MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 December 1998                  
	DOCKET NUMBER:   AC98-10321

	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. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Kenneth L. Wright 		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:  The removal of a noncommissioned officer evaluation report (NCOER) covering the period August through October 1992 from his records, removal of a Department of the Army (DA) bar to reenlistment, and reinstatement to active duty with associated back pay and allowances.

APPLICANT STATES:  That he was relieved of duty as a platoon sergeant on 
21 September 1992 as a result of a racist agenda one day after having a conversation with a white female soldier (a private).  He charges that his relief came as the result of a well-planned racist plot by his chain of command.  That he was then flagged pending charges.  After several weeks, he was told by his first sergeant that all charges were dropped and he was absolved.

That when he was talking to the female soldier on 20 September 1992, they were discussing double standards in the military regarding males and females, and problems she was having with her black boyfriend, another NCO in the unit. That contrary to what was written in his NCOER, at no time did he ask her for sex or use his rank for any sexual favors.  That his rater and a senior NCO partially overheard the conversation and misunderstood it, apparently thinking that he was the other NCO being discussed.

That an investigation into his conduct dragged on for several weeks, which was no accident.  It was a device used to extend the amount of time that he was in the unit to justify the “thru” date on the NCOER.  On 2 October 1992 he received the relief-for-cause NCOER, but at no time was he advised in writing that he had engaged in specific conduct justifying his relief.

That on 31 October 1992 he requested a commander’s inquiry be conducted into the incident, but he received no explanation concerning the low marks on his NCOER.

Finally, the applicant contends that the NCOER is illegal and violates too many Army regulations, and reemphasizes that his relief was a well planned racist plot by his chain of command.  That by dropping all charges and absolving him, they were able to deny him any documentation for future appeals.  

In support of his request, the applicant submits a comprehensive brief from his attorney which outlines the bases for his request, and numerous other documents which he considers relevant to his application, including copies of:  the contested NCOER, excerpts from his personnel record, a portion of his NCOER counseling checklist/record, requests to various Army agencies for documents under the Freedom of Information Act (FOIA), the DA bar to reenlistment action, his appeal of the NCOER, and evaluation reports received prior to and after the relief-for-cause report.
COUNSEL CONTENDS:  That the relief-for-cause NCOER which the applicant received in 1992 was tainted by procedural irregularity as well as by racism.  He reiterates much of the applicant’s contentions that he was the victim of racism.  

Counsel contends that Army Regulation 623-105, paragraph 5-7, requires 
90 days as the minimum rating period for a relief-for-cause NCOER.  However, based on the applicant’s memory on this subject, he was assigned as a platoon sergeant on 24 August 1992 and was relieved on 21 September 1992, which is less than 30 days.  That even assuming the applicant was assigned as platoon sergeant on the first counseling date of 14 July 1992, the period is still less than 90 days.  That the counseling dates on the NCOER support the shorter period.

That considerable time and effort was expended in an attempt to locate more records about this period.  The various FOIA requests asking for pertinent documents were all met with negative responses.

That the applicant did what he could to appeal the NCOER in 1992 but his request for a commander’s inquiry was not taken seriously, and obviously overlooked the problem of a 90-day minimum rating period.

That paragraph 6-5 of the Army NCOER regulation places limits on the type of derogatory information that may be used in reports, stating that no reference will be made to unverified derogatory information.  It also provides that if the rated soldier is absolved, no derogatory information may be used.  The applicant testifies that he was never given a copy of any report of investigation.
Thus it is now clear that no investigation was ever conducted, and the absence of such is a serious injustice.

Counsel suggests that the fact that the applicant is black and the girl (female soldier) is white may have had more to do with his relief than anything else, especially since all those who actually knew them and acted in this matter are white.

Counsel summarizes that the applicant, while on active duty, always did his best to follow orders and carry out Army policy.  It is not unfair for him to ask in return that the Army follow its regulations concerning him.  Since it did not, he should be granted the relief requested.

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

He entered active duty on 15 April 1980 for a period of 3 years and for training in the medical field.  He remained on active duty through a series of reenlistments and was promoted to the rank of staff sergeant on 1 February 1991.
On 23 October 1992 a relief-for-cause NCOER was rendered on the applicant for the period August through October 1992, evaluating him as a medical platoon sergeant in an infantry battalion at Fort Drum, New York.

In part IVa under Values/NCO Responsibilities, his rater (a second lieutenant) gave him ratings of “no” under “Places dedication and commitment to the goals and missions of the Army and nation above personal welfare,” “Maintains high standards of personal conduct on and off duty,” and “Supports EO/EEO.”  The rater’s supporting comments indicate that the applicant’s conduct on and off duty is inappropriate for an NCO, that he places personal welfare above needs of the unit, and that he used poor judgment in EO (equal opportunity) relations.

