PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 March 1999                   
	DOCKET NUMBER:   AC98-10569
				   AR1998005457

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Kenneth L. Wright		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant defers to his counsel.

3.  Counsel requests, in effect, correction of the applicant’s non-commissioned officer evaluation report (NCO-ER) for the period August 1994 through July 1995 to reflect more appropriate ratings and bullet comments in parts IV and V.  He also states that a significant administrative error was made in that the senior rater and reviewer as shown on this NCO-ER are incorrect.  He states that the applicant was told to sign a blank NCO-ER but was told at the same time that his rating officials had not changed from his previous report or from the published rating scheme.  He also requests, in effect, that the applicant be reconsidered for promotion to Master Sergeant, E-8.  He states that the applicant’s NCO-ERs both immediately preceding and immediately following the contested NCO-ER demonstrate beyond any reasonable doubt his essential character, high standards, record of achievement, and qualification for immediate promotion to Master Sergeant, E-8.  They help prove that the single evaluation in dispute was blatantly inaccurate and unjust.  Factually, the contested NCO-ER failed to acknowledge certain specific accomplishments which justify ratings of “among the best” and “1” by the senior rater for both “overall performance” and overall potential for promotion and/or service in positions of greater responsibility.”  He provides proposed comments that would accurately, fairly and justly document the applicant’s performance during this time period.  The Enlisted Special Review Board (ESRB) incorrectly stated that the applicant made no request for any type of investigation to determine the validity or accuracy of the contested report.  He did file a complaint with the Department of the Army Inspector General (DAIG).  He withdrew his complaint only because of forwarding actions by the DAIG that he believed could not ensure a fair and full inquiry into his allegations.  Counsel provides evidence from the Sergeant Major of the Army’s homepage to show that Selection Boards have found inconsistencies between rater’s and senior rater’s evaluations and between senior rater bullet comments and the box checks for performance and potential.  This occurred in the applicant’s case and have worked an injustice on him.

4.  The applicant’s military records show that he enlisted in the Regular Army on 18 March 1980.  His military occupational specialty is 95B (Military Police).  He was promoted to Sergeant First Class, E-7 on 1 February 1993.  He was assigned to U. S. Army Element (USAE), Supreme Headquarters Allied Powers, Europe (SHAPE) on 16 July 1993 and served as the International Police Training Non-Commissioned Officer in Charge.

5.  The applicant received an annual NCO-ER for the period August 1993 through July 1994.  His rater gave him three “excellence” and two “success” ratings in Part IV, Values/NCO Responsibilities and an “Among the best” rating in Part Va.  His senior rater rated him as “1” for overall performance and potential. One of the senior rater’s comments was “Promote now – should be a First Sergeant.”  The unit enlisted rating scheme dated 20 September 1994 shows that his rating officials had not changed from those shown on that NCO-ER.

6.  The applicant’s next NCO-ER was the contested report, an annual report for the period August 1994 through July 1995.  The senior rater and the reviewer are not the same as shown on the rating scheme.  The applicant did sign the report.  His rater gave him one “excellence” and four “success” ratings in Part IV, Values/NCO Responsibilities and an “Among the best” rating in Part Va.  His senior rater rated him as “3” for overall performance and potential.  One of his comments was “Promote with contemporaries.”

7.  The next available enlisted rating scheme, dated 30 June 1995, does not list the applicant, presumably in anticipation of his upcoming departure.

8.  On 9 August 1995, the applicant wrote to the DAIG concerning issues with his assignment with USAE SHAPE.  Most of his letter deals with his marital problems and his resulting early return to CONUS.  One paragraph does relate to his  NCO-ER, wherein he states “There is a big difference in his comments & what my senior rater states.  I never received any counseling at all to include negative counseling.”  The applicant requested that the DAIG not involve the USAE SHAPE’s servicing IG office.  When the DAIG did so anyway, the applicant requested his complaint be withdrawn.  

9.  The applicant appealed his NCO-ER to the ESRB.  One of his supporting statements was from his former senior rater.  That individual stated that he served as the Deputy Provost Marshal and Deputy Security Officer, International Headquarters Support Command, Provost Marshal Office, SHAPE from January 1994 through June 1995.  He was the applicant’s senior rater through January 1995, when he had returned to SHAPE from an extended TDY tour.  The ESRB denied the applicant’s request.  It stated that his contention that the senior rater indicated on the NCO-ER was incorrect was unproved.  The U. S. Army Enlisted Records Center (USAEREC) had addressed this contention and concluded the evidence provided was contradictory, thereby negating the appellant’s contention.  It noted that the absence of written counseling statements does not invalidate the contested NCO-ER.  It finally concluded that the applicant had not provided the clear, convincing and compelling evidence that his NCO-ER, once accepted by HQDA for inclusion in his OMPF, was inaccurate or unjust.  

Army Regulation 623-205 establishes the policies and procedures for the     NCO-ER system.  Paragraph 4-2 states that an NCO-ER 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 preparation.  In pertinent part, it is noted that the rated NCO’s authentication verifies the information in Parts I and II.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated NCO will be accepted only under the most unusual and compelling circumstances.  Paragraph 4—7 of that regulation also states that the burden of proof in an  NCO-ER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCO-ER 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.

CONCLUSIONS:

1.  The Board finds no error or injustice regarding Part IV of the contested    NCO-ER.  The rater was the same individual who rated the applicant on his immediately preceding NCO-ER and was the same individual who was listed as his rater on the 20 September 1994 enlisted rating scheme.  The Board is cognizant that neither the rater’s comments nor his check blocks meet either the same “high standard” of his previous report (nor of all his previous/subsequent NCO-ERs) nor of counsel’s recommended changes.  However, no evidence is presented to show that this rating was not the considered opinion and objective judgment of the rater at the time of preparation.

2.  The Board does find that an error has occurred in the designation of the other two rating officials.  The Board is aware of the regulatory guidance that a rated NCO’s authentication verifies the information in parts I and II; however, the Board is also aware that too many commands pressure a departing NCO to sign a blank NCO-ER, implying, if nothing else, that the NCO-ER “looks better” with his/her signature.  

3.  The 20 September 1994 enlisted rating scheme showed the applicant’s rating chain remained the same as on his previous NCO-ER.  The next available rating scheme is dated June 1995 and the applicant, for a reasonable reason, is not on it.  Nine months between published rating schemes indicating changes is neither unreasonable nor unusual.  Although the applicant’s former senior rater acknowledged that as of January 1995 he was no longer the senior rater, that individual returned to the same position he held prior to his TDY.  It is reasonable to believe the applicant thought that individual (his former senior rater) retained his designation as senior rater, especially in light of the fact that the rating scheme was not changed.  It would not be reasonable to expect the senior rater to contact the applicant to tell him he was no longer the applicant’s senior rater.

4.  In view of the foregoing and notwithstanding the ESRB’s denial of the applicant’s appeal, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by amending the NCO-ER pertaining to the individual concerned for the period August 1994 through July 1995 by deleting Parts Vc, Vd, and Ve.

2.  That, following administrative implementation of the foregoing, his records be submitted to duly constituted special selection boards and, if he is selected for promotion, he be promoted and assigned an appropriate date of rank.

3.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__FKM__  __MW___  __KLW__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred L. McCoy
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-10569/AR1998005457	
SUFFIX		
RECON		
DATE BOARDED	19990310	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	111.02	
2.		
3.		
4.		
5.		
6.