PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 11 September 2003
         DOCKET NUMBER: AR2003088488

         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. Stanley Kelley		Chairperson
Mr. Christopher J. Prosser		Member
Mr. John T. Meixell		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 a relief for cause Noncommissioned Officer Evaluation Report (NCOER) he received for the period March through December 1996 be removed from his record.

3. The applicant states, in effect, that he believes the NCOER in question to be inaccurate, unjust, and not a true representation of his performance or potential. He claims that on its face, the NCOER in question was in response to an allegation that he made inappropriate remarks to trainees. However, the report was rendered some nine months after the alleged incident, and the procedural and substantive errors in this NCOER render the report untrustworthy. He claims the report violates at least eight different procedural requirements of the NCOER regulation. He also states that the first sergeant (1SG) who directed his relief for cause was not qualified to rate him under the governing regulation because she arrived in the unit after the alleged incident, and she failed to comply with Army relief processing procedures. He also claims that the non-rated codes used on the report were inaccurate and did not reflect the accurate reasons for the
non-rated time.

4. The applicant also claims that the relief for cause NCOER was the unjust result of undue command influence and that there was an extremely prejudicial delay in its processing. He states the report was rendered many months after the alleged incident on which it was based, and two months after he had left the unit. He further states that he never found out about the report, and the extra months it took to process resulted in damaging his ability to respond. He claims that all issues related to the events that resulted in the NCOER in question were resolved in September 1996, months before the report was rendered. He claims this is evidenced by the efforts of his unit leadership to reinstate him as a drill sergeant, and the fact that a relief of cause was never pursued while he remained in the unit.

5. The applicant concludes by stating that he was never shown the NCOER in question by his rater, which makes the report even more prejudicial. He claims that his 1SG, the rater on the contested report, waited until months after he had left the unit to finish the report, which was based on alleged incidents that occurred almost eight months before. The 1SG never informed him of the relief for cause report or gave him the opportunity to respond to or appeal its contents. In support of his application, he provides the enclosed six page self-authored statement that provides his full argument and the basis for his appeal of the contested report.

6. The applicant’s military records show that as of the date of his application, he was still serving on active duty in Korea as a sergeant first class/E-7 (SFC/E-7).

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7. On 2 October 1996, the applicant’s unit commander published a Memorandum, Subject: Reinstatement from Suspension of Drill Sergeant Duties, pertaining to the applicant. It indicated that the applicant had been suspended from Drill Sergeant duty on 26 July 1996, pending investigation for possible improper association with and sexual harassment of soldiers-in-training. It further indicated that the investigation of the issues involved resulted in the battalion commander issuing the applicant a written reprimand. The unit commander stated that it was his belief that this action would serve the purpose to refocus the applicant’s efforts appropriately.

8. On 2 October 1996, the battalion commander recommended approval of the unit commander’s request that the applicant be reinstated to drill sergeant duties. However, on 15 October 1996, the commandant of the Adjutant General (AG) School, a colonel, provided a handwritten endorsement addressed to the Commanding General (CG) of the Soldier Support Institute (SSI), Fort Jackson,
South Carolina, recommending disapproval of the applicant’s reinstatement. He commented that the applicant’s actions were not in keeping with the standards expected of a drill sergeant. The final action by the commanding general on this reinstatement request is not on file. However, subsequent events, to include the relief for cause NCOER, make it clear that the applicant’s reinstatement on drill sergeant duty was disapproved.

9. The contested NCOER is a relief for cause report that covered the period March through December 1996. The applicant was evaluated as a SFC/E-7, Drill Sergeant, serving in an advanced individual training (AIT) company at
Fort Jackson, South Carolina. In Part IIIf (Counseling Dates) the rater, a 1SG, entered an initial counseling date of 30 September 1996, no later counseling dates were entered. The rater and senior rater signed Part II (Authentication) of the report on 14 February 1997. In the rated NCO’s portion of Part II, there is a statement indicating that the applicant refused to sign the report. However, there is an assignment memorandum on file that confirms that the applicant departed the unit on 20 December 1996.

10. In Part IVa (Values/NCO Responsibilities-Rater-Questions) the rater gave a “No” response to Question 5 (Maintains high standard of personal conduct on and off duty) and Question 7 (Supports EO/EEO). The bullet comments provided by the rater to support these entries were that the applicant had “created a perception of unequal treatment toward female soldiers” and that he made “numerous remarks with sexual connotations to female soldiers.”

