RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 November 2005
      DOCKET NUMBER:  AR20050005821


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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, through a court remand,
reconsideration of his request to correct his Noncommissioned Officer
Evaluation Reports (NCOERs) for the periods August 1993 through January
1994 and February through December 1994 to show his true performance; or
alternatively, reconsideration of his request that the NCOERs be removed
from his Official Military Personnel File (OMPF).

2.  The U. S. District Court for the District of Columbia noted the
applicant contended the Army improperly denied his request to remove the
two contested NCOERs.

3.  The Court provided a background of the regulatory framework for
evaluating NCOs, noting such evaluations must occur at least annually but,
if certain qualifying events occur, may be completed more often.  The Court
noted an NCOER must be prepared if an NCO is being relieved from his or her
duties for cause.  The Court cited Army Regulation 623-205's definition of
relief-for-cause:  the removal of an NCO from a rateable assignment based
on a decision by a member of the NCO's chain of command or supervisory
chain that the NCO's personal or professional characteristics, conduct,
behavior, or performance of duty warrant removal in the best interest of
the U. S. Army.  The Court noted an NCO has a number of procedural channels
available to challenge an adverse NCOER, for example, a Commander's Inquiry
or an appeal to the Enlisted Special Review Board (ESRB).  If the ESRB
denies an appeal, the NCO may appeal to the Army Board for Correction of
Military Records (ABCMR).

4.  The Court noted the applicant became an Army recruiter in October 1983.
 When he was transferred to the Norfolk, VA Recruiting Company, U. S. Army
Recruiting Battalion, Richmond, VA, he was assigned as the First Sergeant.
His first NCOER (March 1993 through July 1993) as the senior sergeant in
this unit was a change-of-rater NCOER.  He received "excellence" marks in
all five categories of NCO responsibilities and the senior rater rated his
overall performance and promotion potential as "1," the highest score
possible.

5.  The Court noted that, thereafter, Captain L___ became the applicant's
rater.  According to the applicant, once Captain L___ assumed that position
he began to shift credit for the unit's successes from the applicant to
himself.  After Captain L___'s effort to relieve him of his duties was
unsuccessful, a deal was made whereby the applicant would receive credit
for the unit's success by the issuance of a Meritorious Service Medal while
at the same time he would be relieved of his duties and receive an
evaluation which he deemed would be a "career-ender NCOER."  In the
contested NCOER for the period August 1993 through January 1994 his prior
"excellence" marks were "deflated."  He received only two "excellence"
ratings and three "success" ratings.  His overall evaluation was downgraded
from "among the best" to "fully capable."  His senior rater rated his
overall performance and potential as a "2" and commented he should be
promoted with his contemporaries, while the senior rater in the prior NCOER
rated his overall performance and potential as a "1" and asserted he should
be promoted to Sergeant Major.

6.  Following the NCOER for the period ending January 1994, the applicant
was reassigned.  The Court noted that, according to the applicant, the
NCOER, despite carrying the label of a change-of-rater NCOER, was in
reality a relief-for-cause NCOER.  Because it was considered a change-of-
rater NCOER he was not provided an opportunity to challenge the evaluation
or receive counseling and therefore the regulation was violated.

7.  The Court noted the applicant was assigned as the First Sergeant of the
Cherry Hill Recruiting Company, U. S. Army Recruiting Battalion,
Philadelphia, PA.  According to the applicant, after 11 months at the new
unit the "standings" of the unit improved significantly.  The applicant
contended the improvements made the captain in charge look bad and thus, to
"steal the credit," the applicant opined the captain recommended the
applicant be relieved of his duties.  In November 1994, the applicant was
allegedly relieved and received his NCOER (for the period February through
December 1994).  Again, the applicant alleged the NCOER, despite being
labeled a change-of-rater NCOER, was in reality a relief-for-cause NCOER
and, again, he was not provided an opportunity to challenge the evaluation.


8.  The Court noted the applicant first became eligible for promotion to
Sergeant Major in 1996 but was not selected.  In January 1997, he filed an
appeal with the ESRB to have the two contested NCOERs removed.  The ESRB
amended the later of the two NCOERs to correct the ending date from
December 1994 to November 1994 but denied his remaining request for relief.
 The applicant appealed to the ABCMR, which denied his appeal in March
1998.

