MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 June 2003
         DOCKET NUMBER: AR2003084388

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Jennifer L. Prater		Member
Mr. Paul M. Smith		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: The removal of a noncommissioned officer evaluation report (NCOER) from his Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that the NCOER covering the period from October 1998 through July 1999 should be removed from his OMPF because the rater of the report was not his designated rater and did not meet the minimum qualifications to rate him. In support of his application he submits statements from his rating chain and copies of the published rating scheme.

COUNSEL CONTENDS: In effect, that the Enlisted Special Review Board (ESRB) unjustly denied the applicant's appeal of the NCOER and has allowed the injustice to continue by allowing an NCOER written by a person not authorized to do so to remain in his records. He further states that the ESRB misinterpreted the evidence of record and discounted credible evidence from the applicant's rating chain.

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

He enlisted on 27 April 1983 for a period of 4 years and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-6 on 1 September 1995, in the military occupational specialty of an administrative specialist (71L).

On 30 August 1999, while assigned to a Drill Sergeant School, he received a change of rater NCOER covering the period from October 1998 through July 1999. In part IVb through f, the rater (a sergeant first class) gave him an "Excellence" rating under training and "Success" ratings in the remaining four areas. He rated the applicant's overall potential for promotion as "Fully Capable." His senior rater (SR), a first sergeant, rated the applicant's overall performance as a two-block, Successful and his overall potential for promotion as a two-block Superior. A one-block in both areas is the highest rating that can be achieved. The NCOER also indicates that counseling occurred on four occasions during the period of September 1998 through 21 June 1999.

The applicant was reassigned to another unit on the same installation and remained there until he was transferred to Korea in October 2000. In March 2001, he submitted a memorandum to the Enlisted Records and Evaluation Center (EREC) requesting that the contested NCOER be removed from his OMPF because the rater who rendered the report was not his rater under the published rating scheme. He also stated that he was told to sign the report or it would go forward without his signature and he did not know that he was verifying that the rating chain was correct. The EREC returned the memorandum informing him that he must submit his appeal in accordance with the appeal procedures outlined in Army Regulation 623-205 and provide substantiating documents to support his appeal. He resubmitted his appeal in August 2001 and departed Korea in October 2001 for assignment back to his former installation.

The applicant's appeal was forwarded to the ESRB and was received by the ESRB on 4 September 2001. At the time of his appeal, he was a three-time non-select for promotion to the pay grade of E-7. In the processing of the appeal the ESRB contacted the rating officials of the contested report.

The rater indicated that he remembered the applicant and still had a copy of the report. He also stated that he did not recall seeing a posted rating scheme, but was sure, despite the fact that the applicant had changed platoons a couple of times, that he was the applicant's rater at the time.

The SR indicated that the applicant had changed platoons a couple of times and could have been rated by the wrong platoon sergeant. He indicated that the school had a problem in that area before a new commandant came in and fixed the problem. When he was informed of the rating chain that rated the applicant, the SR agreed that the proper noncommissioned officer (NCO) did not rate the applicant and that the report should be thrown out.

The rating schemes submitted by the applicant with his appeal consists of a draft copy of a rating scheme dated 14 January 1999, which indicates that the NCO who the applicant says was his rater was marked out and the NCO who rendered the contested report was written in. He also submits a finalized rating scheme which is also dated 14 January 1999, which shows the original NCO listed as the applicant's rater. On 18 June 1999, a new rating scheme was published which shows the NCO who rendered the contested NCOER as the applicant's rater.

The applicant submitted a statement from his SR who again reiterated that the report should be removed because the applicant did not serve under his rater for the minimum time required to render a rating.

The school commandant who was retired, rendered a statement in support of the applicant's appeal in which he indicated that it was an honest mistake that the NCO who rated the applicant did so; however, the other NCO should have rated the applicant.

The NCO who the applicant says was his rater gave him a letter of support in which he indicates that while the senior drill sergeants discussed changing the rating scheme, the commandant did not approve the change until 18 June 1999; therefore, the rater did not have the minimum time to rate the applicant.



The ESRB was not sufficiently convinced that the NCOER was inaccurate or unjust or that it did not adequately reflect the applicant's performance and potential during the rated period. The ESRB denied his appeal on 28 January 2002.

A review of the applicant's NCOER history shows that the ratings on the contested NCOER are consistent with his other reports.

Army Regulation 601-280 prescribes the Total Army Retention Program and establishes retention control points for enlisted personnel. It provides, in pertinent part, that personnel serving in the pay grade of E-6, who are not on a promotion list, may serve only 20 years of total active service and must separate no later than 29 days after reaching 20 years.

Army Regulation 623-205, sets forth the policies and procedures for the Enlisted Evaluation Reporting System. Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.

Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

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. Although the applicant has shown that the rater on the contested NCOER was not his designated rater on the finalized rating scheme in January 1999, that NCO was designated as his rater on the draft copy of the rating scheme and the subsequent rating scheme. This in itself indicates that someone had made a decision that the NCO would rate the applicant.

2. The Board is also aware that changes occur in rating chains before and after new rating schemes are published/updated and that such actions have little or no effect on the rated soldiers performance and/or potential. As long as a soldier knows who their rating chain is and receives a fair and impartial rating, the absence of an up-to-date rating scheme becomes a harmless error.

3. In the applicant's case, not only did the rating chain at the time believe that the NCO who rated the applicant was his proper rater, the applicant also signed the report attesting to its validity. Furthermore, he remained at the installation for another year without appealing the report, where the information and individuals involved were most readily available.

4. The Board also finds it unusual for an NCO with 16 years of service at the time and an administrative background not to be familiar with the procedures involved with evaluation reports or that he would sign a report knowing that the individual who rated him was not his rater. It is also unusual that the NCO who now says that he was the applicant's rater did nothing at the time to resolve the error. If he was in fact the applicant's rater, he would have known that the applicant was departing the unit and that he was responsible for rendering a report.

5. Therefore, the Board finds it reasonable to believe that the NCO who rated the applicant was in fact his rater and that everyone involved at the time, to include the applicant, knew this. While on the surface it appears otherwise in black and white because the rating scheme indicates otherwise, the Board is not convinced that he was not rated by the proper officials.

6. Furthermore, the applicant has made no contentions regarding the ratings he received. He has provided no evidence to show that the evaluation of his performance and/or potential was inaccurate or unjust. Additionally, the ratings he received appear to be consistent with his evaluations both before and subsequent to the contested report.

7. The Board can find no explanation why the rater would render a report on someone that did not work for him or why the applicant allowed the report to be authenticated. He has provided no evidence to show that he surfaced the issued at the time or that he refused to authenticate the report. Therefore, it must be presumed that he did in fact believe that the rating NCO was his rater.

8. Accordingly, the Board finds that although his rater was not designated properly at the time on the published rating scheme, he was rated by the NCO he knew was designated to be his rater and that he was properly rated.

9. 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

__jhl____ __jlp ____ __pms___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084388
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/06/03
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 215	111.0200/INELIG RATER
2.
3.
4.
5.
6.