RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 March 2005
      DOCKET NUMBER:  AR20040003248


      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. Allen L. Raub                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Robert Rogers                 |     |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 the reviewer non-concurrence
statement included with his Noncommissioned Officer Evaluation Report
(NCOER) for the period July 1998 through December 1998 be removed from his
Official Military Personnel File (OMPF), and that he be reconsidered for
promotion to E-8 by a Stand-By Advisory Board (STAB).

2.  The applicant states, in effect, that there are three factors for his
appeal.  The first is that his reviewer lacked sufficient knowledge upon
which to base his comments in the non-concurrence statement.  He claims the
reviewer was not present at his duty location during much of the rating
period.  Further, the commander’s inquiry found the reviewer made invalid
assumptions and relied on inaccurate and invalid information in his
statement.

3.  The second factor in the applicant’s appeal is that the reviewer’s
comments were the result of his personal bias and prejudice toward him.  He
cites the commander’s inquiry finding that the reviewer relied on
inaccurate information and an invalid assumption in making unjust comments
concerning the applicant’s performance as first sergeant (1SG) and Drug and
Alcohol Noncommissioned Officer In Charge (NCOIC).  He further outlines
situations that he claims caused the personality conflict between he and
the reviewer.  The applicant asserts that these factors are proof of the
reviewer’s personal bias toward him.

4.  The third factor cited by the applicant for his appeal is that his
ability to adequately defend himself against the reviewer’s comments was
materially prejudiced due to the reviewer’s delay and inaction.  He claims
the reviewer never shared his concerns with him and that he waited until he
had returned to the United States (US) before raising his concerns.  He
further states the reviewer’s non-concurrence statement is dated 8 December
1998.  However, a sergeant in the Personal Services Branch confirms the
reviewer did not submit the statement until 18 December 1998, after the
applicant had departed for the US.

5.  The applicant further states that the comments remaining on the
contested reviewer non-concurrence statement subsequent to the ESRB appeal
pertain to his alleged violation of Joint Task Force (JTF) Bravo Policy 11-
97 by having a Honduran woman in his quarters after curfew.  He states that
what actually occurred was that he allowed a woman who was a Department of
Defense (DOD) employee on the base to enter his quarters to make a DSN
phone call to her husband, who was a US Army Soldier assigned to Korea.
6.  The applicant further claims that the JTF-Bravo policy in question
placed a clear limitation on non-DOD guests.  However, the woman he allowed
in his room was a DOD employee and a family member of a US Soldier.
Further, he claims that by referring to the incident, the reviewer defeated
the purpose of the summarized Article 15 he received for the incident,
which was to preserve his record from unnecessary stigma.

7.  The applicant concludes that it would be unjust to allow the reviewer’s

non-concurrence statement to tarnish his performance during that period.
He further states he received an award for his performance at this
assignment and the reviewer’s non-concurrence statement is having an undue
adverse impact on his career, as evidenced by his being passed over for
promotion to E-8 four times in spite of his outstanding evaluations.

8.  The applicant provides the 11 exhibits identified on the Enclosures
list in support of his application.

CONSIDERATION OF EVIDENCE:

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

2.  The contested reviewer non-concurrence statement is included with a
change of rater NCOER the applicant received for the period July 1998
through December 1998.  The applicant was evaluated as an SFC/E-7,
Ammunition Accountability Officer, serving as a member of JTF-Bravo, in
Honduras.  The rater on the contested report was a first lieutenant and the
senor rater was a captain.  The evaluation of the applicant by these rating
officials were very favorable.

3.  In Part IVb-f, the rater gave the applicant three “Excellence” ratings
and two “Success” ratings and supported these ratings with very favorable
bullet comments.  In Part V (Overall Performance and Potential) the rater
placed the applicant in the “Among the Best” block and the senior rater
placed him in the
1 block in overall performance and 1 block in overall potential.  The
senior rater bullet comments supporting his ratings were as follows:   that
the applicant should be promoted now, that he should be sent to the first
sergeant’s course, that he was a critical asset to the chain of command for
all ammunition related subjects, that he should be assigned to positions of
greater responsibility and that he would make a significant contribution to
any unit.

4.  The reviewer on the contested report, a lieutenant colonel, non-
concurred with the rater and senior rater evaluations and provided a non-
concurrence statement, dated 8 December 1998.  In his original statement,
the reviewer included the following two paragraphs that were ultimately
removed at the direction of the
Enlisted Special Review Board (ESRB):  (1) The applicant having been
briefed of his duties to dispose of excess ammunition, failed to dispose of
the same.  Additionally, he failed to provide the chain of command with
sound advise and guidance; and (2) The applicant while performing duties as
acting 1SG and Drug and Alcohol NCOIC, failed to perform such duties in an
adequate manner.