9.  The Government sought to have the applicant's case dismissed for lack
of subject matter jurisdiction or alternatively transferred to the U. S.
Court of Federal Claims.  The applicant contended that any back pay that
might be awarded based on the District Court's decision would not come as a
direct result of the litigation before that Court.  That is, if he received
the requested equitable relief from the Court he would then have to apply
through the Secretary of the Army for another decision to convene a standby
advisory board (STAB) to reconsider his nonselection for promotion.  The
Court found the Government's position to be without merit.  The Court found
that the applicant sought only to challenge the denial of his request to
remove the two contested NCOERs from his personnel file and that nothing in
his complaint could be construed as an attempt to obtain monetary relief.

10.  The Court considered the Government's and the applicant's cross-
motions for summary judgment and found the applicant's motion should be
granted in part, and the Government's motion must be denied.  The Court
noted, to persuade the Court to grant the applicant's motion for summary
judgment, he must establish that the rejection of his request to remove the
two contested NCOERs from his personnel file was arbitrary and capricious
and an abuse of discretion.  Under this standard, an agency action is
arbitrary and capricious if the agency failed to follow procedure as
required by law or had entirely failed to consider an important aspect of
the case presented to them.

11.  The Court found the applicant was not challenging the ABCMR's decision
as it related to assessing the reasonableness of the NCOERs as change-of-
rater reports, but rather the ABCMR's failure to determine whether, based
upon the evidence presented, the NCOERs were in fact relief-for-cause
reports and, if so, whether they were prepared and issued in violation of
the applicable Army regulations.

12.  The Court noted, while it was not explicitly clear that the applicant
had challenged his NCOERs in the manner they were now being challenged
before the Court, there was some evidence of record to suggest he had.  The
Court concluded the failure of a BCMR to respond to arguments raised by a
plaintiff, which do not appear frivolous on their face and could affect the
Board's ultimate disposition, is arbitrary.  It appeared the applicant's
argument may have been raised at the agency level, and the argument was not
frivolous on its face.  Therefore, the ABCMR's failure to address it was
arbitrary and the case was remanded to the Secretary of the Army to review
this argument in the first instance.  If the ABCMR decides to disregard
this argument, then it must expressly indicate that it has done so and
explain its rationale for doing this.

13.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
ABCMR in Docket Number AC97-10721 on 4 March 1998.

2.  The applicant enlisted in the Regular Army on 29 June 1974.  He
completed the Army Recruiters Course in 1983.  He was assigned to
recruiting duties in August 1983.  He was assigned to a First Sergeant
position with the U. S. Army Recruiting Battalion, Richmond, VA with duty
at Norfolk, VA on or about            31 March 1992.  He was promoted to
Master Sergeant on 1 January 1993.

3.  The first contested NCOER was a 5-rated month change-of-rater NCOER for
the period August 1993 through January 1994.  The applicant's ratings were
as noted in paragraph 5 in "THE APPLICANT'S REQUEST, STATEMENT, AND
EVIDENCE," above.

4.  The applicant was reassigned to the U. S. Army Recruiting Battalion,
Philadelphia, PA with duty at Cherry Hill, NJ on or about 24 January 1994
where he performed duties as a First Sergeant.

5.  The second contested NCOER was an 11-month change-of-rater NCOER for
the period February 1994 through December 1994 (later changed by the ESRB
to an ending period of November 1994).  In Part IV, the applicant received
one "excellence" and four "success" ratings in the five areas of NCO
responsibilities.  His rater rated his potential as "fully capable."  His
senior rater rated his overall performance and overall potential as "2"
(with a highest possible rating of "1").

6.  On or about 1 March 1995, the applicant was reassigned to the U. S.
Army Recruiting Battalion, Pittsburgh, PA and performed duties as the
Senior Operations Sergeant.  On or about 31 May 1996, he was reassigned to
the U. S. Army Recruiting Battalion, Indianapolis, IN with duty at Metro
North, where he performed duties as a First Sergeant.

7.  The applicant was first considered for promotion to E-9 in 1996.  He
was not selected for promotion.

8.  On or about 3 February 1997, the applicant was reassigned to the U. S.
Army Recruiting Battalion, Indianapolis, IN where he performed duties as
Senior Operations NCO.

9.  The applicant appealed the contested NCOERs to the ESRB on 27 January
1997.  The ESRB Case Summary noted the applicant had indicated, in his
appeal, that he did not initiate a Commander's Inquiry, Congressional, or
Inspector General complaint because he lacked confidence the 1st Brigade
would professionally execute those actions and feared there would be
repercussions for Soldiers testifying or making statements on his behalf.

