APPLICANT REQUESTS:  That the NCOER for the period 8806-8812 be removed from his Official Military Personnel File (OMPF) and that the period be declared nonrated time.

APPLICANT STATES:  That the NCOER is administratively and substantively inaccurate.  He adds that the rater on the contested report was not the person listed on the unit rating scheme.

EVIDENCE OF RECORD:  The applicant's military records show:

He was a sergeant first class (SFC) serving as a maintenance instructor for the M1/M1A1 tank at the Armor Center and School, Fort Knox, Kentucky, at the time of the contested NCOER.  He was rated by the chief enlisted instructor and senior rated by the warrant officer-in-charge of the Branch.

The report is extremely adverse.  The rater indicated that the applicant exhibited no NCO values/responsibilities save supporting equal opportunity (Part IVa).  He stated that the applicant needed some improvement in his level of competence (Part IVb) and much improvement in his leadership ability (Part IVd).  In Part Va, the rater evaluated his potential as “marginal.”

The senior rater stated that the applicant lacked good communications skills, made hasty decisions under pressure, and placed personal convenience above organizational interests.  He rated the applicant’s performance and potential as “fair” in Part Vc.

Because the rater for the contested report was not the person indicated as the rater on the unit rating scheme, the Division Chief, a lieutenant colonel, attached a memorandum to the NCOER.  He explained that all SFC’s in the Branch were supposed to be rated by the Branch NCO-in-charge (NCOIC) who was also the senior enlisted instructor; however due to an oversight caused by his numerous permanent change of station (PCS) deferments, the applicant was listed on the rating scheme as being rated by a different NCO.  The Division Chief considered the rating appropriate despite the administrative error.

The applicant appealed the NCOER to the Enlisted Special Review Board (ESRB).  Because he had not provided sufficient evidence to support his claim, the ESRB returned his appeal without action on 13 July 1995 and instructed him to gather the appropriate documentation and resubmit his claim in accordance with chapter 4, Army Regulation (AR) 623-205.  There is no evidence in the applicant’s record to indicate that he complied with the ESRB’s request.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the ESRB.  It contains no information, advice or recommendation which would constitute a basis for granting the relief requested and points out that, during the period in question, the applicant received NJP (nonjudicial punishment) under Article 15, Uniform Code of Military Justice, for disobeying the lawful order of a warrant officer.  This warrant officer was his senior rater on the contested NCOER.

Army Regulation 623-205 establishes the policies and procedures for the NCOER system.  Pertinent paragraphs provide that an NCOER accepted by Headquarters, Department of the Army, and included in the official record of an NCO, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation states that the burden of proof in an appeal of an NCOER rests with the applicant.  Accordingly, to justify deletion or amendment of an NCOER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  Although the rater on the contested report was not the person named on the unit rating scheme, he was the Branch NCOIC and the proper rater for all SFC’s within the Branch. This was verified by the Division Chief’s memorandum, which also explained the administrative oversight that caused the rating scheme to be incorrect.

3.  The applicant received NJP for insubordination to his senior rater during the contested rating period.  This lends credence to the contention that the applicant was not behaving and performing to standard, and supports the adverse rating.

4.  The applicant’s appeal to the ESRB was returned without action because he failed to support his contentions with sufficient relevant evidence to demonstrate error or injustice.

5.  The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his OMPF.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director