PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 21 March 2002
         DOCKET NUMBER: AR2001059256


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Walter Avery, Jr.		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

---

2. The applicant requests that his noncommissioned officer evaluation report (NCOER) for the period September 1995 – August 1996 be removed from his records.

3. The applicant states that his rater was not objective and had an erroneous perception of his duty performance. The rating did not remotely reflect his achievement during the rating period. The NCOER is and has been a deterrent to the continued success of his career and he believes that to let it remain in his record is not only a disservice to him and his family, but also to the Army. He asks the Board to use the whole soldier concept and review his 20-year record. In doing so the Board will see that this NCOER is an aberration. He provided a copy of his appeal to the Deputy Chief of Staff for Personnel Enlisted Special Review Board (ESRB) and supporting letters.

4. The applicant’s military records show that he enlisted in the Regular Army on 5 February 1980. He was promoted to master sergeant on 1 June 1996 and currently serves on active duty.

5. The contested NCOER was received for the period September 1995 thru August 1996. It reflects that the applicant was a master sergeant and served as a brigade senior career counselor. Command Sergeant Major (CSM) S. was the rater, Colonel (COL) K. the senior rater, and Brigadier General (BG) M. the reviewer. The reviewer indicated that he nonconcurred with the rater.

In Part IIIc under Daily Duties and Scope, one of his duties is described as being responsible for the daily management of a brigade/garrison retention office providing support for over 5,000 enlisted soldiers.

In Part IVa under Values/NCO Responsibilities, the rater marked “No” to, “Is disciplined and obedient to the spirit and letter of a lawful order.” The corresponding bullet reads, “dedicated to the organization and the retention program; shows pride in self, and fails to follow guidance of superior when in conflict with his views.”

In Part IVb under Competence, he received a, “Needs Improvement (Some).” The corresponding bullets read, “fails to work within the parameter of the Chain of Command; enhanced the retention program within the brigade and has accomplished 120% of objectives to date and received commendable rating on 2^nd and 3rd quarter retention inspections.”






In Part Va, under Overall Performance and Potential, the rater indicated “Marginal.” Part Ve contains the statement “Senior rater does not meet minimum qualification,” and could not evaluate the applicant.

6. His next NCOER for the period September 1996 thru August 1997, in Part IVb under Competence, he received an “Excellence.” The corresponding bullets read: earned the Training and Doctrine Command Commander’s Retention Award for Fiscal Year 1996; far exceeded every active, reserve, and special category retention objective and completely rebuilt the Operations Section into one of Army’s finest. His overall potential was rated “Among The Best” and the senior rater rated him a “1” – the highest rating for both overall performance and potential for promotion, and/or service and positions of greater responsibility.

7. The applicant contended in his letter to the ESRB that in carrying out his duties he did exactly what his brigade commanders asked of him. They both personally told him during his in brief that they wanted to have a close personal professional relationship with him. They requested to always be kept informed and for him to come and see them. The rater was clearly resentful of the good working relationship that he had with each of the brigade commanders. This resentment resulted in the unfair and biased ratings on his NCOER. The applicant questioned how could his potential for future service be marginal as indicated by CSM S. when since that evaluation he has been chosen to serve in a sergeant major position – a position of increased responsibility and authority. He states that his rater on the contested NCOER was later removed from his position due to his poor leadership and his inability to work well with others.

8. On 8 July 1998, COL K. prepared a supporting memorandum. COL K. was disqualified as senior rater on the contested NCOER because he did not meet minimum qualification. He recommended that the Board approve the applicant’s appeal. He had just taken command and did not have enough time as per the regulation to provide his comments. He nonconcurs with the rater’s evaluation of the applicant. He adds that, by all accounts the applicant performed all duties to deserve at least four success ratings and at least one excellence rating. He discussed the rater’s evaluation with him and asked him to reevaluate his rating. He would not. It was obvious to him there was a personal bias on the part of the rater towards the applicant that he believes carried over to the Rater’s comments on the NCOER.

9. In his supporting letter, BG M. stated that the negative comments on the NCOER were the result of a personality conflict between the rater and the applicant. The rater insisted that all of the applicant’s activities be routed through him. The applicant felt that his rater’s supervision was unwarranted micromanagement, which prevented him from adequately performing his duties. The senior rater did not intervene to correct the problem.