10.  On 1 July 1998, the applicant retired in the rank of First Sergeant, E-
8.

11.  The Court noted that, while it was not explicitly clear the applicant
had challenged his NCOERs before the ABCMR in the manner they were now
being challenged before the Court, there was some evidence of record to
suggest he had done so.  The Court cited one exhibit, the applicant's
memorandum appealing the NCOER for the period ending December 1994 ("the
relief requested should have resulted in a relief for cause NCOER").  The
ESRB's Case Summary was available to the ABCMR in March 1998 but his appeal
memorandum was not.  The ESRB's Case Summary did not indicate the
applicant's appeal memorandum stated he believed the NCOERs should have
been relief-for-cause NCOERs, although it did indicate relief action had
been contemplated by his battalion commander.

12.  The Court also cited another exhibit ("1SG C___ is being relieved from
his duties of First Sergeant by this Battalion.  Relief action will be
forwarded to the Brigade Commander once complete").  The ESRB Case Summary,
and the applicant in his October 1997 application to the ABCMR, noted the
battalion commander wanted to relieve him but the Brigade would not support
the relief action.  Since the relief action was never finalized it would
not have been made a part of his OMPF.  It would not have been available to
the ABCMR unless the applicant provided it.  He did not list it as one of
the enclosures to his October 1997 ABCMR application and there is no
evidence it was otherwise available.

13.  In his October 1997 application to the ABCMR, the applicant requested
the contested NCOERs be "…corrected so they reflect my true performance or
be removed from my record…"  He requested promotion reconsideration by a
STAB.

14.  Army Regulation 601-1 (Assignment of Enlisted Personnel to the U. S.
Army Recruiting Command), paragraph 5-13 states recruiters who are
involuntarily released for cause, ineffective, or unsuitable and are
formally relieved from recruiting duty will be evaluated [in accordance
with] paragraph 2-10 [of Army Regulation 623-205].  Paragraph 5-9 of Army
Regulation 601-1 states the authority to approve involuntary reassignments
from recruiting duty is delegated to the Commander, Recruiting Support
Command and each recruiting brigade commander or acting commander.

15.  Army Regulation 623-205 (Enlisted Reporting System), paragraph 4-2 of
the version in effect at the time, stated an NCOER accepted for inclusion
in an NCO’s OMPF is presumed to be administratively correct, to have been
prepared by the properly designated rating officials, and to represent the
considered opinion and objective judgment of the rating officials at the
time of preparation.  Paragraph 4-7 stated the burden of proof in an NCOER
appeal rests with the applicant.  Accordingly, to justify deletion or
amendment of an NCOER under the regulation, the applicant must produce
evidence that clearly and convincingly overcomes the presumptions referred
to above and that action to correct an apparent material error or
inaccuracy is warranted.

16.  Army Regulation 623-205 of the version in effect at the time stated
relief-for-cause was defined as the removal of an NCO from a rateable
assignment based on a decision by a member of the NCO's chain of command or
supervisory chain that the NCO's personal or professional characteristics,
conduct, behavior, or performance of duty warrant removal in the best
interest of the U. S. Army.

17.  Army Regulation 623-205, Appendix F of the version in effect at the
time, stated an appellant who perceived that an evaluation report was
inaccurate or unjust in some way had the right to appeal for redress to the
appropriate agency.

18.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states,
in pertinent part, a STAB may be approved upon determining that a material
error existed in a Soldier's OMPF when the file was reviewed by a promotion
board.  An error is considered material when there is a reasonable chance
that had the error not existed the Soldier may have been selected for
promotion.

19.  Army Regulation 601-280, chapter 10 at the time, set forth policy and
prescribed procedures for denying reenlistment under the Qualitative
Management Program (QMP).  This program is designed to (1) enhance the
quality of the career enlisted force; (2) selectively retain the best
qualified soldiers to 30 years of active duty; (3) deny reenlistment to
nonprogressive and nonproductive Soldiers; and (4) encourage Soldiers to
maintain their eligibility for further service.  The QMP consists of two
major subprograms: the qualitative retention subprogram and the qualitative
screening subprogram.  Under the qualitative screening subprogram, records
for grades E-5 through E-9 are regularly screened by the Headquarters,
Department of the Army promotion selection boards.  The appropriate
selection boards evaluate past performances and estimate the potential of
each Soldier to determine if continued service is warranted.  Soldiers
whose continued service is not warranted receive a QMP bar to reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding that there appears to be no evidence the applicant
raised the issue that the contested NCOERs should have been relief-for-
cause NCOERs in his October 1997 application to the ABCMR, that issue will
now be addressed.

