APPLICANT REQUESTS:  That an NCOER (noncommissioned officer, or NCO, evaluation report) for the period 9009-9108 be expunged from his official military personnel file (OMPF).

APPLICANT STATES:  That the contested report was not completed by the proper rating chain and that the report contains substantive inaccuracies concerning an alleged improper relationship which he, as a married senior NCO, supposedly engaged in with a subordinate female NCO.  He adds that the report is preventing his promotion to the rank of master sergeant.

COUNSEL CONTENDS:  NA

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

He is a sergeant first class (SFC) currently assigned to the 7th Special Forces Group, Fort Bragg, North Carolina.  From October 1989 through September 1991, a time which includes the period of the contested NCOER, he was a platoon sergeant (PSG) assigned to an Air Delivery Platoon in a Quartermaster Detachment located in Germany.

When the applicant arrived in Germany, he was immediately assigned as the PSG of the Air Delivery, or Rigger, Platoon. In that capacity, he received an NCOER for the period 8909-9008, the period immediately preceding the period of the contested report.  For that report, he was rated by the platoon leader, senior rated by the detachment commander, and reviewed by the battalion executive officer (XO).  On the contested NCOER, he was, once again, rated by his chain of command (platoon leader, detachment commander, battalion XO); however, all three individuals were different from the first report, thus indicating that the original chain of command had been replaced sometime during the rating period for the contested report.  A unit rating scheme, published during the October 1990 time frame [slightly more than 1 month into the contested reporting period], continued to show the names of the original chain of command as the applicant’s rating chain.

Shortly after assuming command, the new detachment commander [the senior rater on the contested NCOER] began hearing rumors about an improper relationship between the applicant and a female staff sergeant (SSG) in the unit. On 28 March 1991, he and the unit first sergeant met with and counseled the applicant concerning the “perception” of impropriety which the applicant was fostering through his association with the female SSG.  This counseling was repeated a second time on 4 April 1991 with the applicant and female SSG both present.

During April-May 1991, the unit deployed to Turkey in support of Operation Provide Comfort.  As the most senior riggers in the unit, the applicant and the female SSG were placed in supervisory positions, each working a 12 hour shift supervising the junior riggers, who worked 8 hour shifts for the duration of the deployment.  The applicant and the female SSG changed the arrangement so that they worked together and the commander had to “forcibly split them on separate shifts.”  According to the commander’s record of counseling, the female SSG began “hanging around” the applicant during his shift, when she was off duty.

The record indicates that the applicant was counseled about his association with the female SSG on at least three other occasions on 3 June 1991, 18 August 1991 [which also served as a counseling for the contested NCOER], and on 9 September 1991.  There is one other counseling note in the record concerning a disputed date on which the applicant and the female SSG were observed together in a German club at 0130 hours on a Sunday morning.

The applicant received the contested NCOER on 24 September 1991.  In Part IVa, the rater indicated that the applicant did not “Maintain[s] high standards of personal conduct on and off duty.”  By way of explanation, he entered the bullet comment, “perceived impropriety with female NCO on and off duty.”  In Part IVd, the rater indicated that the applicant needed some improvement in his leadership abilities and, again, commented on the “perceived association” with the female SSG.  In Part V, the rater gave him a “marginal” rating for overall potential for promotion and/or service in positions of greater responsibility, while the senior rater judged his performance as only “fair” and his overall potential as being in block 3 of 5 blocks.  The contested NCOER elicited a commander’s inquiry which ultimately determined the applicant’s contentions were “unsubstantiated.”

The applicant appealed the NCOER to the Enlisted Special Review Board (ESRB) on 21 February 1992.  The ESRB contacted the rater, senior rater, and reviewer of the contested report.  The rater indicated that he informed the applicant of the rating change and that a new rating scheme was published during the rating period.  He added that the applicant’s personal conduct, both on and off duty, was unacceptable due to the perceived relationship with the female SSG.  The rater indicated that the applicant was repeatedly counseled, but would not change his behavior.  The senior rater stated that he assumed command of the detachment in December 1990 and published a new rating scheme immediately thereafter.  He said that the applicant never even mentioned that he felt the rating scheme was incorrect until 6 months after the rating.  He added that he repeatedly counseled the applicant about his relationship with the female SSG and told him that it was affecting unit morale and adversely impacting his ability to lead.  The reviewer indicated that the applicant disregarded repeated counselings.  He added that the applicant had mentioned the rating scheme to him after he received his rating.  An investigation showed that the senior rater had a published rating scheme and that the applicant’s complaints were unsubstantiated by a commander’s inquiry.  The ESRB denied the applicant’s request in a case summary (COPY ATTACHED) on 20 August 1992.

Facts relating to the applicant’s contention that the contested NCOER should be removed from the records are contained in the opinion and case summary (COPIES ATTACHED) of the ESRB.  The ESRB opined that the applicant had failed to submit clear and convincing evidence that would warrant alteration or deletion of the contested NCOER.

Army Regulation 623-205 establishes the policies and procedures for the NCOER system.  Paragraph 4-2 states that an NCOER accepted for inclusion in an NCO's Official Military Personnel File 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.  Paragraph 4-7 states that the burden of proof in an NCOER appeal 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 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.  The applicant’s rating scheme for the contested NCOER, by position, was identical to his initial report as a PSG.  Although he provided an October 1990 rating scheme which indicated a different set of by-name rating officials than those who signed the contested report, it is not uncommon for unit leaders to change duty positions so that a new set of individuals enter the rating scheme.  The detachment commander [the applicant’s senior rater] assumed command in December 1990 and, therefore, had ample time to evaluate the applicant.  Although it is not known when the platoon leader [the applicant’s rater] position changed, it must be presumed that the change was accomplished within 90 days of the start date of the contested NCOER.

3.  The applicant was repeatedly counseled that his association with the female SSG was having an adverse impact upon unit morale and upon his [applicant’s] ability to lead his platoon.  He chose to ignore the counseling and the matter was recorded as a leadership deficiency on the contested NCOER.

4.  The ESRB thoroughly reviewed the applicant’s contentions when he appealed the contested report in February 1992.  The ESRB found no administrative or substantive errors in the report.

5.   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