IN THE CASE OF:	

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090009492 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of an earlier request that his Noncommissioned Officer Evaluation Report (NCOER) for the period February 1989 through November 1989 be removed from his Official Military Personnel File (OMPF) and reconsideration for promotion to master sergeant by a Standby Advisory Board (STAB).  

2.  The applicant states, in effect, that it is still his contention that the rating levels and bullet comments on the NCOER are in response to and make direct reference to a minor incident which occurred prior to the rated period when he was still a specialist.  However, the findings of his original case also clearly demonstrate that the NCOER bullet comments violated the requirements and intent of Army Regulation (AR) 623-205 (Noncommissioned Evaluation Reporting System).  He states that his request for reconsideration will focus more on the numerous errors and injustices that are contained in the NCOER which were brought to light by the findings of the Army Board for Correction of Military Records (ABCMR).    

3.  The applicant states that the rater and senior rater failed to make specific bullet comments required by AR 623-205 and that the rater failed to provide him with the required counseling within 30 days of the beginning of the rated period.  He contends that the senior rater failed to include comments that were required by paragraph 6-15d(2) of AR 623-205 which states that marginal ratings given by the rater and fair or poor ratings in Part V must be addressed by the senior rater.  He contends the senior rater included only a single generic comment which did not address all of the required areas and the senior rater only commented on potential for promotion while failing to include the other comments required by the regulation.  He claims that the ABCMR determined that the evaluations and comments on the contested report are generic in nature and the findings of the ABCMR show that the comments were prohibited by the regulation.  He points out that paragraph 6-12e of AR 623-205 states that bullet comments are mandatory for "No" ratings and must be specific and paragraph 6-12g(2) states that specific bullet comments are mandatory.  The regulation required that bullets for low ratings must be specific but the ABCMR determined that the comments were generic.

4.  The applicant states that the NCOER clearly shows the rater did not provide his initial counseling until 3 months after the beginning of the rated period which accounted for nearly one-third of the entire rated period.  He contends that it is impossible to determine whether or not any of the generic comments were intended to reflect the first third of the rated period which was without benefit of counseling.  He points out that paragraph 6-2b of AR 623-205 states that within the first 30 days of the rating period or effective date of lateral appointment to corporal or promotion to sergeant the rater will conduct the first counseling session with the rated noncommissioned officer, that this counseling session is somewhat different from later counseling sessions in that the primary focus is on communicating performance standards to the rated noncommissioned officer, and that it should let the noncommissioned officer know what is expected during the rated period.

5.  The applicant states that he received a Certificate of Appreciation in the 
midpoint of the rated period, that this certificate was initiated by a person under whose direct supervision he had worked for approximately 3 weeks, and that this individual was in a position over him that is equivalent to a rater.  He indicates that he received a Certificate of Appreciation in the latter part of the rated period and that this certificate was from his Commanding General who was an individual in his chain of command but not part of the rating chain for the contested NCOER.      

6.  The applicant states that a DA Form 1059 (Service School Academic Evaluation Report) from the Primary Leadership Development Course (PLDC) (duration of course from 6 January 1989 to 3 February 1989) was included with his original submission and he specifically addressed the fact that the bullet comment "does not pursue opportunities for self improvement" conflicts with the documented fact that he completed the appropriate level of Noncommissioned Officer Education System (NCOES) courses during the rated period.  The DA Form 1059 also shows positive comments for his performance and potential by an individual who acted in a capacity equal to a rater during the early part of the rated period.  However, the ABCMR made no mention of this document or argument in its findings.  He respectfully requests that the ABCMR consider this document and argument during its reconsideration of his case.

7.  The applicant requests that the Board consider the relative importance and necessity of the contested NCOER.  For the past several years Active Guard Reserve (AGR) promotion boards have been comprised of electronic documents from each NCO's Integrated Personnel Electronic Records Management System (iPERMS) file and promotion board members see all evaluations from each NCO's entire career.  This NCOER has been visible to board members during each of the boards in which he has been non-selected for promotion.  He argues that what value is an initial NCOER from over 20 years ago rendered for a newly-promoted sergeant when trying to evaluate that NCO for promotion to master sergeant.  He claims that the NCOER is in violation of regulatory requirements on several counts, it is based on an isolated incident which occurred several months before his promotion and before the rated period, and it contains injustices in fact and in principle, but it is still in his record and has the potential to create a negative bias by promotion board members.  He points out that he has now been non-selected three times in the primary zone.

8.  The applicant points out that his original ABCMR case indicates that he received the NCOER prior to his release from active duty; however, the contested NCOER was not prepared until more than a month after his release from active duty and he never received a copy of this report.    

9.  The applicant provides nine enclosures outlined on page 6 of his statement for reconsideration and a letter, dated 21 December 2009, in support of his request for reconsideration.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080015674, on 30 December 2008.

2.  The applicant provided an undated Certificate of Appreciation in recognition of his outstanding performance of duty in support of the Check Point NCO Club Hamburger Stand during the 1989 German/American Volksfest.  

3.  The applicant provided a Certificate of Appreciation, dated 25 October 1989, for his dedicated and professional service to the Berlin Brigade contributing significantly to the mission of preserving the peace in the outpost of freedom and increasing the prestige and honor of the U.S. Army. 

4.  The certificates provided by the applicant are new evidence which will be considered by the Board. 
  
5.  The applicant enlisted in the Regular Army on 9 July 1985.  He attained the rank of sergeant effective 1 February 1989.
  
