MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           29 June 2000                   
	DOCKET NUMBER:   AR1999028640

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston 		Chairperson	
	Mr. John N. Slone 		Member	
	Mr. Melvin H. Meyer 		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 her relief for cause NCO evaluation report (NCOER) for the period March 1996 through October 1996 be removed from her Official Military Personnel File (OMPF).  

APPLICANT STATES:  The applicant deferred to her attorney.

COUNSEL CONTENDS:  That the applicant had a severe medical condition and should have been referred to a Medical Evaluation Board (MEBD) rather than be relieved for cause.  Since her appeal to the Enlisted Special Review Board (ESRB), she has been given an 80 percent disability rating from the VA, clearly establishing that her condition was severe during the period covered by the NCOER.  She should have been referred to a MEBD.	

Counsel states that the NCOER incorrectly takes into account the applicant’s medical condition.  He states that the applicant had elaborate surgery performed on her jaw and was in constant pain from February 1996 through March 1997.  She had weekly medical appointments, and other medical appointments for her condition.  Because of her medical condition she received a relief for cause NCOER, and an overall senior rating of poor.  The poor rating was a direct result of her medical condition.  Bullet comments on the report suggest that she was unable to perform her duties presumably due to her medical condition.  The NCOER prevented her from being promoted.  She was regarded as having a disability at the time of the evaluation, but had not been evaluated by a MEBD, and was automatically assumed to be unable to complete her duties.  By evaluating her based on the perception of being disabled, the evaluation procedure was both discriminatory and unjust.  She had never received an NCOER with a ranking lower than 2.  Because of the NCOER, she was denied a promotion solely because of her disability.  

Counsel states that the applicant was unable to meet her performance standards because of her medical condition, as evidenced by the comments and the ratings on the NCOER by her rater and her senior rater.  It was improper for her rater, who was not a medical person, to judge her performance in relationship with a medical condition.  The senior rater specifically stated, “health problems affect overall performance.”  Army Regulation 40-501 states that referral to the MEBD is proper when medical conditions interfere with the satisfactory performance of duty as substantiated by the individual’s commander or supervisor.  Her condition, severe fibromyalgia, required referral to a MEBD.  The surgeries she underwent resulted in loss of hearing, nerve damage, discomfort, and drooling as a result of nerve damage.  That regulation also indicates that individuals with medical conditions that are usually progressive in nature, and whose expectations for reasonable recovery cannot be established, require consideration before a MEBD.  Further, a MEBD is required when the medical fitness for return to duty is problematic or controversial.  The applicant’s condition falls into both of those categories. 
The applicant has appealed the NCOER to the ESRB.  That board denied her appeal.  However, she has since received an 80 percent disability rating from the VA, clear and convincing evidence of the severity of her medical condition during her Army tenure.  In the investigation of the appeal, the senior rater stated that the basis of the report was on the applicant’s performance, and not her medical condition, however that was contradictory with the bullet provided by the senior rater on the NCOER.

Counsel states that the investigation also fallaciously relied on “numerous” counseling sessions, one of which had nothing to do with performance, the second clearly showing that she did not meet her standards because of medical conditions, and a third, of which was informative in nature.  However, the ESRB case summary indicates that the applicant was offered a position of greater responsibility, which she refused, an assertion premised upon the misbelief that she rejected the position, and not that the position was taken from her.  This was false information that the reviewer relied upon in determining the correctness of the NCOER and makes the ESRB review unfair and incorrect.

The applicant’s NCOER was based on her medical condition.  She should have been referred to a MEBD.  Her evaluation was overly broad and generalized and based on inaccurate information.  Her previous NCOER’s were nearly perfect.  (Copies of 6 previous reports are marked as Exhibit 4 of counsel’s brief.  All these reports are excellent).  The ESRB investigation was skewed by the testimony of the rater and an exaggerated emphasis on her “numerous” counseling sessions.  The medical professionals treating the applicant documented and informed her superiors of her inability to perform.  

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

The applicant served in the Army continuously since 1977, and retired with over 20 years of service in 1997, achieving the rank of Sergeant First Class.  She has received numerous awards, to include the Meritorious Service Medal, two awards of the Army Commendation Medal, the Air Force Commendation Medal, five awards of the Army Achievement Medal, and six awards of the Army Good Conduct Medal.  Her training included the Animal Specialist Course, a Laboratory Technician Course, and the Advanced NCO Course. 

A review of the applicant’s record shows that the applicant’s evaluation reports since 1978 have ranged from extremely poor to outstanding.   For instance, the report ending for the nine month period in December 1983 indicates that the applicant had demonstrated the potential to perform adequately early in the rating period, but did not continue to demonstrate acceptable performance, nor did she respond to efforts by personnel to improve her performance.  She demonstrated little initiative.  Her medical profile precluded her participation in the physical training test, but did not restrict her ability to perform her duties.  Her indorser stated that she did not perform satisfactorily.  She was recalcitrant to both informal and formal counseling.  She did not earn the respect of co-workers. Both her rater and indorser stated that she should not be promoted, and that promotion with peers should only be considered if she demonstrated the ability to interact with peers, subordinates, and superiors.

In the report for the three month period ending in March 1984, the applicant’s rater stated that she performed her duties efficiently, but only after detailed instructions were given.  He stated that for reasons unknown, she had consistently used recurrent temporary medical profiles to selectively limit her work availability and performance.  She had the potential for an Army career, but only if her work attitude changed.  Her indorser stated that she performed her duties capably, but appeared to spend a great deal of time away from the work place rather than applying herself to learning new skills.  Both individuals stated that she should be promoted with peers. 

