PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2002074799


         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. Luther L. Santiful		Chairperson
Ms. Paula Mokulis		Member
Mr. Donald P. Hupman, Jr.		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 the Noncommissioned Evaluation Report (NCOER) he received, dated 8 June 2001, be removed from his record.

3. The applicant states, in effect, that he is applying to this Board because the Enlisted Special Review Board (ESRB) failed to take appropriate action on his appeal of the NCOER in question. He claims that the NCOER evaluations were in retaliation to his request for a Congressional investigation of members of his chain of command. He comments that an NCOER should be based on counseling done during the rating period and documented events that are reviewed during these counseling sessions. The bullet comments contained in reports should not be subjective and should be based on actual events that were addressed during counseling. He also claims that the NCOER in question is poorly written and should never have left the unit, and that it could have only been processed with the concurrence of someone higher in the chain of command. He indicates that his first issue is that the statement “NCO Refuses to Sign” contained in Part II(c) of the report should have read “NCO Unavailable for Signature” because he was on leave at the time the report was submitted He further states that this timing of the NCOER processing was intentional. In addition, he claims that it is well established that there was only one counseling period during the report period, and that the report ratings could not be justified based on this one counseling sessions where nothing entered into the report was discussed. He also stated that the amended “Thru” date on the report was March 1991, and the bullets in Part IV(d) do not warrant a “Needs Improvement (Some)” rating because there were no facts or documentation to substantiate the comments. He further comments that the bullet comment in Part IV(f) surely does not support a “Needs Improvement (Some)” rating. The only comment supporting this rating was that he arrived back from one medical appointment late, and this minor one time infraction did not justify the rating. He goes on to state that the senior rater (SR) displayed a lack of experience in preparing the NCOER with the ratings he gave in Part V(c,d). He claims that any experienced SR would know that when you make comments such as he did, it is mandatory that supporting documents be provided to support the evaluation. If the SR felt there was a problem as expressed in his comments in Part V(e), he should have addressed them earlier in the rating period. He claims that in a conversation with the SR that took place before the NCOER was completed, the SR indicated to him that he had nothing to do with the evaluation and would not have ordinarily written the comments. However, he can only presume that someone of a higher rank influenced him before the report was submitted. In support of his application, he submits the enclosed expanded statement and a copy of the NCOER in question.

4. The applicant’s military records show that he has served on active duty since July 1984. He currently holds the rank of staff sergeant (SSG) and is now serving at Fort Hood, Texas. In June 2001, he received the NCOER in question.

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5. The applicant’s NCOER history confirms that he was also evaluated as a section sergeant in the two reports he received just prior to the contested NCOER. In these reports, he received Among the Best evaluations from his raters. In addition, he received Successful and Superior evaluations from the SR in Part V (Overall Performance and Potential) of these reports. He also received an NCOER subsequent to the contested report. In Part V (Overall Performance and Potential) of this report, he was rated as Among the Best by his rater, and he received Successful and Superior evaluations from his SR.

6. The contested NCOER is a change of rater report that initially covered the period June 2000 through April 2001, which evaluated the applicant as a SSG serving as a Section Sergeant in a Air Defense Artillery Battery at Fort Hood, Texas. In Part IIIf (counseling dates) the rater, a sergeant first class (SFC), indicated that the applicant had been initially counseled on 30 June 2000 and received later counseling on 22 November 2000.

7. In Part IVb-f the rater gave the applicant two Success ratings and three Needs Improvement (Some) ratings. In Part IVb (Competence) the rater gave the applicant a Needs Improvement (Some) rating. The supporting bullet comments stated that the applicant’s section failed to meet battalion standards during Stinger Table VIII and that the applicant attended class in the Noncommissioned Officers Leaders Course.

8. In Part IVd (Leadership), the rater also rated the applicant as Needs Improvement (Some). The supporting bullet comments stated that the applicant exerted only the minimum amount of initiative needed to complete assigned tasks and that he assigned work but did not follow-up to ensure a finished product.

9. In Part IVf (Responsibility & Accountability), the rater gave the applicant the last Needs Improvement (Some) rating on the contested NCOER. The bullet comments supporting this rating included that the applicant failed to properly report back to work after a medical appointment to supervise his section, and he was a poor example and influence on his subordinates. Finally, in Part Va
(Rater Overall Potential for Promotion and/or Service in Positions or Greater Responsibility), the rater placed the applicant in the Marginal box.

10. In Part Vc (SR-Overall Performance), the SR, a second lieutenant (2LT), placed in the applicant in the 4 (Fair) block. In Part Vd (SR-Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), he placed the applicant in the 3 (Superior) box. In Part Ve the SR provided the following bullet comments in support of his evaluation: “promote when slots become available”; “has potential to excel if motivated”; and “possesses leadership attributes when not concerned about own needs.”

