RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 October 2005
      DOCKET NUMBER:  AR20050004890


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |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 that a Noncommissioned Officer Evaluation Report
(NCOER) for the period June 1999 through April 2004 be expunged from his
Official Military Personnel File (OMPF).

2.  The applicant states that he received an unjustified relief for cause
NCOER.  He specifically contends that:

      a.  the time period for the NCOER is wrong, the December 1999
memorandum of agreement warranted a change of rater NCOER;


      b.  the duties and scope were wrong, he was no longer signed for the
equipment—he turned in the field equipment on 23 March 2000, but his NCOER
period ran through April 2000;


      c.  he was never counseled for part of the period and the December
1999 memorandum should have triggered the identification of a new rater
within the 72nd Dining Facility;


      d.  the Value markings of "NO" are wrong and the bulleted comments
required further explanation;


      e.  all competence and leadership bullets were untrue—his sworn
statement overcomes the bulleted statement that he failed to obey orders
and the memoranda of support show that the values reported are nothing like
his true character;


      f.  the bulleted deficiency under Physical Fitness and Military
Bearing is false—he passed his Army Physical Fitness Test (APFT) and
exceeded the battalion's standards;


      g.  all of the bulleted deficiencies are demonstrated to be untrue by
the documents submitted;

3.  The applicant provides his own detailed 4 page analysis of the subject
NCOER and the following documents:

      a.  a 1 July 1999 Memorandum for Record shows that his parent unit
272nd Military Police (MP) Company was responsible for administration,
including NCOERS and the 2 December 1999 memorandum placed him under the
operational control of the 72nd Signal Company;
      b.  a 7 June 2000 memorandum from the supply NCO of the 272nd MP
Company states that a 23 March 2000 accountability inventory indicated that
all items were accounted for—the applicant turned in the equipment and
Specialist W____ became the hand receipt holder;


      c.  a sworn statement from the applicant, stating that he never
disobeyed orders for the sake of disobeying orders;


      d.  several memoranda of support from fellow soldiers;


      e.   a 5 April 2000 memorandum setting forth a meal schedule change
for the 272nd MP Company and Strength and Feeder Reports for 18 April 2000
and 30 October 1999;


      f.  a draft memorandum setting forth the 95th MP Battalion's Physical
Fitness Training Policy; a 10 December 1999 Army Physical Fitness Test
Scorecard; a 8 December 1999 Record Firing Scorecard;


      g.   three food service inspection checklists; and


      h.  a list from the applicant of "responsibilities and accomplishments
the unit deliberately left off."

CONSIDERATION OF EVIDENCE:

1.  The applicant, a Regular Army sergeant first class (SFC) with
approximately 15 years of active duty service, received a relief for cause
NCOER for the period June 1999 through April 2000.

2.  His rater marked Values 1 (Dedication and commitment), 2 (Unit pride,
team member) 3 (Disciplined and obedient), 4 (Honest and trustworthy), 5
(High standards of conduct) and 6 (Courage of convictions) as "NO."  The
rater marked "Yes" only on value 7 (Supports EO/EEO).  The rater entered
appropriate bulleted comments such as follows: "failed to follow lawful
orders on numerous occasions", "places personal needs above mission and
soldier" and "unreliable and undisciplined; integrity often in question."

3.  The rater marked Competence, Physical Fitness and Military Bearing,
Leadership, and Responsibility and Accountability as, "Needs improvement."
He marked the applicant as "Successful-Meets Standards" only in Training.
He rated the applicant's overall potential as "Marginal."  The Rater
provided appropriate bullet comments to support all rankings, including,
"his lack of military bearing” and “several instances of disrespect towards
superiors set a poor example for soldiers to follow."

4.  The senior rater marked the applicant 's overall potential for
promotion or service in positions of greater responsibility as "Marginal".

