RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 February 2004
         DOCKET NUMBER: AR2003089417


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Curtis L. Greenway		Member
Ms. Regan K. Smith		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that her noncommissioned officer evaluation report (NCOER) for the period December 1996 – August 1997 be expunged from her Official Military Personnel File (OMPF) and that her records be sent to a Standby Advisory Board (STAB) for promotion reconsideration to Sergeant First Class, E-7.

2. The applicant states there was an error or injustice in the adjudication of her NCOER appeal.

3. The applicant provides a letter of support dated 12 November 2002; her NCOER appeal dated 16 September 1998 with four letters of support (dated 30 March 1998, 15 May 1998, 22 January 1999, and one undated) and the U. S. Army Enlisted Records and Evaluation Center's (USAEREC) 31 March 2000 memorandum denying her appeal; three versions of her NCOER for the period ending August 1997; two DA Forms 2166-7-1 (NCO Counseling Checklist/Record), one for initial counseling and one for intermediate counseling; a request for a Commander's Inquiry dated 23 October 1997 with a 1st endorsement dated 10 December 1997; results of a commander's inquiry dated 16 January 1998; a memorandum from the Deputy Commander, U. S. Army Element, SHAPE (Supreme Headquarters Allied Powers Europe) dated 8 April 1998; a memorandum from the U. S. Total Army Personnel Command dated 14 April 1998; and a memorandum from the reviewer of the contested NCOER dated 29 April 1998.

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the Regular Army on 21 October 1986. She was promoted to Sergeant, E-5 on 1 September 1990.

2. The contested NCOER is an 8-rated month change of rater report for the period December 1996 – August 1997. Her principal duty title was SIDPERS (Standard Installation/Division Personnel System) Clerk. The rater was the Assistant Personnel Sergeant; the senior rater (SR) the Personnel Sergeant; and the reviewer the Battalion Commander.

3. The applicant provides three versions of this contested NCOER. One version was signed by the applicant and all rating officials on 30 September 1997. The rater gave her one "excellence" and four "success" ratings in the five areas of NCO responsibilities, with commensurate narrative comments, and a "fully capable" overall potential rating.

4. On the 30 September 1997 version of the contested NCOER, the SR rated the applicant's overall performance as "successful 2" (out of possible ratings of "successful 1, 2, or 3," "fair 4," or "poor 5") in Part Vc. He rated her overall potential as "superior 3" (out of possible ratings of "superior 1, 2, or 3," "fair 4," or "poor 5") in Part Vd. He made two narrative bullet comments, "has the ability to grow" and "groom at level in Military Personnel Division Arena." The reviewer indicated that he concurred with the rater and SR evaluations.

5. On 23 October 1997, the applicant requested a Commander's Inquiry. She stated, in part, that her rater had recently received an NCOER that was a direct reflection of the work she (the applicant) accomplished for the past 7 months. She also stated she felt her overall rating of performance and potential were entirely based on the SR's personal feelings toward her and not on her actual performance.

6. By memorandum dated 16 January 1998, the Deputy Commander, U. S. Army Element SHAPE informed the applicant that he performed a Commander's Inquiry and as a result the NCOER in question was returned to the rating chain to be reassessed. He stated in his memorandum that, after reviewing the new NCOER, he was satisfied that it met all the necessary requirements of the regulation. Although the applicant might not agree with the rating, it was correct and just in the view of the rating chain.

7. The applicant provides another version of the contested NCOER which was signed by the applicant and all rating officials on 21 January 1998. The rater's ratings and narrative comments were not changed. On this version of the contested NCOER, the SR also rated her overall performance as "successful 2" and her overall potential as "superior 3." He almost completely rewrote the narrative bullet comments, now stating, "soldier needs close supervision;" "resend to BNCOC for refresher common core training;" promote only if allocation available;" "has the ability to grow if soldier applies herself;" and "groom at level in Military Personnel Division Arena." The reviewer indicated that he concurred with the rater and SR evaluations.

8. Another Commander's Inquiry may have been requested and conducted. An 8 April 1998 memorandum from the Deputy Commander, U. S. Army Element SHAPE, subject: Commander's Inquiry Pertaining to NCOER on (applicant) for the Period of 9612 – 9708, returned the NCOER for further review and action by the rating chain. It was noted that the SR's comments did not match the numerical performance and potential ratings.

9. The applicant provides a third version of the contested NCOER which also indicates the applicant and the rating officials signed it on 21 January 1998. The rater's ratings and narrative comments were not changed. On this version of the contested NCOER, the SR lowered her overall performance rating to "fair 4" and her overall potential remained at "superior 3." He modified his narrative bullet comments to delete the comment, "resend to BNCOC for refresher common core training" and to add the comment "performed at junior enlisted level."

10. The reviewer indicated on this version of the contested NCOER that he did not concur with the rater and SR evaluations. He provided an enclosure with the NCOER to indicate that he did not concur with the SR's evaluation of the applicant. He indicated, in part, that he considered proper narrative bullet comments would be, "Performed well at junior enlisted level;" Soldier requires minimum supervision;" and "With proper mentorship, has the ability to grow technically." He also indicated that the proper overall performance and potential ratings would both be "3."

