RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         10 November 2005
      DOCKET NUMBER:  AR20050011565


      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             |
|     |Ms. Yvonne Foskey                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson.        |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, removal of the entire second page of
a Noncommissioned Evaluation Report (NCOER) he received for the period
ending in August 2002 from his Official Military Personnel File (OMPF), and
master sergeant (MSG) promotion reconsideration by a Stand-By Advisory
Board (STAB) under the criteria used by all promotion boards that
considered him for promotion while the contested NCOER was on file in his
OMPF.

2.  The applicant states, in effect, that based on accomplishments,
statistics, and figures that were purposely omitted from the NCOER in
question, as proven in sworn statements from his rater at the time, and
from other officers and noncommissioned officers (NCOs) of the battalion,
the second page of the report should be removed in its entirety from his
OMPF.  He further requests that after the NCOER in question is removed from
his OMPF, his record be placed before a STAB, for MSG promotion
consideration under the criteria used by any promotion board that
considered him for promotion while the contested NCOER was in his record.

3.  The applicant provides the following documents in support of his
application:  NCOER, dated August 2002; Enlisted Special Review Board
(ESRB) Case Summary; United States Army Enlisted Records and Evaluation
Center (EREC) Evaluation Report Appeal Memorandum, dated 18 November 2004;
Special Review Boards Memorandum, dated 8 November 2004; EREC Evaluation
Report Appeal Memorandum, dated 12 July 2004; Self-Authored Appeal,
dated 17 June 2004; Self-Authored Appeal Letter, dated 19 January 2003;
Self-Authored Rebuttal, dated 12 September 2002; Self-Authored Appeal,
dated 25 September 2002; Self-Authored Memorandum for Record, dated 2
October 2002; 4 Sworn Statements; Developmental Counseling Form (DA form
4856), dated 28 May 2002; and Personnel Action Cover Sheet, dated 26
September 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he has continuously served on
active duty since August 1985.  He currently holds the rank of sergeant
first class (SFC) and is serving at Fort Campbell, Kentucky.

2.  The applicant’s NCOER history confirms that as an E-7, he received four
NCOERs prior to the report in question, and four NCOERs subsequent to the
contested evaluation.  In all of these reports, he received “Among the
Best” evaluations from his raters in Part Va. (Rater. Overall potential for
promotion and/or service in positions of greater responsibility).  In Part
Vc. (Senior Rater. Overall performance) he received a 1 Block - Successful
and in Part Vd. (Senior Rater. Overall potential for promotion and/or
service in positions of greater responsibility) he received a 1 Block -
Superior.

3.  The contested NCOER is a change of rater report covering the period
April 2002 through August 2002, which evaluated the applicant as a Platoon
Sergeant for an Aviation Regiment at Fort Campbell, Kentucky.  In Part IIIf
(Counseling Dates) of the original report, the rater, a first Lieutenant
(1LT), indicated the applicant had been initially counseled on 29 April
2002, and received later counseling on 19 July 2002.

4.  In Part IVb-f of the contested report, the rater gave the applicant
four “Success” ratings and one “Needs Improvement (Some)” rating.  The
Needs Improvement (Some) rating was in Part IVd (Leadership) and was
supported with the bullet comment “failed to properly supervise platoon's
maintenance procedures resulting in aircraft damage, additional repairs,
and NMC time”.

5.  In Part Vc (Senior Rater. Overall performance), the Senior Rater, a
captain (CPT), placed an “X” in the 3 (Successful) block.  In Part Vd
(Senior Rater. Overall potential for promotion and/or service in positions
of greater responsibility), he placed an “X” in the 3 (Superior) block.  In
Part Ve (Senior Rater Bullet Comments) the Senior Rater provided the
following bullet comments in support of his evaluation:  “supported the
company mission as the movement NCO and range NCOIC”; “failed at times to
supervise the work of his soldiers”; “possesses potential to serve in
positions of responsibility”; and “promote if room”.

6.  On 17 June 2004, the applicant appealed the contested NCOER to the
ESRB. His appeal was based on his belief that the report contained both
administrative and substantive inaccuracies, and he requested that the
report be deleted.  He stated his battalion commander was in violation of
Army Regulation 635-206, paragraph 6-3, based on his failure to conduct a
commander's inquiry into the substantive errors on his NCOER upon his
request.  He further stated the report was administratively incorrect in
Part IIIf (Counseling Dates).  The applicant stated the initial counseling
date, which was documented in his Military Personnel Records Jacket (MPRJ),
was different than the date entered on his NCOER based on a falsified form
that was never presented to him.

