MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 February 2002
         DOCKET NUMBER: AR2001061735

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Lester Echols		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: Removal of a noncommissioned officer evaluation report (NCOER) for the rated period August 1999 through March 2000.

APPLICANT STATES: That the NCOER should be removed from his records for the following reasons: (1) that he was not working in the military occupational specialty (MOS) stated on the report; (2) that after being told he was being sent to Korea because his MOS was under strength, he was put in a job from another MOS; and (3) that the NCOER is vindictive.

In support of his application, he submits a copy of his NCOER appeal action, dated 27 July 2001; a Memorandum, dated 17 July 2001, from the Special Review Boards; his NCOER appeal, dated 14 March 2001; a letter, dated
14 March 2001, from his Senior Rater (SR) at the time in question; a statement, dated 9 March 2001, from a Chief Warrant Officer Two; a copy of the contested NCOER for the period August 1999 through March 2000; a NCOER for the period April 2000 through August 2000; seven character reference letters; a Memorandum, dated 23 August 2000, pertaining to his NCOER appeal action; his NCOER appeal action, dated 17 August 2000; his NCOER appeal, dated
26 July 2000; his Enlisted Record Brief; and a copy of his DA 2-1 (Personnel Qualification Record).

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

At the time of his application, the applicant was serving on active duty as a master sergeant assigned to Fort Campbell, Kentucky.

The contested NCOER is an 8-month change of rater NCOER covering the period August 1999 through March 2000 for duties as a division modification work order coordinator. His duty MOS is shown as 92A (automated logistical specialist). This NCOER was authenticated by the Rater and SR in Part II (Authentication) on 20 March 2000.

In Part IVa (Values/NCO Responsibilities) of the contested NCOER, the Rater placed his “X” in the “NO” block on number 1 (Places dedication and commitment to the goals and missions of the Army and nation above personal welfare.) and number 3 (Is disciplined and obedient to the spirit and letter of a lawful order.). The Rater placed an “X” in the “YES” block for numbers 2, 4, 5, 6 and 7 in Part IVa. The bullet comments section contains the entries “incompetent without direct, consistent supervision”, “substandard duty performance” and “lackadaisical attitude.”

In Part IVb (Competence), the Rater placed his “X” in the “Needs Improvement (Some)” block and commented that the applicant “lacks a thorough conceptual knowledge of current assignment”, “does not demonstrate a satisfactory understanding of the different types of methods used in area of specialization” and “is haphazard in allotting appropriate time for assigned tasks.”

In Part IVc (Physical Fitness & Military Bearing), the Rater placed his “X” in the “Success” block and commented that “profile does not affect daily duty performance.” Part IVc also shows the entries “APFT PROFILE/0001” and “HEIGHT/WEIGHT 73/233 YES.” However, in accordance with Army Regulation 600-9 (The Army Weight Control Program) the applicant failed to meet Army weight standards and there is no entry that he met body fat standards as required by Army Regulation 600-9.

The Rater placed an “X” in the “Success” block in items IVd (Leadership) and IVe (Training).

In Part IVf (Responsibility & Accountability), the Rater placed his “X” in the “Needs Improvement (Some)” block and commented that “reluctant to abide by rules”, “fails to accomplish assigned tasks on time” and “by lacking commitment to the ideals of professional service, this soldier has negatively affected the operating ability of the MWO [modification work order].”

In Part Va (Overall Performance and Potential), the Rater placed his “X” in the “Marginal” block and listed three positions the applicant could best serve the Army at his current or next higher grade in Part Vb.

In Part Vc, the SR evaluated the applicant’s overall performance as “Fair” and rated the applicant’s overall potential for promotion and/or service in positions of greater responsibility as “Fair” in Part Vd. In Part Ve (Senior Rater Bullet Comments) the SR made the following comments: “successfully accomplished assigned tasks with strict guidance from immediate supervisor”, “strived hard to achieve mission success” and “potential for increased levels of responsibilities is warranted with the proper leadership training.”

On 21 March 2000, the applicant authenticated Part II of the contested NCOER indicating “I understand my signature does not constitute agreement or disagreement with the evaluations of the rater and senior rater. Part I, height/weight and APFT entries are verified. I have seen this report completed through Part V. I am aware of the appeals process (AR 623-205).” On 21 March 2001, the reviewer concurred with the Rater and SR evaluations.

The contested NCOER was forwarded to the applicant on 21 March 2000. The contested NCOER was processed by Department of the Army officials and placed on the applicant’s microfiche.

The applicant appealed the contested NCOER on 26 July 2000 to the Enlisted Special Review Board (ESRB) and cited that he had been non-selected for promotion in the primary zone once. His appeal was returned on 17 August 2000 without action because it lacked clear and convincing evidence that the NCOER was inaccurate or unjust.

