MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:      



	BOARD DATE:           31 March 1999     
	DOCKET NUMBER:   A98-09519
                                              AR1997005377
	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.


M

Member

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            	       records
	Exhibit B - Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  That the annual noncommissioned officer evaluation report (NCOER) for the period June 1995 through February 1996 be removed from his official military personnel file (OMPF).

APPLICANT STATES:  That the rater failed to meet rater qualification under the provisions of Army Regulation, paragraph 5-13.  He states that after his return to Fort Riley, Kansas from temporary duty (TDY) in Cuba, his rater was TDY to Belgium.  He states that his position as NCOIC of the engineer shop was filled when he went TDY and upon his return, it was still occupied by another soldier.  He states that another NCO was rated for the same duty position and same rating period.  He states that his initial counseling was not accomplished in the mandated time frame and was rendered 35 days after the rating period began.  He states that bullets comments on the NCOER are inaccurate.

The applicant states that although Deputy Chief of Staff for Personnel changed the rated period from 12 months to 8 months, the NCOER is still incorrect.  He states that he was transferred to a new job on 1 February 1996 and the rating period should have ended in January 1996.  He also states that the NCOER for the rating period March 1996 through December 1996 is incorrect and should read February 1996 through November 1996.

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

The applicant, a sergeant first class (E-7), was assigned to the 1st Maintenance Company, Fort Riley and working in the duty position of special purpose equipment repair supervisor at the time the contested report was rendered.

The NCOER covered the period of March 1995 through February 1996 and was an annual report.  In Part IV (Values/Responsibilities), section a, the rater marked “Yes” in honest and truthful in word and deed and supports EO/EEO and “NO” in the remaining categories.  In section b (Competence), the rater marked ”needs improvement” and commented that the applicant lacked initiative, requires almost constant supervision to accomplish assigned task, shows apathy and indifference towards shop and mission, and not aggressive in meeting established standards or goals.  In section d (Leadership), the rater marked “needs improvement” and commented that the applicant displayed leadership attributes which were questionable at best, bringing about confusion and purpose of action by subordinates and failed to properly supervise subordinates, assigns work but does not follow-up to ensure finished product.  In section f (Responsibility & Accountability) the rater marked “needs improvement” and commented that the applicant was late for work on numerous occasions, fails to respond to counseling, refused to accept the Maintenance Control Sergeant position during a deployment to Cuba-Operation Sea Signal, and accountability skills are less than satisfactorily.  In section c (Physical Fitness & Military Bearing) and section e (Training) the rater marked “success”.
In Part Va (Overall Performance and Potential), the rater, marked the applicant as marginal and recommended the applicant for positions he could best serve the Army.  

In Part Vc and Vd (Overall Performance and Potential) the senior rater rated the applicant in the fourth block (fair) and in the fifth block (poor).  In Part Ve, the senior rater commented that the applicant’s leadership ability is questionable, do not promote, present skills are suitable for routine and ordinary jobs, has limited potential, and requires supervision.

During the processing of this case, an opinion (COPY ATTACHED) was obtained from the Office of the Deputy Chief of Staff for Personnel, Enlisted Special Review Board (ESRB).  In the process of determining it’s conclusions and recommendations, the ESRB contacted the senior rater.  The senior rater provided comments that the applicant failed to perform to standards; that the rater was qualified to render the report; that the applicant was TDY less than 90 days and was brought back early due to his performance and behavior; and that he was counseled on numerous occasions regarding his performance, but showed little or no improvement.  The senior rater also commented that the applicant had exceeded his potential as a soldier and as an NCO.

In reviewing all the evidence, the ESRB determined that the applicant’s appeal merited partial approval.  United States Army Enlisted Records Evaluations Center (USAEREC) determined that the rater was qualified to render the contested NCOER and the ESRB partially agreed.  The ESRB determined that the rater did not meet rater qualifications for period 1 March 1995 through 
22 May 1995.  The applicant was TDY for 14 August 1995 to 3 October 1995.  The report would be changed to read, Part Ii 8 rated months and Part Ij, nonrated codes Q and T. 

The ESRB noted that a commander’s inquiry was initiated.  The commander’s inquiry concluded that the NCOER was rendered by properly designated and fully qualified officials; that the evaluation does not contain inaccurate or untrue statements; and that the applicant was counseled on the standards, expectations and performance.  The conclusions of the commander’s inquiry were supported by negative counseling statements on the applicant’s poor duty performance.  A memorandum corroborated the senior raters statement that the applicant’s early return was due to his lack of performance and that the rater and senior rater were the same on the contested report.

The ESRB noted that the applicant passed his APFT in January 1996, his age
was 34 years old, and his maximum weight was 174 pounds.  Therefore, the entry “met body fat standards in accordance with Army Regulation 600-9” was erroneous and would be deleted.

A copy of the case summary from the Deputy Chief of Staff for Personnel, ESRB was forwarded to the applicant for comment.  The applicant responded (COPY ATTACHED) by essentially reiterating and elaborating upon his original contentions that the rater was not qualified, counseling dates were rendered by two different officials, and bullets comments were inaccurate.

Army Regulation 623-205, sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Chapter 3 states, in pertinent part, that the rater must be the immediate supervisor for a minimum for 90 days.

Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an noncommissioned officer 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 established clearly and convincingly that the 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, and advisory opinion, it is concluded:

1.  The ESRB granted partial relief by changing in Part Ii, to read 8 rated months and Part Ij, Q and T; and by deleting the bullet comment “met body fat standards IAW AR 600-9” from Part IVc.

2.  The Board concludes that the applicant’s rater met rater qualifications in accordance with regulatory guidance.  In crediting the applicant with 8 months of rated time and 4 months of nonrated time, the ESRB established his rating period for the correct rating officials.

3.  The applicant has submitted no evidence to substantiate the inaccuracy of the contested report from anyone in a vantage point equivalent to that of members of the rating chain.

4.  Also, there is no evidence of a corroborating nature such as a reassignment order or a notice of transfer from the servicing personnel activity to substantiate the applicant’s contention that the ending date of the contested NCOER and the beginning of his subsequent NCOER is incorrect.

5.  His contentions that another soldier received an NCOER for the same duty position and rating period and his initial counseling was not accomplished in the mandated time frame has been noted by the Board.  However, even if true, these contentions do not constitute a basis to grant relief.

6.  Finally, the Board concurs with ESRB that the applicant partially met regulatory requirements to substantiate that his NCOER required administrative corrections.  However, the applicant did not provide clear, convincing and compelling evidence in accordance with regulatory guidance for the total removal of his NCOER from his OPMF.

7.  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

____X___  ____X__  ____X___  DENY APPLICATION




						Loren G. Harrell
						Director



INDEX

CASE ID
AC9809519/199005377
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
19990331
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR .  .  .  .  .  
DISCHARGE REASON

BOARD DECISION
 DENY
REVIEW AUTHORITY

ISSUES         1.
114.00
2.

3.

4.

5.

6.