]
* do not retain for future service in the Army; this NCO compromised his integrity that continued to degrade unit's morale 
* senior rater is directing the relief for cause due to inability to trust the rated NCO to lead his platoon or continue in a supervisory position over Soldiers 

12.  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.

13.  On 20 January 2014, the applicant's immediate commander (705th Ordnance Company) notified the applicant that he was considering whether he should be punished under Article 15, UCMJ, for:

* behaving himself with disrespect toward First Lieutenant (1LT) REA (the platoon leader), a superior commissioned officer on two occasions
* disobeying a lawful order from his 1SG to get a list of supplies to him prior to the start of training
* being disrespectful in deportment towards the 1SG by yelling at him while having a telephone conversation
* possessing, consuming, and distributing alcohol-laced chocolate to his Soldiers, conduct prejudicial to good order and discipline 

14.  This Article 15 was not finalized.  Although it contains a first reading, it was not acknowledged by the applicant and was not completed by the imposing officer.  Additionally, there is no indication that any punishment was imposed and it is not filed in his OMPF.  An MFR, dated 21 October 2014, from the Trial Counsel, 82nd Sustainment Brigade, explained that she advised the command that the misconduct as alleged would not likely reach a standard of beyond a reasonable doubt at a UCMJ proceedings.  She laid out the options to the command including further counseling statements, release from theater, relief for cause NCOER, and varying levels of reprimand.  After consulting with the Brigade Staff Judge Advocate, the Commander, 82nd Sustainment Brigade concurred with the MFR. 

15.  On 14 February 2014, the applicant's battalion commander counseled him and advised him that he was not going to proceed with a court-martial and that he had decided to proceed with a reprimand.  

16.  On 20 March 2014, the Commander, 242nd Ordnance Battalion (EOD), Bagram Airfield reprimanded the applicant for disrespectful conduct towards his company 1SG on 16 December 2013.  The reprimand shows: 

	a.  When his 1SG informed him that he should not kick another SFC off the phone who was discussing an upcoming mission with him, he yelled at the 1SG over the phone stating that he did not agree with the correction about disrespecting another superior NCO and the 1SG.  His screaming became so loud that his platoon leader had to remove subordinate Soldiers from the room because they could hear him screaming through the phone at the unit 1SG.  He was disrespectful in both deportment and language toward a senior NCO.  

	b.  He also disobeyed a lawful order from his 1SG on 8 November 2013.  His 1SG ordered him to send a daily status update and to compile and send a list of supplies to Camp Spann in order to conduct training.  He failed to complete any part of the order given.  

	c.  His actions as a senior NCO were inexcusable and would not be tolerated. It was his duty as a senior NCO to set the standards in all areas.  His actions created a toxic work environment.  The applicant's severe lack of judgment caused him to question the applicant's ability to lead and train Soldiers and his potential for continued service.   

   d.  The reprimand was imposed as an administrative measure and not punishment under the provisions of Article 15 of the UCMJ.  

17.  On 20 March 2014 the applicant acknowledged receipt of the reprimand and on 27 March 2014 he submitted a rebuttal.  He stated: 

* he denied yelling at the unit 1SG and indicated that he has a loud, boisterous voice; he speaks clearly and firmly, which could be misunderstood
* he and the other SFC share a similar voice and the 1LT may have confused him with the other SFC who was in fact yelling
* he disagreed with the statement that the 1SG did not receive updates or the needed supplies; the 1SG himself verbally rescinded the order regarding the status update 
* it was agreed between him and the company commander to provide a weekly update during meetings
* the 1SG did not need to order supplies because the supplies had been obtained prior to his arrival 
* he accepted partial responsibility for this incident; as a member of a team, he believed he performed to the best of his ability and he accepted whatever shortcomings he committed that may have led the command to fail 
* he knew his personality could be misunderstood and knew he is not the type who makes a warm first impression, but he remains a Soldier, NCO, and leader
* he asked for the reprimand to be filed locally 

18.  On 25 March 2014, the applicant submitted a request for a Commander's Inquiry regarding the relief for cause NCOER.  He alleged errors, irregularities, and illegalities within this NCOER that required redress.  

