MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 30 JANUARY 2003
         DOCKET NUMBER: AR2002077730

         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Christopher J. Prosser		Member
Ms. Yalonda Maldonado		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 the NCO Evaluation Report (NCOER) for the period September 1998 through August 1999 be expunged from his official military personnel files (OMPF).

In a 28 August 2002 letter and a follow-on 22 October 2002 letter to this Board, the applicant requested a detailed listing of all evidence considered by this Board with reference to his previous May 2002 application. He also requested whether an opinion by the Ninth Circuit Court was considered by the Board.

APPLICANT STATES: That based on his previous application to this Board in May 2002 and the records submitted thereof, the NCOER reflected the prejudices and injustices of members of his command and his rating officials. Mandatory counseling was not provided. He states that the report is unfair and inaccurate. He makes reference to a previous application in which he has requested removal of a previous NCOER from his OMPF. That application was acted upon by this Board on 25 July 2002.

He states that during the rating period command members were unduly influenced by the Chief of Staff and members of the Staff Judge Advocate [office], who created an atmosphere of intimidation and fear. Members of the chain of command did not adhere to the provisions of the NCOER regulation. Counseling was not conducted in accordance with the regulation.

He states that the Assistant Chief of Staff, G-4 (AcofS, G4) informed him in September 1998 that he would no longer conduct any official business within the command’s food service activities and operations. That official did not give him a reason. Although the action could be considered a relief for cause, he was not provided a relief for cause NCOER.

During the one year period of the report rating officials were derelict in fairly evaluating him because of the lack of official counseling.

When he received the report, he noted that the reason for submission was indicated as “Change of Rater.” He was not aware of a change of rater occurrence, nor provided a copy of a change in a rating scheme.

In October 1997 he requested a commander’s inquiry be conducted into the NCOER, stating that the senior rater failed to comply with the regulation, and unfairly dismissed him from his official duties. The officer who conducted the commander’s inquiry found no improprieties; however, the regulatory provisions concerning the conduct of the commander’s inquiry were not followed.

Prior to being involuntary coerced into retirement and subsequent to his retirement, he attempted to obtain a copy of the inquiry. He finally received a copy of the original inquiry.
He was not provided information about a change in the rating scheme and he did not receive performance counseling. The report is unfair and prejudicial.

EVIDENCE OF RECORD: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's consideration of his case on 25 July 2002 (AR2002069213). That Board denied his request to remove a previous NCOER from his OMPF, and to set aside and remove a record of nonjudicial punishment; remove a memorandum of reprimand, a bar to reenlistment, and all references and statements that he engaged in larceny. The Board denied his other requests, e.g., constructive credit for 30 years retirement, back pay and allowances, new separation document, etc. In making its decision, that Board considered a voluminous amount of documents, which included 15 tabbed documents, numerous other statements and documents, followed by 34 more enclosures (tabbed documents). His OMPF was available to the Board.

The previous case shows that the applicant, then the 25^th Infantry Division food service sergeant major, in accordance with a plea agreement, agreed to accept nonjudicial punishment for multiple incidents of larceny and to submit his request for retirement. In return, the government agreed to withdraw all charges against him upon imposition of the nonjudicial punishment and to return all seized property.

The NCOER for the period July 1997 through August 1998, which he appealed in his May 2002 request to this Board, shows that his rater, a chief warrant officer, considered him among the best in overall potential for promotion and/or service in positions of greater responsibility. His senior rater did not rate him because he did not meet the minimum qualifications to do so. His reviewer, the division chief of staff, nonconcurred with the rating evaluation, stating that the applicant was stealing merchandise from the Army and Air Force Exchange and the Navy Exchange during the rating period. He stated that the applicant had no potential for further service in the Army.

The applicant retired from the Army on 31 January 2000. He had 28 years, 9 months, and 1 day of service.

The NCOER which he is appealing in this application to the Board, shows that his principal duty title was, “Food Service Sergeant Major,” whose duties included, “advises the Division Food Service Technician on the full scope of food service operations to include installation food service operations and field mess operations;…” His rater was the same rater as on his previous report ending in August 1998. His senior rater and reviewer were not the same as on his previous report.

