RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 November 2005
      DOCKET NUMBER:  AR20050011706


      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. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas Pagan                  |     |Chairperson          |
|     |Mr. Eric Anderson                 |     |Member               |
|     |Mr. Joe Schroeder                 |     |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 block c (Senior Rater (SR)/Overall
Performance) of Part V (Overall Performance and Potential) of his DA Form
2166-8 (Noncommissioned Officer Evaluation Report [NCOER]) with a through
date of October 2003, be corrected to support the rest of the NCOERs that
were corrected by Fort Benjamin Harrison, Indiana.

2.  The applicant states that he was given a bad rating due to bad
communication.  He was on temporary duty (TDY) at Walter Reed Army Medical
Center (WRAMC), was issued a DD Form 1610, and the first sergeant prepared
a leave form.  The NCOER was prepared in November 2003 and the action
occurred in August 2002.  He also states that his overall performance block
of "4" (Fair), on his contested report, with a through date of October
2003, should coincide with his overall potential block of "2" (Superior).

3.  The applicant provides a copy of his appeal, with supporting documents,
and several NCOERs in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he is currently serving on active
duty in the rank of sergeant first class (SFC/E-7).

2.  On 19 September 2001, the Orthopedic Surgeon, of Landstuhl Regional
Medial Center, prepared a memorandum for the 92nd Military Police Company,
Subject:  Medical Statement for [the applicant].  The Surgeon diagnosed the
applicant as having a left hip femoral osteonecrosis and planned surgery
for his hip at WRAMC.  He also stated that the applicant must not bear
weight on the left lower extremity and use crutches to protect his left
hip.  He recommended that the applicant not be deployed based on his
ongoing orthopaedic condition.

3.  The applicant provides a copy of his DD Form 1610, dated 4 June 2002
which authorized him TDY for the period 15 June to 10 August 2002, 55 days,
for the purpose of aeromedical evacuation.  He departed from Baumholder,
Germany, and proceeded to WRAMC and return, upon completion.

4.  The applicant provided a copy of his NCOER for the period August 2001
through July 2002, an annual report, and his NCOER for the period from
December 2002 through October 2003, a change of rater report.



5.  In the NCOER, with a through date of July 2002, in Part IV, under
Values/NCO Responsibilities, the rater gave the applicant an "Excellence"
rating under "Competence," "Training," and "Responsibility and
Accountability."  The rater gave the applicant a rating of "Success" for
"Physical Fitness and Military Bearing" and "Leadership."  In Part V
(Overall Performance and Potential), block a (Rater/Overall potential for
promotion and/or service in positions of greater responsibility), the rater
placed an "X" in the "Among the Best" block.

6.  In Part V, (Overall Performance and Potential), of the applicant's
NCOER with a  through date of July 2002, the SR rated the applicant's
overall performance as "Successful" (with a Numerical Score of "1") and his
"Overall potential for promotion and/or service in positions of greater
responsibility" as "Superior" (with a Numerical Score of "1").

7.  In the NCOER, with a through date of October 2003, in Part IV, Under
Values/NCO Responsibilities, in Part IVb, under "Competence" the rater gave
the applicant an "Excellence" rating.  He indicated that the applicant had
been "instrumental in the 2nd BDE Dining Facility winning third place in
the All Army Level, Large Category, Philip A. Connelly Competition",
"selected over senior NCOs to perform as the 2nd BDE Rear Detachment Dining
Facility Manager", and "performed as the Food Service Operations Manager
for the entire 222d BSB, managing three dining facilities."

8.  In part IVe, under "Training", the rater gave him an "Excellence"
rating.  He indicated that he had "trained 17 civilian contract cooks in
all aspects of dining facility operations while conducting daily
operations", "trained senior first cook in all phases of dining facility
management facilitating his selection as a dining facility manager over his
peers", and "cross trained Soldiers enabling them to become more proficient
in food service field operations."  In Part IVc, under         "Physical
Fitness and Military Bearing", the rater gave him a "Success" rating.  He
indicated that he "projected the appearance of a confident and professional
Soldier", "displayed mental toughness during adverse and challenging
conditions", and "routinely proved his ability to remain flexible and excel
in demanding situations."

9.  In Part IVd, under "Leadership", the rater gave him a "Success" rating.
 He indicated that he "received laudatory comments from the 222d BSB CSM
for menu innovations that increased patronage by Soldiers and family
members" and "routinely demonstrated an authentic concern for Soldiers
through personal involvement and straight forward counseling."


10.  In Part IVf, under "Responsibility and Accountability", the rater gave
him a "Success" rating.  He indicated that he "implemented a budget system
that turned a $3,000 deficit into a $4,000 surplus over a ninety day
period", "accounted and budgeted for consumable class I subsistence on an
annual budget of approximately 1.7 million dollars", and was "responsible
for 5.2 million dollars worth of assigned equipment, which was 100% mission
capable during the entire rating period."  In Part V (Overall Performance
and Potential), block a (Rater/Overall potential for promotion and/or
service in positions of greater responsibility), the rater placed an "X" in
the "Fully Capable" block.

11.  In Part V, (Overall Performance and Potential), of the applicant's
NCOER with a through date of October 2003, the SR rated the applicant's
overall performance as "Fair" (with a Numerical Score of "4") and his
"Overall potential for promotion and/or service in positions of greater
responsibility" as "Superior" (with a Numerical Score of "2").

