RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 January 2005
      DOCKET NUMBER:   AR2004105238


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 the reviewer
nonconcurrence attachment to his Noncommissioned Officer Evaluation Report
(NCOER) for the period July 1998 through June 1999.

2.  The applicant states, in effect, that comments contained in the
reviewer
nonconcurrence attachment in question were unfounded and premature.  He
claims this document preceded the relief for cause NCOER he received for
the period ending in October 1999.  He states the comments contained in the
contested attachment were the foundation for the subsequent relief for
cause report, which was later determined to be unfounded.

3.  The applicant provides a self-authored memorandum with the 18
enclosures listed in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows the applicant was still serving on active
duty as a first sergeant (1SG) as of the date he submitted his application
to the Board.

2.  On 12 August 1999, the applicant received the NCOER in question.  The
report was an annual evaluation that evaluated the applicant as a
Detachment Sergeant/Special Agent of a Military Police Detachment at Fort
Riley, Kansas, for the period July 1998 through June 1999.  The rater
responded “Yes” to all
7 questions in Part IVa (Values/NCO Responsibilities), and gave the
applicant three “Excellence” and two “Success” ratings in Part IVb-f.  He
also rated the applicant “Among the Best” in Part Va (Overall Performance
and Potential-Rater).

3.   In Part Vc (Senior Rater Overall Performance) of the contested report,
the senior rater placed the applicant in the 1 block (Successful).  He also
placed the applicant in the 1 block (Superior) in Part Vd (Senior Rater
Overall Potential).  In part Ve (Senior Rater Bullet Comments), the senior
rater provided the following bullet comments:  “Best Detachment Sergeant in
the Battalion”, “Make a 1SG now to maximize use of his leadership skills”
and “Has potential to be a CSM”.

4.  In Part IIe (Authentication) of the NCOER in question, the reviewer
checked the “Nonconcur with Rater and/or Senior Rater Evaluation” block.
The reviewer attached a nonconcurrence memorandum to the NCOER.  In this
memorandum, he indicated that as the reviewer on the NCOER, he nonconcurred
with rater and senior rater evaluations and was providing the attachment to
clarify the situation and to indicate what he considered to be a proper
evaluation of the applicant’s performance and potential during the period
covered by the report.

5.  In his attachment, the reviewer referred to Part IVf (Responsibility &
Accountability) of the NCOER in question, in which the rater gave the
applicant an “Excellence” rating and provided an explanation of his
disagreement with this evaluation.  He stated that the applicant was sole
person to breach safety with weapons that year, by the accidental discharge
of his personal weapon during the rating period.  He also commented that
during the applicant’s NCOER counseling session of 28 December 1998,
specific goals regarding the reduction of evidence voucher load were set.
Those goals were to fix the 4833 program that was rated as a timeliness in
reporting deficiency during inspections under the applicant’s control and a
completion month of February 1999 was established.  The reviewer stated
that the goal of reducing the voucher numbers was met, with some
inattention to detail problems noted in two inspections by the battalion;
however, the 4833 function was still rated as a deficiency.

6.  The reviewer also stated that subsequent to his recommendation for
nonconcurrence, there was an evidence depository action/inquiry.  The
detection of this action occurred and was found during the rating period as
a result of documents being found that indicated the disposal of evidence,
which had in fact not occurred.  The reviewer indicated his opinion was
that falsification of documents was established prior to the completion of
the inquiry based on the facts presented.

7.  In his nonconcurrence memorandum, the reviewer also stated that the
senior rater recommendation that, in effect, the applicant be promoted to
1SG immediately contained in Part Ve was not a validated comment.  He
further indicated that during the rating period, the applicant had been
placed on orders to assume a 1SG position in the Washington District, but
was removed due to lack of ability.   He also commented that the applicant
was still experiencing difficulties in managing and performing duties
related to unit training and evidence depository operations, which were two
of the primary areas of management by a battalion 1SG.  He also stated that
listing the applicant as having potential to be a CSM was also a concern
because the applicant was displaying leadership skills and shortfalls at
the detachment level.

8.  The applicant received a relief for cause NCOER for the period July
1999 through October 1999, in which he was evaluated for the same position
as the contested report.

9.  On 27 March 2001, the applicant appealed the NCOER in question and
requested the reviewer nonconcurrence attachment be removed.  The Deputy
Chief of Staff, Personnel (DCSPER), Enlisted Special Review Board (ESRB),
considered this appeal.  He also appealed the relief for cause report that
ended in October 1999 at the same time.

10.  The ESRB case summary confirms the reviewer on the contested NCOER was
contacted.  The reviewer was informed of the applicant’s contentions and
the need for additional information.  He acknowledged remembering the
applicant and the content and issues addressed in the contested report.
The reviewer informed the ESRB that he recalled the applicant as a great
noncommissioned officer (NCO) who fell short in the areas mentioned in the
nonconcurrence attachment.  He further commented that a command
investigation (CI) revealed the applicant had discharged his weapon in a
building and also that he completed documents that stated items in an
evidence room were disposed of or property returned to owners, when in fact
the items were still in the evidence room.  The reviewer admitted that he
submitted the
nonconcurrence attachment after the initial draft report was forwarded to
clarify and address CI findings.  Additionally, he indicates he presented
the applicant with a letter of reprimand and removed him from the evidence
custodian position.