19.  On 9 April 2014, by memorandum to HRC, the Commanding General, U.S. National Support Element Command-Afghanistan, submitted a Commander's Inquiry for the applicant's NCOER for the rating period 20130330-20140107.  He stated: 

* the Commander's Inquiry looked into alleged errors, injustices, or legalities pertaining to the contested NCOER 
* his inquiry focused on alleged errors or unfavorable rater and senior rater comments 
* he concluded through examination of documents provided and through interviews that the comments on the NCOER were consistent with the applicant's performance and potential
* he determined the rating scheme had been published and provided to the applicant, and the rater and senior rater met the qualifications
* his investigation revealed the statements among various parties are generally consistent and appear factual
* he determined the rater and senior rater were factual and objective in preparing their comments on this NCOER
* he recommended the NCOER be processed as written and filed in the applicant's records; he had been informed of this finding 

20.  On 16 April 2014, after carefully considering the reprimand, the circumstances surrounding the incident, and all matters submitted by the applicant in defense extenuating or mitigating, the Commanding General (CG), Combined Joint Task Force-10, Regional Command-East ordered the reprimand be placed permanently in the applicant's OMPF. 

21.  On 29 May 2014, the Enlisted Special Review Board (ESRB) considered his appeal of contested NCOER #2.  The ESRB determined the evidence was sufficient to warrant partial relief.  As a result, the ESRB directed removal of the bullet comment "displayed no improvement on subsequent APFT two mile run during the rating period" from part IV(c).  The ESRB denied the removal of this NCOER from his record. 

22.  On 26 September 2014, by memorandum, HRC notified the applicant that his request for a STAB had been approved.  His records had been identified to appear before the FY 2015 selection board which would convene on 14 October 2014.  His records would be considered under the criteria established for the FY 2014 MSG board which convened on 3 December 2014.

23.  On 8 October 2014, the applicant submitted additional details in relation to the Commander's Inquiry.  He referenced allegations of misconduct by his rating officials.  However, on 9 February 2015, the Commander, 52nd Ordnance Group, issued a final action on the Commander's Inquiry by approving the previous findings and recommendations. 
24.  On 13 April 2015, by letter, HRC notified the applicant that the QMP Selection Board conducted a comprehensive review of his records for potential denial of retention under the QMP and recommended 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 involuntarily discharged from the Army no later than 1 November 2015.  

25.  On 20 April 2015, the applicant acknowledged receipt of the QMP notification.   He did not make an election regarding submission of an appeal, requesting voluntary discharge, or applying for regular retirement (if eligible). 

26.  On 15 May 2015, he acknowledged having been notified by his Group Commander on 20 April 2015 of the QMP board's decision to deny his retention on active duty.  He requested reconsideration of this decision.  He submitted a memorandum from his legal counsel describing in detail the facts concerning this matter and other enclosures.  With his request, he submitted multiple letters of support and/or character reference letters from various officers and NCOs, including those in his chain of command.  The authors opine that the applicant is a solid NCO who should be retained in the Army.  They describe him as technically and tactically proficient and dedicated to mission accomplishment.  The general officer in his chain of command did not concur with his retention. 

27.  He provided voluminous correspondence from and to various Members of Congress in relation to the relief for cause, reprimand, and NCOER.  In each case, an Army official explained the facts and circumstances to his Member(s) of Congress.  

28.  AR 623-3 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 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 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.

	c.  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.

	d.  Paragraph 3-24 (Prohibited Comments) states a thorough evaluation of the Soldier is required.

	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.

29.  AR 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made.

	a.  A memorandum of reprimand may be filed in a Soldier's record only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 of Army Regulation 600-37. 

	b.  Paragraph 7-2 (Policies and standards) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

30.  Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) governs the composition of the AMHRR (which includes the OMPF) and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Table B-1 covers authorized documents and states administrative letters of reprimand, admonitions, and censures of a non-punitive nature are filed in the performance section of the OMPF.  OERs are also filed in the performance section of the OMPF. 

