PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 March 1999      
	DOCKET NUMBER:   AC97-10394B
				    AR1998013570

	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	
	Mr. Kenneth Aucock		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.  In effect, the applicant requests that three NCO evaluation reports be removed from his official military personnel file (OMPF), and that an academic evaluation report showing that he did not complete a basic NCO course (BNCOC) be removed from his OMPF.  Note:  The applicant submits the same application that was returned to him by this Board on 12 January 1998 because he had not exhausted his administrative remedies.  He states that the 5 year limitation (for submitting an appeal) has passed and that he had appealed one report in 1993 and has yet to receive an answer.  

3.  The applicant states his rating officials failed to comply with the provisions of Army Regulation 623-205, the enlisted evaluation reporting system, that personnel in his chain of command failed to properly review the evaluation reports, and failed to correct errors.  He states that the TRADOC Form 1059, academic evaluation report, cites that he failed BNCOC, when in fact, he was never enrolled. 

4.  The applicant enlisted in the Army on 28 February 1974 and was released from active duty in the pay grade of E-4 on 21 February 1978.  In March 1978 he enlisted in the California Army National Guard.  At the time of evaluation reports in question he was a Reserve soldier on active duty in an Active Guard/Reserve (AGR) status.

5.  The applicant’s military records show that he received a change of rater NCOER for the period 8812 through 8902 while assigned as an administrative specialist with the 75th Army Maneuver Area Command in Houston.  The report was signed by the rating officials on 4 March 1989, with the notation that the applicant was not available for signature and that a copy of the report was mailed to him on 5 March 1989.  In Part IV of this report the rater stated the he needed improvement in the competence portion of that report, scoring only 39 on his skill qualification test (SQT);that he needed improvement on the physical fitness and military bearing portion on the report, in that he lacked endurance/stamina to keep up with group on runs, and needed to pay more attention to his military appearance.  His rater stated that he was fully capable concerning his overall performance and potential.  His senior rater placed him in the fourth block form the top (fair), for both overall performance and potential.  A 2 February 1989 Army Reserve Personnel Center order directed the applicant to active duty in an Active Guard/Reserve (AGR) status with a reporting date to the 104th Quartermaster Company in Artesia, New Mexico of 20 February 1989, TDY enroute at Fort McCoy, Wisconsin, with a reporting date of 12 February 1989.     

6.  The applicant received an annual NCOER while attached to the 7th Squadron, 6th Cavalry at Conroe, Texas, for the period 9101 through 9112.  His rater stated that he did not place dedication and commitment to the goals and missions of the Army and nation above his personal welfare, in that he had too many personal problems preventing completion of mission goals.  His rater also stated that he did not have the courage of his convictions and the ability to overcome fear and to stand up for and do what’s right in that he needed to be assertive.  His rater stated that he passed the physical fitness test, but that he needed improvement as he lacked initiative to improve physical fitness.  He also stated that the applicant needed improvement in leadership in that he had a low level of self-confidence.  His rater stated that he was fully capable in the overall performance and potential portion of the report.  His senior rater placed him in the third block from the top (successful) in the overall performance portion and the third block 
from the top (superior) in the overall potential portion of the report.  His senior rater also stated that his lack of confidence would hinder leadership expression. 
The applicant’s rater was a Sergeant First Class, his senior rater, a Captain, the squadron adjutant, and his reviewer, a Captain, the troop commander.  The applicant signed the report.  A 17 December 1990 memorandum from the commander of the 90th Army Reserve Command in San Antonio indicates that the applicant was detailed to the 7th Squadron, 6th Cavalry on 17 December 1990 until his request for compassionate reassignment was processed (He had been detailed to the 348th Transportation Battalion in Houston to allow him to submit a request for compassionate reassignment).  A 13 May 1991 compassionate status report shows that the applicant was a hard worker and showed responsibilities toward his duties; that he had personal problems and was trying to resolve those problems with medical attention for him and his family.  The applicant was compassionately reattached to the 7th Squadron on 11 March 1991 and stabilized until 10 March 1992.  He received a certificate of achievement for the period      25 March 1991 to 8 March 1992. 