On 29 December 2000, the applicant was notified that the Calendar Year 2000 Sergeant Major Promotion/CSM Selection Board determined that he should be barred from reenlistment under the Department of the Army Qualitative Management Program (QMP). The basis for the determination was the contested NCOER which indicated the applicant displayed deficiencies and/or weaknesses in performance/efficiency. The applicant appealed his bar to reenlistment under the QMP to the Department of the Army Standby Advisory Review Board and his appeal was approved on 31 July 2001.

On 14 March 2001, the applicant again appealed the contested NCOER to the ESRB and cited that he had been selected for release under the Department of the Army Qualitative Management Program. His appeal was returned on 27 July 2001 without action because it lacked clear and convincing evidence that the NCOER was inaccurate or unjust.

Records show the applicant served in MOS 92A (automated logistical specialist) from July 1994 through October 2000.

The applicant provided a letter, dated 14 March 2001, from his SR at the time in question. In summary, the SR stated that after reviewing statements and documents provided to him referencing the applicant, he would like to make the following comments:

“a. Did the rater have a potential personality conflict with [applicant]? Answer: Yes

         b. Did [applicant] accomplish his overall assigned tasks? Answer: Yes

         c. That he based a large portion of his rating from the proposed comments and evaluation of the rater. Based on the information and supporting documents presented to him for review now versus then, he would have inquired more on the accuracy and fairness of the rater’s portion and rethink his evaluation for the applicant in a more favorable or higher rating.”

The SR also stated that the applicant has progressed through the military and achieved the rank of a senior NCO, which is an awesome task. He further states that his dedication, leadership abilities, potential and professionalism warrant consideration for further active service in the Army.

The applicant provided a statement, dated 9 March 2001, from a Chief Warrant Officer Two. The Chief Warrant Officer Two states that he witnessed many situations between the applicant and his rater and that the applicant conducted himself in a very professional manner. He states that the applicant displayed a positive attitude even in the midst of adverse situations. He further states that the applicant was a hard worker, dedicated and loyal to the mission, unit and the people he served with. His level of candor and integrity is unquestionable, that he was a positive leader and a strong asset to the Army.

The applicant also provided seven character reference letters in support of his claim. These letters were also submitted and considered in the applicant’s NCOER appeals.

Army Regulation 623-205 establishes the policies and procedures for the NCOER system. It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports. Paragraph 4-2 of Army Regulation 623-205 states that an evaluation report accepted for inclusion in the official record of a noncommissioned officer is presumed to be administratively correct, to have been prepared by the proper rating officials and 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 appeal of an NCOER 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.

Army Regulation 623-205, cautions, in pertinent part, that “statements of rating officials often reflect retrospective thinking, or second thoughts, prompted by an appellant’s non-selection or other unfavorable personnel action claimed to be the sole result of the contested report. As a result, claims by rating officials that they did not intend to evaluate as they did, will not serve alone as the basis of altering or withdrawing an evaluation report.”

Army Regulation 600-9 (The Army Weight Control Program), effective 10 June 1987, implements the guidance in DOD Directive 1308.1 which establishes a weight control program in all the Services. This regulation applies to all members of the Active Army, the Army National Guard (ARNG) and the U.S. Army Reserve (USAR) to include those ARNG and USAR personnel in Active Guard/Reserve (AGR) status. Page 7 of Army Regulation 600-9 contains a chart which shows the Weight for Height Table (Screening Table Weight). This chart shows that the Screening Table Weight for a male, who is 40+ years of age and who is
73 inches tall, is 205 pounds.

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. The Board considered the applicant’s contention that he was not working in the MOS stated on the report. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention.

2. The Board considered the applicant’s contention that after being told he was being sent to Korea because his MOS was under strength, he was put in a job from another MOS. There is no evidence of record, and the applicant has provided no evidence, to support this contention.

3. The applicant has not shown to the satisfaction of the Board that the contested NCOER was vindictive. This is supported by the ESRB actions on the applicant’s two NCOER appeals.

4. The Board noted the statement provided by the applicant’s SR at the time in question. However, in accordance with the regulation governing NCOER’s, claims by rating officials that they did not intend to evaluate as they did will not, serve as the basis of altering or withdrawing an evaluation report.

5. The applicant authenticated the contested NCOER indicating “I understand my signature does not constitute agreement or disagreement with the evaluations of the rater and senior rater. Part I, height/weight and APFT entries are verified. I have seen this report completed through Part V. I am aware of the appeals process (AR 623-205).”

6. The contested NCOER was received by Headquarters, Department of the Army officials and posted to the applicant’s records.

7. Based on the foregoing, the Board concluded that the contested NCOER was prepared by the properly designated rating officials and represented the considered opinion and objective judgment of the rating officials at the time of preparation. Based on regulation, the burden of proof in an appeal of an NCOER 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 demonstrates material error or inaccuracy exists. The Board finds that no there is no evidence of material error, inaccuracy or injustice presented by the applicant upon which to base correction or amendment of the contested NCOER.

8. 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.


9. 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

FNE____ MKP___ LE_______ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061735
SUFFIX
RECON
DATE BOARDED	20020207
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	134.0000
2.
3.
4.
5.
6.