11. The third version of the contested NCOER, with the reviewer's nonconcurrence statement, is filed in the applicant's OMPF.

12. On 14 April 1998, the U. S. Total Army Personnel Command noted that the Commander's Inquiry was able to rectify inconsistencies by the rating chain and that no additional inconsistencies or errors were found. No further action regarding the matter was required. The applicant still had recourse to the appeals process.

13. On 16 September 1998, the applicant appealed the contested NCOER. She contended that she received three different reports for the period December 1996 – August 1997 with varying comments by the SR. She noted that the rater's and SR's comments were inconsistent and that she requested a Commander's Inquiry. The inquiry resulted in a second NCOER but the rater and SR comments were again inconsistent. When she received the second report, she requested another Commander's Inquiry, which determined there were discrepancies between the rater and the SR that needed to be addressed by the reviewer. Her NCOER was changed again; however, that time her evaluation was lowered.

14. On 1 December 1998, the applicant was promoted to Staff Sergeant, E-6.

15. On 31 March 2000, USAEREC informed the applicant that the Department of the Army Enlisted Special Review Board (ESRB) and that Center determined that the evidence did not justify altering or withdrawing the NCOER.

16. The ESRB contacted the SR of the contested NCOER. The SR informed the ESRB that the NCOER resulted from the applicant's decline in performance of her duty over the rating period. He informed the ESRB that the applicant had been counseled about his concern for her performance. He informed the ESRB that altogether five draft reports were completed. The original ratings in Parts Vc and Vd were "fair 4." He confided that his assessments were not lowered, as the applicant claimed. Rather, in fact, Part Vd was raised from "fair 4" to "superior 3." The SR could not explain how the draft reports were forwarded to the personnel services battalion and processed while the Commander's Inquiries were still ongoing. The SR emphatically stated that his ratings were not lowered after the second Commander's Inquiry was completed, as to do so would violate the regulation. He further stated that the ratings and comments he rendered were a fair, just, and accurate evaluation of the applicant's demonstrated duty performance and potential during the rating period.

17. The ESRB stated that the applicant noted she had received three different "draft" (quotation marks in the original) NCOERs with varying SR comments and evaluations and that her evaluation was changed and the rating lowered after the second Commander's Inquiry. Rating officials did reconsider the rating they rendered after the Commander's guidance. Further, USAEREC returned the NCOER for unspecified administrative corrections. In accordance with regulatory guidance, rating officials do have the option to change comments and ratings on a soldier until the report is forwarded to Headquarters, Department of the Army for inclusion in his/her OMPF. The ESRB also noted that the SR recalled that he prepared five draft reports and the original ratings in Parts Vc and Vd were both "fair 4." His ratings were in fact later raised. The ESRB could only substantiate that the applicant provided two "draft" NCOERs and the SR stated there were actually five reports prepared, the last of which was the contested NCOER.

18. The applicant was first in the primary zone for promotion consideration to Sergeant First Class, E-7 with the calendar year 2002 promotion board.

19. Army Regulation 623-205 establishes the policies and procedures for the NCOER system. Paragraph 2-15 of the version in effect at the time states that when it is brought to the attention of commanders that a report rendered by one of their subordinates or by a member of one of their subordinate commands may be illegal, unjust, or otherwise in violation of the regulation, they will look into the allegation. The Commander’s Inquiry will be made by a commander (major or above) in the chain of command above the designated rating official(s) 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. The primary purpose of the Commander’s Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated NCO and to correct errors before they become a matter of permanent record. The Commander’s Inquiry procedures will not be used to document differences of opinion between rating officials (or between the commander and rating officials) about an NCO’s performance and potential. If the commander finds that an error, illegality, injustice, or violation of the regulation has occurred and the report has not been forwarded for filing, the report with the inquiry results will be returned to the reviewer. The commander will ask that the report be corrected to account for matters revealed in the inquiry; however, rating officials cannot lower their evaluation as a result of the inquiry. If the report has already been forwarded for filing, the results of the Commander’s Inquiry will also be forwarded in a format that can be filed with the report for clarification purposes.

20. Army Regulation 635-205, paragraph 3-8 of the version in effect at the time states that it is the SR’s responsibility to obtain the rated NCO’s signature on the NCOER. The SR will ensure that the rated NCO is aware that his or her signature does not constitute agreement or disagreement with the evaluations of the rater and SR. The rated NCO’s signature means that he or she has seen the completed (emphasis added) report (except Parts IId and IIe) and verifies that the administrative data is correct, the rating officials are proper, and the duty description is accurate to include the counseling dates. Paragraph 6-10 states that the rated NCO’s signature verifies that he or she has seen the completed (emphasis added) report; the administrative data is correct, the rating officials are proper, the duty description is accurate to include the counseling dates, and the Army Physical Fitness Test (APFT) and height/weight entries are correct.

