PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            11 July 2000                 
	DOCKET NUMBER:   AR1999026629

	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. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger Able		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 requests that her records be corrected by removing the Noncommissioned Officer Evaluation Report (NCOER) for the period October 1992 to June 1993 from her records; and by showing that she was promoted to Sergeant First Class (SFC) in June 1994 with back pay and allowances.

3.  The applicant states via counsel, that her request is made to correct a grave injustice in her professional growth and promotion opportunity.  This injustice resulted when the NCOER being challenged was written and placed in her personnel and promotion files.  In support of her request the applicant submits copies of her NCOER’s, diplomas, awards and other documents which are contained in her Official Military Personnel File (OMPF).

4.  Counsel further states, that on 31 May 1993, shortly before the NCOER was written the applicant had filed an Equal Employment Opportunity (EEO) complaint in which she described the burdensome working conditions she was experiencing at that time.  In October 1993, the applicant requested a Commander’s Inquiry based on her belief that the NCOER was unjust, did not accurately reflect her performance or potential, and may have been written in retaliation for her Inspector General complaint. 

5.  Counsel concludes that the Board should remove the disputed NCOER from the applicant’s military personnel records, and to remedy past injustices that resulted from that NCOER, the Board should order her promotion to SFC effective from 1994 with back pay and allowances; that these actions would substantially correct a grave injustice and limit any further damage to the applicant’s promotion opportunities and career advancement in the Army. 

6.  The applicant’s military records show she enlisted in the Regular Army on     28 August 1980, for a period of 4 years.

7.  The applicant was promoted to the pay grade of E-4, E-5 and E-6 on               1 September 1982, 4 December 1983 and 7 September 1988, respectively.

8.  From October 1992 through August 1993, the applicant served as the noncommissioned officer in charge (NCOIC) of the Television Master Control/SATNET (satellite network) Section, American Forces Network (AFN) Television Operations, Europe, which serves thousands of military and State Department personnel in Europe.  She was responsible for over forty on-air products daily, oversaw the master control functions in Department of Defense’s (DOD) largest twenty-four hour television broadcast facility, accounted for one hundred sixty eight hours of weekly television programming, worked in studio operations, trained five soldiers and four civilians in state-of–the-art broadcast equipment satellite network, and substituted for those personnel in their absence. 

9.  The applicant’s record before October 1992 and after August 1993 reveals she has consistently been rated in the successful category by raters and senior raters.  

10.  In January 1993, the applicant was counseled for not establishing a driver’s education program as evidenced by one soldier’s failure of the test, which he passed on his seventh try, and another soldier who passed on his second try.  Following this counseling, the parties apparently did not discuss this matter meaningfully until after the July 1993 NCOER.  Her rater listed her failure to develop a driver’s education program as a reason justifying his rating of “needs improvement” in the area of competence.  The applicant believed she had attempted to help the soldiers pass the test. 

11.  On 23 March 1993, her rater counseled her for the following missed suspenses:  she did not deliver a copy of the ABC News to PAO (she admits she forgot to have her section do that); having been assigned on 17 March 1993 her task of quarterly counseling for seven personnel, she completed only two on the 17th (she says she did not understand the deadline was the 17th and upon counseling by her rater she promptly completed the counselings); she failed to have her personnel brief the commander, and captain (she says her personnel briefed the commander by the suspense; she arranged for the commander to meet all personnel but he canceled the meeting; and all but two of her personnel saw the captain, and those two could not see him until he returned from his TDY and scheduled hospitalization); and, her rater counseled her for failing to prepare a SATNET tape and hold list (she says she determined the list was not required because it consisted of outdated programs unused by AFN, and she believed she had the authority to make that decision).

12.  On 1 April 1993, during a broadcast, the applicant inadvertently transitioned from the “Tonight Show” to the “Today Show” for six minutes before correcting the mistake.  Her rater counseled her in writing, finding the error “inexcusable.”

13.  On 6 May 1993, her rater counseled her for the prior two weeks.  He found her job performance had improved.  She “did very well in covering the NCOIC TV at the 1SGT’s meeting.” Her operation of the master control board and SATNET operation were “flawless.”  She delivered the DISSUM report in a timely manner. She met the “suspense on turning in civilian employee time sheets.”  He observed, however, she missed a 21 April 1993 suspense to update the SATNET.

