MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 February 2002
         DOCKET NUMBER: AR2001060352

         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
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. George D. Paxson		Chairperson
Mr. Thomas A. Pagan		Member
Mr. Melvin H. Meyer		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 she be reconsidered for promotion to pay grade E-7 and, if selected for promotion, that she be given back pay from the date she would have been promoted and that her retired grade be altered to reflect the promotion.

APPLICANT STATES: That her rater altered her Noncommissioned Officer Evaluation Report (NCOER) for the period covering August 1993 through July 1994 without her knowledge. She charges, in effect, that her rater retaliated against her with an adverse NCOER because he was in the process of appealing five of his own adverse NCOER’s and his own Qualitative Management Program (QMP) bar to reenlistment. She points out that she was given performance awards for the time covered by the negative NCOER. She contends that her subsequent negative NCOER’s were due to preconceived perceptions of her by her subsequent commands as a result of the first negative NCOER. She states that although she submitted an appeal to her QMP bar to reenlistment on 5 July 1997, her appeal wasn’t granted until 25 September 1998, and she wasn’t informed of that decision until 7 December 1998. Because of that delay and the proximity of her Retention Control Point (the number of years a soldier may remain in an active status, depending on pay grade), she claims that she was unjustly denied consideration by the fiscal year (FY) 1997, 1998, 1999 and 2000 sergeant first class promotion boards. She charges that she was “a victim of discrimination either because of my gender, nationality or both.”

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

She enlisted in the Regular Army on 15 September 1978, was awarded the military occupational specialty of ammunition specialist, and was promoted to pay grade E-5. She was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) at the expiration of her term of service on 17 February 1986.

On 25 October 1987 the applicant entered on active duty in the Active Guard and Reserve (AGR) program to perform duties as a field recruiter.

A review of the performance portion of the applicant’s official military personnel file shows that the first NCOER she was given while on active duty in the AGR program was an excellent report. That NCOER covered the period September 1987 through August 1988.

However, her next NCOER which was for the period covering September 1988 to August 1989, was adverse. In Part IV of that form, “Values/NCO Responsibilities (Rater),” where a “Yes” answer denotes that the NCO has the specific attribute, the applicant was assigned a “Yes” rating to all areas except “Is disciplined and obedient to the spirit and letter of a lawful order.” She was assigned a “No” to that attribute. Her rater commented that she was “Sometimes disobedient to the spirit and letter of a lawful order.” On Part IV of the NCOER, “Values/NCO Responsibilities,” where an NCO can be rated as “Excellence,” “Success,” “Needs Improvement (Some),” and Needs Improvement (Much),” she was rated as “Success” in Physical fitness and military bearing and Responsibility and accountability, but was rated as “Needs Improvement (Some)” in Competence, Leadership, and Training. Her rater made the comments “Not technically competent in all phases of recruiting,” “Lacks the necessary attributes for being a good recruiter and leader,” and “Lacks the technical competence to share knowledge with others in the recruiting station.” In her rater’s assessment of her overall potential for promotion and/or service in positions of greater responsibility, she was rated as marginal, the lowest rating in a three choice rating scheme. Her senior rater assessed her overall performance as “Fair,” the next to lowest rating in a five choice rating field, and assessed her overall potential for promotion and/or service in positions of greater responsibility as “Fair,” the next to lowest rating in a five choice rating field.

The applicant’s rating for the period September 1989 through January 1990 was virtually identical to the rating for the period ending August 1989.

The applicant’s records do not contain her NCOER for the period covering February 1990 though January 1991.

The NCOER’s the applicant was given for the periods February 1991 through January 1992, February 1992 though January 1993, and February through July 1993 were good center of mass type reports.

Her rating for the period August 1993 through July 1994 was another adverse report. In Part IV of that form, “Values/NCO Responsibilities (Rater),” the applicant was assigned a “Yes” rating to all areas except “Is committed to and shows a sense of pride in the unit – works as a member of the team,” “Is disciplined and obedient to the spirit and letter of a lawful order,” and “Has the courage of convictions and the ability to overcome fear – stands up for and does whats right.” She was assigned a “No” to those attributes. Her rater commented that she “Argues frequently with superiors, lacking in NCO traits of Be, Know, Do,” and “Questions lawful orders of superiors, fails to obey verbal orders.” On Part IV of the NCOER, “Values/NCO Responsibilities,” she was rated as “Success” in Physical fitness and military bearing and Responsibility and accountability, but was rated as “Needs Improvement (Some)” in Competence and Training, and was rated as “Needs improvement (Much)” in Leadership. Her rater made the comments “Lacks planning and organizational skills, Fails to coordinate decisions with others, Counseled frequently for insubordination this rating period, administrative action taken, Does not demonstrate tact, Loses control over emotions when pressured, Has problems with authority over her subordinate soldiers, Does not develop subordinates either in MOS skills or Common Military Training, Failed to qualify with assigned weapon [Training Year] 94, and Will not accept responsibility for failures caused by poor planning and management techniques.” In her rater’s assessment of her overall potential for promotion and/or service in positions of greater responsibility, she was rated as marginal. Her senior rater assessed her overall performance as “Fair,” and assessed her overall potential for promotion and/or service in positions of greater responsibility as “Fair.” Her senior rater commented that she “Possesses strong military bearing and a firm commitment to outstanding APFT performance, Communication skills have improved considerably, Needs to work on organization and planning skills (time management), and Has trouble delegating responsibility and accepting authority.”