10. A former brigade commander provides a supporting letter. He states that he observed the applicant during the entire rating period of the contested NCOER. He observed that upon the applicant’s arrival he immediately immersed himself in his work and completely rebuilt a marginal retention program into one of the best ever at Fort Gordon and one of the Army’s finest. The applicant’s successes were particularly noteworthy considering what he viewed as a personality conflict between the applicant and his rater. He believes the conflict was merely a clash of strong personalities. Despite the personality conflict, the applicant rose above the pettiness and continued his stellar performance.

11. In a supporting memorandum written by a command sergeant major, dated 7 August 1998, he states that the applicant’s outstanding initiative and level of competence significantly contributed to the readiness of the 15^th Signal Brigade. He explains that he removed CSM S. from his position due to his leadership problems and an inability to work well with two different brigade commanders.

12. In a supporting memorandum written by a sergeant major, dated 15 June 2001, he states that the applicant has worked for him since August 2000 and that he has shown nothing but utmost professionalism and dedication to fulfilling his duties to the Army. He believes the Board should place special emphasis on the memorandum from the senior rater of the contested NCOER. He requests that the Board strongly consider setting aside this biased rating and undo the wrong from the past and promote the applicant to sergeant major.

13. There is no evidence that a commander’s inquiry was requested.

14. On 16 May 2000, the ESRB informed the applicant that they found that there was insufficient convincing evidence that the contested NCOER was inaccurate, unjust, or did not adequately reflect the applicant’s performance and potential during the rating period and denied his appeal.

15. The Board reviewed NCOER’s for the period March 1991 to April 2001, a total of 13 NCOERS including the contested NCOER. Except for the contested NCOER, the applicant on each report was evaluated “Among The Best” under Overall Performance and Potential.

16. Army Regulation 623-205 provides, in pertinent part that an NCOER accepted for inclusion in an NCO’s official military personnel file (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 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 an apparent material error or inaccuracy is warranted.

17. The same regulation defines Needs Improvement as missed meeting some standard. (For example: was often unaware of whereabouts of subordinates; had the highest deadline rate in the company due to apathy; scored 59 on SQT (skill qualification test); unprepared to conduct formal training on 3 occasions.)

18. The same regulation defines Marginal as NCO’s who have demonstrated poor performance and should not be promoted at this time.

19. Army Regulation 600-8-19 prescribes the policies and procedures for promotion of enlisted personnel on active duty. This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s nonselection by a promotion board and that, had such error been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

20. The applicant has been considered and nonselected for promotion to Sergeant Major in the secondary zone in Fiscal Year 1998 and in the primary zone in Fiscal Year 1999, 2000 and 2001.

CONCLUSIONS:

1. The Board concludes from the applicant’s records and the information provided by COL K. and BG M. that the NCOER for the period September 1995 thru August 1996 was unfairly written. It appears the rater erred by attempting to utilize the NCOER as a weapon to punish the applicant for slighting him rather than as an evaluation tool. The rater was especially in error in rating the applicant as having “Marginal” potential for future promotion and service. This is a most adverse evaluation. To make such an adverse evaluation of a senior NCO without significant documentation is unjust.

2. The contested NCOER was a dramatic downturn in performance from his previous and future NCOER’s. The Board does recognize this is possible, such as when a soldier is given a new assignment that for the first time brings to light weaknesses in abilities or leadership skills. However, the applicant had a long history of achievement in similar positions. In the area of Overall Performance and Potential the applicant was rated “Among The Best” on every NCOER prior to and subsequent to the contested NCOER. The Board notes applicant received this high rating from seven different sergeants major serving as raters. The Board concludes that all the evidence presented, and as outlined above, provides sufficient doubt that the rating was fair and just. Therefore, the Board concludes that the contested NCOER should be removed from the applicant’s records. It would then be appropriate to have the applicant’s records reconsidered for promotion to sergeant major in the primary zone beginning with the criteria of the board that convened in Fiscal Year 1999, the first board that considered his records that should have contained this NCOER.

3. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a. removing the NCOER for the period September 1995 thru August 1996 from the applicant’s records;

b. entering an appropriate statement in the applicant’s records to cover the unrated period; and

c. presenting the applicant’s records to the scheduled Enlisted Standby Advisory Board for promotion consideration to sergeant major under the Fiscal Year 1999 and, if necessary, later criteria after the above corrections are made.

BOARD VOTE:

___jns __ ___lds___ ___jtm___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __________John N. Slone________
                  CHAIRPERSON

---

INDEX

CASE ID	AR2001059256
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2000321
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	111.219
2.
3.
4.
5.
6.