RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 July 2006
      DOCKET NUMBER:  AR20060009096


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. Marla J. Troup                |     |Member               |
|     |Mr. William F. Crain              |     |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 his noncommissioned officer evaluation
report (NCOER) for the period September (sic) 2004 through December 2004 be
expunged from his records.

2.  The applicant states his rater and senior rater were not qualified to
rate him.  The NCOER acknowledges that he was on temporary duty (TDY)
throughout   the rating period.  According to Army Regulation 623-205,
Table 3-5, a rated NCO who is TDY for more than 90 days becomes the
responsibility of the TDY unit for evaluation unless he or she is still
performing the duties of his or her parent unit.  It is true that he was
permanently assigned to the Combat Equipment Battalion – Qatar (CEB-QA);
however, he was working solely for the CEB – Kuwait (CEB-KU).

3.  The applicant states that he is concerned as to why the Enlisted
Special Review Board (ESRB) would justify reasons to support a duty
position and rated months change on the contested NCOER but not see that it
is obvious that he could not have been rated by the CEB-QA if it was
justified that he was working for CEB-KU.  Simply stated, the CEB-QA could
not have rated him in the 92A50 position as they did not have a slot for a
92A50.  However, the CEB-KU did have that position, which is the primary
and only reason that the ESRB could have made the change.  Once again, the
command at the CEB-KU should have rated him and not the command in Qatar.
It is also beyond him as to why the ESRB changed the rated months from 6 to
4, thus causing him to have 2 months of non-rated time.  If the correct
command had rated him, he would not have lost any rated months.

4.  The applicant provides the 17 documents listed, on his 22 June 2006
supplemental letter to the Board, as enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant has served in Operation Iraqi Freedom.

2.  After having prior service in the Army National Guard, the applicant
enlisted in the Regular Army on 1 February 1989.  He was promoted to
Sergeant First Class (SFC), E-7 on 1 May 2000 in military occupational
specialty (MOS) 92Y (Unit Supply Specialist).  He deployed to Operation
Iraqi Freedom around January 2004 and was assigned to the CEB-QA.

3.  The applicant provided several letters of support, provided with his
NCOER appeal, showing he was deployed to Camp Victory, Baghdad from July
2004 through November 2004.  A 22 March 2006 letter from Major H___ stated
the applicant reported to the Army Pre-positioned Stock (APS) Cell Forward
on       18 July 2004 to serve as the Materiel Control Supply NCO in charge
(NCOIC) per the CEB-KU Table of Distribution and Allowances.  She, Major
(then Captain (CPT)) H___, was ultimately responsible for the supervision
of the applicant and five other personnel.  She stated it was originally
anticipated that the applicant would be needed for no more than 30 days;
however, their mission at Camp Victory was subsequently extended, requiring
the applicant to stay until               9 November 2004.  She stated she
spoke to Chief Warrant Officer Three (CW3) H___ (the applicant’s supervisor
in Qatar) and to CW3 H___’s replacement, CW5 T___, in regard to the
applicant’s evaluation and her eligibility to rate him.  However, the Qatar
chain of command determined that [Qatar] would rate him, but they welcomed
an evaluation write-up and award recommendation.

4.  The applicant provided a 22 June 2006 letter (from his NCOER appeal)
from CW3 H___, the applicant’s immediate supervisor prior to the
applicant’s departure to Baghdad.  CW3 H___ restated the facts of the
applicant’s assignment to the CEB-KU.  CW3 H___ also stated that, in
September 2004 during his preparation for departure from Qatar, [CPT] H___
stated in a phone conversation that she should take over the rating duties
for the applicant since the applicant was directly working for her and
would have been TDY for more than 90 days by the time he retuned to Qatar.
That would have been in accordance with Army Regulation 623-205.  CW3 H___
stated, “The bottom line is that [the applicant] should have never been
rated by the CEB-QA Staff throughout his TDY…It was my understanding [the
applicant] was going to be rated by the command out of Kuwait as they had
the mission in Iraq.”

5.  CPT H___ provided a memorandum for record, dated 18 September 2004,
apparently as input for the applicant’s rating officials.  In the
memorandum for record, she described the applicant’s duties.  She also
stated the applicant was an NCO who could, should, and would advance
rapidly through the ranks to Sergeant Major; he had unlimited potential; he
was a brilliant performer who epitomized Army values; and he was definitely
in the top one percent of all SFCs and should be recognized as such.

6.  The applicant was awarded a Bronze Star Medal for meritorious service
for the period 26 July 2004 to 10 November 2004, while with the CEB-QA.

7.  The contested NCOER was originally a 6-rated month change-of-rater
report (later amended by the ESRB to be a 4-rated month report).  His rater
and senior rater were from the CEB-QA.  In Part IVa3 (Army Values, RESPECT
(EO/EEO) Treats people as they should be treated), his rater checked the
“NO” block with the related comment, “Soldier did not support EO; NCO
violated the tenants of the Army’s Sexual Harassment policy.”  In Part IVd
(Leadership), his rater checked the “Needs Some Improvement” block with the
related comment, “Soldier failed to set the example; used poor judgment
that resulted in a substantiated EO complaint.”  The rater rated the
applicant’s overall potential for promotion and/or service in positions of
greater responsibility as “Marginal.”

