PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 21 March 2002
         DOCKET NUMBER: AR2001064693


         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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, in effect, that a Noncommissioned Officer Evaluation Report (NCOER), covering the period July 1999 through February 2000, be removed from his record.

3. The applicant states, in effect, that Part I(h) (Period Covered) of the NCOER in question shows the period covered as July 1999 through February 2000, which is a total of 8 rated months. However, Part I(i) (Rated Months) contains the entry 7. Part I(m) (PSC Initials) contains the initials “mdh”, which are the initials for a captain, but the block should have contained the initials of the sergeant first class (SFC) Personnel Staff Noncommissioned Officer (PSNCO). In addition, the senior rater (SR), a lieutenant colonel, on the contested report was not present in the unit during the rating period. In support of his application, he submits third party statements from his unit PSNCO, a unit administrative sergeant, and the unit operations noncommissioned officer (NCO).

4. The applicant’s military records show that he is currently serving on active duty, in the Army Guard Reserve (AGR) program, as a master sergeant (MSG) and he is assigned to the 358^th Civil Affairs (CA) Brigade, Morristown, Pennsylvania.

5. The NCOER in question covered the period July 1999 through February 2000, and it evaluated the applicant as a senior supply NCO for the 647^th Area Support Group (ASG), El Paso, Texas. Part I (Administrative Data) contains the entry
7 in Part I(i) (Rated Months) and there is no entry in Part I(j) (Non-Rated Codes), which would indicate there were no non-rated periods to account for during the period of the report. In addition, the entry “mdh” is contained in Part I(m)
(PSC Initials).

6. The rater, a major, responded “Yes” to all 7 questions in 3(a) of Part IV (Values/NCO Responsibilities) of the contested report and provided the following supporting bullets comments: “Highly dedicated to soldiers”; “True to his core beliefs”; and “Dedicated to mission accomplishment.” In Part IV b-f (Competence, Physical Fitness, Leadership, Training, and Responsibility & Accountability), the rater gave the applicant all “Success” ratings.

7. In Part V(a) (Overall Performance and Potential-Rater-potential for promotion and/or service in positions of greater responsibility), the rater evaluated the applicant as “Fully Capable.” In Part V(c) (SR-overall performance), the
SR placed the applicant in the 2 (Successful) block and in PartV(d) (Senior Rater-overall potential for promotion and/or service in positions of greater responsibility), the SR placed the applicant in the 2 (Superior) block. The SR also provided the following bullet comments in Part V(e): “Capable of performing in position of increased responsibility”; “Built strong trust with soldiers”; and “Achieved tasks assigned to him.”

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8. Orders Number 326-01, dated 22 November 1999, published by Headquarters, 95^th Division (Institutional Training), Oklahoma City, Oklahoma, confirms that the SR on the contested report was assigned to his position in the applicant’s unit, effective 8 November 1999.

9. On 28 December 1999, Orders Number R-12-008235, was published by ARPERSCOM that directed the applicant’s permanent change of station (PCS) to the 358^th CA Brigade, Morristown, Pennsylvania. A leave form (DA Form 31) on file confirms that on 31 January 2000, he was placed on ordinary PCS leave, which included 10 days of permissive temporary duty for the purpose of house hunting at his new assignment location.

10. On 8 June 2000, the applicant appealed his NCOER to ARPERSCOM, citing an improper rating official as the primary reason for the appeal. In July 2000, ARPERSCOM returned the applicant’s appeal for his reconsideration and possible revision. This correspondence indicated that an initial review of the applicant’s appeal found insufficient evidence to support forwarding the appeal to the Army’s Enlisted Special Review Board (ESRB) for consideration. In October 2000, the applicant submitted a revised appeal to ARPERSCOM and in December 2000, ARPERSCOM forwarded the applicant’s NCOER appeal to the ESRB for consideration.

11. On 5 February 2001, the ESRB, after reviewing the appeal packet and other relevant information, returned the applicant’s appeal to ARPERSCOM without action. The ESRB correspondence indicated that the applicant failed to provide sufficient evidence of a clear and convincing nature for the ESRB to consider the case at that time. It further indicated that an appeal that alleges that a report is inaccurate or unjust without usable supporting evidence will not be considered. It further stated that, while the applicant provided a self-authored statement, two third party statements from peers and subordinates, and other personnel documents, he failed to provide substantive evidence to support his claim that the SR was not proper. More specifically, the applicant failed to provide any supporting documents from any of the rating officials, senior NCOs and senior officers in his chain of command who might substantiate that the SR did not meet rater qualifications. In fact, the ESRB noted that the SR orders provided by the applicant validate that he met the SR qualifications.

12. The applicant provided third party statements from the unit PSNCO, an administrative sergeant, and an operations NCO. The PSNCO indicated that during his tenure with the unit, there were numerous violations of the evaluations regulation. These violations included altering the rating scheme he prepared depending on who was being rated, and changing evaluation reports. He specifically claims to have viewed the applicant’s NCOER with a different
SR entered.

