APPLICANT REQUESTS:  In effect, removal of two noncommissioned officer evaluation reports (NCOER) from his Official Military Personnel File (OMPF) and reinstatement to active duty.

APPLICANT STATES:  In effect, that the NCOER’s covering the periods June 1990 through May 1991 and June 1991 through September 1991 are unjust and inaccurate and are not indicative nor characteristic of his record of performance. He goes on to state that he was never counseled regarding his shortcomings or provided a counseling checklist as required by the applicable regulations.  He further states that there was no published rating scheme as required by the applicable regulations and he did not refuse to sign the NCOER covering the period June 1990 through May 1991, as indicated on the report.  Rather, he was attending school at the time (3 August through 23 August 1991) and was unaware that the NCOER had been rendered.  He continues by stating that the NCOER’s contain derogatory comments that are unverified and that should not have been included in the NCOER’s.  Additionally, his command failed to follow the established policies for relieving a NCO from his duty position, in that it requires the rating chain to follow a deliberate process of informing the rated individual of their shortcomings and affording them an opportunity to correct their deficiencies.  Consequently, he was denied due process in that he was never informed of his shortcomings until after the fact and was never given an opportunity to correct them.  In support of his application he submits several letters of support, as well as a copy of the division policy regarding relief for cause of officers and NCO’s. 

COUNSEL CONTENDS:  That the failure on the part of the chain of command to properly counsel the applicant regarding his shortcomings and then to render evaluations that resulted in the termination of an otherwise outstanding career spanning over 16 years, constitutes a denial of due process and amounts to a grave injustice to the applicant. 


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

He enlisted on 25 June 1976 for a period of 3 years and for training as a food service specialist.  He remained on active duty through continuous reenlistments and was promoted to the pay grade of E-7 on 1 May 1989.

The first contested NCOER was an annual report covering the period June 1990 through May 1991 evaluating him as a food service sergeant at Fort Bragg, North Carolina.  In part IIc, Authentication, the NCOER contains a comment indicating that the applicant refused to sign the NCOER.  The rating chain signatures all contain the same stamped date of authentication of 26 August 1991.  The report also indicates that he was counseled on two separate dates.

In part IVa, values/NCO responsibilities, the applicant received a “no” rating under “Is committed to and shows a sense of pride in the unit - works as a member of the team.” The supporting comments indicate that the applicant had constant disagreements with the chain of command that resulted in his inability to work as a team player.

In part IVd, under leadership, the applicant received a “needs improvement” rating.  The supporting comments indicate that the applicant’s inability to work as a team player required his transfer to another facility in Saudi Arabia and that he lacked initiative in ensuring that ration supplements were acquired and distributed.

In part IVf, responsibility and accountability, the supporting comments indicate that the applicant did not assume responsibility of mess section equipment upon assumption of his new position. 

In part V, overall performance and potential the rater rated the applicant’s potential for promotion and service in positions of greater responsibility as marginal.  The senior rater (SR) rater the applicant’s performance and potential as fair and indicated in his comments that the applicant would not put forth the extra effort required of an outstanding food service sergeant and that his lackadaisical attitude reflected on the food service provided during Desert Storm.

The second contested NCOER is a relief for cause report covering the period June 1991 through September 1991 evaluating the applicant in the same position as the previous NCOER; however, by a different rating chain.  This NCOER also indicates that he was counseled twice.

In part IVa, the applicant received a “no” rating under “Is committed to and shows a sense of pride in the unit - works as a member of the team” and “Is honest and truthful in word and deed”.  The supporting comments indicate that the applicant aggressively sought a letter of acceptance to leave the unit and that he lied to the battalion command sergeant major.

In part IVc, leadership, the applicant received a “needs improvement” rating.  He also received “needs improvement”  ratings under training and responsibility.  The supporting comments indicate that the applicant put his needs before those of his soldiers, that his section had the lowest morale of all sections in the company, he failed to train his subordinates, failed to ensure mission readiness of mess kitchen transport, failed to maintain dining facility equipment, and he displayed a lackadaisical attitude.  His rater rated his overall potential for promotion as marginal.

The applicant appealed the two contested NCOER’s to the Enlisted Standby Review Board (ESRB) on 15 November 1991.  The ESRB denied his appeal of the “Annual” NCOER but partially approved his appeal of the “Relief for Cause” NCOER, in that some minor administrative corrections were made.  However; the ESRB did not change any of the ratings on that report.

On 10 July 1992 the applicant was notified that the Calendar Year (CY) 1992 Master Sergeant Selection Board had determined that based on the presence of the two substandard NCOER’s in his OMPF, he should be barred from reenlistment under the Qualitative Management Program (QMP).
The applicant appealed the bar to reenlistment under the QMP on 10 August 1992.  However, his appeal was denied by the Standby Advisory Board (STAB) on 15 March 1993.

On 30 June 1993 the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-8, due to a reduction in authorized strength.  He had served 17 years and 6 days of total active service for which he received half separation pay of $20,633.58.

Army Regulation 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to (1) enhance the quality of the enlisted career force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, records for grades E-5 through E-9 are regularly screened by the Department of the Army promotion selection boards.  The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

Army Regulation 623-205, sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.

Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly 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.

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

1.  The applicant has failed to show through the evidence submitted or the evidence of record that the contested NCOER’s were in error or unjust.

2.  The contested reports were rendered by two different rating chains and appear to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the respective rating periods.  Therefore, there is no basis for removing them from his records.

3.  The applicant’s contentions that he was not counseled on his performance and that there was not a published rating scheme are noted but appear to be without merit.  In that regard, an NCO must bear some responsibility to ensure not only that he is rated by the appropriate rating chain but also that he is aware of the expectations of his raters.  The Board is convinced that the applicant knew who his raters were and that he either failed to meet their expectations or chose not to do so.  

4.  Additionally, the applicant’s contention that the written policy regarding relief for cause procedures was not followed is without merit.  The applicant has provided no evidence to show that established procedures were not followed or that his relief for cause was not justified.


5.  Therefore, it appears that the bar to reenlistment was properly imposed and he was properly discharged in accordance with applicable regulations then in effect, and there is no evidence of any violations of any of the applicant’s rights.

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

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