MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            10 December 1998                  
	DOCKET NUMBER:   AC97-07767

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Theodore Heartley		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston 		Chairperson	
	Mr. James M. Alward 		Member	
	Mr. Stanley Kelly		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that the non commissioned officer evaluation reports (NCOER) for the rating periods from April 1992 to March 1993 and from April 1994 to March 1995 be removed from his records.

APPLICANT STATES:  In effect, that these NCOERs misrepresented his duty performance; that his rating officials demonstrated bias, discrimination and conspired against him because he had knowledge of an ongoing investigation of a sexual harassment complaint by one his soldiers against his senior rater; that he was never counseled prior to receiving his NCOER for the rating period from April 1994 to March 1995; and that these erroneous reports formed the basis for a Department of the Army, Qualitative Management Program ( DA QMP) proceeding resulting in his separation.  

The applicant submitted numerous documentation in support of his request including a number of third party statements; DA QMP notice, appeal and decision documents; copies of 7 NCOERs; NCOER appeal and decision documents; a copy of an equal opportunity complaint (EOC); and his sworn statements. 

EVIDENCE OF RECORD:  The applicant's military records show:

He had 1 year, 11 months, and 19 days of USAR service and completed training as a medical specialist.  He initially enlisted in the Regular Army on 23 April 1985 for a period 3 years.  He had 3 subsequent reenlistments without a break in service.  The first reenlistment was on 17 February 1988 for 4 years; the second on 31 October 1991 for 
4 years; and the last reenlistment occurred on 6 December 1994 for 2 years. 

During his active duty service, he completed training as a parachute rigger.  He performed those duties in Italy and Fort Bragg, North Carolina and attained the rank of staff sergeant (E-6).   

The annual NCOER for the rating period April 1992 to March 1993, provided by the applicant, shows that the rater evaluated him as “successful” or “meeting the standards” in the areas of leadership, training, responsibility and accountability, physical fitness and military bearing.  The rater evaluated him as “needing some improvement” in the area of competence.  The accompanying bullet comments stated that he was “impervious to counseling; formal or informal”; and that “in reference to judgement; stubbornly opposes corrective counseling by chain of command”.  The rater evaluated his overall potential for promotion and service in positions of greater responsibility as “marginal”.

The senior rater evaluated her overall performance, promotion and service in positions of greater responsibility as “successful” and “superior” respectively, with a numerical rating of “3” for each on a scale of 1 to 5.  Accompanying bullet comments stated that “need to be supportive of the NCO support chain of command’ and that “leadership as an NCO questionable”.  The reviewer concurred with the rater and senior rater evaluation.  

In the rater’s letter of support for the applicant’s QMP appeal dated 19 August 1993, he explained the rational for the rating on the NCOER for the period ending in March 1993. He stated, in effect and in pertinent part, that he was sending the applicant a stern message by pointing out his deficiencies and the need for improvement in dealing with his superiors, peers and subordinates.  He further stated that the message was understood because in the months following the report, the applicant showed a marked improvement in his ability to communicate at all levels. 

In his letter of support for the applicant’s QMP appeal dated 23 August 1993, the reviewer of the annual NCOER for the rating period from April 1992 to March 1993 stated, in effect, that he concurred with the rater; that the applicant had made improvement in his attitude and was, somewhat, on the right track regarding his professional development; and that the rater continued to encourage self improvement in the military disciplines despite no longer being in the applicant’s rating chain.  

The change of rater NCOER for the rating period April 1994 to March 1995, provided by him, shows that he received his initial counseling on 7 April 1994 and was subsequently counseled on 5 July 1994, 3 October 1994 and 6 January 1995. 

The rater evaluated him as “successful” or “meeting the standards” in the areas of physical fitness and military bearing, training, responsibility and accountability. The rater evaluated him as “needing some improvement” in the areas of competence and leadership.  The accompanying bullet comments stated that he “does not respond to verbal or written counseling”; that he “becomes insubordinate when counseled in regards to corrective criticism”; and that he “criticizes chain of command to lower subordinates”.  The evaluation further stated, that he “destroys the harmony and cohesiveness with his abrasive and hostile personality, stirs discontent and resentment among contemporaries”; that he “continually displays a can not do attitude, initial reaction is frequently to justify why missions can not be accomplished”; and that he “continues to display a argumentative nature”.  The rater evaluated his overall potential for promotion and service in positions of greater responsibility as “marginal”.

The senior rater evaluated his overall performance, promotion and service in positions of greater responsibility as “poor” with a numerical rating of “5” for each on a scale of 1 to 5.  The accompanying bullet comments indicated that he “ignores direction and guidance of superiors”; that “when given direction by some superiors becomes belligerent and disobedient; and “do not promote”. The reviewer concurred with the rater and senior rater. 

In his letter of support for the applicant’s QMP appeal dated 23 August 1993, the rater of the change of rater NCOER for the period from April 1994 to March 1995 stated, in effect, that he was his present rater; that during the past 6 months he’d seen an outstanding NCO at work; that he was eager, highly productive, mission oriented, and dedicated to excellence; and that his loyalty, dedication and leadership qualities were unparalleled.  