7.  The applicant received a change of rater NCOER for the period 9201 through 9211, again while attached to the 7th Squadron, 6th Cavalry.  He had the same rater and reviewer as in the previous NCOER, with a new senior rater.  This report contained no derogatory remarks, with his rater stating that he succeeded in all portions of the report, and that he was fully capable in the overall performance and potential portion of the report.  His senior rater placed him in the second block from the top in overall performance and the third block from the top in overall potential.

8.  The applicant received an annual NCOER for the period 9212 through 9311 while assigned to the 6253d Army Hospital in Marina, California.  That report shows that he was initially counseled concerning his duties and responsibilities in December 1992; however, there is no notation of any later counseling.  The applicant’s rater stated that he was not committed and did not show a sense of pride in the unit and did not work as a member of the team; that he was not disciplined and obedient to the spirit and letter of a lawful order; and that he was not truthful in word and deed.  His rater stated that the applicant attempted to perform as a separate entity, that he agreed when given a directive but failed to comply, and that his actions caused a lack of trust and confidence.  His rater stated that he needed improvement in the areas of competence, leadership, and training.  He did state that he was fully capable in the overall performance and potential portion of the report.  His senior rater placed him in the fourth block (fair) from the top in both the overall performance and potential portion of the report, stated that he assumed responsibilities without authority, dispensed information without full knowledge of subject, and that he needed better communication skills.  The applicant signed the report.  The applicant appealed this report citing substantive inaccuracy in that the rater did not follow the proper procedures on counseling.  He was not counseled every three months.  He submitted with this appeal a copy of a 25 March 1994 commander’s inquiry, in which 6253d Hospital commander stated that there was no formal quarterly counseling as required by regulation, nor any written counseling informing the applicant that he was doing substandard work.  He also stated that the applicant had no formal job description and was not listed in the unit’s rating chain.  The commander recommended that the NCOER be redone.  There is no record of any action taken on his appeal. 

9.  A service school academic evaluation report from the Fifth Army NCO Academy at Fort Chaffee, Arkansas, for the period 15 through 22 May 1993 shows that the applicant did not successfully complete the BNCOC – RC phase one course.  He was a medical release.  However, a 15 May 1993 copy of a general counseling form shows that the applicant arrived for the course with a temporary profile and was denied enrollment.  The form, signed by the academy commandant, indicates that once his profile was removed he would be welcomed back for training, and that the denial was without prejudice and should not reflect negatively upon his military career.

10.  The applicant received a DA bar to reenlistment under the Qualitative Management Program (QMP) in September 1995, with the three evaluation reports and the BNCOC failure identified as a basis for this bar.

11.  In the applicant’s initial submission to this Board he was informed that he had not exhausted his administrative remedies, in that he had not submitted an appeal to any of the [aforementioned] evaluation reports, and that his application was returned without prejudice and without action being taken by this Board.

12.  Included with this application, are letters of support:

•	From the applicant’s commander, an endorsement dated 10 April 1997, and from the applicant’s garrison commander, an endorsement of 20 April 1997.  That commander states that after reviewing the evaluation reports and the BNCOC failure, he concluded an injustice had been done, and cited violations of specific paragraphs contained in Army Regulation 623-205, i.e., no publication of official rating schemes, failure to perform counseling within      30 days and quarterly thereafter, failure of the rater to counsel on performance and professional development during the rating period, and failure of the reviewer to examine the evaluations by the rater and senior rater.  That officer stated that he would not have concurred with the DA bar to 
     reenlistment action had he available the information concerning [the                     violations] on the applicant’s evaluation reports.
•	From the garrison commander’s adjutant, who cited errors in the aforementioned NCOER’s (1) minimum rater qualifications not met and counseling date inappropriate on the report 8812-8902, (2) inconsistency and unfairness in the report 9101-9112, (3) counseling not conducted, corrective action not taken as recommended by a commander’s inquiry on the report 9212-9311; additionally, no record that commander’s inquiry findings were forwarded as required by regulation.  The adjutant also noted that the applicant reported to BNCOC, but was not enrolled because of his profile, and although the denial was without prejudice, “BNCOC failure” was cited as part of the rationale for implementing the bar to reenlistment. 
•	From an NCO who provided the applicant a letter of appreciation for his performance from September 1992 to July 1993.
•	From local city public officials in memorandums and a certificate dated in 1994 and 1995 thanking the applicant for his support.
•	From five other officers and two other NCO’s who also take exception to the three evaluation reports and the academic report, citing the aforementioned errors, regulatory violations, inconsistencies., etc.        

