RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 March 2005
      DOCKET NUMBER:  AR20040001208


      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. John N. Slone                 |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Carmen Duncan                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of a Noncommissioned Officer
Evaluation Report (NCOER) covering the period December 2000 through
November 2001 from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he has disagreed with the manner
in which he received the NCOER in question from the onset.  He claims that
he appealed the report and while the Enlisted Special Review Board (ESRB)
directed modifications to the NCOER in question, justice has still not been
served in his case.  He states he was never counseled during the rating
period, which is required by regulation and an important part of the
responsibilities of rating officials.  He states that if the rater was
unhappy with his performance, counseling sessions would have been the
opportune time to discuss deficiencies in his performance and to establish
measures to correct them.

3.  The applicant further claims he was never given the opportunity to
overcome what his rater felt were severe deficiencies.  He claims that he
was only made aware of the substandard performance when he received the
NCOER in question.  He further states that he was given three different
NCOERs in a
two-week period due to the inability of his rater and senior rater (SR) to
agree on what would be a fair report.  The rater and SR finally agreed on
the fourth rendition of the NCOER in what was a feeble attempt to assuage
his obvious disappointment in his rating chain.

4.  The applicant also states that the commander directed his NCOER be
forwarded to the Personnel Services Branch for processing and filing in his
OMPF without his knowledge and knowing that a commander’s inquiry (CI) was
pending.  He states that at one point, his rating became an inconvenience
to his rating chain and the immediate concern became meeting the Enlisted
Records and Evaluation Center (EREC) suspense for submitting the report.
He provides an item-by-item explanation of why the report submitted was in
error and unjust and that addresses the findings and recommendations of the
Enlisted Special Review Board (ESRB).  He finally concludes by stating that
he believes he was unjustly treated by members of the rating chain and by
those who are charged to with ensuring proper procedures are followed in
rendering an NCOER.  He comments that it is his belief that he has provided
sufficient convincing evidence to support removal of the NCOER in question
from his OMPF.

5.  The applicant further states that throughout his career, he has sought
jobs that facilitated his goal of attaining the rank of sergeant major
(SGM).  He claims that while in the secondary zone, he was selected to
attend the sergeants’ major academy and graduated in the 90th percentile of
his class.  He states that he has honed his leadership skills and is ready
to accept the responsibilities inherent with the rank of SGM.  He claims
his twenty year record of performance contradicts the evaluation in
question, which has negatively impacted his promotion potential.

6.  The applicant provides the following documents in support of his
application: Self-Authored Statement, 30 November 2001 Leave and Earnings
Statement (LES), 25 February 2004 Army Training Requirements and Resources
System (ATARRS) Report, and ESRB Case Summary.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he has served on active duty
since March 1984.  He currently holds the rank of master sergeant (MSG) and
is now serving with Headquarters, First United States Army, Forrest Park,
Georgia.  He received the contested NCOER in December 2001.

2.  The applicant’s NCOER history confirms that as an E-8, the applicant
received three NCOERS prior to the report in question and one NCOER
subsequent to the contested evaluation.  In these reports, he received
Among the Best evaluations from his raters in Part Va (Overall Potential
for Promotion and/or Positions of Greater Responsibility).  In addition, he
received One Block Successful and Superior senior rater (SR) evaluations in
Part Vc (Overall Performance) and Part Vd (Overall Potential for Promotion
and/or Positions of Greater Responsibility) of these reports.

3.  The contested NCOER is an annual report covering the period December
2000 through November 2001, which evaluated the applicant as an Operations
Sergeant for a Support Battalion in Europe.  In Part IIIf (Counseling
Dates) of the original report, the rater, a captain, indicated that the
applicant had been initially counseled on 20 March 2001 and received later
counseling on 4 October 2001.

4.  Part IVa (Army Values/Attributes/Skills/Actions) of the contested
report originally contained a “No” response to question 6 (Integrity) with
two supporting bullet comments that indicated the applicant confronted
seniors in an inappropriate manner and that the applicant did not always
make the correct decision.

5.  In Part IVb-f of the contested report, the rater gave the applicant
four “Success” ratings and one Needs Improvement (Some) rating.  The Needs
Improvement (Some) rating was in Part IVc (Physical Fitness & Military
Bearing) and was supported with the bullet comment “military bearing was
lacking on three occasions when dealing with officers and senior NCOs”.

6.  In Part V (Overall Performance and Potential), the rater’s evaluation
of the applicant in Part Va was “Marginal”.  The SR rated the applicant 3
(Successful) in Part Vc and 3 (Superior) in Part Vd.  In support of his
evaluation, the SR provided the following bullet comments:  “Counseling gap
due to extended period Soldier was away from the section performing other
duties and leave”, “Possessed the physical stamina to survive and go the
distance on the battlefield” and “Promote is allocations allow”.

