PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 October 2001
         DOCKET NUMBER: AR2001060935


         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Harry B. Oberg		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.

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2. The applicant requests that his noncommissioned officer evaluation reports (NCOERs) for the periods February through October 1998 and November 1998 through October 1999 be removed from his records.

3. The applicant states that he received a “Needs Improvement” in competence on his NCOER for the period ending October 1998 for not maintaining a licensure when his military occupational specialty (MOS) does not require one. He failed the exam during the month of December 1997, which was outside the rating period. Some bullet comments were altered on his NCOER for the period ending October 1999 without his knowledge, plus, he received no counseling. He provides his Qualitative Management Program (QMP) appeal and his NCOER appeal as supporting evidence.

4. The applicant's military records show that after having had prior service in the U. S. Marine Corps, he enlisted in the Regular Army on 4 March 1993 for training in MOS 91B (Medical Specialist). He was promoted to Sergeant, E-5 on 1 June 1994. On 20 September 1996, he completed the 52-week 91C (Practical Nurse) course. He was assigned to U. S. Army Medical Department Activity, Redstone Arsenal, AL on 15 November 1996 as a 91C, Practical Nurse.

5. The applicant attended the 91C NCO Basic Course from 12 May through 2 July 1997 and achieved course standards.

6. The applicant’s NCOER for the period ending September 1997, the first he received after being awarded MOS 91C, shows that his rater rated his competence as “Excellence” with one related comment “knowledge, skills, and abilities as an NCO in the field exceeds current grade and rank.”

7. The applicant’s NCOER for the period October 1997 through January 1998 shows that his rater (the same rater as the previous NCOER) rated his competence as “Needs Some Improvement” with the related comments “failed Licensed Practical Nurse Licensure Board” and “knowledge, skills and abilities as an NCO in the field exceeds current grade and rank.”

8. Effective 19 February 1998, the applicant was reclassified from 91C to 91B.

9. The first contested NCOER, for the rating period February through October 1998, was a change of rater report when the applicant departed Redstone Arsenal, AL for Europe. His duty MOS was 91B30, Medical NCO. It shows that his rater rated his competence as “Needs Some Improvement” with the related comments “failed to retake the 91C licensure exam and did not notify his chain of command after promising he would take it” and “failure to retake 91C licensure exam resulted in involuntary reclassification.” In Part Va, his rater rated his potential as “Marginal” and in Part Vd his senior rater rated his potential as “Fair.”

10. The second contested NCOER, for the period ending October 1999, contains four “no” entries in Part IVa with the related comments “lacks loyalty for unit and chain of command,” shows lack of dedication to mission accomplishment,” and “violated numerous Company Commander orders.” It shows his rater rated his competence as “Needs Some Improvement.” Related comments included “counseled negatively on job performance as Aid Station NCOIC” and “can be competent in job, but often lacks desire. The category of physical fitness and military bearing was rated negatively but was amended to “success” and a negative comment relating to the Army Physical Fitness Test was deleted after his appeal. His leadership was rated as “Needs Some Improvement” with related negative comments. His training was rated as “Needs Much Improvement” with related negative comments including “counseled twice on lack of training for soldiers.” His responsibility and accountability was rated as “Needs Some Improvement” with some negative comments including “repeatedly received counseling related to reported incidents of domestic violence.” His overall potential was rated by his rater as “Marginal.” His senior rater rated his overall performance and overall potential as “Poor” with all negative comments. Part II is annotated that the applicant refused to sign the NCOER.

11. By letter dated 31 August 2000, the applicant was notified that he had been determined to be barred from reenlistment under the Department of the Army QMP. The two contested NCOERs were cited as the reasons for the bar. The applicant appealed the bar. His entire chain of command supported his retention. By letter dated 31 July 2001, the U. S. Army Enlisted Records and Evaluation Center informed him his appeal had been disapproved.

12. The applicant appealed the two contested NCOERs on 4 December 2000. Except for amending the physical fitness and military bearing entries in the second contested NCOER, the Enlisted Special Review Board (ESRB) determined that that was not sufficiently convincing evidence that the contested NCOERs were inaccurate or unjust and that they adequately reflected his performance and potential demonstrated during the rating period. The ESRB determined there was no basis to grant the appeal. The ESRB had contacted the rating officials.

