RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            5 April 2005
      DOCKET NUMBER:   AR20040002766


      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. Mark D. Manning               |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Jeanette McCants              |     |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 that her Noncommissioned Officer
Evaluation Reports (NCOERs) ending in October 1994 and March 1995 be
transferred from the performance portion (P-Fiche) to the restricted
portion (R-Fiche) of her
Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the evaluations in question are
at least
10 years old and are presently affecting her ability to be promoted to the
next higher grade.  She claims that the average time in grade (TIG) and
time in service (TIS) to be promoted to sergeant first class/E-7 (SFC/E-7)
in her military occupational specialty (MOS) 91W is 6.5 and 1.5 years,
respectively.  She states that her TIG is 10.6 years and her TIS is 17.7
years, which both exceed the standard.  She claims that she is providing
evidence of her accomplishments that could have been included on the NCOERs
in question that might have led to her selection for promotion.

3.  The applicant provides the following documents in support of her
application:  Contested NCOERs, Iron Medic Certificate of Achievement,
Equal Opportunity Course Completion Certificate, Army Physical Fitness Test
(APFT) Certificate of Achievement, Deployment Orders, and NCOER Appeal
Packet.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that at the time of her
application to the Board, she was serving on active duty.  She currently
holds the rank of staff sergeant/E-6 (SSG/E-6) and is assigned to Fort
Meade, Maryland.

2.  The first contested NCOER is an annual report covering the period
November 1993 through October 1994, which evaluated the applicant as a
Section Sergeant in a medical company of a forward support battalion in
Europe.  In
Part IIIf (Counseling Dates) the rater, a SSG, indicated that the applicant
had been initially counseled on 24 November 1993 and received later
counseling on 5 February 1994, 30 May 1994 and 11 August 1994.

3.  In Part IVb-f of the first contested report, the rater gave the
applicant three “Success” ratings and two “Needs Improvement (Some)”
ratings.  The first Needs Improvement (Some) rating was in Part IVb
(Competence) and it was supported with the bullet comment “scored 33% on
Self-Development Test”.  The second Needs Improvement-Some rating was in
Part IVd (Leadership) and it was supported with the bullet comments
“difficulties promoting harmony and teamwork in platoon” and “problems
deciding correct leadership style to use with decision making”.

4.  In Part V (Overall Performance and Potential), the rater’s evaluation
of the applicant in Part Va was “Marginal”.  The senior rater (SR), a
second lieutenant,  rated the applicant 4 (Fair) in Part Vc (Overall
Performance) and 3 (Superior) in Part Vd (Overall Potential for Promotion).
 In support of her evaluation, the SR provided the following bullet
comments:  “has potential to be a successful platoon sergeant if leadership
style changes”, “assign as section sergeant again to expand learning
scale”, and “promote with peers”.  The reviewer on the contested report, a
captain, concurred with the evaluations of the rater and SR.

5.  On 19 May 1995, the applicant’s battalion commander, a lieutenant
colonel, appointed an investigating officer (IO) to conduct a commander’s
inquiry (CI) on the applicant’s NCOER for the period ending in October
1994.

6.  On 22 May 1995, the IO published the findings of the CI.  The IO found
there was an inaccuracy in the number of months rated, which should have
been
8 rather than 12.  The IO concluded there was a lack of objectivity on the
part of rating officials.  He stated that the rater’s bullet comments did
not support his evaluations in Part IV.  The IO concluded that based on the
administrative inaccuracies and lack of objectivity by rating officials
toward the applicant, the NCOER in question should be appealed.

7.  On 16 May 1995, the applicant appealed the first contested NCOER to the
Enlisted Special Review Board (ESRB).  Her appeal was based on substantive
and administrative inaccuracies.  The applicant based her appeal on the
following factors:  the areas of special emphasis identified in Part IIIb
were not addressed in Part IV; the counseling dates in Part IIIf were
fabricated; the ratings in Part IVa1 and 2 do not equal a Needs Improvement-
Some rating; the Needs Improvement-Some rating in Part IVb was for failing
a Skill Development Test (SDT) at skill level 0, which she took after she
had already been promoted to SSG, which is skill level 3; her receiving the
Iron Medic award was not mentioned; Part IVc was left blank, even though
she received a Certificate of Achievement and Battalion Coin for scoring
297 on the APFT; and the rater was not assigned to the unit until February
1994 and was not qualified to render the report.

8.  The ESRB contacted rating officials during the review of the
applicant’s appeal.  The rater confirmed he was assigned to the unit in
March 1994 and was not the applicant’s rater for the entire 12-month rating
period.  He further stated that he was unaware of the applicant’s
additional duties as Floor Coordinator and Unit Driver Examiner and the
applicant never informed him of these duties.  The rater further indicated
that he did not receive documentation on the applicant’s receipt of the
Iron Medic award during the rating period, and it was not until the NCOER
was completed that he was told of the award.  However, he did annotate that
she received the award in a subsequent report.