Review of the contested NCOERs shows that the rating officials were different for each report.  Also, review of the annual NCOER for the rating period from April 1993 to March 1994 shows that the rater was the same as the one shown on the contested NCOER for the rating period ending in March 1993 and the senior rater was the same as the one shown on the contested NCOER for the rating period ending in March 1995.

The NCOER for the rating period from April 1993 to March 1994 along with 
2 earlier reports which cover 2 rating periods beginning in August 1990 and ending in March 1992, collectively, describe the applicant’s overall performance and potential as fully capable.  The NCOERs covering 2 rating periods beginning in April 1995 and ending in October 1996, collectively, describe his overall performance and potential as among the best.

In an EOC dated June 1994, submitted by him, he stated, in effect, that during a 
25 month period, a senior NCO (his senior rater on NCOER for the period ending March 1995) treated him unprofessionally and different than his peers; that he downgraded him; and that he badgered him and harassed him.  A copy of the report of investigation of the complaint and findings were not available in his records or provided by him.

On 8 September 1995, A Department of the Army bar to reenlistment was imposed against him under the DA QMP.

On 1 October 1995, he filed separate appeals to the NCOERs for the rating period from April 1992 to March 1993 and from April 1994 to March 1995 in accordance Army 623-205, Chapter 4.  His basis was, essentially, the same as the one used for his application to this Board.

Army Regulation 623-205 pertains to the noncommissioned officer reporting system.  Chapter 4 states, in effect and in pertinent part, that an appeal may be submitted for a claim of inaccuracy or injustice, however, such a claim must include substantive, competent and relevant evidence from third party sources, rating officials, or other documents from official sources and must be of a clear and compelling nature.  Third parties are persons other than the rated NCO or rating officials who have knowledge of the rated NCO’s duty performance during the rating period or persons who served in positions that afforded them the opportunity to observe the rated NCO’s duty performance, first hand, as well as the interactions with rating officials.

On 3 October 1995, he appealed the DA bar to reenlistment.

On 8 January 1996, the U.S. Army Enlisted Evaluation Center, Enlisted Special Review Board (ESRB) determined that the evidence did not justify altering or withdrawing the reports and denied his appeal.  The ESRB summary stated, in effect and in pertinent part, that in the processing of his appeals, it became necessary to contact his unit commander and after doing so, learned that he was well aware of the applicant’s difficulties in conforming to the standards of his supervisors; that the commander, reluctantly, imposed a summarized Article15 because of insubordination and disrespect to his rater of the second report which attested to his lack of standards.  The commander also stated that the applicant filed an EOC and after a thorough investigation concluded his complaint was unsubstantiated.  A copy of the Article 
15 proceedings or EOC report of investigation results was not available in his records.

The summary further stated that the applicant’s own statements and appeal cover letters confirmed he expected his leaders to change to his leadership style and methods; that his view was shortsighted; and that he failed to grasp who was in charge. The summary also stated that although he contended that he had insufficient time to request a commander’s inquiry after receiving the second report, he failed to explain why he did not request one after receiving the first report; that although the third party statements were highly supportive, they lacked the same vantage point as the rating officials and lacked the full understanding of the interpersonal relationship between the applicant and his rating chain; and that the supporting statements from his current chain of command were useful only to evaluate his present level of performance and not how he performed during the rating period of the appealed reports.

On 17 July 1996, his QMP appeal was denied.  The decision document also indicated that his discharge would occur by 31 October 1996.

His DD Form 214, separation document, shows that he was separated with an honorable discharge on 31 October 1996 under the provisions of Army Regulation 635-200, Chapter 16, for reduction in force.  He had completed 11 years, 6 months and 
8 days of creditable service with no lost time and reentry code 4 applied.  He also received separation pay in the amount of $12,024.63.

Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of this regulation sets forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints.  The service of personnel separated under this paragraph will be characterized as honorable.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s request for removal from his records of 2 noncommissioned officer evaluation reports for the rating periods from April 1992 to March 1993 and from April 1994 to March 1995 is not warranted.

2.  It appears that he took action to appeal his NCOERs only when faced with a career ending DA bar to reenlistment.

3.  According to the NCOER for the rating period from April 1994 to March 1995, he was counseled four times which contradicts his contention that he was never counseled prior to receiving this report.

4.  Although he explained that insufficient time prevented him from requesting a commander’s inquiry on the second contested NCOER for the rating period ending in March 1995, he provided no explanation for his failure to request a commander’s inquiry on the first contested NCOER for the period ending in March 1993 as mentioned in the Enlisted Special Review Board denial decision.  

5.  In doing so, a commander’s inquiry could have been of significant value in separating fact from fiction and, very possibly, established a basis for submission of a credible NCOER appeal.  In the absence of such information, the Board concurs with the finding of the ESRB that he failed to provide clear, convincing and compelling evidence that the NCOERs were inaccurate or unjust.

6.  In view of his desire to return to military service in the Army Reserve, he should be aware that he is permanently disqualified from further military service since a DA imposed bar to reenlistment was in effect on the date of his separation and reentry code 4, a non waivable disqualification, applied. 

7.  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 which would satisfy the aforementioned requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.