Is it a lawful order to require me to rate a Soldier a certain way? Am I being told to alter a counseling statement?

1LT Private RallyPoint Member — Fri, 18 Aug 2023 00:43:34 -0400

My PSG is malingering, a toxic leader, and generally a POS. I have counseled him verbally five times with followed-up MFRs, done a written counseling, and have numerous pieces of evidence to back it up (MFRs, screenshot texts, email chains, and sworn statements) all with JAG's compliance approval. It escalated to the BN Commander when my PSG told the CSM I was treating him unfairly. Fast forward six months, the BN Commander wants him out of the unit, and the Soldier refuses to change his behavior. The Commander has directed me to write him a mid-level NCOER so his gaining unit does not send him back to us. Further, my Company Commander said in so many words that his previous counseling must accurately reflect the NCOER I write, which sounds to me like he's telling me to alter it, but maybe I'm reading too much into it.

In my gut, this does not feel right, but I do not know if it rises to the level of refusing the order, and is it even worth it if the guy is leaving the unit anyway?

Response by Maj Kim Patterson made Aug 18 at 2023 12:51 AM

Maj Kim Patterson — Fri, 18 Aug 2023 00:51:26 -0400

Choose your words wisely, for some reason, there isn’t a discharge on the table yet, a change of duty station can in theory, allow a change in attitude. Let them know what they’re getting but don’t say more then necessary or it could come back to bite you, just my thoughts

Response by LTC Eugene Chu made Aug 18 at 2023 5:23 AM

LTC Eugene Chu — Fri, 18 Aug 2023 05:23:19 -0400

Your chain of command is attempting to ensure legality. You can write the NCOER in whatever way you choose, but there is a risk of overturn from appeal if regulations are not followed or lack of aligned specificity. They are simply attempting to ensure that the evaluation does not get rejected by HRC for saying 'B' if you previously said 'A'.

Response by CPT Lawrence Cable made Aug 18 at 2023 7:58 AM

CPT Lawrence Cable — Fri, 18 Aug 2023 07:58:21 -0400

It doesn't feel right because they are telling you to falsify an official report. It sounds like they want to shove a dirt bag on someone else and they want you to make his NCOER's more "acceptable. This is a sore point with me, I would write the NCOER to match any bad performance that I can document.

It probably won't make you popular with the present chain of command, but you will still have your integrity and your balls. Document this soldiers weaknesses and get him out of your unit.

The one time Battalion overrode my decision to relieve a dirtbag came back to bite me in the ass on a report of survey. Luckily, I could document the chain of events.

Response by SFC Casey O'Mally made Aug 18 at 2023 4:03 PM

SFC Casey O'Mally — Fri, 18 Aug 2023 16:03:16 -0400

As a (former) PSG, the most sacred duty I hold, even above and beyond training SGT Snuffy and making sure PFC Schmedlap has chow, is training LTs. A bad LT becomes a bad Major, and usually a bad LTC. Which does a TON of damage far beyond PFC Schmedlap missing a meal. I guarantee *your* PSG / NCO counterpart, who theoretically knows a lot more about specifics than we do or than you can possibly convey (or *should* convey) on social media, will have some advice on this situation - and it is their solemn duty to provide that advice and help train you.

But just in case your PSG is the NCO in question here, or in case they are not good at training LTs, I offer the following. I would still recommend running it by a trusted NCO in your unit (PSG or 1SG are very good bets) who can maybe tweak the advice to the specifics of the situation.

Here goes....

Rule 1) the NCOER should reflect the counseling; good, bad, or indifferent. If SSG Jones has been F'ing up left, right and center, but he has never been event-oriented counseled for F'ing up, and all of his quarterlies (or monthlies) essentially say "SSG Jones is doing OK," then SSG Jones gets an OK NCOER. It doesn't matter that SSG Jones is a worthless POS. You never DOCUMENTED that SSG Jones was worthless, therefore he never had a chance to fix his deficiencies, and he gets a free ride. You failed to do your job, and he gets over.

Rule 1a) The opposite is true, too. If SSG Smith is not only the best thing since sliced bread, he *also* invented a new bread slicing technique which saves time *and* somehow increases bread quantity so that 1 loaf of sliced bread is MORE than 1 loaf of unsliced bread, but you never documented it.... SSG Smith is also "just OK" when it comes to NCOER time. Once again, you failed to do your job, but this time the NCO suffers.