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13. The Administrative NCO indicates that during the 24 months of her assignment to the unit, she and other soldiers did not receive a proper rating scheme, were not provided job descriptions, and were never counseled. She further indicates that she was told by her supervisor that she would be rated by a NCO that was in clear violation of the regulation. She also indicates that the SR on the applicant’s NCOER was not assigned to the unit while she was there and was never in the applicant’s rating chain. She indicates that she left the unit in January 2000.

14. Finally, the statement of the operations NCO indicates that the applicant’s contention that the SR in the contested report was not in the unit for a sufficient period to render an evaluation is valid. He further claims that the SR on the contested report was the incoming deputy commander, while the applicant was out-processing from the unit. He concludes that in his 19 years of service he has never been in a unit that so clearly disregards the guidelines set forth in the Army regulations and those provided by their higher headquarters.

15. Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) prescribes the Army policy and procedure on NCOERs. Paragraph
2-5 provides the rules for designating a SR. It states, in pertinent part, that the SR must be in the direct chain of supervision of the rated NCO and must have been in the position for a minimum of 60 days. Paragraph 3-7 contains guidance on preparing Part I of the NCOER and it states, in pertinent part, that the rated months to be entered in Part I(i) of the report will be computed by using the formula in Table 3-2 and the appropriate codes from Table 3-3 will be entered in Part I(j) (Non-Rated Codes).

16. Table 3-2 (Computation of Rated Months) states, in pertinent part, to compute the non-rated months using Table 3-4 and subtract the number of
non-rated months from the total number of calendar months and the remainder is the number of rated months. Table 3-3 contains non-rated codes, which includes code I (Intransit between duty stations, including leave and temporary duty. Table 3-4 contains guidance on computing non-rated months. It states, in pertinent part, that 16 to 45 non-rated days equals a non-rated month; 46 to
75 non-rated days is 2 non-rated months; 76 to 105 non-rated days is 3 non-rated months; 106 to 135 days is 4 non-rated months; and 136 to 165 non-rated days is 5 non-rated months.

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17. Section III contains guidelines on NCOER appeals and paragraph 6-6 states, in pertinent part, that an NCOER accepted for filing in the Official Military Personnel File (OMPF) is presumed to be administratively correct, to have been completing by the proper rating officials, and to represent the considered opinion and best judgment of rating officials at the time of preparation. Paragraph 6-10 contains guidance on the burden of proof necessary to successfully appeal an NCOER. It states, in pertinent part, that the burden of proof rests with the applicant.

CONCLUSIONS:

1. The Board notes the applicant’s contentions that the rated months entry in the NCOER in question is in error, the PSC initials are incorrect, and that the SR was an improper rating official and it finds partial merit in these claims.

2. The evidence of record confirms that the applicant went on leave in-transit to a new duty station on 31 January 2000, which included permissive TDY for house hunting. The NCOER in question covered the period July 1999 through February 2000. Therefore, the Board finds there is a sufficient basis to correct the contested NCOER by adding the code I to Part I(j) (Non-Rated Codes) of the NCOER in question. This correction will explain one month difference in the number of calendar months (8) covered by the period of the report and the number of rated months (7) listed in Part I(i).

3. By regulation, the initials entered in Part I(m) of the NCOER should be those of the PSC representative, this is not restricted to only the PSNCO. Thus, the Board finds there is an insufficient evidentiary basis to conclude that the initials currently entered in this block of the contested report are incorrect.

4. Notwithstanding the applicant’s and the third party statements provided that indicate the SR in the contested report lacked SR qualification because he had not been assigned to the unit for the necessary period of time, the Board concludes that there is insufficient evidence to support this improper rating official claim.

5. The Board notes that the ESRB established that the SR was a proper rating official based on his having been in the position for 60 or more days prior to the applicant’s departure from the unit. This fact is further evidenced by the orders assigning the SR to the position on 8 November 1999, and the applicant’s leave form that confirms he departed the unit on permanent change of station leave on 31 January 2000, more than the 60 days required by regulation to qualify as a SR.

6. Lacking independent evidence to the contrary, the Board finds the SR met the regulatory time qualifications of 60 days that was necessary to act as the SR on the contested NCOER. Therefore, the Board concludes that the applicant fails to satisfy the regulatory burden of proof necessary to prove the lack of qualification of his SR and it finds no basis for removing the contested NCOER from the applicant’s record at this time.

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by adding the entry “I” to Part I(j) Non-Rated Codes) of the NCOER of the individual concerned, which will provide an explanation for the
1 month difference in the number of calendar months covered by the period of the report and the number of rated months listed in Part I(i) (Rated Months).

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

BOARD VOTE:

__JNS __ LDS __ __JTM___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _ John N. Slone_ _
                  CHAIRPERSON

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INDEX

CASE ID	AR2001064693
SUFFIX
RECON
DATE BOARDED	2002/03/21
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2.
3.
4.
5.
6.