31.  AR 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.  

	a.  The Deputy Chief Staff, G-1 or designee may approve cases for referral to a STAB upon determining that a material error existed in a Soldier’s OMPF when the file was reviewed by a selection board.  For the purpose of this paragraph, HRC is a designee.  An administrative error is immaterial, if the Soldier, in excising reasonable diligence, could have discovered and corrected the error.

	b.  STABs are convened to consider records of those: 

		(1)  Otherwise eligible Soldiers whose records were not reviewed by a centralized selection board.
		(2)  Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board. 

		(3)  Recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list.  This includes Soldiers selected to attend the U.S. Army Sergeants Major Course (USASMC) for the purpose of promotion to SGM.

		(4)  Selected for appointment to Command Sergeant Major or attendance to the USASMC for the purpose of promotion to SGM but were referred by the U.S. Army Senior Enlisted Review Board because of derogatory information identified during the post-board screening process.

32.  Military Personnel (MILPER) Message 14-134 (Procedures for the Fiscal Year 2015 QMP), dated 23 October 2014 provides guidance and procedures in support of the QMP.  The purpose of this board is to identify selected NCOs for possible involuntary separation.  Specifically those with a GOMOR, conviction by a court-martial or Article 15, Relief for cause NCOER, a "NO" in the army values on an NCOER, a senior rating of "4" on an NCOER, and NCO Education System failures. 

	a.  Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc). 

	b.  Soldiers may appeal on the basis of a material error in their records when reviewed by the board.  The chain of command, all the way to a general officer, must recommend approval or disapproval. 

	c.  Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge.  The Director of Military Personnel Management is the final authority for disposition of appeal. 

33.  AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that: 

* NCOER # 1 for the rating period 20110711-20120928 should be removed from his OMPF
* NCOER # 2 for the rating period 20130330-20140107 should be removed from his OMPF
* all related negative material in his OMPF should be removed
* he should be promoted to MSG/E-8
* denial of continued service should be revoked 

2.  With respect to NCOER # 1: 

	a.  The available evidence shows the applicant, a senior NCO serving in a leadership position, appears to have performed below standard.  He failed the 2-mile run event of the APFT.  Accordingly, his rating officials rated this portion of his NCOER as "Needs (Some) Improvement."  His rating officials supported their ratings with bullet comments.  Otherwise, this NCOER is a positive NCOER.  He received a "Fully Capable" rating by his rater and a "Successful/3" and "Superior/3" rating by his senior rater.  

	b.  The ESRB reviewed this NCOER and directed one of the bullet comments should be deleted.  The action was completed and the applicant's records currently contain a corrected copy of this NCOER.  

	c.  Aside from this administrative error, there is no evidence that this 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 the evaluations rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time they prepared the NCOER or that they exercised faulty judgment in evaluating him as they did.

	d.  He did not provide sufficient evidence to support the removal of contested NCOER # 1 from his OMPF. 

3.  With respect to NCOER # 2

	a.  The available evidence shows the applicant, a senior NCO serving in a leadership position in a combat environment, performed below standard and was relieved by his leaders.  This NCOER describes various failures by the applicant. For example, the rater noted the applicant: 

* failed to obey an order and displayed disloyalty to subordinates
* lied to his platoon about a command climate survey and blamed his platoon for low morale; he then denied this even after the truth was presented
* disobeyed an order and challenged the commander's authority in front of Soldiers
* verbally disrespected his 1SG and failed to provide daily updates on mission essential equipment

	b.  He was afforded due process and requested a Commander's Inquiry.  A senior officer looked into alleged errors, injustices, or legalities pertaining to the contested NCOER and upheld the relief for cause.  He concluded through examination of documents provided and through interviews that the comments on the NCOER were consistent with the applicant's performance and potential.  He determined the rating scheme had been published and provided to the applicant, and the rater and senior rater met the qualifications.  His investigation revealed that statements among various parties were generally consistent and appeared to be factual.  He determined the rater and senior rater were factual and objective in preparing their comments on this NCOER.  

	c.  There is insufficient evidence to show the contested NCOER # 2 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 they prepared the NCOER or that they exercised faulty judgment in evaluating him as they did.  

	d.  He did not provide sufficient evidence to support the removal of contested NCOER # 1 from his OMPF. 

