RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            23 MARCH 2006
      DOCKET NUMBER:   AR20050006983


      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. John Infante                  |     |Chairperson          |
|     |Mr. Jeffrey Parsons               |     |Member               |
|     |Mr. Edward Montgomery             |     |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 the block in Part IIe. be changed to
reflect that the reviewer concurs with the Rater and Senior Rater (SR) and
that the statement of nonconcurrence be removed from his noncommissioned
officer evaluation report (NCOER) covering the period from May 1996 through
September 1996.

2.  The applicant states, in effect, that the nonconcurrence by the
reviewer was unjust and in violation of the applicable regulation (Army
Regulation (AR)       623-205) which requires that references will be made
only to actions or investigations that have been processed to completion,
adjudicated and had final action taken before submitting the NCOER.  He
goes on to state that the Declination of Continued Service was never
processed and that it was a tactic used for unsuccessful detailed
recruiters.  He also states that he conducted himself ethically and morally
while on recruiting duty, with no misconduct and he believes the
information to be prejudicial when master sergeant (MSG) promotion
selection boards have reviewed his Official Military Personnel File (OMPF).


3.  The applicant provides a copy of the contested NCOER, a copy of his
Enlisted Record Brief and the results of his appeal to the Enlisted Special
Review Board (ESRB).

CONSIDERATION OF EVIDENCE:

1.  He enlisted on 26 June 1986 and successfully completed his training as
an avionics equipment repairer.  He has remained on active duty through a
series of continuous reenlistments.  He was promoted to the pay grade of E-
6 on 26 June 1986.

2.  On 30 May 1996, while serving as a field recruiter, he received a
change of rater NCOER covering the period from December 1995 through April
1996.  He received all “success” ratings from his rater and a “fully
capable” rating from his SR. His SR commented that the applicant should be
promoted with his peers and placed in positions of limited responsibility.

3.  On 18 October 1996, he received the contested NCOER, which was a change
of rater report covering the period from May 1996 through September 1996.
His rater gave him all “success” ratings and his SR gave him a “Fully
Capable” rating. His SR commented that he should be selected for promotion
now, that he was an outstanding soldier, excellent skills and knowledge,
and that he goes the extra mile to support fellow soldiers.

4.  The applicant’s reviewer and battalion commander nonconcurred in block
IIe. and attached a statement of his nonconcurrence.  In his statement he
indicated that the applicant had requested relief from recruiting duty and
had signed a Declination of Continued Service.  He went on to state that he
had suspended the applicant from recruiting duties due to his inability to
handle the stress of recruiting duties at his current grade and position.
He opined that due to the applicant’s admitted inability to perform as a
recruiter, his rating in Part Va. should be “Marginal” instead of “Fully
Capable” and that the SR’s rating should be “Fair” instead of “Successful”.

5.  It appears that the applicant was reassigned to Fort Rucker, Alabama,
and that he was promoted to the pay grade of E-7 on 1 August 1997.  There
is no evidence of a Declination of Continued Service present in his OMPF.

6.  On 6 March 2005, he submitted an appeal of the contested NCOER to the
ESRB citing essentially the same reasons he has cited to this Board.  The
ESRB returned the applicant’s appeal to him without action and informed him
that his appeal did not meet the criteria outlined in the applicable
regulation for substantive appeals and that he had not appealed within the
5 years established by the regulation.

7.  A review of the promotion statistics for the Calendar Year 2005 Master
Sergeant Promotion Selection Board shows that the applicant military
occupational specialty (MOS) had only a 5.4% overall selection rate.  The
highest group selected in his MOS by that board were Soldiers above the
primary zone of consideration at 6.3%.

8.  Army Regulation 623-205, Noncommissioned Officer Evaluation Reporting
System, in effect at the time, set 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.

9.  Paragraph 3-10, Reviewer’s Responsibilities, provides in pertinent
part, that the reviewer is responsible for rating safeguard overwatch.  He
or she may comment only when in disagreement with the rater and/or SR.
When a reviewer determines that the rater and or SR have not evaluated the
rated NCO in a clear, concise or just manner per 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
rating officials choose not to acknowledge the problem

and revise the ratings, then the reviewer has the responsibility to check
the nonconcur block and add an enclosure that clarifies the situation and
renders his or her opinion as to the proper manner of performance and
potential.

10.  Chapter 2, Section III of the regulation in effect at the time,
provided the restrictions that applied to the preparation of the NCOER.  It
listed restrictions that applied to performance as an Equal Opportunity
NCO, Prisoners of War, Participation in the Alcohol and Drug Abuse
Prevention and Control Program, Classified Information, Commander’s
Inquiries, performance as counsel or as a member of a courts-martial and
comments about marital status and spouse.

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 623-205, currently in effect, provides in paragraph 3-
17, that no reference will be made to an incomplete investigation (formal
or informal) concerning an NCO.  References will be made only to actions or
investigations that have been processed to completion, adjudicated, and had
final action taken before submitting the NCOER for final processing.  Any
verified derogatory information (information that is already proved factual
by a preponderance of the evidence) may be entered on the NCOER.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his reviewer unjustly made references
to administrative actions that were never finalized and should have never
been mentioned in the contested report has been noted and found to be
without merit. The applicant has failed to show through the evidence
submitted or the evidence of record that he did not sign a declination of
continued service or that he was suspended from recruiter duties by the
reviewer.

2.  The fact that the declination of continued service statement was never
processed to completion or submitted to the appropriate officials for
filing in his OMPF does not negate the fact that he signed the form and in
the final analysis served to his advantage.

3.  The reviewer was aware that the applicant had signed the statement and
that he had suspended the applicant from recruiter duties.  Inasmuch as the
applicant was being rated as a field recruiter, it was the reviewer’s
obligation to ensure that all of the facts regarding the applicant’s
performance and potential were clarified for anyone reading the report.

4.  Therefore, the reviewer properly fulfilled his responsibilities in
accordance with the regulation in effect at the time with no violations of
any of the applicant’s rights.

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

____JI __  ___JP___  ___EM __  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.





                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006983                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060323                                |
|TYPE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DATE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DISCHARGE AUTHORITY     |N/A AC Soldier on AD                    |
|DISCHARGE REASON        |N/A AC Soldier on AD                    |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |193/NCOER                               |
|1.111.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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