The NCOER’s the applicant was given for the periods August through October 1994 and November 1994 through October 1995 were good center of mass type reports.

The applicant’s records do not contain her NCOER for the period covering November 1995 through October 1996.

In an NCOER she was given for the period covering November 1996 though October 1997, her rater commented that “Her mannerism portrays low self-esteem, Needs to accept responsibility for her actions, Careless in manner and actions with accountability of weapons, and Will not acknowledge mistakes or failures.” She was rated as “Success” in all functional areas except “Responsibility and Accountability,” for which she was rated as “Needs improvement (Much). In her rater’s assessment of her overall potential for promotion and/or service in positions of greater responsibility, she was rated as marginal. Her senior rater assessed her overall performance as “Fair,” and assessed her overall potential for promotion and/or service in positions of greater responsibility as “Fair.” Her senior rater commented that she “Needs to develop plans and stay with them, Needs to pay close attention to detail, and Is seeking self improvement through civilian education.”

The applicant’s records indicate that the applicant was not rated for November and December, 1997, for unknown reasons.

The applicant’s next NCOER, for the period covering January through December 1998, had no negative ratings. However, her senior rater stated that she “Was insubordinate and refused to follow orders, [she] has a problem with stress management, and During the last two months she has made substantial improvement.”

The applicant’s next NCOER, for the period covering January through December 1999, had no negative ratings, other than her senior rater ranking her overall performance as “Fair,” and assessing her overall potential for promotion and/or service in positions of greater responsibility as “Fair.” However, her senior rater stated that she “Was not aware that equipment under her responsibility was missing and Needs to prioritize work for job efficiency.”

In 1997 the applicant was selected for a QMP bar to reenlistment (the applicant’s records do not contain the letter notifying her of her selection to be barred, or the rationale for that selection).

On 5 July 1997, the applicant appealed the bar. In that appeal she stated that the reason cited for her bar was her NCOER’s for the periods ending August 1989, January 1990, and July 1994. The basis for appeal was material error and improved performance. In that appeal she admitted “ . . . that I had problems as a Recruiter,” but then chronicled the events leading to her negative NCOER’s, and outlined the reasons why her adverse NCOER’s did not accurately depict her performance of duty, which included the arguments the applicant has presented to the Board.

On 30 September 1998, the U.S. Total Army Personnel Command (PERSCOM) approved her appeal, and stated that the applicant would be eligible for promotion consideration on the March 1999 USAR Sergeant First Class Promotion and Selection Board.

On 2 November 1999, the applicant submitted a request to be retired due to length of service (20 years of active service). That request was approved and she was released from active duty in pay grade E-6 on 29 February 2000 and placed on the retired list the following day.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. The applicant has not submitted any evidence, nor is there any evidence or indication in the applicant’s records, that the applicant’s rater for the applicant’s NCOER for the period covering August 1993 through July 1994 altered her NCOER or that his rating of her was retaliatory or based on any form of discrimination against the applicant.

2. Likewise, the applicant has not submitted any evidence, nor is there any evidence or indication in the applicant’s records, that the applicant’s subsequent NCOER’s were influenced by the NCOER the applicant was given for the period ending July 1994.

3. Of the 12 AGR NCOER’s contained in the applicant’s records, one was an excellent report, five were center of mass type reports, and six were poor to adverse reports. Six poor to adverse NCOER’s lends credence to the validity of the NCOER for the period ending July 1994 (this NCOER is referenced because it is the corner stone of the applicant’s request), as well as the rest of her negative NCOER’s. In this vein, the Board notes that the applicant neither requested a Commander’s Inquiry, nor did she appeal, any of her adverse NCOER’s. Surely, if the applicant believed that her ratings were unjust, she would have taken action to contest those reports.

4. The reason why the applicant’s QMP appeal was approved is not contained in the record. However, there is no indication it was approved because of a perception that any of the applicant’s NCOER’s were invalid or unjust.

5. Without evidence to show that the applicant’s NCOER’s were improper or unjust, there is no basis for having the applicant reconsidered for promotion to pay grade E-7.

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

__gdp___ ___tap__ ____mhm_ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060352
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020221
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111.04
2.
3.
4.
5.
6.