12.  On 23 August 2004, the applicant appealed his NCOERs for the period
August 2001 through July 2002 and for the period from December 2002 through
October 2003 to the Department of the Army, Enlisted Special Review Board
(ESRB).  The applicant based his appeal on the contention that the
contested report contained substantive inaccuracies.  He requested that
several comments be deleted.  He was granted partial relief of his appeal
for his contested report with a through date of October 2003.

13.  The SR stated that he had worked with NCOs worse than the applicant,
but not many, that his performance was questionable, and that he would
never trust him in any leadership position without maximum supervision.
The SR also stated that the applicant may wear the stripes and hold a
position, but he was no way a leader.  He concluded that during the rated
period that his evaluation of the applicant's overall performance and
potential was annotated on the NCOER the applicant received.

14.  The ESRB indicated that based upon the information provided at hand
that there was sufficient convincing evidence that the contested reports
were inaccurate, unjust, and did not adequately reflect the applicant's
performance and potential demonstrated during the rating period.  The ESRB
determined that there was a basis to approve the requested corrections for
the NCOER with a through date of July 2002 and partially grant the
applicant's appeal of his NCOER with a through date of October 2003.  The
ESBR recommended that the Enlisted Records and Evaluation Center change the
bullet comments.  The changes were made and copies of the corrected reports
were forwarded to the applicant.

15.  AR 623-205 establishes the policies and procedures for the NCOER
system. In pertinent part, it states that 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 its
preparation.  It also states that 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.  Paragraph 2-10, of the same regulation, pertains to the Senior Rater
(SR).   It states that: (a) the senior rater uses his or her position and
experience to evaluate the rated NCO from a broad organizational
perspective.  His or her evaluation is the link between the day-to-day
observation of the rated NCO’s performance by the rater and the longer-term
evaluation of the rated NCO’s potential by DA selection boards; and (b)
normally, to evaluate an NCO, the senior rater must be designated and serve
in that capacity for at least 60 rated
days.

17.  Paragraph 2-11 states that the SR's role is primarily to evaluate
potential,      over-watch the performance evaluation, and mentor
subordinates.  The SR will: (a) use all reasonable means to become familiar
with the rated NCO’s performance throughout the rating period; (b) prepare
a fair, correct report evaluating the NCO’s duty performance,
professionalism, and potential.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant appealed his NCOER with a through
date of July 2002 and October 2003.  The applicant based his appeal on the
contention that the contested reports contained substantive inaccuracies
and the applicant requested that several comments be deleted.

2.  Notwithstanding the determination by the ESRB that there was sufficient
evidence that the contested reports were inaccurate, unjust, and did not
adequately reflect the applicant’s performance and potential during the
rating period, there was basis to approve his NCOER with a through date of
July 2002 and partially grant the applicant's request for appeal of his
NCOER with a through date of October 2003.  While it is understood that an
evaluation report is supposed to stand alone, given the circumstances in
this case, the Soldier’s entire performance should be considered when
reviewing the report in question.


3.  The ESRB approved corrections to his NCOER with a through date of July
2002 and granted partial relief of appeal on his NCOER with a through date
of October 2003.  The changes were made and copies of the corrected reports
were sent to the applicant.

4.  The evidence shows that the applicant received many outstanding
accolades and comments for his performance as indicated in the contested
report with a through date of October 2003.

5.  The ESRB granted partial relief of the contested report with a through
date of October 2003 for corrections to Part V (Overall Performance and
Potential), block c (Senior Rater/Overall Performance).

6.  In accordance with applicable regulation, the SR's primary role is to
evaluate on potential, over-watch the performance evaluation, become
familiar with the rated individual's performance throughout the rating
period, in order to render a fair and accurate report.

7.  It is clearly understood that an evaluation report is supposed to stand
alone, given the circumstances in this case, the entire Soldier should be
considered when reviewing the report in question.  The evidence clearly
shows that the applicant should have been rated fairly on his overall
performance to coincide with his overall potential for promotion.

8.  By regulation, rating officials have the responsibilities to report on
the failures as well as achievements of the rated NCO.  The decision to
rate the applicant fairly on his overall performance to coincide with his
overall potential for promotion clearly rested with the senior rater.  The
senior rater stated that he had worked with NCOs worse than the applicant,
but not many, that his performance was questionable, that he would never
trust him in any leadership position without maximum supervision, and that
he was in no way a leader.  The SR concluded that his evaluation of the
applicant’s overall performance and potential was annotated on the NCOER he
received.

9.  The comments made by the SR were subjective decisions made by him when
preparing the report in question.

10.  It would be inappropriate to change the SR’s comments without the
benefit of knowing the SR's rating philosophy and being aware of his rating
tendencies.   The basis and the logic he employed in awarding the applicant
a numerical score of "4" for his overall performance is not contrary to the
scope of the applicable regulation.

11.  In view of the facts of this case, the burden of proof necessary to
support a change in his overall performance rating of "4" has not been
satisfied.  As a result, there is insufficient evidentiary basis to support
granting the requested relief.

BOARD VOTE:

________ ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JRS___  __ENA__  _TAP ___  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.




                                  ______Thomas Pagan_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011706                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . active duty                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

-----------------------
[pic]