RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            04 OCTOBER 2005
      DOCKET NUMBER:         AR20050000182


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Mark Manning                  |     |Chairperson          |
|     |Mr. Larry Bergquist               |     |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 the removal of a noncommissioned officer
evaluation report (NCOER) covering the period from August 2001 through
December 2001 from his Official Military Personnel File (OMPF) and
promotion to the pay grade of E-8 retroactive to fiscal year (FY) 2001.

2.  The applicant states that the contested NCOER did not comply with the
applicable regulation and included information that was added to the report
without his knowledge and without his being given adequate due process to
respond to the negative information.  He further states that a commander’s
inquiry found that there were violations of the regulation; however, no
attempt has been made to correct the errors and the report resulted in his
not being selected for promotion to the pay grade of E-8.  Accordingly, he
should be promoted to the pay grade of E-8.

3.  The applicant provides 48 enclosures which are listed on an enclosure
sheet included with his application.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army in Long Island, New York, on 27 July
1982 for a period of 3 years and training as a food service specialist.  He
successfully completed his training and has remained on active duty through
a series of continuous reenlistments.  He was promoted to the pay grade of
E-7 on 1 November 1996.

2.  On 26 June 2002, the applicant received a “Relief for Cause” NCOER
covering the period from August 2001 through December 2001.  The report
evaluated him as a dining facility manager of a Special Forces Group
serving in the pay grade of E-7.

3.  In Part IVa, under Army Values/Attributes/Skills/Actions, his rater
gave him a “No” rating under “Duty: Fulfills their obligations.”  The
bullet comments indicate that the applicant disobeyed a lawful order and
missed movement into a hostile fire zone.  He gave him “Yes” ratings in the
remaining six areas.

4.  In Part IVb, under Values/NCO Responsibilities, he gave the applicant
“Needs Improvement” ratings under “Leadership” and “Responsibility and
Accountability.” The bullet comments indicate that his leadership style was
cited by the command sergeant major as being the cause for many problems
during Early Victor 01 and that he received two unsatisfactory ratings and
one marginal rating for the DFAC (Dining Facility) during Operation Early
Victor.  In part Va, under Overall Performance and Potential, the rater
gave him a marginal rating.

5.  In Part Vb, the applicant’s senior rater (SR) gave the applicant a
“Fair” rating under performance and a “Fair” rating under potential.  The
SR’s comments indicate that he should not be promoted, that he be assigned
to positions where management skills can be developed and that he failed to
manage personnel and himself and resulted in the applicant having to
redeploy early from Operation Enduring Freedom and being relieved.

6.  On 8 October 2002, a commander’s inquiry was conducted for the purpose
of obtaining command involvement in clarifying any errors or injustices on
the applicant’s NCOER.  The investigating officer indicates that the
applicant’s first line supervisor informed him on 20 December 2001 of the
chain of command’s decision to relieve him due to the nonjudicial
punishment he received for disobeying a lawful order and missing movement
into a hostile fire zone on 29 November 2001.  He also indicated that the
NCOER had been returned to the unit for administrative corrections and
bullet comment clarification.  Administrative corrections were made by the
unit personnel support NCO and a bullet comment “Received two
unsatisfactory ratings and one marginal rating for the DFAC during
Operation Early Victor” was added to the NCOER and was forwarded to the
Personnel Support Battalion without being referred to the applicant.  The
investigating officer also opined that the rater’s evaluation of the
applicant’s responsibility and accountability was inconclusive, that the
comments by the SR were justified and that the findings of the commander’s
inquiry should be forwarded to the Personnel Command (PERSCOM).

7.  Meanwhile, the applicant submitted an appeal of the contested NCOER to
the Enlisted Special Review Board (ESRB) contending that he had been
improperly relieved of his job by a person who was not his supervisor and
who did not outrank him.  He also contended that the number of rated months
was incorrect, that he was not afforded the opportunity to respond to
comments added to his NCOER after he had seen the report, that his duty
military occupational specialty (MOS) was incorrect and that the three duty
positions listed for him were inappropriate for his pay grade.