8.  In Part Vd, the applicant’s senior rater rated the applicant’s overall
potential as “Fair” with two related comments – “do not promote at this
time; retain in current grade” and “duty performance marred by a lack of
judgement (sic) resulting in a substantiated EO complaint.”  The senior
rater also noted that the applicant was TDY throughout the rating period.

9.  The applicant appealed the NCOER to the ESRB.  The ESRB contacted the
applicant’s rating officials.  The applicant’s rater stated the applicant
had contact with him (the rater) every day on issues with the battalion and
he remained responsible to his parent unit.   The ESRB noted that CPT H___
acknowledged in her statement that she was not the applicant’s rater and
that she was asked to provide recommended comments for his evaluation and
award.  The applicant’s appeal was denied; however, the ESRB noted there
was evidence that the rated months (apparently based on CW3 H___’s
statement that he departed in September 2004) and the duty MOS on the
contested NCOER were in error and administratively corrected these two
entries.

10.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting
System), paragraph 6-6 states an NCOER accepted for inclusion in an NCO’s
official record 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 preparation.  Paragraph 6-10 states 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.  Clear and convincing evidence must be of a strong
and compelling nature, not merely proof of the possibility of
administrative error or factual inaccuracy.

11.  Army Regulation 623-205, paragraph 2-8 states the rater is the person
in the rating chain who is most familiar with the day-to-day performance of
the rated NCO; most directly guides the rated NCO’s participation in the
organization’s mission, and has been designated and has served in that
capacity for at least   90 rated days.  Exceptions to this policy are
provided in paragraphs 3-30 and    3-33.  Paragraph 2-1 states the senior
rater uses his or her position and experiences to evaluate the rated NCO
from a broad organizational perspective.  His or her evaluation is the link
between the day-to-day observations of the rated NCO’s performance by the
rater and the longer-term evaluation of the rated NCO’s potential by
Department of the Army selection boards.

12.  Army Regulation 623-205, paragraph 3-30 states a report will be
submitted whenever the designated rater is changed as long as the minimum
rater qualifications are met.  Rater changes include, among other reasons,
when the rater or rated NCO departs on extended TDY (and refers to
paragraph 3-31).

13.  Army Regulation 623-205, paragraph 3-31(b) states that an NCO on TDY
(other than for school) who is not responsible to rating officials in his
or her parent organization will be rated by the TDY supervisor according to
table 3-5.  The TDY supervisor will ensure that a rating scheme is
published.  Paragraph   3-31(c) states that an NCO on TDY who remains
responsible to rating officials in his or her parent organization will
continue to be rated for that period, regardless of its length, by the
normal rating officials.  Memorandum input from officials at TDY location
is optional.

14.  Army Regulation 623-205, table 3-5 prescribes TDY supervisor’s reports
(other than TDY to attend school).  It states that when the Soldier is TDY
regardless of the length and remains responsible to the parent unit,
memorandum input to the rater is optional.

15.  Army Regulation 623-205, table 3-5 also prescribes the evaluation
report requirements when the rated NCO is TDY for less than 90 days/more
for 90 days and is responsible to the TDY unit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, CPT H___, and CW3 H___ misread the regulation when they
contend that the applicant should have been rated by personnel at the CEB-
KU merely because he was TDY for more than 90 days.

2.  Army Regulation 623-205, table 3-5 prescribes three scenarios for
rating an NCO who is TDY: (1) when the Soldier is TDY regardless of the
length and remains responsible to the parent unit; (2) when the Soldier is
TDY for less than 90 days and is responsible to the TDY unit; and (3) when
the Soldier is TDY for more than 90 days and is responsible to the TDY
unit.

3.  The applicant refers to scenario (2); however, it appears to have been
clear, contrary to CW3 H___’s assertion, rating responsibility was never
relinquished to the CEB- KU.  CPT H___ acknowledged in her 22 March 2006
that the Qatar chain of command determined that [Qatar] would rate the
applicant.
4.  The applicant contended that he was concerned as to why the ESRB would
justify reasons to support a duty position and rated months change on the
contested NCOER but not see that it is obvious that he could not have been
rated by the CEB-QA.  It appears the ESRB changed the rated months on the
contested NCOER because CW3 H___ stated he was the applicant’s immediate
supervisor (i.e., the applicant’s rater) until he prepared for departure in
September 2004.  Since the rating period of the contested OER began in July
2004, but CW3 H___ departed in September 2004, two months out of that
  6-month rating period were nonrated by the new rater.  The duty MOS and
position were changed because the evidence showed the applicant actually
performed duties in MOS 92Y.  However, the MOS in which he performed duties
was immaterial as to what his responsible rating chain was.  Again, the
evidence shows the CEB-QA never relinquished rating responsibility to the
CEB- KU.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __mjt___  __wfc___  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.




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009096                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060720                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |111.0200.0008                           |
|2.                      |111.0200.0010                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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