21. Army Regulation 635-205, paragraph 3-10 of the version in effect at the time, states that the reviewer is responsible for rating safeguard overwatch. He or she may comment only when in disagreement with the rater and/or SR. When the reviewer determines that the rater and/or SR have not evaluated the rated NCO in a clear, consistent or just manner per known facts, the reviewer's first responsibility is to consult with one or both rating officials to determine the basis for the apparent discrepancy. If the rater and/or SR do not acknowledge a discrepancy and indicate that the evaluation is their honest opinion, the reviewer checks the nonconcur box and adds an enclosure that clarifies the situation and renders his or her opinion as to the proper manner of performance and potential.

22. Army Regulation 635-205, paragraph 4-2 of the version in effect at the time states that an NCOER accepted for inclusion in an NCO’s OMPF 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. Paragraph 4-7 of that regulation states that the burden of proof in an NCOER appeal 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.

23. Army Regulation 600-8-19 prescribes the policies and procedures for promotion of enlisted personnel on active duty. This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s nonselection by a promotion board and that, had such error been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

DISCUSSION AND CONCLUSIONS:

1. The ESRB's contention, based upon their conversation with the applicant's SR, that five "draft" NCOERs were prepared before the final contested NCOER was prepared, is noted. It is also noted that rating officials may change their ratings or evaluations at any time prior to forwarding the report to Headquarters, Department of the Army.

2. The applicant disputed the rater's portion of the contested NCOER in her request for a Commander's Inquiry; however, there is insufficient evidence to show that the ratings and comments given were not the considered opinion of the rater.

3. The applicant's primary area of dispute on the contested NCOER appears to be with the SR's rating and evaluation. The first "draft" NCOER available is dated 30 September 1997. On this "draft", the SR rated the applicant's overall performance as "successful 2" and her overall potential as "superior 3." He made two relatively neutral narrative bullet comments, "has the ability to grow" and "groom at level in Military Personnel Division Arena."

4. The applicant requested a Commander's Inquiry regarding the contested NCOER. It appears that as a result of this Commander's Inquiry, a second version of the NCOER, signed by the applicant and all rating officials on 21 January 1998, was prepared and the SR's narrative bullet comments were changed. Two negative comments were added ("soldier needs close supervision" and "resend to BNCOC for refresher common core training); one comment was amended to make it negative ("has the ability to grow if soldier applies herself"); an additional neutral comment was added ("promote only if allocation available"); and one comment remained the same ("groom at level in Military Personnel Division Arena").

5. The SR told the ESRB that five "draft" NCOERs were prepared prior to the final NCOER being forwarded. However, there is a strong perception that, contrary to regulation, the SR in fact lowered his evaluation on the contested NCOER as a result of the Commander's Inquiry. The applicant signed the NCOER on 30 September 1997. Her signature meant that she saw the completed report. It is not reasonable to believe that she would have requested, or the commander would have approved conducting, a Commander's Inquiry based on a "draft" NCOER.

6. It appears the applicant requested a second Commander's Inquiry on the changed NCOER. On 8 April 1998, the Deputy Commander, U. S. Army Element SHAPE noted that the SR's comments did not match his numerical ratings and returned the NCOER for further review and action.

7. The SR again changed his narrative comments to delete one negative comment ("resend to BNCOC for refresher common core training") and to add one neutral comment ("performed at junior enlisted level"). Yet at the same time he lowered the applicant's overall performance rating from "successful 3" to "fair 4." Again, the applicant signed this NCOER on 21 January 1998. Her signature meant that she saw the completed report. Again, it is not reasonable to believe that she would have requested, or the commander would have approved conducting, a Commander's Inquiry based on a "draft" NCOER.

8. While there is no clear evidence that an error was made in the preparation of the contested NCOER or that an injustice occurred, there is a perception that the intent of the regulation was violated by the SR after the two Commander's Inquiry were conducted. Any reasonable doubt regarding the fairness of the contested NCOER, insofar as the SR's portion of that NCOER is concerned, should be resolved in favor of the applicant. While the entire contested NCOER does not appear to be tainted, it appears that the SR's portion should be deleted and that
her records should be placed before a STAB for promotion reconsideration.

BOARD VOTE:

__sac___ __clg___ __rks___ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the senior rater's portion of the NCOER for the period December 1996 - August 1997.

2. That the records of the individual concerned be made available to the next scheduled Standby Advisory Board for promotion consideration to Sergeant First Class under the 2002 and, if necessary, later criteria after the above correction is made.

3. That if she is selected for promotion, her records be further corrected by promoting her to Sergeant First Class and assigning the appropriate date of rank.

4. That if she is not selected for promotion, she be notified accordingly.

5. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to expunging the entire contested NCOER from her records.




                  __Samuel A. Crumpler__
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089417
SUFFIX
RECON
DATE BOARDED	20040203
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	111.02
2.
3.
4.
5.
6.