7.  The applicant's substantive claims were that Part IVb gave a false
impression of him as a marginal NCO.  He states his rater omitted the fact
that the 86 percent rate noted in part IVb is 11 percent above Department
of Army standards, and this fact alone would support an “Excellence”
rating.  Additionally, he claimed the NCOER failed to show he also served
as the range NCOIC for the M-18 claymore range, and that he qualified
twelve fire teams and one platoon leader in this capacity.  The applicant
also stated there were other material omissions and misstatements of facts
on the NCOER.  He claims the bullet comments contained in Part IVd and Part
V assert that he failed to supervise the work of subordinates, which was
based on an isolated incident of excess Network Maintenance Center (NMC)
time on one aircraft.  He also stated that at the time the maintenance was
being done on the aircraft, he was ordered on a training flight with his
commander.  Therefore, he could not have supervised the maintenance being
done on the one aircraft in question.

8.  The ESRB case summary on file confirms that during their review of the
applicant’s case, ESRB officials contacted the rater on the contested
report.  The rater stated that he had not formally counseled the appellant,
but did remember informally counseling the applicant on what he expected
and what the applicant should expect from him as the rater.  The rater
stated that he did not put it down on paper, nor did he complete a formal
counseling form (DA Form 2166-8-1).  He further indicated that it was
possible the counseling dates on the NCOER were incorrect.  When queried on
why he omitted significant statistics and accomplishments, the rater stated
the NCOER should have reflected the applicant’s accomplishments as the
range NCO on the battalion claymore range, which resulted in everyone
present being qualified.  The rater also indicated that he had no excuse
for omitting this fact from the NCOER in question.  He further stated that
the fact the applicant rebuilt helicopter seats should also have been
included in his evaluation.  When queried on his bullet comment "failed to
properly supervise platoon's maintenance procedures resulting in aircraft
damage, additional repairs, and NCM time", the rater commented that the
incident he was referring to in this bullet comment could have taken place
before he was designated as the applicant’s rater, and before the rating
period began.

9.  During their review, ESRB officials also contacted the senior rater on
the contested report.  The senior rater was queried on his bullet comment
in Part Ve, "failed at times to supervise the work of his soldiers", and
asked whether he counseled the appellant on his failure to supervise his
Soldiers’ maintenance over the 5 month rating period.  The senior rater
stated that the incident he referred to took place during the end of the
prior rating period, after a NCOER for the period was already rendered.
However, he decided not to retract the prior NCOER and amend it to reflect
the incident.

10.  The senior rater also informed the ESRB that he counseled the
applicant during the contested rating period, which is documented in a DA
Form 4856, dated 25 April 02.  When queried about the location of the
applicant during the incident that caused the bullet comments, the senior
rater stated he could not verify the applicant’s location, but the
applicant never accepted responsibility for this regardless of his
location.

11.  The ESRB found sufficient evidence to support the appellant’s
contention that his Battalion Commander failed to follow regulatory
guidance on conducting a commander's inquiry into the alleged errors on his
NCOER once the applicant requested the inquiry.  The ESRB stated this
failure may have prevented the applicant’s appeal from being adjudicated at
the lowest possible level.  The ESRB also found there was sufficient
evidence to support the applicant’s  contention that his rater did not
initially or quarterly counsel him in accordance with the governing
regulation, and subsequently that the counseling dates listed on the NCOER
were falsified.  The ESRB indicated the EREC would delete the counseling
dates listed in Part IIIf of the contested report.

12.  The ESRB further found sufficient evidence to support the applicant’s
contention that the bullet comment ("failed to properly supervise platoon's
maintenance procedures resulting in aircraft damage, additional repairs,
and NMC time") in part IVd was unjust.  The rater admitted that the
incident likely took place before the contested rating period.  Further,
there was also sufficient evidence to confirm the incident upon which the
bullet comment ("failed at times to supervise the work of his soldier's")
in Part Ve took place while the applicant was flying with his battalion
commander.

13.  Based on its findings, the ESRB concluded there was sufficiently
convincing evidence that Parts IVd and Ve of the contested NCOER were
inaccurate, unjust and did not adequately reflect the applicant’s
performance during the rating period, and as a result it recommended
partial relief.  The ESRB directed EREC to make the following changes to
the contested report:  delete the bullet comment “failed to properly
supervise platoon's maintenance procedures resulting in aircraft damage,
additional repairs, and NMC time” and change the rating in Part IVd to
“Success”; delete the counseling dates in Part IIIf; and delete the bullet
comment (“failed at times to supervise the work of soldiers”) in Part Ve.