9.  The rater informed the ESRB that the APFT information on the
applicant’s NCOER was from an October 1994 test, which was the last score
recorded on the training score card maintained a the unit and it was taken
during the rating period.  He further stated that the counseling dates on
the applicant’s NCOER were not fabricated.  He stated the applicant was
counseled both verbally and in writing by him, the SR and verbally by the
reviewer.  The rater further indicated that there was a problem with the
applicant’s counseling statements disappearing from her file folder.  The
rater stated the SDT test failure was for skill level 2, which she took and
failed during the rating period.  The rater commented that the score the
applicant received was an indication that she was not proficient in her
military occupational specialty (MOS).  Regarding leadership, the applicant
had difficulties working with others and would leave subordinates
unsupervised after giving them incomplete instructions for completing
tasks.  The rater finally commented that based on the applicant’s ratings
in competence and leadership, he believed she was deserving of an overall
rating of “Marginal”.

10.  The ESRB also contacted the SR, who also confirms the counseling dates
entered on the report were not fabricated as the applicant contended.  The
SR stated that the applicant was one of the worst NCOs she had encountered.
 The applicant was not prepared for promotion to SSG.  The SR further
stated that applicant did not work as a member of the team or pull her
share of the office tasks.  The SR stated that when the reviewer
reprimanded the applicant for failing to complete a given task, the
applicant readily complained to the Equal Opportunity (EO) and Inspector
General (IG) agencies.  The applicant alleged that the reviewer was biased,
prejudice and retaliated against her because of her race.  The SR stated
that in every instance, the complaints were unsubstantiated. The SR
concluded that the report was fair, it was documented and it depicted the
applicant’s abilities and performance during the rating period.

11.  The ESRB finally concluded the rater on the contested report was not
assigned to the position until March 1994.  As a result, the ESRB directed
Part Ij be changed to reflect “8” rated months and that the non-rated code
“Q” be added to Part Ij.  The ESRB also directed that the additional duties
“Unit Driver Examiner” and “Floor Coordinator” be added to Part IIIe.

12.  The ESRB disagreed with the CI conclusion that there was no evidence
to substantiate the negative poor ratings on the NCOER in question.  The
ESRB found that the overall rating in Part IVd was based on the applicant’s
inability to work in harmony with others and her exhibiting poor leadership
traits.  These shortcomings were mentioned in the applicant’s counseling
and she was aware of her deficiencies.

13.  The second contested NCOER is a change of rater report covering the
period November 1994 through March 1995, which evaluated the applicant as
an area treatment team NCO in Europe.  Part IIIf (Counseling Dates) the
rater, a SSG, indicated that the applicant had been initially counseled on
25 January 1995 and received later counseling on 3 February 1995.

14.  In Part IVa (Values/NCO Responsibilities) the rater responded “No” to
questions 1 and 5.  The rater provided the following two bullet comments in
support of his “No” responses:  “failed to do corrective training” and
“permitted off duty conduct to interfere with work”.

15.  In Part IVb-f of the second contested report, the rater gave the
applicant two “Excellence” ratings, two “Success” ratings and one “Needs
Improvement (Some)” rating.  The Needs Improvement (Some) rating was in
Part IVd and it was supported with the bullet comments “does not lead by
example” and was not at assigned place of duty twice”.
16.  In Part V (Overall Performance and Potential), the rater’s evaluation
of the applicant in Part Va was “Fully Capable”.  The senior rater (SR), a
first lieutenant, rated the applicant 3 (Successful) in Part Vc (Overall
Performance) and
2 (Superior) in Part Vd (Overall Potential for Promotion).  In support of
his evaluation, the SR provided the following bullet comments:  “competent
and knowledgeable”, needs to be more consistent with leadership style and
decisions”, continue to develop this NCO with more leadership positions”
and “promote with peers.  The reviewer on the contested report, a captain,
concurred with the evaluations of the rater and SR.

17.  There is no indication that the applicant appealed the second
contested report to the ESRB.

18.  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.

19.  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.

20.  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 contentions that the NCOERs in question are at least 10
years old and are negatively impacting her ability to be promoted to the
next higher grade and the supporting evidence she provided were carefully
considered.  However, the passage of time and a negative impact on
promotion potential are not alone a basis for removing properly filed
NCOERs from the OMPF.

2.  By regulation, rating officials have the responsibility to cover the
failures, as well as achievements, of the rated NCO.  The facts in this
case confirm that the NCOERs in question, as modified by the ESRB, contain
accurate descriptions of the applicant’s performance as evaluated by the
rating officials, who in their considered evaluations balanced their
obligations to the applicant with their obligations to the Army.

3.  Notwithstanding the findings of the CI, the specific incidents of
failure documented in the first contested NCOER were well supported.
Further, the rater and SR on this report confirmed in their interviews with
the ESRB that the applicant had been counseled on and was well aware of her
deficiencies during the rating period.

4.  The evidence of record and independent evidence provided by the
applicant contain no indication that she appealed the second contested
NCOER to the ESRB.  Further, other than her self-authored statement that
this report was impacting her ability to be promoted, she provides no
independent evidence to rebut the ratings and overall evaluation on this
report.  Thus, there is an insufficient evidentiary basis to conclude the
report in question is in error or unjust.

5.  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 reports in question, as modified by the ESRB, contain 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.

6.  In view of the facts 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

___MDM   ___TEO _  ___JRM _  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.




            ____Mark D. Manning____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002766                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/05                              |
|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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