11.  The rater on the contested report was also contacted.  He indicated he
had no knowledge of the nonconcurrence attachment and that he had written
and submitted the NCOER in question prior to departing on temporary duty
(TDY) on 1 June 1999, and had no opportunity to address the nonconcurrence
attachment or the investigation findings.  The rater discounted the
applicant’s argument that the rating chain retaliated against him because
he desired to reclassify out of the Criminal Investigation Division (CID).
He recalled that the applicant was given a directive to clean up the
evidence room and failed to do so.  He further indicated it was his belief
the applicant was given ample time to correct the many recurring
deficiencies.  He also stated that upon returning to the unit, he was
informed the findings of the CI were conclusive in that the applicant
discharged his weapon inside a building and falsified documents in the
evidence room.  Further, it was concluded the applicant was derelict in the
performance of his duties as an evidence custodian.

12.  The ESRB finally opined that the reviewer did change his initial
assessment of the applicant from concur to nonconcur; however, this did not
equate to a finding of impropriety by the reviewer.  Further, the reviewer
had the responsibility to determine if the rater and senior rater evaluated
the applicant in a clear, consistent and just manner per known facts.  The
rater was TDY when the CI began.

13.  The ESRB also indicated that an Inspector General (IG) report
pertaining to this situation found the reviewer had the responsibility to
consult with one or both of the rating officials to determine the basis of
the evaluation discrepancies and the senior rater was afforded the
opportunity to review her previous assessment. After doing so, she
determined her assessment was her true opinion of the applicant’s
performance. The IG noted the reviewer did change his assessment, but this
was not a violation of regulatory guidance and the applicant’s contentions
were unsubstantiated.

14.  The ESRB finally found there was not sufficiently convincing evidence
that the contested NCOER, specifically the nonconcurrence attachment, was
inaccurate and did not adequately reflect the applicant’s performance and
potential demonstrated during the rating period.  As a result, there was no
clear basis to grant the applicant’s request for appeal on this report.

15.  The ESRB did conclude that the rating officials that rendered the
applicant’s relief for cause report were incorrect and based on this, there
was a sufficient basis to conclude this NCOER was inaccurate and did not
accurately reflect the applicant’s performance and potential demonstrated
during the rating period.  As a result his appeal of this report was
granted and the relief for cause NCOER was removed from his record.

16.  Army Regulation 623-205 (Noncommissioned Evaluation Reporting System)
prescribes the enlisted evaluation function of the military personnel
system and provides guidance regarding redress programs, including appeals.
 Paragraph 2-13 outlines the program responsibilities of the reviewer.  It
states, in pertinent part, that the reviewer will ensure the proper rater
and senior rater complete the report and examine the evaluations rendered
by the rater and senior rater to ensure they are clear, consistent, and
just, in accordance with known facts. The reviewer is also responsible to
indicate concurrence or nonconcurrence with rater and/or senior rater by
annotating the appropriate box with a typewritten or handwritten "X" in
part II and adding an enclosure (not to exceed one page), when the
nonconcurrence box is marked.

17.  The evaluation regulation 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.  If the
rater and/or senior rater fail to acknowledge a discrepancy and indicate
that the evaluation is their honest opinion, the reviewer checks the
nonconcur box in part II and adds an enclosure that clarifies the situation
and renders his or her opinion regarding the rated NCO's performance and
potential.

18.  Paragraph 3-14 of the evaluation regulation contains guidance on
reviewer non-concurrence.  It states, in pertinent part, that when the
reviewer disagrees with the rater and/or senior rater and marks the
"nonconcur" block in part IIe of the NCO-ER, an explanation enclosure is
required.

19.  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 reviewer non-concurrence attachment in
question contained included with the NCOER was unfounded and premature was
considered.  However, insufficient evidence was found to support this
claim.

2.  By regulation, there is a presumption that an NCOER accepted for filing
in an 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.  In order to overcome this regulatory presumption of
regularity, there must be clear and convincing evidence to show the report
in question contains a material error, inaccuracy, or injustice.

3.  The evidence of record contains no evidence to indicate the reviewer
violated any regulatory policy in submitting the nonconcurrence attachment
in question.  The IG report regarding this issue concluded the reviewer
complied with his responsibility to consult with one or both of the rating
officials to determine the basis of the evaluation discrepancies by
consulting with the senior rater and affording her the opportunity to
review her previous assessment.  After doing so, the senior rater
determined her assessment was her true opinion of the applicant’s
performance.  The IG also noted the reviewer did change his assessment, but
did not violate regulatory guidance in doing so.

4.  The ESRB reviewed the applicant’s appeal and found that while the
reviewer changed his initial assessment of the applicant from concur to
nonconcur, this did not equate to a finding of impropriety on his part.
The reviewer had the responsibility to determine if the rater and senior
rater evaluated the applicant in a clear, consistent and just manner based
on known facts and based on the findings of a CI, he concluded there was a
discrepancy in the ratings.  Once he fulfilled his regulatory
responsibility to consult with one or both of the rating officials, he
nonconcurred with the evaluations and provided the nonconcurrence
attachment, as it was his regulatory responsibility to do.

5.  The applicant’s claim that the successful appeal of the subsequent
relief for cause NCOER he received shows the reviewer nonconcurrence
attachment was based on unfounded information was also considered.
However, the evidence of record clearly shows the successful appeal of the
relief for cause NCOER and its removal from his record was based solely on
the fact he was evaluated by improper rating officials.  No determination
on the validity of the information contained in this report was made.  As a
result, it has no bearing on the reviewer nonconcurrence attachment in
question.

6.  In view of the fact of this case, the regulation burden of proof
necessary to support a successful appeal 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

___JTM_  __ LDS __  __CAK__  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.





            ____Linda D. Simmons ___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105238                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/11                              |
|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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