MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            4 August 1999     
	DOCKET NUMBER:   AR1999024520

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. George D. Paxson		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:  That his performance evaluation reports (NCOERs) for the period 9211-9303, 9304-9403, and 9404-9407 be expunged from his record.

APPLICANT STATES:  In effect, that the evaluation reports were unfair, he was treated unfairly by his senior rater, and the ratings are unjust and biased.  He notes that “in each case their was truly no counseling explaining to [him] why [he] was being treated unfairly.”  He states that the Enlisted Special Review Board denied his request to expunge the reports and he believes they were “totally unfair in their decision.”  He notes that he has been told that these three evaluation reports are the reason that he has not been able to fulfill his dream of being promoted to sergeant first class and first sergeant and contends that except for these reports he has “either met or exceeded every other criteria” for promotion to pay grade E-7 and E-8.

He also maintains, in effect, that he was assigned to an NCO Academy during one of the rating periods and was assured that he “would be okay and get a fair evaluation” but now knows that he “got screwed by the system and that his raters “covered their butts at [his] expense” which “actually cost [him] several promotions.”

In support of his request he submits copies of previous and subsequent evaluation reports, a copy of the Enlisted Special Review Board and copies of support statements from fellow soldier which had been included with his 1998 appeal package.

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

He entered active duty on 31 July 1980 at the age of 19 with 12 years of formal education.  It appears that he was awarded several semester hours of college level work by the Academy of Health Sciences in 1987 but there is no indication he holds either an undergraduate or advanced degree.

The applicant was initially trained as a medical corpsman (91B) but worked alternately in the supply and medical fields until 1988 when he completed a formal training course in supply and was awarded a supply specialty (76Y which was subsequently redesignated to 92Y).

His records indicate that he completed a Primary Leadership Development Course in 1985 by marginally achieving the course standards and in 1986 failed 

a Medical NCO Course.  He subsequently successfully completed the Army Medical Department’s NCO Basic Course and the supply field’s Basic NCO Course by achieving the course standards.

His enlisted evaluation reports, rendered between 1985 and 1988 averaged a score of 122.5 out of a possible score of 125.  He was promoted to pay grade 
E-6 in August 1989, has completed a variety of military training courses in the supply field, and been awarded two Army Commendation Medals, six Army Achievement Medals and served 10 months in Southwest Asia during the Gulf War.

Excluding the reports the applicant contends should be expunged from his official records, his performance evaluation reports since the implementation of the new NCO Evaluation Reporting System in 1988 have consistently noted that he was “among the best” in displaying “overall potential for promotion and/or service in positions of greater responsibility” and his senior raters have placed him in the first or second blocks for overall performance and/or potential.  However, in only one of those 11 reports was his leadership skills rated as excellent.  He has consistently been rated as only meeting the standards (success) in the area of physical fitness and military bearing and on most of those reports received three or more “success” ratings in the five NCO responsibilities/values ratable areas (i.e. competence - physical fitness & military bearing - leadership - training - responsibility & accountability).

The three NCOERs in question were rendered between November 1992 and July 1997 and included three different raters and three different reviewers.  One report (9211-9303) was rendered while the applicant was assigned to Fort Lee, Virginia and the other two reports (9304-9403, 9404-9407) were rendered while the applicant was assigned to Schofield Barracks in Hawaii.  Only the senior rater on the two reports rendered in Hawaii was the same individual.

All three of the reports in question indicate the applicant was successful in each of the five areas of NCO responsibilities and values, he was rated as “fully capable” for promotion and/or service in positions of greater responsibility.  Each of the senior raters (two separate individuals) placed him in the third block for overall performance during the rating periods.  The senior rater at Fort Lee placed the applicant in the second block for overall potential while the senior rater for the two reports rendered in Hawaii rated his potential in the third block.

Included with the applicant’s request to this Board, and in his original appeal to the Enlisted Special Review Board, is a self-authored statement dated 17 June 1994 addressed “to whom it may concerned.”  In the statement the applicant 

appears to be documenting his attempts to ensure that his unit commander (the senior rater on the two reports rendered in Hawaii, 9304-9403 and 9404-9407) complied with regulatory guidelines regarding unit supply accountability and the applicant’s dissatisfaction with the commander’s leadership abilities and manner in which he treated soldiers under his command.

Also included with the applicant’s request were copies of three letters from his Enlisted Special Review Board application, which note that the applicant was a good soldier and an excellent supply sergeant.  One author, an E-7, notes he was assigned to the same battalion as the applicant while at Fort Lee and was in the same brigade while assigned to Hawaii.  The author indicates that it was his “perception” that the applicant’s unit commander (senior rater on the two Hawaii reports) "had something personal against” the applicant.  Another supporter (a captain) indicates that he was assigned to the same battalion as the applicant while in Hawaii and at one point served as the Battalion Adjutant.  The captain states that the applicant’s unit commander (senior rater on the two reports rendered in Hawaii) was often witnessed as threatening his subordinates with adverse reports if they did not comply with his requests and in fact had been counseled verbally and in writing on “a number of issues.”  He concludes he is currently a medical company commander and the applicant was recently assigned to the Battalion S-4 shop and he is confident of his abilities as an NCO and supply sergeant.

In February 1998 the applicant appealed the three reports in question and his appeal was denied January 1999 by the Enlisted Special Review Board.  That board indicated that there was no evidence to justify altering or withdrawing the reports.

The applicant’s record indicates he was considered (in the primary zone) for promotion to pay grade E-7 in 1994, 1995, 1996, 1997 and 1998 but not selected.  Results of the 1999 board will be announced in late August.

Information related to the FY1998 promotion board, available via the Internet, revealed that 1128 individuals were considered for promotion to pay grade E-7 in the applicant’s specialty (92Y) and only 278, or 24.6 percent were selected.

Army Regulation 623-205 states that the NCOER 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. 

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 that would satisfy the aforementioned requirement.

2.  The NCOERs were all administered in accordance with applicable regulations.  There is no evidence of any substantive violation of the applicant's rights.

3.  The Board notes that no less than 8 separate individuals were involved in the applicant’s three contested NCOERs.  If the applicant’s unit commander, who served as the senior on two of the reports, was as vindictive as the applicant would have the Board believe, surely one of the two reviewers would have recognized the problems and rectified the situation.  Additionally, the applicant’s contention that the senior rater was the root of his problem ratings does not address the fact that his rating at Fort Lee, Virginia was also less than stellar, nor the fact that seven other individuals saw him in essentially the same light.

4.  The evidence of record indicates that competition for promotion to pay grade E-7 in the applicant’s specialty is extremely competitive with only 24.6 percent of individuals in the primary zone being selected for promotion in 1998.  The applicant’s record presents the appearance of an average performer whose “leadership” skills have consistently been rated as only “successful” as opposed to “excellent.”  His failure of a NCO course and marginal performance at another may also have contributed to his non-selection.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

6.  The contested reports appear to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the periods in question.  Therefore, there is no basis for removing any of the reports from his official file.

7.  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

___fkm__  ___inw__  __gdp___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024520	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990804	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 111.00		
2.		
3.		
4.		
5.		
6.