4.  With respect to NCOER # 3:

	a.  The applicant did not specifically refer to this NCOER.  However, his counsel mentions it.  The applicant appealed this NCOER to this Board and his appeal was denied on 2 April 2013. 

	b.  	AR 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  

	c.  If the applicant's counsel's intent is for the Board to reconsider his previous appeal as related to this NCOER, regrettably he does not meet the two-tiered criteria for reconsideration in that his request is neither submitted within 1 year of the Board's original decision nor does it contain any new evidence. 

5.  With respect to the reprimand: 

	a.  The evidence of record shows, during deployment to Afghanistan, the applicant was disrespectful in deportment towards his company 1SG and also disobeyed a lawful order from his 1SG.  Accordingly, he was reprimanded.  He was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision.  After carefully considering the circumstances surrounding the incident, and all matters submitted by the applicant, along with the recommendations of subordinate commanders, the Commanding General ordered the reprimand be placed permanently in the applicant's OMPF. 

	b.  A reprimand is an administrative tool used by the imposing officer to train and rehabilitate.  Once the reprimand was filed on his OMPF, it became a permanent record and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.

	c.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline. The applicant – a senior NCO with multiple combat tours – violated the Army values of loyalty and honor.  His commander believed his conduct was inexcusable and his actions brought discredit to himself, the unit, and the Army.  

	d.  His actions displayed a lack of discipline and raised questions about his ability to effectively perform as a leader.  His selection by the QMP is a natural consequence of his actions.  His long service, achievements, and multiple deployments are noted, but do not negate what he did.  The reprimand was correctly filed.  The applicant has not proven that the reprimand was either untrue or unjust.  

6.  With respect to promotion to MSG/E-8:

	a.  The ABCMR is not a promotion board.  It is a board that corrects records based on error or injustice.  If and when a promotion error is found an appropriate remedy would be via a STAB.  

	b.  A STAB may be convened to consider or reconsider an NCO for promotion when HQDA discovers the NCO was not considered from in or above the promotion zone by a regularly scheduled board because of an administrative error, the board acted contrary to law, the board made a material error, or the board did not have some material information.  This is not the case here.  Because there is no material error, there is no reason for a STAB. 

7.  With respect to his selection by the QMP for non-retention: 

	a.  The QMP MILPER Message outlined the criteria for consideration and the actions by those selected for non-retention.  The applicant's records contain a reprimand and at least one negative NCOER.  As a result, the QMP selected him for non-retention.  

	b.  An appeal of the QMP is appropriate when there is a material error in the Soldier's records when reviewed by the board.  Cases with material error, newly-discovered evidence, or the removal of documents from the OMPF are eligible for a QMP appeal.  This is not the case here.  There is neither a material error nor a reason to overturn the QM's decision not to retain him.  

8.  After a comprehensive review of the applicant's records and the evidence he and his counsel presented, there is insufficient evidence to remove either NCOER, remove the GOMOR, consider him for promotion by a STAB, or overturn the QMP's findings. 

9.  With respect to a personal appearance before the Under Secretary of the Army based on open door policy, this is not within the purview of this Board.  The applicant and his counsel are advised to coordinate directly with the Under Secretary of the Army regarding a meeting. 

10.  If the applicant's intent was to request a personal appearance before this Board, the applicant is advised that by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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)                                         AR20150013880





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ABCMR Record of Proceedings (cont)                                         AR20150013880



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