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11. In Part IVb-f the rater gave the applicant two “Success” ratings, two “Needs Improvement (Much)” ratings, and one “Needs Improvement (Some)”. The Needs Improvement-Some rating was contained in Part IVb (Competence). The supporting bullet comment was that he “showed poor judgment in training soldiers”. The first “Needs Improvement (Much)” rating was given in Part IVd (Leadership), and the supporting bullet comment was that he “addressed female trainees as if they were sexual objects.” The second “Needs Improvement (Much)” rating was in Part IVf (Responsibility and Accountability), and the supporting bullet comments were that “the rated NCO has been notified of the reason for the relief” and that he “made it very uncomfortable for female trainees to learn.”

12. The senior rater placed the applicant in the 5 block (Poor) in Part Vc (Senior Rater-Overall Performance) and in the 4 block (Fair) in Part Vd (Senior Rater-Overall Potential. His supporting bullet comments were “do not promote at this time”, the applicant “did not demonstrate leadership and judgment required for a senior NCO”, and “is technically competent.” Further, there is no evidence to show that a commander’s inquiry was requested or accomplished within
120 days of the evaluation report being rendered, as is required by regulation.

13. On 6 April 1998, the applicant was notified by the Enlisted Records and Evaluation Center (EREC) that he had been barred from reenlistment by Department of the Army (DA) under the provisions of the Qualitative Management Program (QMP). This notification also informed the applicant that the QMP action was the result of a determination made by the 1998 master sergeant promotion board, subsequent to their comprehensive review of his file.

14. Enclosed with the EREC QMP notification was an enclosure that identified the documents that were the basis for the applicant’s QMP selection. The list contained only the contested relief for cause NCOER in question. The applicant appealed the QMP action, and submitted the same packet he now provides to this Board in support of this appeal.

15. On 31 March 1999, EREC notified the applicant that his QMP appeal had been considered and approved by a Department of the Army (DA) Stand-By Advisory Board (STAB).

16. On 24 June 2002, in a reply to a Congressional inquiry, the commander of EREC notified the interested Member of Congress that the applicant had been barred from reenlistment by DA under the provisions of the QMP program based on the relief for cause report in question. He further indicated that the applicant’s appeal of the QMP action was successful, and the applicant had been retained on active duty.

17. In his Congressional inquiry response, the EREC commander also pointed out that the applicant’s appeal of the NCOER was included in his QMP appeal packet that was approved. However, the NCOER appeal was not submitted to the Enlisted Special Review Board (ESRB) under a separate cover; therefore, the ESRB never adjudicated his NCOER appeal. Further, because substantive NCOER appeals must be submitted within five years of the completion date of the evaluation report, no administrative remedies were still available to the applicant through the Army redress system. The applicant was advised to apply to this Board if he still believed that the NCOER in question was inaccurate, unjust, and not a true representation of his performance or potential.

18. EREC’s QMP policy since 1990, when they assumed responsibility for the program, has been that documents used in a QMP that had been successfully appealed may not serve as the basis for future QMP selection. The names of all members identified for QMP by a Centralized Board are screened against previous QMP files and those members who had been identified for QMP based on the same documents that they had successfully appealed based on an earlier QMP selection are removed from the QMP list. In addition, those members identified for QMP based on additional document(s) not previously identified or appealed in an earlier QMP process remain on the QMP list but only based on the new or additional document(s). In addition, they are only required to address or appeal the new additional document(s).

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 of the NCOER regulation 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.

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21. Paragraph 3-2 of the NCOER regulation 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 3-32 provides guidance on submitting Relief for Cause NCOERs. It states in pertinent part, that a report is required when an NCO is relieved for cause regardless of the rating period involved. Relief-for-cause is defined as the removal of an NCO from a ratable assignment based on a decision by a member of the NCO's chain of command or supervisory chain. A relief-for-cause occurs when the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army. If, for whatever reasons, the relief does not occur on the date the NCO is removed from his or her duty position or responsibilities, the suspended period of time between the removal and the relief will be nonrated time included in the period of the relief report. The published rating chain at the time of the relief will render the report; no other report will be due during this nonrated period. When an NCO is suspended from duties pending investigation, every effort should be made to retain the established rating chain until the investigation is resolved.