7.  The reviewer on the contested report, a lieutenant colonel, provided a
nonconcurrence memorandum with the contested report.  In the original
memorandum, the reviewer indicated that the applicant had not been
counseled within the first 30 days of the rating period.  The reviewer also
stated that he did not concur with the rater’s “No” response Number 6
(Integrity).  He found the applicant’s problem to be one of military
bearing, which he believed was properly addressed with the “Needs
Improvement-Some” and the supporting bullet comments in Part IVc.

8.  In his nonconcurrence statement, the reviewer also nonconcurred with
the rater’s “Marginal” evaluation in Part Va.  He stated that the applicant
was “Fully Capable” with “Needs Improvement-Some” in military bearing.  He
stated that he personally observed the applicant being disrespectful to a
senior NCO.  He further commented that the applicant had been charged a day
of leave in lieu of being charged with failure to repair.  The reviewer
concluded by indicating that immaturity on the part of both parties (rater
and applicant) contributed to playing the middle against the end and
therefore, the report should stand with the modifications he suggested.

9.  On 24 January 2002, a CI was completed on the applicant’s case.  The
commander concurred with the applicant’s assertion that performance
counseling had not been properly conducted.  He further found that the
reviewer nonconcurrence memorandum properly addressed the applicant’s
issues and would be filed in the OMPF with the NCOER in question.

10.  On 29 July 2002, the applicant appealed the contested NCOER to the
ESRB.  His appeal was based on his contentions that the report contained
substantive inaccuracies, and he requested that the report be deleted.  He
claimed that the initial counseling indicated on the contested report did
not occur within 30 days and a DA Form 2166-7-1 was not used for any of the
counseling.  He furthers indicated that the “No” rating and both supporting
bullet comments in Part IVa were in error and unjust.

11.  In his appeal, the applicant also claimed that he received three
finished reports in two weeks before the fourth report was finally
submitted for filing in his OMPF.  He claimed the unfair evaluation was the
result of minor disagreements between he and the rater and the evaluations
in Part V a, b, c and e were unfair and unjust.  He also indicated that the
reviewer’s nonconcurrence memorandum unfairly mentions his being charged
leave in lieu of being charged with failure to repair.

12.  In connection with processing the appeal, the ESRB contacted the rater
and SR on the contested report.  The rater stated that it was his practice
to have NCOs he rated write a draft report.  He would then review the
report to ensure he had not missed an important event or accomplishment
done by the Soldier.  He further stated that it was then his decision on
what ratings and bullet comments would be used, if any.  The rater
confirmed he had not completed initial counseling within the first month of
the rating period, but that he did use a DA Form 2166-8-1 with each
counseling session.  The rater stated that the bullet comment “confronts
seniors in an inappropriate manner” was referring to the same instances
that the “Needs Improvement-Some” rating in Part IVc was based on.  The
rater stated the applicant had been blatantly disrespectful to officers
twice and to the unit 1SG once.  The rater went on to explain the incident
that was the basis for the reviewer’s comment regarding leave being taken
in lieu of a failure to repair charge and concluded by stating that he had
counseled the applicant on all his shortcomings.

13.  The SR informed the ESRB that the applicant was successful in
performing his duties as the Operations Sergeant and that his problems were
related to his dealings with his superiors.  The SR stated that his
negative evaluation could have been avoided had the applicant learned from
an initial incident of disrespect and had followed the guidance given by
his rater.  The SR concluded by stating that the ratings and bullet
comments were for that period were accurate.
14.  The ESRB finally concluded that the applicant’s appeal had merit for
partial approval.  The ESRB found the applicant was not initially counseled
within
30 days and that the DA Form 2166-7-1 was not used with the counseling he
did receive.  However, the ESRB also found that by regulation, appeals
based solely on the lack of full compliance with performance counseling
requirements will not normally serve as a basis to invalidate and
evaluation report unless accompanied by additional evidence of inaccuracy
or injustice.

15.  The ESRB opined that the rater was conducting counseling, but failed
to conduct the initial counseling within the prescribed time and failed to
use a
DA Form 2166-8-1.  As a result, this contention had merit for approval.
However, it was not a fatal flaw that warranted removal of the report.  The
ESRB directed the counseling dates entered in Part IIIF be deleted.

16.  The ESRB also found it would be appropriate to remove the ”No”
response to number 6 (Integrity) and the supporting bullet comments.  This
was based on a conclusion that the shortcomings noted in the bullet
comments did not support a “No” in Integrity and addressed the applicant’s
military bearing shortcomings that were properly documented in Part IVc.