In parts IVb through IVf the applicant received “needs improvement” ratings in the areas of competence, leadership, training, and responsibility and accountability.  The supporting comments indicate that the applicant lacks ability to adequately prioritize and accomplish tasks, cannot derive implied from specified tasks, and cannot differentiate between suggestions and directives; that he attempts to use rank and position to elicit favors from subordinates of opposite sex, does not treat soldiers with proper respect due them, and does not set the example of an NCO; and that he lacks initiative to train subordinates in absence of direct supervision, does not adequately utilize time to conduct individual training, and lacks good oral communication skills.

The senior rater (a captain) rated the applicant’s performance and potential as “fair” in part V, overall performance and potential.  The supporting comments indicate that the applicant’s treatment of subordinates is less than desired or expected, that he has difficulty getting along with others, is impervious to counseling, and is concerned with own self interest.  The report was reviewed by his battalion commander, who concurred with the evaluations.

The NCO Counseling Checklist/Record, submitted by the applicant, shows he was counseled on 14 July, 24 August and 30 September 1992.

On 31 October 1992 the applicant requested that his brigade commander conduct a commander’s inquiry concerning the relief-for-cause NCOER.  The brigade commander (a colonel) subsequently informed the applicant that he conducted the inquiry in accordance with regulatory guidance and found that no illegality, injustice or violation of the regulation occurred.

The applicant was notified on 8 September 1995 that the 1995 Sergeant First Class Promotion Selection Board had determined that he should be barred from reenlistment under the Qualitative Management Program (QMP) based on the relief-for-cause NCOER covering the period August to October 1992.  He 
submitted an appeal to the bar to reenlistment on 19 October 1995 and his appeal was denied by the DA Standby Advisory Board (STAB) on 19 March 1996.  The STAB directed that he be separated no later than 31 July 1996.

On 26 March 1996 the applicant appealed the subject NCOER to the Enlisted Special Review Board.  The reasons cited for the appeal were essentially the same as those to this Board.  On 8 April 1996 his appeal was returned by the US Army Enlisted Records and Evaluation Center for reconsideration and possible revision.  It was explained to the applicant that this was not a denial of his appeal, but rather a return due to insufficient evidence.  He was informed that claims of substantive inaccuracy must be supported by substantiating documentation and third party statements pertaining to the period in question, and that once this has been obtained, he may resubmit his appeal.

The applicant was discharged with an Honorable Discharge Certificate on 
31 July 1996 at Fort Wainwright, Alaska, under the provisions of Army Regulation 635-200, paragraph 16-8, due to reduction in force.  He had served 16 years, 3 months and 16 days of total active service and was paid one-half separation pay.

ARMY FOCUS 1993, an official Department of the Army publication, shows that the Army began reducing the size of its force in 1990 and continues to do so due to Congressional budget constraints.  Since the beginning of this reduction in force, the size of the force has decreased by nearly 200,000 soldiers.  (To meet the 1996 goal, the size of the force was to be decreased by another 55,000 soldiers.)

Army Regulation 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to (1) enhance quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service. The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, records for grades E-5 through E-9 are regularly screened by the DA promotion selection boards.  The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

Army Regulation 623-205 sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO 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 4-7 of the regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is 
warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

In accordance with paragraph 2-10 of the regulation, the minimum rating period for relief-for-cause reports is 30 days.  This 30-day minimum period can be waived by the general court-martial convening authority in clear-cut cases of misconduct.

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 has failed to submit evidence that the contested NCOER is in error or unjust.  His allegations, and those of counsel, that he was relieved because of a racist agenda are without merit.  There is no evidence in the available records to demonstrate that the applicant was the victim of racial prejudice.

2.  Counsel’s contention that the minimum rating period for a relief-for-cause NCOER is 90 days is erroneous.  The paragraph of the regulation he cites applies to Army National Guard and Reserve NCOs only.

3.  The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question. Therefore, there is no basis for removing it from his records.

4.  The applicant’s contention that the ratings and comments made by the rater and senior rater on the NCOER were unjust appear to be without merit.  After reviewing the evidence of record, the Board is convinced that the applicant was counseled and was aware of the expectations of his rating chain, but failed to meet them.

5.  Contrary to counsel’s contention, there is no evidence which indicates that the report makes reference to unverified derogatory information.  The record does not show that the applicant was flagged or charged with any offense(s) at the time of his relief.

6.  The applicant did not submit his appeal of the contested NCOER until March 1996, more than 3 years after the report’s completion date, and only after he was notified of his bar to reenlistment under the QMP with subsequent denial of his appeal thereof.  The NCOER appeals process is not intended to be a means for attempting to reverse unfavorable results of promotion selection systems.

7.  Since there is no basis for granting the portion of his request to remove the NCOER from his record, there is likewise no basis for granting his remaining requests.

8.  The burden of proof rests with the applicant to submit relevant material and competent evidence to clearly and convincingly establish that his NCOER was inaccurate and unjust.  He has failed to submit evidence that would satisfy the aforementioned requirement.

9.  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