RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 October 2005
      DOCKET NUMBER:  AR20050012116


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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, the following:

      a.  reconsideration for promotion to sergeant major (SGM) by a
Standby Advisory Board for each promotion selection board in which the
original version of the DA Form 2166-8 (Noncommissioned Officer Evaluation
Report (NCO-ER)), for the period June 2002 through January 2003, was
reviewed as part of his Official Military Personnel File (OMPF);


      b.  that the amended NCO-ER, for the period June 2002 through
January 2003, be reviewed by a Standby Advisory Board; and

      c.  if selected for promotion to SGM by a Standby Advisory Board:

           (1)  an effective date of promotion the same as the applicant
would have had, had he been selected for promotion to SGM by the original
promotion selection board;

           (2)  credit for time in grade from the date of his promotion to
SGM to the present for pay, promotion, and retirement purposes; and

           (3)  back-pay and allowances from the effective date of his
promotion to SGM to the present.

2.  The applicant states, in effect, that the Enlisted Special Review
Board's decision to place the amended NCO-ER in his OMPF and not have his
file reconsidered by a Standby Advisory Board was an error.

3.  The applicant provides a supplemental statement, signed by his counsel;
a copy of the original NCO-ER (June 2002 through January 2003); a copy of
the amended NCO-ER (June 2002 through January 2003); a letter from the
Chief, Records Services Division, U.S. Army Enlisted Records and Evaluation
Center (EREC), Indianapolis, Indiana, dated 5 May 2005; a letter from the
President, Special Review Boards, Office of the Deputy Chief of Staff, G-1,
Special Review Boards, Alexandria, Virginia, dated 11 April 2005; and his
Evaluation Report Appeal, dated 20 January 2005, along with its five
enclosures.





CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he has served on active duty
since 14 January 1981.  He currently holds the rank of master sergeant
(MSG) and is serving overseas in support of Operation Iraqi Freedom.

2.  On 3 March 2003, the applicant received a NCO-ER for the period June
2002 through January 2003, while serving as First Sergeant, 84th Ordnance
Company, 6th Ordnance Battalion in Korea.  Part Ie (PMOSC) of this NCO-ER
contained the entry "55B5P2B".  Also, Part V (Overall Performance and
Potential), showed in Part Vc (Senior Rater. Overall performance) a "1"
(Successful) box check; Part Vd (Senior Rater. Overall potential for
promotion and/or service in positions of greater responsibility) a "2"
(Superior) box check; and Part Ve (Senior Rater Bullet Comments) contained
the following entries: "has potential of a fully capable SGM; assign as a
instructor; clearly capable of serving with distinction in key staff
positions".

3.  On 4 June 2004, the applicant's official file, which included the NCO-
ER in question, was reviewed by the SGM Promotion/Command Sergeants Major
(CSM) Selection Board; however, the applicant was not selected for
promotion.

4.  On 20 January 2005, the applicant submitted an appeal of the NCO-ER in
question.  In the appeal, the applicant contested the entry on the NCO-ER
in
Part Ie and the validity of the comments and ratings of the senior rater in
Parts Vc, Vd, and Ve.  With his appeal, the applicant provided a copy of a
memorandum for record, dated 15 February 2005, from a former first sergeant
he had served with in Korea that indicated the senior rater that had
rendered the applicant's NCO-ER had been relieved from his duties as
battalion commander.

5.  On 11 April 2005, the President, Special Review Boards, advised the
Chief, NCO Evaluation Branch (EREC) that the Enlisted Special Review Board
(ESRB) had adjudicated the appeal on the applicant and the decision was
made to alter the evaluation report rendered on the applicant for the
period June 2002 through January 2003.  EREC was directed to change Part Ie
to read, "55B5M2B", delete the senior rater's assessment in Parts Vc, Vd,
and Ve; add the statement, "Senior Rater does not meet qualifications"; and
file the appeal correspondence on the applicant's restricted fiche of his
OMPF.  The ESRB document also indicated that "promotion reconsideration is
not warranted because of this change to the appellant's file".



6.  On 5 May 2005, the Chief, Records Service Division (EREC) notified the
applicant of the results of his appeal, indicating the report would be
amended.  The letter also advised the applicant that the ESRB determined
the evidence does not justify removal of the report in question from his
OMPF and that promotion reconsideration was not warranted because of the
change.

7.  In connection with processing of this case, a copy of the ESRB Case
Summary of the applicant's NCO-ER appeal was obtained.  Based on its review
of the case, the ESRB concluded there was sufficient convincing evidence
that Part Ie and Parts Vc, Vd, and Ve of the contested evaluation were
inaccurate, unjust, and did not adequately reflect the appellant's
performance and potential demonstrated during the rating period and granted
approval of the applicant's appeal.  The ESRB recommended: (1) approval of
the appeal; (2) directed EREC to change Part Ie of the NCO-ER, delete the
Senior Rater's assessment in Parts Vc, Vd, and Ve, and add the statement
"Senior Rater does not meet minimum qualifications."; (3) to file the
appeal correspondence in the applicant's restricted fiche of his OMPF; and
(4) found that promotion reconsideration was not warranted because of the
change to the applicant's file.

8.  In support of his application, the applicant provided a supplemental
statement in which he outlines the events and issues concerning his NCO-ER
appeal.  He also discusses the senior rater's bullet comments and "block"
ratings on the original NCO-ER in question.  The applicant states, in
effect, that the senior rater's comments are "at best lukewarm", the "2"
block check is a "kiss of death" for a SGM candidate, that the senior rater
bullets assured the applicant would not be promoted to SGM, and concludes
that the senior rater comments were negative and should not have been
reviewed by the SGM promotion board.

