MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 October 2001
         DOCKET NUMBER: AR2001060740

         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
Ms. Regan K. Smith		Member
Mr. Donald P. Hupman, 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 September 1999 – March 2000 be removed from his records.

APPLICANT STATES: That his rater was never available to review his performance as required. His rater’s evaluation of his performance was not just. Supporting evidence is as included with his NCOER appeal.

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

After having served on active duty from 1981 – 1992, he entered the U. S. Army Reserve around October 1992. In 1996, he was voluntarily ordered to active duty in an active guard/reserve (AGR) status. He was promoted to Staff Sergeant, E-6 on 1 October 1999.

The applicant’s AGR tour NCOER history in Part IVb and Part Va prior to the contested report is as follows:

Report ending April 1997, two success, three needs some improvement, and marginal ratings. Report ending February 1998, five success and among the best ratings. Report ending January 1999, five success and fully capable ratings. Report ending June 1999, five success and fully capable ratings.

The contested NCOER is a 7-month change of rater report for the period ending March 2000 while he was assigned to Headquarters and Headquarters Company, 324^th Signal Battalion, Fort Gordon, GA as a 31U (Signal Support Systems Specialist) Radio Supervisor. Part IIIf indicates that the applicant had received counseling on 3 October 1999 and 19 January 2000. Part IVa, NCO Values, contains five “no” checks (out of seven areas) with three negative comments -- “Soldier puts personal desires ahead of unit needs,” “Soldier is very dishonest; says one thing and does another,” and “Soldier’s dedication is not in the interest of the Army.” In Part IVb (Competence) he was rated as needs much improvement with negative comments including “Will seek to find someone else to do his assigned task” and “Made no effort to learn assigned duties; failed a 10 task hands on skill level one evaluation with all no-go’s.” In Part IVc (Physical Fitness and Military Bearing) he was rated as success but with the negative comment “Lacks confidence when under pressure.” In Part IVd (Leadership) he was rated as needs much improvement with negative comments including “Does not put mission or unit first, always on a mission of personal gain” and “Demonstration of initiative is zero; has to always be given orders and supervised with intensity.” In Part IVe (Training) he was rated as needs some improvement

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with negative comments including “will not share skills he possesses to assist the section with its mission.” In Part IVf (Responsibility and Accountability) he was rated as needs some improvement with negative comments including “Placed the section at great risk when he was not available to share the long man-hours because of unauthorized off-duty employment” and “Cannot identify assigned equipment.” His rater rated his overall potential for promotion as marginal. His senior rater rated both his overall performance and his overall potential as poor with four negative comments.

The applicant’s NCOER immediately subsequent to the contested NCOER showed he received five success and fully capable ratings in Part IVb and Part Va.

On 31 January 2001, the applicant appealed his NCOER. He contended that due to circumstances beyond his control he was forced to put in for a compassionate reassignment and was assigned to the 324^th Signal Battalion. He had worked with the rater before and his rater assured him he had his (the rater’s) full support surrounding the circumstances of his reassignment. The applicant contended that he was always honest and the word “dishonest” did not exist in his vocabulary. He was very dedicated and committed to Army values. He was school-trained and fully competent. His rater was never around to assist him when needed. He always had an aggressively take-charge attitude. He shared his experiences with his peers and soldiers to accomplish the mission. For example, once when his rater was on quarters and his unit was on a field training exercise, some essential equipment was left behind. He drove about 200 miles round trip to get the equipment. His senior rater was aware of this action. His overall performance and potential should have been rated at no less than success. In addition to other supporting documents, he provided five letters of support from three senior NCOs and two previous supervisors and a memorandum for record in which he quoted a conversation he had with his senior rater in which she stated “He (the rater) pull us together on your NCOER…” The senior rater also apparently stated that the company commander did not want to assist in the rater’s “scheme” but she was persuaded, too.

By memorandum dated 25 July 2001, the Army Reserve Personnel Command (AR-PERSCOM) notified the applicant that his NCOER appeal did not provide sufficient evidence of a clear and convincing nature for the Special Review Board to consider at this time. AR-PERSCOM noted that his appeal memorandum, his self-authored memorandum of his achievements, the verbal record of his account

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of a conversation between his senior rater and himself, five supporting statements from senior NCOs and previous supervisors, documentation to show his wife suffered from a medical condition, orders (promotion, active duty, and military occupational specialty), and educational certificates failed to provide any clear and compelling evidence that the rating officials failed to render a just and accurate report.

Army Regulation 623-205 establishes the policies and procedures for the NCOER system. Paragraph 4-2 states that an NCOER accepted for inclusion in an NCO’s Official Military Personnel File 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 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 that would satisfy this requirement.

2. The five letters of support provided do not mention the contested NCOER. The applicant provides a summary of a conversation he states he had with his senior rater purporting to back up his contention that his rater rated him unjustly but provides no statement from the senior rater herself or from the company commander who purportedly was aware of the rater’s “scheme.” He states that his rater was never available to review his performance as required yet his NCOER shows that he was counseled at least twice.

3. 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 report is representative of one other NCOER rating received by the applicant during his AGR tour.

4. 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

__rvo___ __rks___ __dph___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060740
SUFFIX
RECON
DATE BOARDED	20011016
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	111.02
2.
3.
4.
5.
6.