MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        


         BOARD DATE: 17 October 2002
         DOCKET NUMBER: AR2002072548

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Richard T. Dunbar		Member
Ms. Margaret V. Thompson		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 reviewer's Nonconcurrence Memorandum, dated 27 October 1999, be removed from the restricted (R) fiche of his Official Military Personnel File (OMPF). He also requests that the "X" in the nonconcurrence block in item E of Part II-Authentication block of his DA Form 2166 NCO Evaluation Report (NCOER) be removed.

APPLICANT STATES: That his appeal for his NCOER for the period 9902 through 9910 with a reviewer's nonconcurrence memorandum be reviewed and reconsidered for amendment/removal of certain areas. He also states that he can clearly see that a misunderstanding occurred after reviewing the Case Summary provided by the Deputy Chief of Staff for Personnel (DCSPER) and based on this action, he respectfully requests a review by this Board. In support of his application, he submits copies of his: Reviewer's Nonconcurrence Memorandum, dated 27 October 1999; four DA Forms 2166-7 (NCOER); DA Form 2A (Personnel Qualification Record – Part I); DA Form 2-1 (Personnel Qualification Record – Part II); and a copy of his appeal packet.

He also submits a memorandum, Subject: NCOER Appeal/Case Summary from DCSPER. He addresses several issues that were discussed in his appeal and addressed by the Department of the Army Enlisted Special Review Board (ESRB). He also states that he has no knowledge as to where several statements came from and is providing a copy of an e-mail message that was drafted by the battalion commander to the company commander. He also states that several attempts were made to obtain records, telephonically and via e-mail.

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

He enlisted on 15 January 1981. He continues to serve on active duty in the rank of master sergeant (MSG).

At the time of the contested report the applicant was serving as a limited production station manager with the US Army Recruiting Battalion with duty at Fort Walton Beach, Florida. This was a change of rater report with 9 rated months for the period February through October 1999.

The applicant received an "X" in the noncurrence block of item E of Part II-Authentication block of his NCOER.

The applicant received an "X" in all "Yes" columns of item a of Part IV (Values/NCO Responsibilities). The applicant received an "X" in the excellence block in Competence and Training and an "X" in the "success" block in Physical Fitness, Leadership and Responsibility and Accountability.



In part V(a) (Overall Potential for Promotion) the rater assigned a "Fully Capable" rating and in Part V(c) (Overall Performance) and V(d) (Overall Potential) the senior rater marked an "X" in the "1" block (successful). It was noted that the rater's and senior rater's narrative evaluation was very positive.

The applicant provided a copy of an e-mail message, dated 27 October 1999,
which was prepared by the battalion commander/reviewer to the company commander/senior rater. The reviewer stated that he was baffled as to why the company commander thought that the applicant should be rated as a top performer, equal to all those NCOs who never complained, caused you heartburn, and consistently made mission. He also stated that he did not understand as to why the company commander was creating an injustice to his good performers. The consensus of opinion was that he was afraid of controversy and still wanted to be one of the "good guys" or worse…just chicken to give someone what they deserve. He reminded the company commander that NCOs such as the applicant were the reason he was on probation and received a letter of reprimand (LOR).

On the same day, the company commander responded by stating that "he researched his current counseling folder and found that he did provide (the applicant) with a 90-day Letter of Concern after the Recruiting Station Manager (RSM) April 1999 (Station Performance), and later one for the RSM, June 1999 for an excessive amount of last minute delayed entry program (DEP) losses.
In addition, there are the routine monthly counseling letters (DA Form 4856). Neither the first sergeant nor I wrote a LOR during this report period of (9901 through 9910)." He concluded by stating that he hopes that this information would assist him with his nonconcurrence issue.

On 27 October 1999, the applicant's reviewer prepared a nonconcurrence memorandum in reference to the applicant's NCOER for the period 9902 through 9910. The reviewer nonconcurred with the senior rater's evaluation of the applicant. The review stated that the senior rater evaluated the applicant in Part V(a) as "among the best", and in Part V(c) and V(d) placed an "X" in the number "1" block. The applicant was the station commander for the Fort Walton Beach recruiting station in the senior rater's company. During the period of this evaluation, under the applicant's command, the station never achieved mission box, and production rates were consistently among the lowest in the battalion. The applicant failed to support the company, battalion, and the US Army Recruiting Command (USAREC) mission in recruiting qualified applicants into
the Army. Due to his consistent failure in leading his station to mission accomplishment, he was frequently counseled by the chain of command, and was provided letters of concern. The reviewer also made mention as to why



the company commander rated the applicant so high because the company commander was given a LOR for his company's low production, directly attributed to the applicant continually failing to perform to standard. His evaluation of the applicant would be in Part V(a) "Fully Capable" and in V(c) and V(d) an "X" in the number "2" block due to his lack of leadership skills and inability to manage his personnel and lead his station to success. He concludes that the applicant would make a good staff NCO; however, he would never consider him for a leadership position such as first sergeant or command sergeant major (CSM).