5.  A 1 July 1999 Memorandum for Record set forth the responsibilities and
procedures for the employment and supervision of 272nd MP Company food
service personnel in support of the 72nd Signal Battalion Consolidated
Dining Facility.  It shows that the applicant's parent unit, the 272nd MP
Company was responsible for administration, including NCOERS.  The
memorandum also states that the 72nd Signal Battalion was to maintain
operational control over the dining facility and that food service
personnel were directly under the operational control of the dining
facility manager.


6.  A Memorandum for Record, dated 2 December 1999, referenced the above
memorandum and noted that the applicant was under the operational control
of the dining facility for daily operations.  It outlined the applicant's
"daily duties and scope" to insure that he would have the resources he
needed.  It also listed joint duties shared with another SFC and noted that
the listed joint duties were not to interfere with duties assigned by the
272nd MP Company.

7.  The various memoranda of support submitted by the applicant with this
application include:

      a.  a captain, commander of the MP battalion's headquarters unit
states that the applicant was assigned to him after being relieved for
cause—the applicant's conduct, duty performance and demeanor caused no
problems;


      b.  a SFC , the 7th Signal Brigade food service advisor states that
the applicant worked for him from May to October 1999—he praised the
applicant's professionalism and skill as a trainer, especially in basic
soldiering skills—he reports that the applicant had problems with his own
chain of command and missed a unit meeting—the SFC admits that he does not
know all of the details involved in the relief for cause action.


      c.  a master sergeant (MSG), the 21st Theater Support Command's chief
food service supervisor, and a retired MSG, now a contract food service
supervisor relate that they conducted several field equipment inspections
in which the applicant achieved outstanding results—they think that the
relief for cause NCOER is the exact opposite of the esteem that the food
service community holds for the applicant;


      d.  a private first class and three specialists, who the applicant
supervised for about a year report that they learned a great deal from the
applicant, he stood up for them and inspired them because he did not let
his problems interfere with his work or relationships with others—they
would have known if the applicant had been late or missed formations—he was
never late for any formation—three of the four report that the unit has
faulty training records on them personally.


      e.  a group of ten Soldiers ranging from pay grade E-4 to W-1 signed a
statement to the effect that the applicant was a great instructor in
physical fitness, military customs and courtesies and computers.  He is
concerned for their welfare and sets the standard by which leadership ought
to be judged.

8.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting
System) sets forth 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).

9.  Paragraph 3-2 of the 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.

10.  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 6-7 states that substantive appeals must be
submitted within 5 years of the NCOER's completion date.

11.  Paragraph 6-10 of the regulation 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
not be applied to the report in question and/or action is warranted to
correct a material error, inaccuracy, or injustice.

12.  There is no indication in the available records that the applicant
appealed the subject NCOER within the allowed 5 year period.

DISCUSSION AND CONCLUSIONS:

1.  The 2 December 1999 memorandum simply pointed out that the applicant
and another SFC shared joint duties.  It did not reassign him in any way,
nor did it trigger the need for counseling or a change of rater NCOER.

2.  That memorandum also noted that the applicant's assigned duties at the
dining facility were not to interfere with his duties with his parent unit,
the 272nd MP Company.  His failures with regard to these latter duties are
specifically cited in the subject NCOER.

3.  The various memoranda of support for the applicant are noted, but none
of them are from individuals who were really in a position to observe and
evaluate the applicant's performance and behavior from the prospective of
the members of his rating chain.

4.  The applicant offers specious arguments in his own defense.  For
example, he contends, in effect, that his passing APFT score demonstrates
an injustice in the "Needs improvement" rating for Physical Fitness and
Military Bearing and that the "Needs improvement" in Responsibility and
Accountability was unfair because he transferred custody of the field
kitchen equipment on 23 March 2000 when the rating period ran through April
2000.

5.  The regulatory burden of proof necessary to support a successful appeal
for removal of the NCOER in question has not been satisfied.  There is
insufficient convincing evidence to support granting the requested relief.


6.  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

_JEV ___  __CVM__  __LMB __  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.





                                  _____James E. Vick_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051026                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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