2.  Army Regulation 623-205, the version in effect at the time, defined
relief-for-cause as the removal of an NCO from a rateable assignment based
on a decision by a member of the NCO's chain of command or supervisory
chain that the NCO's personal or professional characteristics, conduct,
behavior, or performance of duty were such that removal would be in the
best interest of the U. S. Army.

3.  There is evidence to show the applicant's battalion commander initiated
action to relieve him from duty.  However, although the applicant performed
duties as a First Sergeant, he was a recruiter.  U. S. Army Recruiting
Command policies and procedures had to be followed.  The governing
regulation states the authority to approve involuntary reassignments from
recruiting duty is delegated no lower than the brigade level.  The evidence
shows the applicant's brigade commander did not approve his involuntary
removal (i.e., relief for cause) from recruiting duty. In fact, the
evidence of record shows the applicant continued to perform recruiting
duties, including follow-on assignments as a First Sergeant, until he
retired.

4.  Therefore, there is insufficient evidence to show the contested NCOERs
should have been relief-for-cause reports.

5.  The Court had noted that, according to the applicant, because the
contested NCOERs were considered to be change-of-rater NCOERs, he was not
provided an opportunity to challenge the evaluation or receive counseling
and therefore the regulation was violated.

6.  Army Regulation 623-205 stated an appellant who perceived that an
evaluation report was inaccurate or unjust in some way had the right to
appeal for redress to the appropriate agency.  The regulation did not limit
appeals to relief-for-cause NCOERs or to those NCOERs obviously adverse.
As a First Sergeant, the applicant should have been aware that his right to
appeal was not limited.  It also appears the applicant was actually aware
of his right to challenge the contested NCOERs, as noted below.

7.  The ESRB Case Summary noted the applicant had indicated, in his appeal,
that he did not initiate a Commander's Inquiry, Congressional, or Inspector
General complaint because he lacked confidence the 1st Brigade would
professionally execute those actions and feared there would be
repercussions for Soldiers testifying or making statements on his behalf.
His reasons for not doing so (and for not submitting an NCOER appeal until
after he was nonselected for promotion for the first time) may have been
understandable; however, his comment indicates he was aware his avenues for
redress were not limited by the fact the reports were change-of-rater
NCOERs instead of relief-for-cause NCOERs.

8.  In addition, the applicant originally requested from the ABCMR, in
addition to correction or expungement of the contested NCOERs, promotion
reconsideration by a STAB.  A STAB may be approved upon determining a
material error existed in a Soldier's OMPF when the file was reviewed by a
promotion board.  An error is considered material when there is a
reasonable chance that, had the error not existed, the Soldier may have
been selected.

9.  Correction of the applicant's contested NCOERs to show they were relief-
for-cause NCOERs rather than change-of-rater NCOERs would not have resulted
in a reasonable chance he would have been selected for promotion (thereby
warranting consideration by a STAB).  Rather, more likely, he would have
increased his chances of being non-selected for promotion or even being
been selected by the promotion board for QMP bar to reenlistment action.
Given this, the Board presumes this is not the applicant's actual request.

10.  Therefore, the Board presumes that the applicant's desired relief is
still either revision of the contested NCOERs to reflect a higher level of
performance, or removal of them from his OMPF.  The Board will not
substitute its own judgment at this late date for that of the applicant's
raters to give him a revised NCOER.  The Board still finds that the
applicant has not shown the contested NCOERs represented other than his
rater's objective judgment at the time, as stated in ABCMR Docket Number
AC97-10721; therefore, removal of the contested NCOERs from his OMPF would
not be appropriate

11.  It does not appear the original Board was aware the applicant had
pressed the contention the contested NCOERs should have been relief-for-
cause NCOERs.  This Board concludes there was no error or injustice in the
ABCMR's original decision.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sk____  __jtm___  __rld___  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 to amend the decision of
the ABCMR set forth in Docket Number AC97-10721 dated 4 March 1998.




                                  __Stanley Kelley______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005821                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051115                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |111.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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