17.  The ESRB indicated that the applicant contended that the unjust and
unfair evaluation was based on minor disagreements between him and the
rater and that these incidents were so minor they were not addressed in
counseling statements.  As evidence, the applicant provided two statements
that describe the differences of opinion between he and his superiors
during TOC operations in the field.  However, all the rating officials
stated the applicant had been disrespectful to senior NCOs and officers at
different times.  The ESRB noted the applicant had not refuted the
incidents referencing disrespect on the report, but maintained they were
minor incidents.  The ESRB indicated the findings of a CI stated the bullet
comments accurately reflected the rating officials’ assessment of the
applicant and discounted any evidence of inaccuracy or injustice in the
report in question.  The ESRB concurred with the CI findings and opined
that being disrespectful to senior NCOs and officers is a serious incident
and could/would be prejudicial to good order, discipline and unit morale.

18.  The ESRB further stated that a “Marginal” rating in Part Va is
applicable to NCOs who demonstrate poor performance and should not be
promoted at the time.  The ESRB opined that in the applicant’s case, the
“Marginal” rating was appropriate given the “Needs Improvement-Some”
evaluation in Part IVc.  It further stated that the reviewer stated the
applicant was “Fully Capable”, but by regulation this is the reviewer’s
insight and does not confirm the rater’s assessment was not fair or
accurate.

19.  The ESRB finally concluded that the applicant failed to provide
sufficient evidence to substantiate that the rater was unfair in his
assessment and that the SR failed to meet his regulatory obligation to make
a tough but consistent call in the ratings rendered.

20.  The ESRB did find that the reviewer mentioning the applicant took
leave in lieu of a failure to repair charge was not appropriate and that
once the rater approved the applicant’s leave, he exonerated the applicant
from future consequences based on this incident.

21.  The ESRB finally concluded that there was sufficiently convincing
evidence that Part IIIf and Part IVa of the contested report and line 4 of
paragraph 2c of the reviewer’s nonconcurrence memorandum were inaccurate,
unjust and did not adequately reflect the applicant’s performance and
potential demonstrated during the rating period.  The ESRB finally
partially approved the applicant’s appeal and directed that the counseling
dates in Part IIIf be deleted, that the “No” response to number 6 of Part
IVa be changed to “Yes” and that both Part IVa bullet comments be deleted.
Finally, the ESRB directed that line 4 of paragraph 2c of the reviewer’s
nonconcurrence memorandum be deleted.

22.  The ESRB directed the applicant’s appeal correspondence be filed in
the restricted portion (R-Fiche) of his OMPF.  It also determined that
promotion reconsideration was not warranted because of the change in the
applicant’s file.  The ESRB was not convinced there was a reasonable change
for the applicant’s selection for promotion had the changes been made to
the report prior to the applicant being considered for promotion.

23.  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.

24.  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 to the rated NCO.  The goal of
performance counseling is to get all NCOs to be successful and meet
standards.

25.  Chapter 6 of the evaluation regulation contains guidance on NCOER
appeals.  Paragraph 6-6 stipulates that a report accepted for filing in a
NCOs record is presumed to be administratively correct, to have been
prepared by the proper rating officials, and to represent the considered
opinion and objective judgment of rating officials at the time of
preparation.  Paragraph 6-10 contains guidance on the burden of proof
necessary for a successful appeal of an NCOER that has already been
accepted for filing in the OMPF.  It states, in pertinent part, that in
order to justify amendment or deletion of a report, clear and convincing
evidence must be provided to show that the presumption of regularity should
be applied to the report in question and/or action is warranted to correct
a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the evaluation he received was unjust and
that the report in its entirety should be removed from his OMPF was
carefully considered. However, there is insufficient evidence to support
the requested relief.

2.  The evidence of record confirms the applicant’s evaluation history
prior to and subsequent to the contested report was excellent.  Further,
the report in question did contain minor errors that were addressed and
corrected by the ESRB.  However, these factors do not automatically support
further modification of the contested NCOER, or its removal from the
applicant’s OMPF.

3.  While the applicant attributes the evaluation in question to minor
disagreements between he and his rater, the evidence shows it was based
primarily on his lack of military bearing in dealing with superiors.  The
specific incidents of disrespect that formed the foundation for the
evaluation were confirmed by the rater and SR in their interviews with the
ESRB.  In addition, the reviewer confirmed he personally witnessed one of
the incidents in his statement of nonconcurrence.  The applicant has
explained his version of these events, but has never denied that the
incidents of disrespect occurred.

4.  By regulation, rating officials have the responsibility to cover
failures as well as achievements to the rated NCO.  The facts in this case
confirm that the report, as modified by the ESRB, contains an accurate
description of the applicant’s performance as evaluated by the rating
officials, who in their considered evaluation balanced their obligations to
the applicant with their obligations to the Army.

5.  In view of the fact of this case, the regulation burden of proof
necessary to support a successful appeal for removal of the NCOER in
question has not been satisfied.  As a result, there is an insufficient
evidentiary basis to support granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JNS _  ___CD __  ___LE___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            ____John N. Slone______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040001208                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/10                              |
|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.  1021 |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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