The aforementioned letters of support are from officers and NCO’s who observed the applicant’s performance after the period of the 9311 evaluation report.

13.  Army Regulation 623-205 sets the policies and procedures governing the NCO evaluation reporting system, and gives instructions for the preparing, processing, and submitting the NCOER and the NCO counseling checklist/record.  Paragraph 1-4b(1)(a) states in effect, that official rating schemes are published and posted so that all NCOs know their rating officials and the effective dates of each rating official. 

14.  Paragraph 2-7 pertains to annual evaluation reports and paragraph 2-8 pertains to change of rater reports.  An annual report requires a 90 day rater minimum qualification period.  A change of rater report [as was the applicant’s report for the period 8812-8902] requires a minimum rating period of 90 days.

15.  Paragraph 3-3c states in effect, that face to face performance counseling is mandatory for all NCOs.  The initial counseling will be with the first 30 days of the rating period and additional counseling will be conducted at least quarterly. 

16.  Paragraph 3-6a states in effect, that raters will counsel the rated NCO on his duty performance and professional development  throughout the rated period.

17.  Paragraph 3-10b states in effect that the reviewer is responsible for safeguard overwatch.  He will examine the evaluations rendered by the rater and senior rater to ensure they are clear, consistent, and just in accordance with well know facts.  Special care must be taken to ensure the specific bullet examples support the appropriate excellence, success, or needs improvement ratings.

18.  Paragraph 6-14 concerns the Army Physical Fitness Test (APFT) entry on the NCOER, and states in pertinent part, that personnel who meet Army minimum standards will not be given a rating of “Needs improvement” for Physical Fitness and Military Bearing if such rating is based solely on the failure to meet unit standards. 

19.  Paragraph 2-15 pertains to the conduct and processing of commander inquiries and states in effect that the inquiry, if completed after the evaluation has been accepted, must be forwarded to the appropriate agency not later than      120 days after the “thru” date of the report. 

20.  Chapter 4 pertains to the NCOER appeals system and states in effect, that the appeals system protects the Army's interest and ensures fairness to the NCO.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause.  An evaluation report accepted for inclusion in the official record of an NCO is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  Appeals alleging bias, prejudice, inaccurate or unjust ratings, incorrect APFT or height/weight data, or any matter other than administrative error are substantive in nature and will be adjudicated by the Enlisted Special Review Board.  The burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy or injustice. 

21.  Appeals based on administrative error only will be adjudicated by USAREC (active Army), the appropriate state AG (ARNG), or the ARPERCEN (USAR).  Claims of administrative error pertain to Parts I and II of the evaluation report and include deviation from the established rating chain, unauthorized entries, insufficient period of observation by the rating officials, and errors in the report period.  The NCO’s authentication verifies the information in Parts I and II and confirms the accuracy of the APFT data and height/weight data entries..  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.  Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the NCO.   

22.  Appeals based solely on the lack of full compliance with performance counseling requirements will not normally serve as a basis to invalidate an evaluation report unless accompanied by additional evidence of inaccuracy or injustice. 