14.  Further, on 6 May 1993, he observed she failed to execute the commander’s assignment that she train the television master control personnel to operate the Master 21 Switcher in the automation mode.  In rating her competence level as marginal on the July 1993 NCOER, her rater commented she failed to train personnel on the automated operation of the Master 21 television switcher.  The applicant took great offense to the counseling and rating.  Although the rater had refused her requests for schooling on the new equipment, she mastered the system on her own through intensive self-study and trained her personnel.  She believes her rater misconstrued the responses of her personnel about the Master 21 Switcher.  He asked them if they felt comfortable operating it on the air and they responded they felt nervous about the prospect.  She thinks he speculated they were not trained properly.  In the Commander’s Inquiry, the applicant explained her instruction in detail, including reading assignments, her teaching of the theory and mechanics, and her provision of dry-runs for the staff.  She thought it quite reasonable for her staff to express apprehension about operating complicated machinery, when the broadcast was live.  She saw no reason to be rated as a failure because of those sentiments.  She observed that her rater could not cite one single instance where the people she trained failed to operate the Master 21 Switcher because they all performed live, on the air, with “no problems at all.”

15.  On 31 May 1993, the applicant filed an equal opportunity complaint with the Inspector General (IG), but never heard a reply.  She alleged that her rater and senior rater wanted to ruin her career by giving her a bad NCOER.  She explained that she always arrived to work on time, supervised five soldiers and four civilians, administered TV operations, always doubled checked the logs before they reached the operator, left work late every night, and always replaced the shift of her soldiers when they were sick or unavailable.

16.  On 29 July 1993, her rater and senior rater completed the applicant’s NCOER.  Her rater rated her as “needing some improvement” in the areas of “competence” and “responsibility and accountability”.  He rated her successful in the areas of leadership, training, and physical fitness/military bearing.  He determined that she possessed marginal potential for promotion.  Her senior rater rated her performance and potential for promotion as “fair”, and wrote she was “not ready for promotion.”

17.  In October 1993, the applicant requested a Commander’s Inquiry into her evaluation.  She requested relief on the grounds the NCOER was unjust, did not reflect her potential, and was in retaliation for her complaint to the IG.  The AFN Commander, provided relief in the area of competence.  He determined both the rating of “needs improvement” and the negative bullet comments in the area of

competence were unfair.  On the other hand, he determined her negative rating in the area of responsibility and accountability was “adequately substantiated” in counseling statements and an “accurate appraisal of her performance.”  He also found no creditable basis to believe the NCOER was written in retaliation for her IG complaint.

18.  On 20 May 1994, the applicant appealed to the Army Enlisted Records and Evaluation Center.  She requested the removal from her records of the entire challenged report.  On 18 October 1994, the Enlisted Special Review Board  amended the report to reflect the finding of the AFN Commander, but declined to withdraw the report.

19.  The applicant has been nonselected for promotion to Sergeant First Class (SFC) by yearly promotion boards from 1993 to 1999.  

CONCLUSIONS:

1.  The adverse comments of the rater and senior rater were disproportionate to the applicant’s overall performance.  Her rating period was for nine months, and her rater gave her generally positive counseling for two quarters.  There is no record of counseling for her after she filed the complaint with the IG in May 1993. Her rater and senior rater did not cite any problems regarding her June 1993 performance when writing her NCOER in July 1993.  The presumption is, then, her June 1993 performance was satisfactory.  

2.  The applicant’s overall performance was satisfactory.  A less than successful rating would be merited only if there were significant failures. 

3.  The problems identified by her rater were not significant enough to warrant an unsuccessful rating.

4.  Her rater’s generic bullet that she failed to meet suspense dates implied a more serious level of nonperformance than was the case, the tasks he referred to were not critical to AFN operations.  

5.  The senior rater’s disproportionate and unwarranted comments were based on his critical observation of a relatively insignificant nature, and the flawed observations of the rater.

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 removing the NCOER for the period October 1992 to June 1993 from her official military personnel files (OMPF).  That an appropriate nonprejudicial statement explaining the absence of the aforementioned evaluation report be placed in her records.  

2.  That, following administrative implementation of the foregoing, her records be submitted to duly constituted Standby Advisory Boards for promotion reconsideration to Sergeant First Class (SFC).

3.  That, if she is selected for promotion to SFC, she be promoted and assigned an appropriate date of rank, and be awarded back pay and allowances.

4.  That, if she is not selected for promotion to SFC, she is notified accordingly.`

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

BOARD VOTE:  

___rjw___  ___js____  ___ra___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999026629	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000711	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  111.02		
2.  131.00		
3.		
4.		
5.		
6.