The report was for a 12 month period ending in August 1999 and was deemed a change of rater report. His rater indicated in Part IV of the report that the applicant possessed all the values and responsibilities of an NCO. He stated that the applicant met the standards with regard to competence, leadership, training, and responsibility and accountability, and that he exceeded the standards in the area of physical fitness and military bearing. He stated that the applicant was fully capable. He was not rated by his senior rater because that official did not meet the minimum rating qualifications. That report indicated that the applicant did not receive the required counseling due to job role conflicts. The reviewer concurred in the evaluation. The applicant refused to sign the report.

In a 20 August 1999 memorandum the applicant’s rater stated that he did not conduct any counseling sessions with the applicant. He stated that the former AcofS, G4 informed the applicant that he would no longer conduct any official business with the command’s food service activities and operations. That officer stated that he and the former Deputy G4 were present when the applicant was so informed. That officer also stated that the AcofS, G4 did not specify to the applicant what his official duties would be, nor did he provide any guidance to himself (the applicant’s rater). He stated that the new division food service sergeant major had already assumed the duty position, and that the applicant maintained a separate office within the work area, that he was present on a daily basis, and that he maintained his own schedule. He stated that he was available for consultation if needed. He stated that the duty description on his NCOER reflected his interpretation of his daily duties; however, neither he or his previous senior rater informed the applicant of his official duty description.

On 7 October 1999 the applicant requested a commander’s inquiry into the NCOER, stating among other things, that no quarterly or other peformance counseling was provided and that his rater was unclear concerning his job description. He stated that in the absence of a clear job description, rating scheme, and performance counseling, there could not be a fair and unbiased assessment of his performance.

On 6 December 1999 a major was appointed to conduct a commander’s inquiry. On 12 January 2000 that officer found that there was no documentation of counseling between the applicant and his rater; that the applicant did not receive an initial face to face interview with his rater; and that no documentation was available to support an assessment of the applicant’s performance during the rating period. He did state, however, that based on the information provided, the report was clear, factual, and prepared in accordance with the regulation; and that the statements made on the report were honest and supportive, especially due to the relationship between all involved.


Army Regulation 623-205 prescribes the policies and procedures governing the NCOER system. It states that a report will be submitted when the designated rater is changed as long as the minimum rater qualifications are met. An annual report will not be submitted when the provisions of the change of rater report apply. That regulation provides for face-to-face performance counseling within the first 30 days of the rating period and additional counseling conducted quarterly thereafter.

The duty description is essential to performance counseling and evaluation. It is used during the first counseling session to tell the rated NCO what the duties are and what needs to be emphasized.

That regulation states that a relief-for-cause is defined as the removal of a NCO from a ratable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain that the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the Army.

When it is brought to the attention of commanders that a report may be illegal, unjust, or otherwise in violation of the regulation, they will look into the allegation. These matters may be brought to the commander’s attention by the rated NCO. The commander’s inquiry will be made by a commander (major or above in the chain of command above the designated rating officials involved in the allegations). The commander may also appoint an officer, senior to the designated rating officials involved in the allegations, to make the inquiry.

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. Personnel in the applicant’s chain of command did not adhere to the evaluation report regulation during the applicant’s rating period. Counseling was not provided. He was not advised of his specific duties. However, in spite of his actions during the previous rating period, he was not relieved for cause; consequently, a relief for cause NCOER was not prepared, nor required.

2. The results of the commander’s inquiry, although conducted by a major, junior in rank to his senior rater and reviewer, appears to have been a fair inquiry into the circumstances concerning the evaluation report. Nevertheless, the conclusion reached by the investigating officer that no regulatory violations existed is untrue – as depicted above, counseling did not take place and the applicant was not informed of his duties.

3. Nonetheless, and notwithstanding the applicant’s contentions, and despite the lack of counseling, there is no evidence and the applicant has not provided any, to show that the report is unfair and unjust. To the contrary, his rater indicated that the applicant was a fully capable NCO who possessed all the values and responsibilities of an NCO as shown in Part IVa through IVf of that report. Those values include being honest and truthful in word and deed, maintaining high standards of personal conduct on and off duty, etc. There is no evidence that this report reflected any prejudices or injustices on the part of any members of his command or his rating officials. The applicant’s senior rater acknowledged that the applicant did not receive the required counseling; however, this discrepancy did not cause the report to be unfair, unjust, or prejudicial to the applicant. His request to expunge the report from his OMPF is not granted.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

5. 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 that requirement.

6. 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

__WTM__ __CJP __ __YM___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077730
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030130
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	134.00
2.
3.
4.
5.
6.