14.  The ESRB also recommended the applicant be reconsidered for promotion
by a STAB under the criteria for the Fiscal Year (FY) 2004 MSG Promotion
Selection Boards held in February and September 2004.

15.  On 14 June 2005, a Department of the Army (DA) STAB adjourned after
reconsidering the applicant for promotion to MSG, after modification of the
contested NCOER, under the FY 2004 criteria used by the February and
September 2004 selection boards.  The STAB did not select the applicant for
promotion to MSG.

16.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting
System) sets 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).  It also gives guidance for
appealing evaluation reports.

17.  Paragraph 2-9 outlines the rater’s responsibility.  It states, in
pertinent part, that the rater must counsel the rated NCO on his or her
duty performance and professional development throughout the rating period
and define and discuss the duty description for part III of the NCOER with
the rated NCO during these sessions.  At a minimum, the rated NCO will be
counseled within the first 30 days of each rating period and quarterly
(every 3 months) thereafter.  The DA Form 2166-8-1 is mandatory for use by
the rater when counseling all NCOs.

18.  Paragraph 3-2 of the NCOER 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.

19.  Paragraph 3-5 states, in pertinent part, that face-to-face performance
counseling between the rater and the rated NCO is accomplished in order to
improve performance and professionally develop the rated NCO.  It is the
process by which the rater develops and communicates performance standards
to the rated NCO.  The goal of performance counseling is to get all NCOs to
be successful and meet standards

20.  Chapter 6 of the evaluation regulation contains guidance on NCOER
appeals.  Paragraph 6-6 stipulates that a report accepted for filing in an
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 6-10 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his NCOER, was unjust and therefore
should be removed from his OMPF was carefully considered and found to have
merit.  The evidence of record confirms there were inconsistencies in the
rendering and processing of the contested NCOER.  It concurs with the ESRB
findings that resulted in a partial approval of the applicant’s appeal.  It
also agrees with the several changes to the contested NCOER directed by the
ESRB.  However, the  inconsistencies in the contested NCOER revealed in the
ESRB process warrant further corrective action.

2.  By regulation, rating officials must prepare complete, accurate, and
fully considered evaluation reports, and evaluations will not normally be
based on isolated minor incidents.  In this case, the evidence of record
clearly shows that inaccurate and incomplete bullet comments were used to
support the Needs Improvement (Some) rating given by the rater, which
likely impacted the performance and potential ratings given by the senior
rater, which were also supported by inaccurate bullet comments.  The rater
and senior rater acknowledged to ESRB officials that incorrect bullet
comments were used to support these negative ratings.

3.  The applicable regulation also establishes that if the adjudication
authority is convinced that the applicant is correct in some of his/her
assertions, the clear and convincing regulatory burden of proof standard
for a successful appeal has been met.  Given the substantiated changes to
the report directed by the ESRB, the lack of counseling by the rater, the
numerous questions as to the validity of the bullet comments used to
support the negative ratings from both the rater and senior rater in the
contested NCOER, it is concluded that it would be appropriate and serve the
interest of justice and equity to remove the entire contested NCOER from
the applicant’s record.

4.  Further, given the removal of the report in question from the
applicant’s record, it would also be appropriate to refer the applicant’s
corrected record to a STAB, for reconsideration for promotion to MSG under
the criteria used by any promotion selection board that has reviewed his
record while the contested NCOER was on file.


BOARD VOTE:

___MKP_  ___LDS _  __MJF __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected
by:
      a.  removing the NCOER with the ending date of August 2002 from his
OMPF; and adding a non-prejudicial statement that states "the absence of
NCOERs for the period of April 2002 through August 2002 is through no fault
of the Soldier and this period is declared non-rated time”;


      b.  by placing his corrected record before a STAB, in order for him to
be reconsidered for promotion using the criteria of every master sergeant/E-
8 promotion selection board that considered him for promotion while the
contested NCOER was on file in his OMPF; and


      c.  if selected for promotion by the STAB, correcting his record to
show he was promoted to the next higher grade on his date of eligibility,
as determined by the appropriate Departmental officials using the criteria
cited, provided he was otherwise qualified and met all other prerequisites
for promotion.




                                  _____Margaret K. Patterson___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050011565                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-10                              |
|TYPE OF DISCHARGE       |Active Duty                             |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |Grant                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |134                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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