Whatever you have documented throughout the rating period is what goes on the NCOER. But let's go ahead and assume you have been doing your job. You have documented everything, both positive and negative....

Rule 2) As long as you have the documentation to prove it, NO ONE can tell you what to put (or not put) on the NCOER. And contrary to popular belief (and partially contrary to rule 1 above) documentation does not *have* to be counseling statements or forms. If SSG Johnson gets arrested, you do not necessarily need a counseling statement to discuss the arrest on the NCOER. As long as you have the blotter report /arrest record to prove it. Especially if the NCO is subsequently found guilty under UCMJ. Likewise, SGT Doomore recieving an award for saving three lives at the scene of a car accident by applying combat life saver skills while awaiting EMT can use the DA638. In either of those cases, I believe an event-oriented counseling would be warranted, but if you don't have one, you still have documentation of the event. Further, those types of things can hardly be misinterpreted absent counseling. No one being arrested believes that is a career-enhancing event, and no one receiving an award for saving lives thinks that might hold them back.

But assuming you have proof of what you are writing - especially proof of telling SSG Jones HOW he was messing up, and giving him a chance to fix it - what you write is YOUR purview and no one else's.

Rule 2a) listen to your 1SG, CSM, and S1. While no one can tell you what to write, those folks have seen countless NCOERs, and know what will make one get kicked back. If they tell you that the bullets don't support the rating, you can be a bullhead idiot and ram it through anyway. OR you can ask how to better match the bullets to the rating (or, if you like the bullets, what rating those bullets support). 95% of the time, when you are being told to "fix" your bullets it has nothing to do with trying to force you to say something you did not want to say or did not mean. Instead, it is about trying to HELP you more clearly communicate that to a reader who knows absolutely nothing about the NCO. When a random CSM picks up that NCOER at the SFC or MSG board, will he or she have the same understanding of this NCOs strengths and/or weaknesses that you do? If the answer is no, the bullets need to be re-written. Not because of what you said, but because of HOW you said it.

Rule 2b) All of that being said, if your rater is asking for (read: demanding) changes, it behooves you to have a sit-down. Your rater is very likely the senior rater. Regardless of whether you give that NCO the best rating ever or the worst rating ever, if the Senior Rater paints a completely different picture, your rating won't "stick." Of course, neither will the Senior Rater's. Think of it as an average - if you are polar opposites, the final impression is "meh." If you are on the same end, but different degrees, the more moderate one will temper the extremity of the more extreme one. So both of you being in synch is important.

But beyond that, your rater is.... well.... your rater. Piss off your rater at your own peril. Now, part of leadership (IMHO) is taking the hard right over the easy wrong. You have to be willing to accept personal risk (including career risk) to do the right thing. But, if you can sit down with your rater and hash things out, it can only help you. Maybe your rater can explain why what he or she is saying actually *is* the most appropriate rating. Maybe you can convice him or her that you are right, and they accept your decision. If you can come to an agreement that renders a fair and honest NCOER *and* keeps you out of hot water with your rater - protect both your career and your integrity - then why not take the opportunity?

Rule 3) Sometimes, despite all of the above, you and your rater / Commander / CSM / 1SG simply will not agree. Triple check to make sure your rating is fair, accurate, and backed up by documentation, and send it through. But DON'T be a dick about it. Don't taunt, don't jump up and down in Command and Staff, don't go over their head and make THEIR boss tell them to back down (unless *they* are severely escalating things, but even then it is about the escalation, not the NCOER). DON'T "na-na-na-na-boo-boo you can't make me." Always keep it PROFESSIONAL. ESPECIALLY if there are junior Troops around.

Finally,
Rule 4) START EARLY. Especially with contentious NCOERs. HRC does not care how many rounds of revisions the NCOER went through. They don't care how many times it was re-written. How long it sat on S1's desk for yet ANOTHER review. All they care about is "on time." If you know you have a contentious NCOER, start early and give yourself time to "work through the kinks."

Response by MSG Private RallyPoint Member made Aug 18 at 2023 7:08 PM

MSG Private RallyPoint Member — Fri, 18 Aug 2023 19:08:52 -0400

Sir, if all your counselling forms, both quarterly and event oriented, reflect what you said here, I would like to remind you that you have the ability to add them as attachments (in fact, I would highly recommend you attach them), then what you write, as long as the bullets match the counselling forms, is what you write and you're in the clear. You can certainly use any and all information from his previous counselling forms and input onto the NCOER. Remember, be factual and be truthful.