23.  An appeal must be supported by substantiating evidence.  An appeal that alleges a report is incorrect or inaccurate or unjust without supporting evidence will not be considered.  Substantive appeals must be submitted within 5 years of the evaluation report’s completion date.  Failure to submit an appeal within this time frame may be excused only if the appellant provides exceptional justification to warrant this exception.  Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report is rendered.  However, the likelihood of successfully appealing a report diminishes, as a rule, with the passage of time.       

CONCLUSIONS:

1.  The evaluation report for the period 8812-8902 was signed by the rating officials four days after the end of the rating period, and the report was forwarded to the applicant the next day (he was not available to receive and sign the report) The order transferring him clearly shows that he had a reporting date to his new unit prior to the end of the evaluation reporting period; consequently, this change of rater report did not cover the minimum rating period of 90 days.  An administrative error, but one that does an injustice to the applicant.  This report should be removed from his OMPF.

2.  The rater’s answer of “No” in Part IVa – Values/NCO Responsibilities of the report for the period 9101-9112, to the question, “Places dedication and commitment to the goals and missions of the Army and nation above personal welfare”, with the accompanying bullet comment “too many personal problems preventing completion of mission goals”, is at variance with the rater’s marking of “success” (meets standards) in Part IVb, Competence, of that report, especially since one of the standards for competence is “accomplishing tasks to the fullest capacity: committed to excellence.”  The answer and the comment by the rater in Part IVa are not consistent with his marking in Part IVb, a matter that should have been resolved by the reviewer.  This contradiction should now be resolved in favor of the applicant.  Thus, the “No” marking in Part IVa to the aforementioned question should be corrected to “Yes”, and the bullet comment “too many personal problems preventing completion of mission goals”, obliterated from the report.

3.  The marking “Needs Improvement” and the bullet comment “lacks initiative to improve physical fitness”, in Part IVc, Physical Fitness and Military Bearing, is apparently based on the rater’s or the unit’s standards for physical fitness.  The applicant passed the physical fitness test and met the Army weight standards on this report.  This rating is in apparent violation of paragraph 6-14 of the regulation.  Consequently, the marking “Needs Improvement” should be changed to “Success”, and the bullet comment, “lacks initiative to improve physical fitness” should be stricken from this report.

4.  The applicant did not fail BNCOC.  He did not attend after reporting to the course at Fort Chaffee because of a medical profile, and was released without prejudice.  This service school academic evaluation report serves no purpose and should be deleted from this OMPF.
 
5.  The Board notes the lack of counseling information contained on the report for 9212 through 9311, and notes also that the applicant authenticated this report, 
accepting it, acknowledging his rating officials, his duty title and duty description. The Board also notes the commander’s inquiry concerning this evaluation report. Nonetheless, there is no evidence of any inaccuracy in this report, other than the lack of counseling, nor is there proof of any injustice, that this report did not reflect the considered opinion and objective judgment of rating officials at the time of its preparation.  The applicant, himself, has a responsibility in the counseling process, and based on his years of service and experience, he obviously knew of the counseling requirements.  This lack of counseling is not a material error, and the applicant has not shown that the report is unjust. 

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by: 

     a.  removing the evaluation report for the period 8812-8902 from the applicant’s OMPF;

     b.  changing the marking, “No”, in Part IVa of the report of the period 9101-9112, to the question, “Places dedication and commitment to the goals and missions of the Army and nation above personal welfare”, to the marking “Yes”; and obliterating the bullet comment “too many personal problems preventing completion of mission goals”, from that report;  

     c.  changing the marking, “Needs Improvement” in Part IVc, Physical Fitness and Military Bearing, to the marking, “Success”, and striking the bullet comment, “lacks initiative to improve physical fitness” from the 99101-9112 report; and

     d.  deleting the service school academic evaluation report for the period        15 May 1993 through 22 May 1993 from the applicant’s OMPF.

2.  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

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC97-10394B/AR1998013570	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990310	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.111.02		
2.111.05		
3.		
4.		
5.		
6.