8.  Officials of the ESRB contacted the applicant’s rater on the contested
report who explained that he had informed the applicant that he was
relieved for cause and while the applicant did not agree with the relief,
he did acknowledge that he had been relieved.  The written counseling
performed by the detachment NCO was simply to reinforce the rating chain’s
decision to relieve the applicant.  Officials of the ESRB did find that the
applicant’s military occupational specialty (MOS) under Part IIIb, Duty MOS
was incorrect and warranted correction.  Officials of the ESRB also found
that while the bullet comment had been added to the contested report and
was not referred to the applicant to review the changes, the applicant had
not provided any evidence to show that the information was inaccurate.
However, officials at the ESRB did find that the three positions listed on
the contested NCOER were positions for personnel below the pay grade of E-7
and should be deleted.  The ESRB determined that there was a basis for
partial approval of the applicant’s appeal and directed that the Enlisted
Records and Evaluation Center (EREC) correct the contested NCOER by
changing his duty MOS and deleting the positions in Part Vb.

9.  A review of the applicant’s OMPF shows that the changes directed by the
EREC were accomplished in accordance with the ESRB’s decision.

10.  Army Regulation 623-205, Noncommissioned Officer Evaluation Reporting
System sets forth the policies and procedures for the Enlisted Evaluation
Reporting System  It provides, in pertinent part, that an evaluation report
accepted for inclusion in the official record of an NCO is presumed to
represent the considered opinion and objective judgment of rating officials
at the time of preparation.

11.  Paragraph 4-7 of that regulation states, in pertinent part, that when
submitting an appeal, the burden of proof rests with the applicant and that
he or she must produce evidence that establishes clearly and convincingly
that action is warranted to correct a material error, inaccuracy, or
injustice.  Clear and convincing evidence must be of a strong and
compelling nature, not merely proof of the possibility of administrative
error or factual inaccuracy.

12.  Army Regulation 600-8-19 serves as the authority for the conduct of
selection boards.  It provides, in pertinent part, that selection board
members may not record their reasons nor give any reasons for selection or
nonselection.  Selections are based on relative qualifications and the
projected need in each MOS for E-7, E-8, and E-9.  A Soldier within an
announced zone of consideration may write to the President of the selection
board inviting attention to any matter he or she feels is important in
consideration of his or her records and are considered privileged
information and will not be filed in the OMPF.




DISCUSSION AND CONCLUSIONS:

1.  While it appears that the applicant’s contention that the bullet
comment added in Part IVf. was added after he had signed the report is
correct, the applicant has failed to show through the evidence submitted
that the bullet comment was incorrect or untrue.

2.  While he should have been shown the amended report after it was
corrected, the applicant has failed to show how the failure to do so did
any harm or denied him due process.  The servicing military personnel
office forwarded the completed copy of the contested NCOER to the applicant
on 26 June 2002 and he was still entitled to request a commander’s inquiry
and appeal the NCOER to the ESRB.

3.  Notwithstanding the corrections made by the ESRB, the applicant has
failed to show through the evidence submitted or the evidence of record
that the contested NCOER does not represent a fair, objective and valid
appraisal of his demonstrated performance and potential during the period
in question.  The report, as amended by the ESRB also appears to have been
prepared in accordance with the applicable regulation and by the
appropriate rating officials.  Therefore, there is no basis for removing
the report from his OMPF.

4.  Likewise, there also appears to be no basis to grant his request for
promotion to the pay grade of E-8.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM__  ___LB___  ___CD __  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 Manning_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000182                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051004                                |
|TYPE OF DISCHARGE       |N/A AC SOLDIER                          |
|DATE OF DISCHARGE       |N/A AC SOLDIER                          |
|DISCHARGE AUTHORITY     |N/A AC SOLDIER                          |
|DISCHARGE REASON        |N/A AC SOLDIER                          |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |Ar 15-185                               |
|ISSUES                  |221/void ncoer                          |
|1.111.0005              |                                        |
|2.131.0000              |310/prom                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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