5.  The reviewer’s non-concurrence statement also includes comments from
the reviewer that indicate the applicant willfully violated a lawful JTF-
Bravo policy that required Honduran residents to obtain a base access pass
prior to entry to the base and that allowed them to remain on base only
during the hours of 0800 hours through 1700 hours.  The reviewer stated
that the applicant having had knowledge of this policy willfully
disregarded the policy and escorted an unauthorized female to his quarters.
 The reviewer concluded by stating that this behavior and performance by
the applicant was not commensurate with that of a senior NCO.  In this
regard, he had concerns about the applicant’s leadership and his ability to
accept increased responsibility.

6.  On 3 March 1999, the CSM of JTF-Bravo provided a statement in support
of the applicant’s performance as the acting 1SG.  He stated that during
this period the reviewer and the applicant’s 1SG were pulled away to
conduct disaster relief operations.  He comments that during this period,
the applicant was a true leader and his behavior and performance was at its
best, as evidenced by the comments of the rater and senior rater on the
NCOER in question.

7.  The rater and senior rater also provided statements attesting to the
applicant’s performance as the acting 1SG and as the Drug and Alcohol
NCOIC.  Both officials confirmed the applicant was more than able to
perform at the E-8 level and should not be overlooked for such a position.
The senior rater did indicate the applicant received NJP for disobeying a
JTF-Bravo policy, but after the incident he maintained good order and
discipline in the company, demanding high standards from Soldiers, whose
welfare was utmost in his mind at all times.
8.  On 23 February 1999, the NCOIC of the PSB provided a statement
confirming that the applicant’s NCOER had not yet been received on 18
December 1998.  He further confirmed that one week later he checked on the
report and found out the reviewer was on leave in the US and was non-
concurring with the report and that the NCOER would be forwarded as soon as
it was complete.  The NCOIC of the PSB confirms the report in question was
received on 3 February 1999.

9.  On 24 August 1999, the Deputy Commander in Chief, US Southern Command,
a major general, completed a commander’s inquiry on the NCOER in question.
The findings of this inquiry stated that the reviewer relied on a
summarized Article 15 in making his comments on the applicant’s violation
of JTF-Bravo policy concerning Host National nationals, and there was no
error, illegality, injustice or violation of regulation regarding these
comments.

10.  The commander’s inquiry did find that the reviewer relied on
inaccurate information and invalid assumptions in making his comments
regarding the applicant’s duty performance as the acting 1SG and Drug and
Alcohol NCOIC and as a result, these comments should be disregarded as
invalid.

11.  On 16 September 1999, the applicant appealed the NCOER in question to
the ESRB, requesting the reviewer non-concurrence statement be removed.
The ESRB found sufficiently convincing evidence that part of the reviewer’s
letter of non-concurrence was inaccurate, unjust and did not adequately
reflect the applicant’s performance and potential demonstrated during the
rating period.

12.  The ESRB granted partial relief and removed the two paragraphs of the
reviewer non-concurrence statement related to the applicant’s performance
as the acting 1SG and Drug and Alcohol NCOIC.  However, it concluded that
the applicant’s argument that the Honduran national in question was
authorized to be in his room was not clearly supported by the JTF-Bravo
policy, as evidenced by his acceptance of an Article 15 for this incident.


13.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting
System) sets the policies and procedures governing the Noncommissioned
Officer Evaluation Reporting System (NCOERS).  Section III of chapter 2 of
the regulation outlines rating chain responsibilities.  It states that the
reviewer is responsible for rating safeguard over-watch.  He or she may
comment only when in disagreement with the rater and/or senior rater.
14.  Paragraph 2-13 of the evaluations regulation outlines the reviewer’s
responsibilities.  It states that the reviewer is responsible to ensure
that the proper rater and senior rater complete the report, examine the
evaluations rendered by the rater and senior rater to ensure they are
clear, consistent, and just, in accordance with known facts.  It further
states that when the reviewer determines that the rater and or senior rater
have not evaluated the rated NCO in a clear, consistent or just manner
based on known facts, the reviewer's first responsibility is to consult
with one or both rating officials to determine the basis for the apparent
discrepancy.

15.  Paragraph 2-13 of the evaluations regulation further states that If
the rater and/or senior rater fail to acknowledge a discrepancy and
indicate that the evaluation is their honest opinion, the reviewer adds an
enclosure that clarifies the situation and renders his or her opinion
regarding the rated NCO's performance and potential.  The reviewer will
notify the rating chain and rated NCO of non-concurrence with the report.
This ensures the rating chain and rated NCO have been informed of the
completed report and may allow for a possible request for a Commander's
Inquiry or appeal if desired.