9.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting
System) provides structured potential rating for overall performance and
potential which consists of rater box marks for promotion/service
potential; rater specific positions recommendation; senior rater overall
performance and potential box marks, and senior rater choice of
alternatives for future performance.  This regulation provides, in
pertinent part, definitions to be used when the senior rater completes
Parts Vc and Vd.  It shows that for successful/superior box marks, a "1"
rating represents the cream of the crop and is a recommendation for
immediate promotion; a "2" rating represents a very good, solid performance
and is a strong recommendation for promotion, and a "3" rating also
represents a good performance and, should sufficient allocations be
available, is a recommendation for promotion.  This regulation further
states that Part V bullet comments should focus on potential.

10.  Army Regulation 623-205, provides special rules in the event of the
loss of a rating chain official due to death, or if the rating official is
suspended, relieved, reduced, absent without leave, declared missing, or
becomes incapacitated.  It states, in pertinent part, that removal of the
senior rater or reviewer from the rating chain is treated as a routine
change.  When the senior rater does not meet minimum time requirements for
evaluation of the rated NCO, the following statement is entered in Part Ve,
"Senior rater does not meet minimum qualifications", and Parts Vc and Vd
will not be completed.

11.  Army Regulation 623-205 provides, in pertinent part, guidance on the
preparation, submission, and adjudication of evaluation report appeals.  It
shows that appeals based solely on administrative error will be adjudicated
by the NCO Evaluation Report Appeals Section, EREC, and that claims of
substantive inaccuracy or injustice are adjudicated by the ESRB.

12.  Army Regulation 623-205 further provides that the burden of proof for
a claim of inaccuracy or injustice of a substantive type rests with the
applicant.  Evidence must include statements from third parties and/or
rating officials who have knowledge of the applicant's performance, or
other documents from official sources.  To the extent practical, these
statements and documents must include specific details leading to the
inaccuracies, misrepresentations, or injustice.

13.  This Army regulation also shows that when the board grants an appeal,
either in whole or in part that results in the removal or substantive
alteration of an evaluation report that has already been seen by one or
more promotion boards that previously failed to select the appellant, the
ESRB will make a determination whether promotion reconsideration by one or
more special boards is justified.

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides
rules for processing Standby Advisory Board consideration and states that
reconsideration will normally be granted when one or more specific
conditions existed on the Soldier's OMPF at the time it was reviewed by a
promotion selection board.  In pertinent part, it provides for
reconsideration when an adverse NCO-ER (emphasis added) or Academic
Evaluation Report was reviewed by a board, which was subsequently declared
invalid in whole or in part, and was determined by the ESRB to constitute
material error".

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the amended NCO-ER represents a
material change in the applicant's promotion potential because promotion to
SGM is excruciatingly selective and the slightest negative assessment,
whether overtly stated or by innuendo, of future potential is fatal to a
SGM candidate. The applicant also contends, in effect, that the word
"potential" is a magic word which by innuendo has been generally accepted
to mean, "He is not at this moment ready for greater responsibility."  He
further contends, in effect, that the senior rater's bullet comments on the
applicant's potential are negative and suggest he cannot command.  However,
insufficient evidence was found to support his claim.

2.  Evidence of records shows that the ESRB confirmed the applicant's
senior rater was relieved from his duties as battalion commander on 31
January 2003, the last day of the NCO-ER in question.  Consequently, the
ESRB approved the applicant's appeal of the evaluation report and directed
deletion of the senior rater's assessment in Parts Vc and Vd, and adding
the statement, "Senior rater does not meet minimum qualifications".  In
addition, the ESRB determined that promotion reconsideration was not
warranted because of this change, as the ESRB was not convinced there would
have been a reasonable chance for selection had the change been made before
the appellant was considered by the SGM promotion selection board.
Therefore, the actions by the ESRB were consistent and in compliance with
the governing regulatory guidance.

3.  The applicant asserts that the senior rater's comments on the
applicant's potential convey that he was not ready for greater
responsibility and connote a negative message.  However, the governing Army
regulation clearly defines that the box marks made by the senior rater
constitute successful and superior ratings and are strong recommendations
for his promotion.  The applicant also asks the Board to compare the senior
rater's comments to those of the rater, suggesting their comments are quite
disparate.  However, in doing so, the Board finds the senior rater's bullet
comments on the applicant's potential actually amplify the rater's list of
3 positions in which the applicant could best serve the Army at his current
or next higher grade; specifically, as an instructor or with distinction in
key staff positions.  Therefore, there is insufficient evidence to support
the applicant's assertions.

4.  By regulation, reconsideration by a Standby Advisory Board normally
will be granted when an adverse NCO-ER (emphasis added) reviewed by a board
is subsequently declared invalid in whole or in part, and was determined by
the ESRB to constitute material error.  Based on a review of the senior
rater's comments on the original NCO-ER and the applicable Army regulatory
guidance, the NCO-ER was not an adverse NCO-ER.  Moreover, a comparison of
the senior rater's bullet comments and box checks in Part Vc, Vd, and Ve
show that they are consistent with, and an endorsement of, the rater's
bullet comments and box checks in Parts Va and Vb.  Therefore, there is
insufficient evidence presented by the applicant to overcome the ESRB's
decision that promotion reconsideration is not warranted because of this
change to the applicant's file.

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.  Therefore, the
applicant is not entitled to reconsideration for promotion to SGM by a
Standby Advisory Board with the amended NCO-ER as part of his official
file.  Consequently, the additional actions the applicant requests are
deemed moot.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JTM __  __JBG_ _  __ JRM__  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.




                                  ____JOHN T. MEIXELL______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050012116                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |111.0000.0000                           |
|2.                      |131.1100.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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