But to tell you to write them a mid-level NCOER just to ensure this Soldier is not sent back to you....this tells me that EVERYONE is tracking he's a dirtbag. Write truthful. It's stuff like this that keeps perpetuating bad leadership. Passing the buck and ignoring the issue once the problem is no longer in sight does not solve the problem.

And, to answer your question....telling you to write an NCOER a certain way...to me...is immoral and unethical. Which makes it illegal order.

Response by COL Dan Ruder made Aug 18 at 2023 11:57 PM

COL Dan Ruder — Fri, 18 Aug 2023 23:57:08 -0400

One fact remains always valid: NCOERS should accurately reflect the content of quarterly counselings. In this case, I could surmise that the quarterly/event-oriented counselings do not support a lower NCOER rating. Perhaps too few regular counselings, or "malingering" and "toxic leader" behaviors not consistently documented (I'm guessing that the behavior does not meet the required level to be punished under the UCMJ). Or, the counselings themselves fall short of the standards and guidelines for conducting quarterly NCO counselings. These are all matters for review should a NCOER be appealed.
But, in ALL instances when you are unsure if an order is lawful, make sure you understand the order, and seek clarification--your boss might be able to provide context to address your concerns if you have doubts.

Response by SGM Jeff Mccloud made Aug 19 at 2023 8:32 AM

SGM Jeff Mccloud — Sat, 19 Aug 2023 08:32:15 -0400

Like any OER or NCOER, you should write the eval that the rated earned, fair and accurate. Every time.
And the gaining unit isn't actually allowed to send the Soldier back just because they don't like what they see on a previous NCOER.

Response by CSM Darieus ZaGara made Aug 19 at 2023 11:19 AM

CSM Darieus ZaGara — Sat, 19 Aug 2023 11:19:23 -0400

A gaining unit cannot send a Soldier back because of a rating from the previous unit.

If your counselings says what you say they do, and your command is aware of the poor performance the NCOER may be even less than mid level. No matter what the commands say you are obligated to rate the NCO in a fare and professional manner without thing about any consequence. The one thing that throws me a bit is that you have not mentioned the Platoon Sgt, 1SG and or the CSM.

I would hope that you are seeking there guidance?

Response by SGM Private RallyPoint Member made Aug 21 at 2023 11:26 AM

SGM Private RallyPoint Member — Mon, 21 Aug 2023 11:26:29 -0400

LT,

It’s important to remember that your senior leaders have a lot more experience dealing with this type of problem. It is extremely competitive from SFC to MSG. A vanilla, middle of the road eval, along with weak Senior Rater comments, will almost guarantee the individual does not get selected for MSG. It will take years for that eval to disappear from the board’s view. The Soldier has a chance to demonstrate correction—over years—if he is to promote again.

Your leaders also know that a “meh” eval doesn’t push the legal boundaries and is more difficult to dispute. This saves the unit a long appeals process or legal interference. But, the point is made and the damage is real.

One thing to keep in mind:

Other people, probably some from your unit, use these boards. What type of influence could your posting have on this evaluation process if seen by the rated Soldier? How could your question in a public forum influence your own personal outcomes/goals if seen by your leadership?

In my experience, stuff like this shouldn’t be posted online. Seek advice in person or via TCON/VTC.

Response by SFC Michael Cook made Aug 24 at 2023 4:21 PM

SFC Michael Cook — Thu, 24 Aug 2023 16:21:32 -0400

Do NOT change counseling, sworn statements, etc... that you've already done. Your integrity is far to important to be thrown away doing something like that. Making the assumption, based on your post, that you had not been counseling this guy for being an awesome MF'r, it seems that it should be fairly easy to write a "promote only if you really need a body and NOBODY else is available with a pulse" NCOER based upon counseling that you've already done. Simply let the prior Counseling write the evaluation.

MSG Thomas Livingston is spot on when he says "be factual and be truthful" you really cant go wrong with facts and truth!

Response by SSG Eric Blue made Oct 13 at 2023 4:30 PM

SSG Eric Blue — Fri, 13 Oct 2023 16:30:24 -0400

Wow...not surprised, though. I've served with a number of dirtbag NCOs and every single one of them got promoted while I got forced out.