RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           12 January 2006
      DOCKET NUMBER:  AR20050008250


      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. Rodney E. Barber              |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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, promotion to master sergeant/E-8
(MSG/E-8) and all back pay due as a result; and removal of a
Noncommissioned Officer Evaluation Report (NCOER) from his Official
Military Personnel File (OMPF).

2.  The applicant states, in effect, that he was unjustly denied
consideration for promotion to MSG/E-8 after a decision by this Board that
reinstated his conditional promotion to sergeant first class/E-7 (SFC/E-7).
 He also claims that a change of rater NCOER he received for the period
February 2001 through January 2002 should be removed from his record
because the senior rater bullet comments are ambiguous in nature and were
drafted in the unit, and because the signature of the rater on the report
was forged.

3.  The applicant provides the documents identified in his Table of
Contents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2002078668, on 28 January 2003.

2.  In its 28 January 2003 decision, the ABCMR recommended the applicant’s
record be corrected by reinstating his promotion to SFC/E-7, effective 1
May 2000, providing him all back pay and allowances due as a result of this
reinstatement, reinstating him on the Advanced Noncommissioned Officer
Course (ANCOC) list, and scheduling him for attendance at the next
available ANCOC class.

3.  On 4 March 2002, the applicant received a change of rater NCOER
covering the period February 2001 through January 2002.  He was evaluated
as the Battalion S-4 Noncommissioned Officer In Charge (NCOIC) in military
occupational specialty (MOS) 92Y40, which indicates it was a SFC position.


4.  In Part IV (Values/NCO Reponsibilities) B-F of the contested report,
the rater gave the applicant “Success” ratings in C (Physical Fitness &
Military Bearing),
D (Leadership), E (Training), and F (Responsibility & Accountability); and
he gave him an “Excellence” rating in B (Competence).

5.  In Part V (Overall Performance and Potential) of the contested NCOER,
the rater gave the applicant an “Among The Best” rating.  The senior rater
placed the applicant in the three block (Successful) in Part Vc (Senior
Rater-Overall Performance) and in the two block (Superior) in Part Vd
(Senior Rater-Overall Potential).  The senior rater provided the following
bullet comments in Part Ve (Senior Rater Bullet Comments):  “promotion to
sergeant first class now will benefit the Army”; send to ANCOC and Battle
Staff immediately”; “consistently executed duties of a sergeant first
class”; contributions were critical to a JRTC deployment”; and “supported 3
Bn level operations as Bn Supply NCO”.

6.  On 20 July 2003, the President, Special Review Boards, Office of The
Deputy Chief of Staff G-1, returned the applicant’s appeal of the NCOER in
question without action.  This official indicated that the applicant did
not provide sufficient evidence of a clear and convincing nature for the
Enlisted Special Review Board (ESRB) to consider his case.

7.  The President, Special Review Board further indicated that while the
applicant claimed the rater’s signature was falsified, he failed to provide
documentation from the rater verifying the validity of this claim.  He
further indicated that the only evidence provided by the applicant was self-
authored statements, previous and subsequent NCOERs, excerpts from the
NCOER regulation, developmental counseling forms, DA Forms 31, Memorandum,
Subject:  International Merchant Purchase Agreement Card with Summary
Information, and ABCMR Proceedings.  However, he failed to provide any
clear and compelling evidence that the rating officials failed to render a
just and accurate report.

8.  The applicant now provides e-mail message traffic between him and his
rater that appears to indicate that the rater approved the use of his
signature on the report after he had left the unit.  The rater informed the
applicant that if he wanted to appeal the report, it should be based on his
issues regarding the senior rater evaluation and not based on his
signature.

9.  A Service School Academic Evaluation Report (DA Form 1059) on file in
the applicant’s record confirms he attended the ANCOC at Fort Lee, Virginia
from
27 July 2004 through 28 September 2004.  The DA Form 1059 confirms he
achieved course standards and graduated from the course on 28 September
2004.