The applicant appealed his NCOER to the ESRB, which was undated. His case was received on 2 June 2000. The applicant provided copies of his contested NCOER for the period 9902 through 9910, the Reviewer's Nonconcurrence Memorandum, and several documents supporting his request. The ESRB determined that the evidence submitted by the applicant did not justify altering or withdrawing the contested report. The ESRB stated that if the applicant believed that there had been an error or injustice in the adjudication of his appeal that he had the right to petition this Board.

Army Regulation 623-205, in effect at the time, established the policies and procedures for the enlisted evaluation system. It provided that an NCOER, accepted by Headquarters, Department of the Army, and included in the official record of the soldier, 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. The regulation stated 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.

Paragraph 2-12 of the same regulation pertains to the reviewer. It states that the reviewer is responsible for rating safeguard over-watch and may comment only when in disagreement with the rater/or senior rater.

Paragraph 3-8 pertains to part II, authentication. It states, in pertinent part, that the reviewer will place a typewritten or handwritten "X" in the appropriate block, indicating concurrence or nonconcurrence. A nonconcurrence enclosure is mandatory. Enclosures will not be used to add an additional concurrence to the report. The reviewer will ensure that the rated NCO is provided a copy of the nonconcurrenc enclosure.



Paragraph 3-14 pertains to reviewer nonconcurrence actions. It states that when the reviewer disagrees with the rater and/or senior rater and marks the "nonconcur" block in part IIe of the NCOER, an explanation enclosure is required. The bullet comment rules governing the completion of the DA Form 2166-7 itself do not apply. The enclosure rules of paragraph 3-24 apply.
The reviewer is required to notify the rater, senior rater, and rated NCO of nonconcurrence before the report is forwarded.

Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of
Military Records, DASEB, Army Appeals Board, the Chief of Appeals and Corrections Branch of the Total Army Personnel Command, or the Official Military Personnel File custodian when documents have been improperly filed.

Table 2 of the regulation pertains to the composition of the OMPF. It states, in pertinent part, that NCOERs will be filed on the Performance Fiche. It also states that a document that announces the DCSPER Special Review Board decision that denies or partially denies an NCOER appeal will be filed on the R Fiche.

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 evidence of record shows that the applicant received a change of rater NCOER for the period 9902 through 9910, which was very positive in nature.
This report also shows that the applicant received an "X" in the "nonconcur" block of item E of Part II-Authentication block of his NCOER in question.

2. The reviewer prepared his nonconcurrence memorandum in accordance with regulation after consulting with the senior rater. The reviewer nonconcurred with the senior rater's evaluation on the applicant's NCOER for the period 9902 through 9910. The reviewer stated that during the period of this evaluation,
the applicant failed to support the mission and due to his consistent failure in leading his station to mission accomplishment, was frequently counseled by his chain of command, and was provided letters of concern.




3. In his opinion, the reviewer provided an evaluation of the applicant and stated that he was "fully capable" and should have received an "X" in the number "2" of V(c) and V(d) due to his lack of leadership skills and inability to manage his personnel and lead his station to success.

4. The applicant appealed his NCOER to the ESRB who determined that the evidence provided by the applicant did not justify altering or withdrawing the contested report.

5. The Board notes that the applicant has failed to provide compelling evidence that the "X' in the "nonconcur" block of item E of Part II – Authentication block of his NCOER should be amended/removed. The Board also notes that the applicant has failed to show to the satisfaction of the Board the Reviewer's Nonconcurrence Memorandum, dated 27 October 1999, was unfair and should be removed. The Reviewer's Nonconcurrence Memorandum was properly filed on his R Fiche of his OMPF in accordance with applicable regulations.

6. 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.

7. 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

__jl___ __rd______ ___mt____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072548
SUFFIX
RECON
DATE BOARDED	20021017
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR ACTIVE DUTY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 193
2.
3.
4.
5.
6.