MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 March 2002
         DOCKET NUMBER: AR2001065426

         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. Fred N. Eichorn		Chairperson
Mr. Thomas B. Redfern, III		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)

---

APPLICANT REQUESTS: That his Noncommissioned Officer Evaluation Reports (NCOERs) for the periods April 1992 – March 1993, April 1993 – March 1994, April 1994 – March 1995, and April 1995 – November 1995 be amended to show his complete duty title, to add to his duty description, to add on his NCOER for the period ending March 1994 the bullet comment “Promote to Sergeant First Class immediately” in Part V, and to change his ratings in Part V from “2” to “1” on his NCOER for the period ending March 1995. He also requests that once these corrections be made his records be reconsidered for promotion to Sergeant First Class (SFC), E-7 and, in effect, that if he is selected for promotion that he be reinstated on active duty.

APPLICANT STATES: That the “1997 NCO Promotion Board Briefing” validates the grounds for his appeal. This briefing lists the most important factors for promotion consideration. They include duty description, values/NCO responsibilities, and senior rater comments, all of which were the very reasons for his original appeal. His principal duty title should have been listed as Network Control Shift Supervisor/NCOIC, Field Operations. His duty description should have included numerous other duties such as his managing personnel and supervising equipment usage, designing equipment and systems, and serving as Acting Branch Chief in his absence (about 10 additional lines of entry). His NCOER for the period ending March 1994 should be changed to add the comment “Promote to Sergeant First Class immediately” in part V as his senior rater admits to omitting this comment during preparation of the report. His NCOER for the period ending March 1995 should be changed to reflect ratings of “1” in Part V as his senior rater admits an administrative error was made by his secretary and he did not catch it. The Enlisted Special Review Board (ESRB) granted a partial approval of his appeal; however, the claim of the “presumption of regularity” in the rating process is overturned when the raters and their reviewers acknowledge that errors were made in the NCOERs. He provides the “1997 NCO Promotion Board Briefing” and his ESRB appeal, with supporting statements, as supporting evidence.

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

He enlisted in the Regular Army on 8 November 1978 and had continuous service until his retirement. He was promoted to Staff Sergeant (SSG), E-6 on 5 November 1986 in military occupational specialty 25R (Visual Information Equipment Operator/Maintainer).

The applicant’s NCOER for the period ending March 1993, Part IIIa shows his principal duty title as VI Staff NCO. Part IIIc shows his daily duties and scope as “Responsible for the installation, operation, and maintenance of the TRADOC video teletraining satellite system, Teletraining Network (TNET), which totals 64 sites throughout CONUS and Hawaii. Conducts site surveys, acceptance inspections, and trains site facilitators. Operates and maintains the Network Control Center worth over $2 million dollars. Supervises four non-commissioned officers.” The entry leaves about ¾ of the last line blank. The applicant signed the NCOER on 5 April 1993.

The applicant’s NCOER for the period ending March 1994, Part IIIa shows his principal duty title as VI Staff NCO/Shift Supervisor. Part IIIc is almost verbatim with Part IIIc of his NCOER for the period ending March 1993 except for mentioning 55 sites (vice 64) and “maintains two Network Control Centers for two uniquely different systems worth over $6 million…” The entry leaves the entire first line blank. In Part Ve, the senior rater makes three bullet comments – “A thorough professional,” “Exerts total effort,” and “100 percent mission oriented.”
The applicant signed the NCOER on 6 April 1994.

The applicant’s NCOER for the period ending March 1995, Part IIIa shows his principal duty title as VI Staff NCO. Part IIIc is almost verbatim with Part IIIc of his NCOER for the period ending March 1994 except mentioning 117 sites (vice 55) and deleting reference to “two uniquely different systems.” The entry leaves about 2/3 of the last line blank. In Parts Vc and Vd, the senior rater gave him a “2” rating for overall performance and overall potential. The applicant signed the NCOER on 14 December 1995.

The applicant’s NCOER for the period ending November 1995, Part IIIa shows his principal duty title as VI Staff NCO. Part IIIc is identical to Part IIIC of his NCOER for the period ending March 1995.

The applicant appealed these four NCOERs in July 1998 when he was a three-time nonselect for promotion to SFC. One of his letters of support was from his senior rater for the period April 1993 – November 1995. The senior rater stated that he omitted the senior rater bullet comment “Promote to Sergeant First Class immediately” on the NCOER for the period ending March 1994. He also stated that the applicant’s overall performance and potential ratings on the NCOER for the period ending March 1995 had been “1.” However, his secretary had to retype the form. He signed the revised form and left directions with his secretary to mark the appropriate blocks. She erroneously checked the “2” blocks.

The ESRB partially approved the applicant’s appeal and directed that Parts Vc and Vd on the NCOER for the period ending March 1995 be changed to reflect “1” ratings due to administrative error on the part of the senior rater’s secretary and oversight on the part of the senior rater. The ESRB noted that the applicant had served in the same position for four consecutive rating periods yet he never asked the rater to change his duty description. The ESRB determined that the rule governing retrospective thinking applied to this requested change and to all the other requested changes.

On 1 December 1998, the applicant retired after completing 20 years of active duty.

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 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. Paragraph 3-8d states that it is the senior rater’s responsibility to obtain the rated NCO’s signature in part II of the NCOER. The rater NCO’s signature means that he or she has seen the completed report (except Parts IId and IIe) and verifies that the administrative data is correct, the rating officials are proper, and the duty description is accurate. Appendix F, paragraph F-2b(3) states that statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by an appellant’s nonselection 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 for altering or withdrawing an evaluation report.

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 Board agrees with the determination of the ESRB. The applicant provides no evidence to show that he disagreed with the duty description and daily duties on the NCOER for the period ending March 1993 or the next three contested NCOERs, which are virtually identical in those areas. He signed all four contested reports attesting to the accuracy of the duty title and description.
He provides no evidence to show he disagreed with the senior rater’s comments or absence of comments on the NCOER for the period ending March 1994 and mentioned it to the senior rater at the time or that the senior rater noted it at the time. The Board agrees with the ESRB’s determination that his senior rater now stating he should have made an additional comment is retrospective thinking. The Board concludes that the presumption of regularity is not overturned.
3. 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___ __tbr___ __dph___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001065426
SUFFIX
RECON
DATE BOARDED	20020305
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	111.02
2.
3.
4.
5.
6.