10.  A review of the Fiscal Year (FY) 2006 MSG/E-8 promotion board results
reveals the applicant was not selected for promotion.  The Summary of Board
Actions shows that the Army wide selection rate was 14.1 percent (%), while
the selection rate in the applicant’s Career Management Field (CMF) was 18
%.

11.  In connection with the processing of this case, an advisory opinion
was obtained from the Chief, Promotions Branch, Human Resources Command
(HRC).  This promotion official indicates the policy in effect at the time
of the Calendar Year (CY) 2003 MSG/E-8 promotion selection board, as
articulated in paragraph 4d of the promotion board announcement message,
stipulated that Soldiers in the rank of SFC/E-7 were ineligible for
consideration for promotion to MSG/E-8 if the Soldier was not ANCOC
qualified.  Therefore, promoting the applicant to MSG/E-8 would afford him
an unfair advantage not given other Soldiers.  He concludes by stating that
consistent application of promotion policy is the only way to ensure a fair
and equitable system for all Soldiers.

12.  On 17 August 2005, the applicant responded to the HRC advisory
opinion.  He again outlined the circumstances of his case, which he had
already done in his application to the Board.  He concluded that the HRC
official rendering the opinion could not fully understand the justification
for his request, and in the interest of impartiality, and setting aside his
second request for rescinding a falsified NCOER, he requests his
application for promotion to MSG/E-8 receive a just decision.

13.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting
System) sets the policies and procedures governing the Noncommissioned
Officer Evaluation Reporting System (NCOERS).  Paragraph 3-2 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.

14.  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.

15.  Paragraph 6-10 of the same 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
be applied to the report in question and/or action is warranted to correct
a material error, inaccuracy, or injustice.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
prescribes the Army’s enlisted promotions and reductions policy.  Paragraph
4-14 contains the rules for promotion reconsideration by a Stand-By
Advisory Board (STAB).  It states, in pertinent part, that a STAB may be
authorized when it is determined
a material error existed in a Soldier's OMPF when the file was reviewed by
a promotion board.  An error will be considered material when there is a
reasonable chance that had the error not existed, the Soldier may have been
selected.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for promotion to MSG/E-8 and for removal of a
contested NCOER, and the supporting evidence he submitted were carefully
considered.  However, there is insufficient evidence to support granting
the requested relief.

2.  The original ABCMR action on this case remedied the revocation of the
applicant’s promotion to SFC/E-7 and provided for his attendance at the
ANCOC based on inconsistencies in his weight control program processing, it
did not find evidence supporting his promotion or consideration for
promotion to MSG/E-8 prior to his completion of the ANCOC.

3.  Further, the record confirms the applicant was not selected for
promotion to MSG/E-8 by promotion selection boards held subsequent to his
completion of the ANCOC.  The summary of results for the FY 2006 MSG/E-8
promotion board shows that while the Army wide selection rate was only
14.1%, the selection rate for the applicant’s CMF was 18%.  Therefore, it
would not be appropriate or fair to other Soldiers to promote him to MSG/E-
8 outside of the Army’s normal promotion selection board process.
4.  The evidence of record also shows that the applicant failed to submit
sufficient clear and convincing evidence to support consideration of his
NCOER appeal by the ESRB.  The only additional evidence he submits with
this application is e-mail message traffic with the rater.  However, in
these messages, the rater confirms the signature on the contested report
was entered with his permission.  Further, even if this were found to be a
material error that supported revision of the report, it would not render
the senior rater’s evaluation invalid.  Therefore, at best an approved
appeal for this reason would most likely result only in removal of the
rater’s portion or the report.  If the applicant wishes to pursue this
issue he should gather sufficient supporting clear and convincing evidence
and resubmit his appeal to the ESRB as he was originally advised to do by
the President, Special Review Boards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LDS _  ___REB _  __RMN__  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                 |AR20050008250                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/01/12                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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