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ARMY | BCMR | CY1997 | 9708811
Original file (9708811.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That three non-commissioned officer evaluation reports (NCO-ERs) be removed from his records and that his reentry code be changed from RE-4 to RE-3.
APPLICANT STATES : In effect, that he was abused, badgered and threatened with relief for cause by one commander. He feels that statements in his NCO-ERs are unfair and that his NCO-ERs were re-prepared and he was forced to re-sign them. He also states that he was unfairly removed from the Army. The applicant submits a hand receipt, two third-party statements and an Inspector General Action Request in support of his application.

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

He enlisted in the Regular Army on 23 November 1982. He was
trained as a unit supply specialist and continued to serve on active duty. He was promoted to pay grade E-6 effective 1 November 1992.

At the time of the first contested NCO-ER (September 1989 through August 1990), he was serving as a supply sergeant, pay grade E-5, with the Reserve Officer Training Corps (ROTC) Cadet Command with duty at Eastern Illinois University.

The first contested NCO-ER is an annual report for a 12-month period. It contains two “success” ratings and two “needs some improvement” ratings in part IVa. The applicant questions the comments “Needs improvement in specific task accomplishment” and “Needs to improve organization skills,” as his test scores on two individual soldier’s reports he took during this period were 85 and 83, respectively. However, the NCO-ER also contains the comment “Marginal satisfactory in Supply Assistance Visit,” which the applicant does not question and which may have led the rater to feel the applicant needed improvement in the other two noted areas. The rater also marked the applicant’s overall potential for promotion as “marginal;” the senior rater marked his overall potential as “fair.”

At the time of the second contested NCO-ER (April through September 1993), a change of rater report for a 6-month period, the applicant was the supply sergeant for Company C, 1 st Battalion, 27 th Infantry, Schofield Barracks, HI. It contains four “success” ratings and one “needs some improvement” rating. The rater marked his overall potential for promotion as ”marginal;” the senior rater marked his overall potential for promotion as “fair.”

The applicant claims the second contested report was changed after he had signed it. The negative reports on the signed NCO-ER attached to the application were: “lost control of $1,800 worth of MILES equipment inside the unit supply room for five days;” failed to follow specific guidance regarding supply room accountability after being directed to do so;” and, from the senior rater, “had difficulty organizing company supply room.” Insubstantial changes were made to the final signed NCO-ER on file in his Official Military Personnel File. The first comment noted above was changed to “lost control of unit equipment inside the unit supply room on three occasions.” Part III, Duty Description, was changed from a generic supply sergeant description to a more specific description, i.e., noting supervision of three soldiers, mentioned the dollar amount of property for which accountable. The first two words in part IIId were dropped and the second mentioned counseling date was changed and a third date was added.

It should be noted that the rated NCO’s authentication verifies the administrative information in parts I and II and confirms the accuracy of the Army Physical Fitness Test and height/weight data entries. Correction of minor administrative errors seldom serves as a basis to invalidate an NCO-ER. Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors and then only when retention of the report would clearly result in an injustice to the NCO. Appeals based solely on the lack of full compliance with performance counseling requirements will also not normally serve as a basis to invalidate an NCO-ER.

At the time of the third contested report (April through June 1994), a relief for cause NCO-ER for a three month period, the applicant was the supply sergeant for Company A, 1 st Battalion, 27 th Infantry, Schofield Barracks, HI. It contains three “success,” one “needs some improvement” and one “needs much improvement” ratings. The rater marked his overall potential for promotion as ”marginal.” The senior rater marked his overall performance as “poor” and his overall potential for promotion as “fair.”

The applicant claims changes were made to this report after he had signed it. The NCO-ER he signed showed an erroneous report period of April 1993 through June 1994. The negative comments on this report were numerous. The report was changed to show the correct report period; this report the applicant refused to sign. Changes included adding the comment “the rated NCO has been notified of the reason for the relief” in part IVf, expanding upon one negative comment in part IV and adding one negative comment to part Va.

Evidence in the records also shows the applicant received an NCO-ER for the period June 1991 through May 1992 which gave him three “success” and two “needs some improvement” ratings, the rater marking his overall potential for promotion as “marginal,” the senior rater marking his overall performance as “poor” and his overall potential for promotion as “fair.” The applicant does not contest that report.

Two NCO-ERs under the previous evaluation system (from August 1987 through August 1988) show almost all top marks. The first NCO-ER under the present system (September 1988 through August 1989) shows mostly “excellent” and “superior” ratings plus a rater overall potential for promotion rating of “among the best.” The remaining four NCO-ERs on file indicate average ratings - all “success” ratings, “fully capable” rater promotion potential ratings, and low “successful” and low “superior” senior rater ratings.

There is no evidence the applicant ever requested a commander’s inquiry after receiving any of the three contested NCO-ERs, nor is there evidence he ever appealed these NCO-ERs.

The two statements of support provided by the applicant are apparently from the battalion and brigade level S-4 non-commissioned officers in charge. They were part of his appeal of his DA-Imposed Bar to Reenlistment and state solely: “I concur with SSG Horne’s statement.” No further elaboration is given.

The hand receipt he includes to support his claim that he did not lose the equipment that resulted in his relief for cause NCO-ER covers the period 31 March through 1 May 1994. However, the NCO-ER in question is dated 28 June 1994, outside of the period covered by the hand receipt.

The applicant includes his inspector general action request, but not the results of any investigation that resulted.

Army Regulation 623-205 establishes the policies and procedures for the NCO-ER system. Paragraph 4-2 states that an NCO-ER accepted for inclusion in an NCO’s OMPF 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 of that regulation also states that the burden of proof in an NCO-ER appeal rests with the applicant. Accordingly, to justify deletion or amendment of an NCO-ER 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.

On an unknown date, the applicant received a Headquarters, Department of the Army (DA) Imposed Bar to Reenlistment under the Qualitative Management Program (QMP). On 19 March 1996, the applicant’s appeal to the Bar was disapproved.

On 30 July 1996, the applicant was discharged, in pay grade E-6, under the provisions of Army Regulation 635-200, paragraph 16-8, which directed the early release of soldiers with a QMP bar to reenlistment when budgetary or authorization limitations require a reduction in enlisted strength. He received a Reentry Code of RE-4, not eligible for enlistment/reenlistment, based upon his having a DA-imposed bar to reenlistment.

 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. 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 tat would satisfy the aforementioned requirement.

 2. The applicant has not shown, and it does not appear to the Board, that the rating officials’ evaluations represented other than their objective judgment or considered opinion at the time. Furthermore, the contested reports are representative of at least one other NCO-ER rating received by the applicant.
3. The evaluation process recognizes that, in developing an NCO-ER, it is possible to go through several revisions before arriving at the final product. Rating officials have the right to make necessary changes to reports before being officially filed at DA. The applicant’s contention that the initial reports he signed were not the ones that were filed at DA is not unusual. In any event, the applicant did sign the final version of the second contested report, and the third had an appropriate entry of “NCO refuses to sign.”

4. Minor administrative errors do not provide a basis to invalidate an NCO-ER unless retention of the report would clearly result in an injustice to the NCO. The applicant has not shown that the two NCO-ERs that apparently were changed are substantially different from the reports as originally written.

5. As regards the applicant’s request to change his reentry code, he was separated and assigned a reentry code in accordance with regulations then in effect so there is no basis to change it.

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




                                                      Loren G. Harrell
                                                       Director

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