6.  A DA Form 2166-7 (NCOER) covering the period February 1989 through November 1989 shows the applicant was evaluated as an infantry team leader in military occupational specialty 11B (Infantryman).  This form was authenticated by the rater and senior rater on 12 December 1989.  The NCOER was forwarded to the applicant on 16 January 1990.  Part II (Duty Description) on this form shows counseling dates of 30 April 1989, 16 July 1989, and 19 October 1989.  

7.  In Part IVa (Values/NCO Responsibilities (Rater)) the rater responded "NO" to questions a2 (Is committed to and expresses a sense of pride in the unit-works as a member of the team) and a5 (Maintains high standards of personal conduct on and off duty), and provided the comments "personal conduct has led to life threatening situations" and "withdraws himself from the squad or platoon during athletic events" to explain the "NO" responses.

8.  In Part IV the rater gave the applicant a "Needs Improvement (Much)" rating in IVc (Physical Fitness) and supported this rating with the comment "loses control when confronted with personal crisis."  The rater also gave the applicant a "Needs Improvement (Some)" rating in IVd (Leadership) and provided the comment "possesses positive leadership qualities, but has a tendency to let down" to explain this rating.

9.  In Part V (Overall Performance and Potential) the rater gave the applicant a "Marginal" rating and the senior rater placed the applicant in the "4 (Fair)" block in Part Vc (Overall Performance) and in the "5 (Poor)" block in Part Vd (Overall Potential).  He provided the comment "soldiers [sic] psychological instability renders him unsuitable for leadership positions" to support his ratings.

10.  On 8 November 1989, the applicant was honorably released from active duty and transferred to the United States Army Reserve (USAR) to complete his military service obligation.

11.  The applicant is currently a member of the USAR and is serving on active duty in the rank of sergeant first class in the AGR program.

12.  On 5 May 2008, the applicant submitted an appeal to the NCOER in question to HRC-St. Louis requesting the NCOER in question be removed from his record based on substantive inaccuracy.  He claimed that the ratings and comments made in the report by the rater and senior rater were related to a minor incident that took place on 24 November 1988, before the beginning of the rating period and two months before he was promoted to sergeant.

13.  On 16 May 2008, HRC-St. Louis informed the applicant that even though he was a Reservist, since he received the contested NCOER while he was on active duty in the RA he had to submit his NCOER appeal to HRC-Indianapolis.  The applicant submitted his appeal to HRC-Indianapolis on 6 June 2008 and was informed that because he was an AGR Soldier and not an RA Soldier, they would not consider his appeal.

14.  A review of the applicant’s OMPF on the iPERMS revealed a copy of the NCOER in question.  

15.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that an NCOER will be filed permanently in the performance section of the OMPF.

16.  Army Regulation 623-205 (Noncommissioned Evaluation Reporting System), in effect at the time, prescribed the enlisted evaluation function of the military personnel system and provided guidance regarding redress programs, including appeals.  Chapter 6 contained guidance on NCOER appeals.  Paragraph 6-6 stipulated that a report accepted for filing in an NCO’s 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 contained 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 stated, 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 attached to reports accepted for filing by Department of the Army should not 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 the rating levels and bullet comments on the contested NCOER were in response to and make direct reference to a minor incident which occurred prior to the rated period was carefully considered.  However, as previously advised in his original request, there is insufficient evidence to support this contention.  
2.  The applicant's contentions that the rater and senior rater failed to make specific bullet comments required by AR 623-205 and that the rater failed to provide him with the required counseling within 30 days of the beginning of the rated period were noted.  However, there is no evidence of record which shows the applicant appealed the contested NCOER to the proper officials in a timely manner.  Had he taken that action in a timely manner, he could have addressed these issues on the NCOER at that time when the rating officials and the circumstances were still fresh and could have been evaluated by the appropriate agencies.    

3.  The Certificates of Appreciation provided by the applicant were noted.  However, they do not, in themselves, serve as sufficient evidence to warrant removal of a duly constituted evaluation of performance and potential.   

4.  The DA Form 1059 provided by the applicant and his contentions that the bullet comment "does not pursue opportunities for self improvement" on the contested NCOER conflicts with the documented fact that he completed the appropriate level of NCOES during the rated period and that the DA Form 1059 also shows positive comments for his performance and potential by an individual who acted in a capacity equal to a rater during the early part of the rated period were noted.  However, the DA Form 1059 shows the applicant completed the PLDC on 3 February 1989, three days after the rated period began.  There is no evidence of record which shows the applicant completed any other self improvement courses during the remaining 8 months of the rated period.  Therefore, the bullet comment "does not pursue opportunities for self improvement" appears to have merit.

5.  The applicant's remaining contentions were carefully considered.  However, the applicant has not provided sufficient evidence to show the NCOER did not represent the considered opinion and the objective judgment of the rater or the senior rater at the time of preparation.  There is also no evidence of record and the applicant has provided no evidence which shows that he should have received more favorable ratings by the rater or senior rater.  

6.  The applicant contends that the contested NCOER is preventing him from being promoted; however, promotion boards do not reveal their basis for selection or non-selection.  It is also noted that individuals have the opportunity to send a letter to the president of the selection board to explain areas of concern in their records. 




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____X___  ____X___  ____X___  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 to amend the decision of the ABCMR set forth in Docket Number AR20080015674, dated 30 December 2008.



      _______ _   __X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20090009492





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ABCMR Record of Proceedings (cont)                                         AR20090009492



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