MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 September 2001
         DOCKET NUMBER: AR2001060262

         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.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Eric N. Anderson		Member
Mr. Thomas E. O’Shaughnessy, Jr.		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)

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APPLICANT REQUESTS: That his noncommissioned officer evaluation report (NCOER) for the period November 1997 – October 1998 be removed from his records.

APPLICANT STATES: That his rating officials were not objective and had an erroneous perception of his duty performance. The rating did not remotely reflect his achievement during the rating period. While on station, he was appointed a platoon sergeant. He was never counseled on any shortcomings. When he questioned the senior rater (SR) about the comments, the SR told him he perceived he had an attitude. His rater had agreed to include comments provided by his first sergeant and commander but failed to do so. Supporting evidence is as listed on the DD Form 149.

COUNSEL CONTENDS: Counsel makes no additional contention.

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

He enlisted in the Regular Army on 10 September 1980. He was promoted to Sergeant First Class, E-7 on 1 June 1995.

The applicant’s NCOER immediately preceding the contested report was a 12-month annual report for the period ending October 1997. Part IIIc described his daily duties of Group Petroleum Operations NCO as “supervises posting and proper maintenance of stock records, document register, and associated forms for class II bulk petroleum; ensures the journal and ledgers are maintained for fuel accountability; responsible for 57 soldiers, oversees the maintenance and accountability of 3.5 million dollars worth of equipment as a Platoon Sergeant; appointed FORSCOM COR overseeing saltwater purification training; responsible for 4.5 million dollars of equipment and annual training of 240 Active, Reserve and National Guard soldiers.” Part IIIe listed his appointed duties as “Platoon Sergeant, Contracting Officer Representative.” In Part IV his rater gave him two “excellence” and three “success” ratings and in Part Va an “among the best” rating. In Part Vc his SR rated his overall performance as block 2 “successful” and in Part Vd rated his overall potential as block 1 “successful.”

On 24 November and 1 December 1998, respectively, the applicant’s first sergeant and company commander provided input concerning his performance during the past rating period. Among the combined input were comments that the applicant was selected to act as the first sergeant when the first sergeant was away on other business, that he used tactical knowledge and experience to guide the platoon through (a) successful STX (acronym unknown) and (a) command post exercise (CPX), and that he mentored soldiers to win Battalion NCO of the Quarter and Cook of the Year honors. Both also noted his appointed duties as 49^th Group Force Protection Unit Advisor, Platoon Sergeant, and Contract Officer Representative.
The contested NCOER is a 12-month annual report for the period ending October 1998. Part IIIc described his daily duties of Petroleum Distribution Supervisor as “coordinates, manages, and synchronizes all bulk petroleum in the theater; ensures the journal and ledgers are maintained for fuel accountability; advises and assists the Petroleum Distribution Sergeant; responsible for training, development, and accountability for 41 soldiers; oversees the maintenance and accountability of $268,335 dollars of equipment as a Platoon Sergeant. Part IIIe listed his appointed duties as “Platoon Sergeant; Group Force Protection Unit Advisor.” In Part IV his rater gave him five “success” ratings and a “fully capable” rating in Part Va. In Part Vc his SR rated his overall performance as block 3 “successful” and in Part Vd rated his overall potential as block 3 “successful.” Rater comments included “enthusiastically takes charge of company during First Sergeant’s absence,” “mentored soldiers to win battalion NCO of the Quarter and Cook of the Year honors,” and “trained and led company ADVON team through a successful CPX.”

On 10 December 1998, the applicant requested a commander’s inquiry and asked five specific questions – why was his duty description changed on the report; why was he not provided a working draft, changing his duty description; why were not all of his appointed duties such as contracting officer noted on his NCOER; why was the NCOER not processed through proper procedures; and why was ample time not allowed for him to review his NCOER before the suspense to the orderly room.

On 19 May 1999, the inquiry officer, Lieutenant Colonel (LTC) F___ (who was also the reviewer on the contested NCOER), determined that the NCOER was administratively correct and that proper counseling had been conducted in a timely manner and that no further action was necessary.

It appears that a second commander’s inquiry was conducted. On 25 August 1999, a new inquiry officer, Captain (CPT) H___, recommended that the NCOER be removed from the applicant’s official file due to the disconnect between all parties involved. Specifically, he stated that the rater and SR denied changing the duty description. When CPT H___ asked the primary Contracting Officer Representative (COR) who the alternate COR was, the primary COR stated that the applicant was the alternate COR. When CPT H___ asked the rater who the alternate COR was, the rater stated Major W___ was. The inquiry officer stated he saw the applicant’s alternate COR appointment orders which covered the period 1 January 1997 through 30 September 1997 with three one-year option periods and one nine-month option period. He saw no appointment orders appointing Major W___ the alternate COR during this period. The inquiry officer asked the rater why the applicant was not provided a working draft of his NCOER, changing his duty description, and was informed that the rater was not aware of any changes. Specialist (SPC) C___, a soldier who worked in the section with the rater and the applicant, stated that she had typed NCOERs the rater prepared and witnessed other NCOs actually making changes along with the rater on their NCOERs. After interviewing a number of soldiers, to include the SR, all stated that the applicant was the “best of the best NCO.”

On an unknown date, the Group Commander reviewed the findings conducted in the inquiry and concurred with the inquiry officer’s recommendation.