13. The rater and senior rater of the NCOER for the period ending October 1998 informed the ESRB that the bullet comment in Part IVa addressed the applicant’s obligation/failure to keep the chain of command informed of his MOS qualification. He had misled the chain of command twice. The first time was when he did not retake the 91C licensure exam after stating/promising he was going to and the second time when he failed to promptly notify the chain of command that he did not take the test.

14. The senior rater of the NCOER for the period ending October 1999 stated that NCOER was based on the applicant’s failure to complete tasks, not performing his duties to the standards expected of a Staff Sergeant, and of disobeying orders. The applicant was counseled numerous times on these failures. Additionally, he received an Article 15 during the rating period for failing to obey orders from the company commander. The applicant did sign the original NCOER but after it was returned to remove a reference to the Article 15 he refused to sign the corrected NCOER. The rater later was reprimanded, but during the rating period of the contested report the rater performed his duties to standards.

15. 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.

16. Army Regulation 611-201 provides the enlisted MOS classification structure for the U. S. Army. In discussing the formal training requirements for MOS 91C, it states that the individual must obtain and maintain a valid and current professional license per Army Regulation 40-68. The individual must pass the National Council Licensure Examination (NCLEX) which results in a current state or Commonwealth or Puerto Rico License as a practical or vocational nurse and complete one of several training programs.

17. Army Regulation 40-68, Medical Services Quality Assurance Administration, chapter 9 states that nurses (registered, practical, or vocational) and other health professionals will maintain a valid, current professional license that meets one of several criteria. One criteria is that the license must be one granted by the recognized licensing agency of a State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, or the U. S. Virgin Islands. It states that nurses are required to pass the examination offered by the NCLEX before working without supervision. Nonphysician health care professionals will obtain a license within 12 months of completion of schooling and/or training.

CONCLUSIONS:

1. The Board concludes that there was an injustice regarding Part IVb in the NCOER for the period February through October 1998. The applicant completed the 91C course in September 1996. He was assigned to Redstone Arsenal, AL in November 1996. He realistically had until November/December 1997 to pass the NCLEX examination and obtain a license. His failure to pass that examination was noted on his previous NCOER (for the period October 1997 through January 1998). The comment “failed to retake the 91C licensure exam and did not notify his chain of command after promising that he would take it” was not a proper entry to make on this contested NCOER as the beginning period of this contested NCOER was outside of the 1-year licensing requirement period.

2. The applicant’s reclassification back into MOS 91B was effective 19 February 1998. The comment “failure to retake 91C licensure exam resulted in involuntary reclassification” was a proper entry to make on this contested NCOER as the reclassification occurred during the rating period. The rating “Needs Some Improvement” was not a proper rating based on any of the bullet comments made in Part IVb. The applicant was rated as a 91B. He held MOS 91B for all but the first 19 days of the rating period. He may have been involuntarily reclassified from 91C to 91B during this rating period but that does not mean that he did not perform to standards in MOS 91B. It would be appropriate to change the rating to “Success.”

3. The Board concludes that there is no error or injustice in the rating of “Marginal” in Part Va or the rating of “Fair” in Part Vd. Those ratings were given for the rater’s and senior rater’s considered opinions of the applicant’s potential, not his performance as a 91B.

4. Regarding the NCOER for the period November 1998 through October 1999, the Board concludes that 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 notes that the ESRB contacted the senior rater who informed the ESRB that the applicant had been counseled numerous times. A counseling packet is not required to be turned in with the completed NCOER. The Board notes the letters of support provided with his QMP and NCOER appeals. Some of the letters are from individuals who worked with or knew the applicant during the rating period; however, they did not have knowledge of what his raters expected or required of him during the rating period.

5. 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 prior to their being officially filed. The applicant’s contention that some comments on the NCOER he signed were altered is not unusual and is not grounds for granting the relief requested.

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

1. That the applicant’s NCOER for the period ending October 1998, Part IVb be amended to delete the comment “failed to retake the 91C licensure exam and did not notify his chain of command after promising that he would take it” and to change the rating from “Needs Some Improvement” to “Success.”

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__cla___ __aao___ __hbo___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Celia L. Adolphi
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001060935
SUFFIX
RECON
DATE BOARDED	20011030
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	111.02
2.
3.
4.
5.
6.