16.  Paragraph 3-2 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.

17.  Paragraph 6-10 of the NCO evaluations regulation 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the reviewer’s statement of non-concurrence
is unjust was carefully considered and found to have merit.  While the ESRB
decision to only partially revise the reviewer non-concurrence statement is
understood, there are equity considerations that should be addressed in
this case.

2.  The evidence of record does not confirm the extent of the reviewer’s
coordination with the rater and senior rater regarding his non-concurrence
with their evaluations, which both attest to the applicant’s outstanding
duty performance during the rating period.

3.  Further, as evidenced by the commander’s inquiry and the partial relief
granted by the ESRB, it is clear the reviewer relied on inaccurate and
invalid information in preparing his non-concurrence statement.  In
addition, it appears he unduly delayed the processing of the report, which
inhibited the applicant’s ability to access the appellate process in a
timelier manner.

4.  The portion of the reviewer non-concurrence statement that remains on
file in the OMPF subsequent to the ESRB review addresses the applicant’s
violation of JTF-Bravo policy regarding Host Nation nationals on base.  The
applicant confirms the national in question is married to a US Soldier
assigned to Korea at the time and that she was also a DOD civilian employee
who worked on the base.  He further states that the national was only in
his room to use his telephone to call her husband in Korea.

5.  The applicant may have technically violated the JTF-Bravo policy
regarding Host Nation nationals on base.  However, this is not entirely
clear given the ambiguity of the policy memorandum regarding a national who
was also a family member and DOD civilian employee.  What is perfectly
clear is that this was a one-time minor offense that did not accurately
reflect the applicant’s performance during the rating period, as evidenced
by statements from members of his chain of command and interested third-
parties that included the JTF-Bravo CSM.
6.  In addition, the applicant’s unit commander elected to deal with the
policy violation in question with a summarized Article 15 in order not to
permanently stain the applicant’s record.  The evaluations regulation while
indicating that NCOERs should cover failures, does stipulate that
evaluations should not normally be based on isolated minor incidents.

7.   By regulation, if the adjudication authority is convinced that the
applicant is correct in some of his/her assertions, the clear and
convincing standard for a successful appeal has been met.  It is apparent
that the only remaining portion of the reviewer non-concurrence statement
that remains on file pertains to one isolated incident and that the
remaining factors addressed by the reviewer were determined to be in error
and unjust by the commander’s inquiry.  This clearly seems to support a
conclusion that the non-concurrence statement was seriously flawed.

8.  Further, the applicant’s unit commander elected to deal with the
isolated incident through a summarized Article 15, and assured the
applicant his record would not be permanently stained.  The reviewer’s
reference to the incident in his non-concurrence statement, while
technically proper, as indicated in the commander’s inquiry and by the
ESRB, appears to violate the spirit and intent of summarized nonjudicial
punishment action by making the incident a permanent part of the
applicant’s record.

9.  In view of the facts outlined above, it is concluded that the clear and
convincing regulatory evidentiary standard has been satisfied in this case.
 Therefore, it would serve the interest of equity and justice to remove the
remaining portion of the reviewer non-concurrence statement from the
applicant’s record at this time.

10.  As a result of the decision to recommend that reviewer non-concurrence
statement on the NCOER in question be removed from the applicant’s record,
it would also be appropriate, once this correction is accomplished, for the
applicant’s corrected record to placed before a Stand-By Advisory Board
(STAB), for promotion reconsideration.  STAB reviews should include
reconsideration using the criteria used by all master sergeant/E-8
promotion selection boards that considered the applicant for promotion
while the reviewer non-concurrence statement was on file in his OMPF.
BOARD VOTE:

___ALR _  __REB __  __RR___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

      a.  removing the reviewer non-concurrence statement on the NCOER with
the ending date of December 1998 from his OMPF;


      b.  placing his corrected record before a STAB, in order for him to be
reconsidered for promotion using the criteria of every master sergeant/E-8
promotion selection board that considered him for promotion while the
contested non-concurrence statement was on file in his OMPF; and


      c.  if selected for promotion by the STAB, by further correcting his
record to show he was promoted to the next higher grade on his date of
eligibility, as determined by the appropriate Departmental officials using
the criteria cited, provided he was otherwise qualified and met all other
prerequisites for promotion.




            ____Allen L. Raub_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003248                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/24                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  193  |111.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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