In June 1999, the applicant appealed his NCOER. The Deputy Chief of Staff for Personnel Enlisted Special Review Board (ESRB) completed the appeal around May 2001. It appears the only commander’s inquiry provided to the ESRB was LTC F___’s inquiry. The ESRB noted that LTC F___’s inquiry determined that the NCOER was administratively correct and that proper counseling had been conducted in a timely manner. The ESRB contacted the SR, who stated that he did not counsel the applicant in writing but that verbal corrective counseling did take place. The SR stated that he and the rater had agreed to accept Letters of Input from the applicant’s chain of command but in the end they wanted to write the NCOER. The SR stated that he was presented with a completed NCOER by the applicant’s chain of command and sergeant major for him to sign. The SR stated that the applicant was a good NCO with a lot of potential but needed more experience in his career field as a staff NCO. The applicant had alleged that the NCOER was inconsistent with the Meritorious Service Medal he received but the ESRB noted that the award was for a nearly five-year period while the contested NCOER was for a 12-month period. In addition, the award documented a contribution to the command while an NCOER is designed to document performance and potential. The ESRB found no inconsistency between the award and the contested report. The ESRB opined that there were significant similarities between comments on the contested NCOER and input received from the applicant’s first sergeant and commander. The ESRB noted that provided third party statements spoke highly of the applicant’s performance but none of those individuals were in a position to fully understand or appreciate the expectations of the rating officials for the applicant. As such, the statements did not substantiate any evidence sufficiently compelling to overcome the presumption of regularity. The ESRB 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.

Army Regulation 623-205 establishes the policies and procedures for the NCOER system. Paragraph 2-15 states that when it is brought to the attention of commanders that a report rendered by one of their subordinates or by a member of one of their subordinate commands may be illegal, unjust, or otherwise in violation of the regulation, they will look into the allegation. The Commander’s Inquiry will be made by a commander (major or above) in the chain of command above the designated rating official(s) involved in the allegations. The commander may also appoint an officer, senior to the designated rating officials involved in the allegations, to make the inquiry. The primary purpose of the Commander’s Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated NCO and to correct errors before they become a matter of permanent record. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation report is officially accepted. However, in these after-the-fact cases this is not intended to be a substitute for the appeals process. The Commander’s Inquiry procedures will not be used to document differences of opinion between rating officials (or between the commander and rating officials) about an NCO’s performance and potential. If the commander finds that an error, illegality, injustice, or violation of the regulation has occurred and the report has not been forwarded for filing, the report with the inquiry results will be returned to the reviewer. The commander will ask that the report be corrected to account for matters revealed in the inquiry; however, rating officials cannot lower their evaluation as a result of the inquiry. If the report has already been forwarded for filing, the results of the Commander’s Inquiry will also be forwarded in a format that can be filed with the report for clarification purposes.

Army Regulation 635-205, paragraph 3-1 states that to render an objective evaluation, rating officials must use all opportunities to observe and gather information on the rated NCO’s performance. Paragraph 3-8 states that it is the SR’s responsibility to obtain the rated NCO’s signature on the NCOER. The SR will ensure that the rated NCO is aware that his or her signature does not constitute agreement or disagreement with the evaluations of the rater and SR. The rated NCO’s signature means that he or she has seen the completed report (except Parts IId and IIe) and verifies that the administrative data is correct, the rating officials are proper, and the duty description is accurate to include the counseling dates. Paragraph 6-10 states that the rated NCO’s signature verifies that he or she has seen the completed report; the administrative date is correct, the rating officials are proper, the duty description is accurate to include the counseling dates, and the Army Physical Fitness Test (APFT) and height/weight entries are correct. Paragraph 6-11 states that the rater will complete Part III (Duty Description) and verify the information with the rated NCO.

Army Regulation 635-205, paragraph 4-2 states 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.

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 this 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. The Board agrees with the ESRB that the provided third party statements did not substantiate any evidence sufficiently compelling to overcome the presumption of regularity. The Board notes that the rater did include several comments contributed by the applicant’s first sergeant and commander in their Letters of Input. The regulation requires only that rating officials use all opportunities to observe and gather information on the rated NCO’s performance, not that they use letter input from other sources verbatim or even at all. The applicant’s duties as a Platoon Sergeant are recognized in Parts IIIc and IIIe of the contested NCOER.

3. The applicant has not shown that the contested NCOER was not processed properly. There is no regulatory requirement that a rated NCO be provided a draft of the proposed NCOER. The applicant does not explain why he did not have ample time to review the contested NCOER for accuracy of the administrative data, the rating officials, the duty description to include the counseling dates, and the APFT and height/weight entries. He signed the NCOER and his signature attests to the accuracy of these items.

4. CPT H___’s finding that SPC C___ had typed NCOERs the applicant’s rater prepared and then witnessed other NCOs actually making changes along with the rater on their NCOERs is irrelevant. No claim was made that SPC C___ witnessed the rater making changes to the applicant’s NCOER. In any case, the evaluation process recognizes that in developing an NCOER 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 they are officially filed at Headquarters, Department of the Army. Such changes do not automatically presume illegalities, injustice, or violations of the regulation.

5. The Board notes that while in his inquiry CPT H___ made the sweeping recommendation that the contested NCOER should be removed from the applicant’s official file due to the “disconnect” between all parties involved, he actually only discussed one area of concern -- the applicant’s appointed duty as COR. CPT H___ could find no orders terminating the applicant’s appointment as alternate COR and this duty was corroborated by the Letters of Input from the applicant’s first sergeant and commander. It was listed on his previous NCOER. The Board concludes that similar entries should be entered on the contested NCOER but that they do not constitute a substantive change to the report.

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.

NOTE: The U. S. Army Enlisted Records Center will be directed to administratively correct the applicant’s NCOER for the period ending October 1998 by adding the phrase “FORSCOM COR overseeing saltwater purification training” to Part IIIc and the phrase “Contracting Officer Representative” to Part IIIe.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__rvo___ __ena___ __teo___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001060262
SUFFIX
RECON
DATE BOARDED	20010927
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	111.0200
2.
3.
4.
5.
6.