MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC9809698

	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	
	M		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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 report (NCO-ER) for the period 8806 - 8904 be removed from his records; his Headquarters Department of the Army (HQDA) Qualitative Management Program (QMP) bar to reenlistment be lifted; his records be reviewed for promotion to the next higher grade under the 1989 criteria; and he be reinstated on active duty for 4 years.

APPLICANT STATES:  In effect, that the type of report and the rating period are incorrect – it should have been annual report ending 8811 because his senior rater was relieved for cause.  He states that the reviewer should not have nonconcurred in the evaluation because there was no discrepancy between the rater and/or senior rater.  He states the principal duty title, the duty military occupational specialty (MOS), the areas of special emphasis, the appointed duties and the initial counseling dates are also incorrect.

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

He enlisted in the Regular Army on 18 March 1974.  He was trained as a personnel actions specialist and continued to serve on active duty.  He was promoted to pay grade E-6 on 2 July 1987.  

The contested NCO-ER is an 11-month change of rater report for the period 8806 - 8904.  The NCO-ER shows his principal duty title as NCOIC, PRB (non-commissioned officer in charge, Personnel Reassignment Branch) and his duty MOS as 75Z40.  (His Personnel Qualification Record, DA Form 2-1, for this period shows his principal duty as “Personnel Reassignment Branch” and his duty MOS as 75C30.)  In part IVb, his rater has rated his competence as “needs some improvement.”  One of his comments for this part is “Scored 44 on SQT” (skill qualification test).  Part IVc, physical fitness and military bearing, was rated as “success,” with the comment “physical fitness motivator.”

The senior rater did not meet the minimum qualifications and so did not rate the applicant.

The reviewer nonconcurred in the evaluation.  He stated, in effect, that he should have been rated as “excellent” in physical fitness and military bearing with appropriate comments and rated as “needs some improvement” in parts Ivd, leadership, and IVf, responsibility and accountability with appropriate comments. His evaluation of his overall performance was “marginally successful” and his potential for promotion and greater responsibility as “fair.”  

The applicant’s SQT score for the test taken on 12 September 1991 was 57.

On 15 January 1992, the applicant received a DA Imposed Bar to Reenlistment under the Qualitative Management Program.  This NCO-ER was cited as the reason for the imposition of the bar.  The applicant did not appeal the QMP bar but, as he had over 17 years and 9 months of active federal service, he elected to extend his enlistment to attain retirement eligibility.

The applicant appealed this NCO-ER.  He based his appeal on the fact he was never counseled on his duties and the fact that the reviewer was prejudiced towards black soldiers.  The Enlisted Special Review Board, after reviewing the evidence presented by the applicant and after discussing the case with the rating officials, found the applicant was very good with basic soldier skills but was not performing to standards in the technical areas.  That board was convinced that the applicant was aware of his deficiencies and noted that  the lack of written counseling statements does not invalidate the contested NCO-ER.  His self-authored statement, without substantiation/proof, does not invalidate the report.  That board determined that the evidence did not justify altering or withdrawing the report.

The applicant re-appealed this NCO-ER sometime in 1996.  The Enlisted Special Review Board again determined that the evidence did not justify altering or withdrawing the report.  

The applicant retired on 31 March 1994, in pay grade E-6, after completing         20 years of active federal service.

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.  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.  In pertinent parts, it states that correction of minor administrative errors seldom serves as a basis to invalidate an NCO-ER; 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; appeals based solely on the lack of full compliance with performance counseling requirements will also not normally serve as a basis to invalidate an NCO-ER; the removal of a senior rater is treated as a routine change and is not a reason for initiating an NCO-ER; and when the reviewer determines that the rater and/or senior rater have not evaluated the rated NCO in a clear, consistent or just manner per known facts, and neither rating official acknowledges a discrepancy, the reviewer will check the nonconcur box in part II and add an enclosure that clarifies the situation and renders his opinion as to the proper manner of performance and potential.  There is no requirement for the reviewer to discuss this with the rated NCO.  

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.  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 tat would satisfy the aforementioned requirement.

2.  The applicant was a personnel specialist who should have been aware at the time he received the NCO-ER that the commander’s inquiry and/or the appeal process were the proper avenues to protest the NCO-ER.  He waited until he received the DA QMP bar to reenlistment to submit his first appeal.

3.  The administrative errors the applicant claims are either not substantiated by the evidence of record or do not show that failure to correct the errors would cause the applicant an injustice.  The removal of a senior rater is not a reason for initiating an NCO-ER and the applicant gives no other reason why the ending period may be incorrect.  An NCO-ER ending 8811 would not have been a      12-month, annual report in any case.  The applicant’s DA Form 2-1 shows he worked in the Personnel Reassignment Branch and while it shows his duty MOS as 75E30 and not 75Z40, 75Z40 is a higher skill level and would tend to put a more favorable light on the applicant.  The other administrative errors claimed are also minor.

3.  The applicant claims he should have been designated a senior rater sooner but supplies no documentation that this could have been done but was not done. 

4.  The applicant claims that the reviewer had no right to noncur in his evaluation because there was no discrepancy between the rater and the senior rater.  However, the regulation states that when the reviewer determines that the rater and/or senior rater have not evaluated the rated NCO in a clear, consistent or just manner per known facts, and neither rating official acknowledges a discrepancy, the reviewer will check the nonconcur box in part II and add an enclosure that clarifies the situation and renders his opinion as to the proper manner of performance and potential.  
5.  The applicant’s primary contention in both his NCO-ER appeals and in his application to this Board is that the reviewer’s “totally false review” was the cause of his receiving a QMP bar to reenlistment.  This Board notes that the applicant did not appeal the QMP bar.  This Board also notes that the applicant does not challenge the rater’s evaluation of his performance.  This Board believes that the rater’s evaluation of his competence as “needs some improvement” alone would have caused HQDA to initiate the QMP bar.

6.  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