11. On 16 November 2001, the applicant appealed the contested NCOER to the ESRB. His appeal was based on his contentions that the report contained both administrative and substantive inaccuracies, and he requested that the report be deleted. He claimed that the report was administratively incorrect in Parts 1d (Date of Rank), 1h (Thru Date), 1i (Rated Months), IIc (Statement), and Part IIIf (Later Counseling Date). His substantive claims were in regard to the rater ratings and bullet comments contained in Part Vb-f and the SR ratings and comments in Part Vc-e.

12. ESRB officials contacted the rater and SR on the contested report. The SR recalled that the rater gave him the evaluation to sign after the applicant had refused to sign it. He does not recall speaking to the applicant and expressing his discontent with the report. Further, he could not recall if counseling had been actually conducted. The SR indicated that the comment in regard to the applicant’s failure to meet the battalion standard on a Stinger Table VIII and his attendance at the NCO Leaders Course were inaccurate. He recalled that the section did not pass the initial qualification standards; however, after the applicant motivated his squad, they did meet the standard during the rating period.

13. The SR also indicated that the applicant got medical profiles to get out of field duty and training his soldiers. He based this belief on the fact that the applicant was able to play basketball on the unit team, but would get profiles when it was time to prepare for and execute field exercises. The SR also commented on the applicant failing to keep him informed of the logistics status and to ensure his vehicle maintenance was up to standard. Finally, in reference to the bullet comment supporting the Needs Improvement (Some) rating in Part IVf of the report, the SR indicated that although he remembers the applicant’s medical appointment was late in the afternoon and he probably reported back too late, it is his belief that the reason for the bullet comment that the applicant failed to report back to work after an appointment to supervise his section was in fact based on the applicant’s numerous profiles, his reluctance to properly train his soldiers, and his lack of personal responsibility.

14. The rater indicated that the applicant had told him prior to going on leave that he did not want to sign the report. He could not recall specifically when the later counseling took place or why it was not signed. He also argued that the intent of the bullet comment that the section failed to meet battalion standards during Stinger Table VIII, was to document the applicant’s failure to initially meet the standard of 90 percent visualization of aircraft certification.

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15. The rater also commented that he agreed with the SR that the applicant was routinely assigned tasks and did not return to work to ensure completion of the mission. The rater also indicated that prior to deployments, the applicant failed to ensure that his vehicles were up to standard for shipment or convoy, and routinely his vehicles were not up to standard for shipment or convoy. The rater also insisted that the applicant reported back well after duty hours and then only after several voice mail messages were left on his home answering machine. The applicant refused to go on a field exercise because he felt it violated his profile; however, he was still able to play basketball.

16. The ESRB found insufficient evidence to support the applicant’s contention that the statement that he refused to sign the report in Part IIc was a false statement. Further, it found that the applicant’s claim that the Needs Improvement ratings and negative bullet comments in Part IVd and Part IVf were not justified, and also lacked merit. Finally, the ESRB found there was insufficient evidence to support the applicant’s contention that the SR evaluation in Part Vc and d, and the bullet comments that support them in Part Ve were unjustified and untrue.

17. The ESRB did conclude that partial approval of the applicant’s appeal was warranted. It found that Parts Id, Ih, Ii, IIIf, IVb, and IVe of the contested report were inaccurate, unjust, and did not adequately represent the applicant’s performance and potential during the rating period. It recommended that the Enlisted Records and Evaluation Center (EREC) correct the date of rank in Part Id to read 1 March 1994; that the Thru Date in Part Ih be changed to read March 2001, that the rated months in Part Ii be changed to read 10; and finally that the later counseling date contained in Part IIIf be deleted.

18. The ESRB also recommended that the “Needs Improvement (Some)” rating in Part IVb be changed to “Success” and that the bullet comments “Section failed to meet battalion standards during Stinger Table VIII” be deleted and that the bullet comment “Attended to Classed in the Noncommissioned Officers Leaders Course” be changed to read “Attended two classes in the Noncommissioned Officers Leaders Course.” Further, that the following bullet comments in Part IVe be deleted “ Section was unable to deploy for Battalion Renegade Strike certification”; “Would not deploy with section during OPFOR-FTX without meeting with the Division Command Sergeant Major”; and “Has difficulty managing appointments during training of subordinates.”

19. Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) sets the policies and procedures governing the Noncommissioned Officer Evaluation Reporting System (NCOERS). It gives instructions for preparing, processing, submitting DA Form 2166-7 (NCOER), and DA Form 2166-8-1 (NCO Counseling Checklist/Record). It also gives guidance for appealing evaluation reports.
20. Paragraph 2-9 outlines the rater’s responsibility. It states, in pertinent part, that the rater must counsel the rated NCO on his or her duty performance and professional development throughout the rating period and define and discuss the duty description for part III of the NCOER with the rated NCO during these sessions. At a minimum, the rated NCO will be counseled within the first 30 days of each rating period and quarterly (every 3 months) thereafter. The DA Form 2166-8-1 is mandatory for use by the rater when counseling all NCOs.

21. Paragraph 3-2 provides evaluation principles and states, in pertinent part, that rating officials must prepare complete, accurate, and fully considered evaluation reports. This responsibility is vital to the long range success of the Army’s missions. With due regard to the NCO’s grade, experience, and military schooling, evaluations should cover failures as well as achievements. However, evaluations will not normally be based on isolated minor incidents.

22. Paragraph 3-5 states, in pertinent part, that face-to-face performance counseling between the rater and the rated NCO is accomplished in order to improve performance and professionally develop the rated NCO. It is the process by which the rater develops and communicates performance standards to the rated NCO. The goal of performance counseling is to get all NCOs to be successful and meet standards.

23. Paragraph 6-10 provides guidance on the burden of proof necessary to support a successfully appeal of an NCOER. It states, in pertinent part, that in order to support a successful appeal of an NCOER, the applicant must provide clear and convincing evidence of a compelling nature, not merely proof of the possibility of an administrative error or factual inaccuracy. Simply put, if the adjudication authority is convinced that the applicant is correct in some of his/her assertions, the clear and convincing standard has been met.

CONCLUSIONS:

1. The Board notes the applicant’s contention that his NCOER was unjust and was given in reprisal for his initiation of an IG investigation against his chain of command, but it finds insufficient evidence to support this allegation.

2. The Board does find that the evidence of record shows inconsistencies in the rendering and processing of the contested NCOER. It concurs with the ESRB findings that resulted in a partial approval of the applicant’s appeal. It also agrees with the several changes to the contested NCOER directed by the ESRB. However, the Board finds the inconsistencies in the contested NCOER revealed in the ESRB process warrant further corrective action.

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3. By regulation, rating officials must prepare complete, accurate, and fully considered evaluation reports, and evaluations will not normally be based on isolated minor incidents. In this case, the evidence of record clearly shows that inaccurate and incomplete bullet comments were used to support the Needs Improvement (Some) ratings given by the rater. The rater and SR acknowledged to ESRB officials that an incorrect bullet comment was used to support one of the negative ratings, and that a bullet comment used to support another negative rating was not really the basis for that evaluation.

4. In addition, both rating officials were unsure of when counseling was done, and they were not specific as to the nature of any counseling that may have been accomplished during the rating period. In the opinion of the Board, this lack of clarity in the reasons for rendering such poor evaluations, coupled with the rater’s lack of fulfilling his regulatory counseling responsibilities, creates serious doubt as to the validity of the entire report.

5. The applicable regulation also establishes that if the adjudication authority is convinced that the applicant is correct in some of his/her assertions, the clear and convincing regulatory burden of proof standard for a successful appeal has been met. Given the substantiated changes to the report directed by the ESRB, the lack of counseling by the rater, the numerous questions as to the validity of the bullet comments used to support the negative ratings in the contested NCOER, and the appearance that at least one of the negative evaluations may have been based on an isolated incident; the Board concludes that it would be appropriate and in the interest of justice and equity to remove the contested NCOER from the applicant’s record.

6. As a result of the decision to recommend that the NCOER in question be removed from the applicant’s record, the Board also finds that it would be appropriate, once the contested NCOER is removed, for the applicant’s corrected record to placed before a promotion Stand-By Advisory Board (STAB), for promotion reconsideration. STAB reviews should include reconsideration using the criteria used by all sergeant first class promotion selection boards that considered the applicant for promotion while the contested NCOER was on file in his OMPF.

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

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by removing the NCOER with the ending date of March 2001 from the records of the individual concerned; by declaring the period that the period of service covered on the NCOER a nonrated period of service; and by placing his corrected record before a STAB, in order for him to be reconsidered for promotion using the criteria of every sergeant first class promotion selection that considered him for promotion while the contested NCOER was on file in his OMPF.

BOARD VOTE:

___LLS__ __PM___ __DPH__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Luther L. Santiful _
                  CHAIRPERSON

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INDEX

CASE ID	AR2002074799
SUFFIX
RECON
DATE BOARDED	2002/08/06
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 267	123.0700
2.
3.
4.
5.
6.