23. The NCOER regulation further stipulates that the following specific instructions apply to completing a relief report: (1) The rating official directing the relief will clearly explain the reason for relief in part IV, if the relieving official is the rater; if the relieving official is the senior rater, in part Ve; (2) If the relief is directed by an official other than the rater or senior rater, the official directing the relief will describe the reasons for the relief in an enclosure (not to exceed one page) to the report; and (3) Regardless of who directs the relief, the rater will enter the bullet, "The rated NCO has been notified of the reason for the relief" in part IVf.

24. Paragraph 3-32c(4) of the NCOER regulation establishes the minimum rater and senior rater qualification and minimum rating period for relief for cause reports as 30 rated days. The fundamental purpose of this restriction is to allow the rated NCO a sufficient period to react to performance counseling during each rating period.

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25. The regulation further stipulates that the authority to waive the 30-day minimum rating period and rater and senior rater qualification period in cases of misconduct is granted to a general officer in the chain of command or an officer having general courts-martial jurisdiction over the relieved NCO. It also specifies that the waiver approval will be in memorandum format and attached as an enclosure to the report; the date of relief determines the "THRU" date of the report, and relief reports may be signed at anytime during the closing or following month of the report.

26. 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 the relief for cause report in question contains many substantive errors, which render it flawed and incompatible with the rules contained in the governing regulation, and it finds this claim has merit.

2. Although the Board does not agree with the applicant’s assertions that the rater on the contested report lacked the necessary qualifications to rate him, or with all the violations of the NCOER he claims took place, it does find there are many unresolved questions in regard to the propriety and timeliness of the processing of the contested report that place its validity in question.

3. The evidence of record confirms that on 2 October 1996, subsequent to the completion of the investigation into the incidents for which the applicant was ultimately relieved of his duties, both his company and battalion commanders indicated that appropriate administrative action had been taken, and recommended his reinstatement on drill sergeant duty.

4. However, on 15 October 1996, in a handwritten endorsement addressed to the CG, SSI, the AG school commandant recommended disapproval of the reinstatement request submitted by the applicant’s unit commander and supported by his battalion commander. Although the SSI CG’s final action on this request is not on file, it is obvious from subsequent events, to include the relief for cause NCOER, that this reinstatement request was ultimately denied.

5. There is no evidence to show that any action to initiate the relief for cause report was taken in October 1996, when the applicant’s reinstatement to drill sergeant duty was denied. In fact, the record shows that period of the contested report did not end until December 1996, over two months later. Further, the report was not completed until 14 February 1997, almost two months after the applicant departed the unit and a month and half after the ending period.

6. In the opinion of the Board, it is clear that there was no intent on the part of rating officials to render the relief for cause report in question when the investigation on the applicant was completed. Rather, their intent was to reinstate the applicant on drill sergeant duty after taking appropriate administrative action.

7. Lacking any documented formal action by members of the chain of command above the rating chain to officially direct the relief of the applicant, which under the provisions of the governing regulation would have required that official to submit an enclosure to the report with a description of the reasons for the relief; and/or an explanation for why the report was ultimately rendered so long after the completion of the investigation into the events on which it was based, the Board finds sufficient questions of propriety in the rendering of the NCOER in question to call its overall validity into question.

8. The Board also takes special note of the fact that a properly constituted DA STAB approved the applicant’s QMP appeal, which was solely based on the contested report. The STAB approved the removal of the DA imposed bar to reenlistment on the applicant, which under EREC policy renders the contested report invalid for future QMP use.

9. In view of the facts outlined above, the Board finds the clear and convincing evidence regulatory test for a successful NCOER appeal has been met in this case. Therefore, the Board concludes that it would serve the interest of equity and justice to remove the relief for cause report in question from the applicant’s record at this time.

10. 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 December 1996 from the records of the individual concerned; by declaring 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 master sergeant promotion selection that considered him for promotion while the contested NCOER was on file in his OMPF.

BOARD VOTE:

__JM__ __SK__ __CP__ GRANT AS STATED IN RECOMMENDATION

________ ________ ___ GRANT FORMAL HEARING

________ ________ ___ DENY APPLICATION




                 
                  Stanley Kelley
         CHAIRPERSON

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INDEX

CASE ID	AR2003088488
SUFFIX
RECON
DATE BOARDED	2003/06/DD
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 193	111.0000
2.
3.
4.
5.
6.