In the report for the 12 month period ending in March 1985 both her rater and her indorser stated that she had performed her duties in an outstanding manner. Her rater stated that she had been responsible for organizing a 10 ten year old toxicology data archives collection.  Her indorser stated that her exemplary administrative and technical skills reduced the workload of her technical supervisor.  He stated that her self discipline, initiative, and ability was invaluable. She was capable of performing well under pressure and adapted to numerous  assigned tasks.  Both her rater and indorser stated that she should be promoted ahead of her peers, giving her the highest numerical scores possible on the report. 

In the report for the 12 month period ending in September 1987, her rater stated that she performed all her assigned duties during the period.  He did say that she had the tendency to overlook the needs of subordinates and that loyalty to her superiors was not up to expectations.  She tended to observe events, did not take corrective action, then in the aftermath expressed displeasure.  Her administrative technical skills set the example for others, but she sometimes exhibited a great deal of difficulty communicating.  Her profile did not prevent her from performing her duties.  Her indorser stated that she had experienced difficulties in interpersonal relationships.  Both individuals stated that she should be promoted ahead of her peers; however, her numerical scores on the report were not the highest that could have been given.  

In the report for the six month period ending in February 1996, immediately preceding the contested report, her rater stated that she was dedicated to her job performance and mission, was a strong supporter of her specialty, had strong and sincere beliefs and was totally honest with peers and subordinates.  He rated her as being excellent in the competence portion of the report, indicated that she had a profile, but stated that she was able to perform her duties in her MOS, and stated that she was fully capable for promotion and for service in positions of greater responsibility.  Her senior rater stated that she was very competent in the technical aspects of her MOS, diligently searched to improve training for the MOS, and should be promoted with her contemporaries.  

On 26 March 1996 the applicant was counseled for not notifying her supervisor and her NCOIC (NCO In Charge) of her convalescent leave extension.       (Exhibit 8 of counsel’s brief).

On 16 July 1996 the applicant was counseled for failure to follow instructions on two occasions, and for failure to inform her NCOIC that she could not, or did not comply with his instructions.  The applicant replied that there was a misunderstanding and a breakdown in communications that caused the problems.  (Exhibit 8).

On 23 October 1996 the applicant was counseled by her senior rater concerning her problem with assuming the assignment as NCOIC of the Animal Medicine Branch.  Her senior rater informed her that she could not perform those duties and would not be assigned to that position.  Her senior rater stated that she was recommending that the applicant be given a fitness for duty examination.  (Exhibit 8). 

In the contested report (Exhibit 2), the eight month period ending in October 1996, her rater made the following comments and rating:

•	She did not place dedication and commitment to the goals and missions of the Army and nation above her personal welfare
•	She was not disciplined and obedient to the spirit and letter of a lawful order
•	She selectively obeyed orders when it fit personal needs
•	She did not utilize the department’s organizational structure in addressing problems (competence portion of the report)
•	Her profile inhibited her ability to accomplish her assigned duties; she could not be placed in leadership positions due to her medical condition; she was unable to perform in stressful situations (physical fitness and military bearing portion of the report)  
•	She conveniently misunderstood or misinterpreted orders given; she was unable to perform Department’s functions within her scope of responsibility (leadership portion of the report)
•	She was notified of the reason for the relief; she avoided work and responsibility when possible (responsibility and accountability portion of the report)
•	The rater stated that her overall potential for promotion and service in positions of greater responsibility was marginal 

The applicant’s senior rater stated that her promotion was not recommended at that time; and that her health problems affected her overall performance.  She stated that the applicant’s overall performance was poor, and her overall potential for promotion and service in positions of greater responsibility was poor. That senior rater is the same individual who was the senior rater on the immediately preceding NCOER.

On 21 October 1996 the applicant’s commanding officer requested that the applicant be medically evaluated for continued military service.  He stated that the applicant had not taken a record Army Physical Fitness Test since April 1995, that she legitimately had temporary profiles, but had not been given a permanent profile.  He also stated that she had been negligent in carrying out her assigned duties due to her many medical appointments.  (Exhibit 7)

In a 10 January 1997 memorandum in support of the applicant’s appeal of the NCOER, a senior civilian, the Chief of the Training Literature Section of the Academy of Health Sciences at Fort Sam Houston, stated the applicant worked directly with him on a soldier’s manual starting in October 1995, she worked diligently to insure that the manual was timely and accurate, and the manual was completed ahead of schedule.  He stated that the applicant had demonstrated that she was highly capable.  (Exhibit 6).

In a 10 January 1997 memorandum in support of her appeal, another senior civilian, an Instructional Systems Specialist, stated that the applicant had assisted him, and that she had completed all her assigned duties and responsibilities efficiently and timely and met all required suspense dates.  Her dedication to the military mission was exemplary.  (Exhibit 6). 

In a 15 January 1997 memorandum in support of the applicant’s appeal of the NCOER, an Army captain at Brooke Army Medical Center stated that the applicant had been under his medical care for two years, that she had numerous medical problems, to include surgery in February 1996 to correct a  jaw malformation.  She returned to duty on 25 March 1996 after convalescent leave, and continued to experience post surgical complications and unremitting pain.  She had multiple doctor appointments, her problems were identified, and corrective treatment started to include surgery to correct the problem caused by the first surgery.  During this period of eight months, she expressed deep frustration at the lack of progress made in resolving her complications and her unremitting pain.  She also expressed concern and frustration about her work environment, and the lack of support given by her supervisor.  Her prognosis was excellent.  He could see no further problems.  He stated that she should not be penalized for any medical condition which limited her work activities.  (Exhibit 1).
In a 29 January 1997 memorandum, a clinical psychologist at Brooke Army Medical Center stated that the applicant was taught a variety of techniques to help reduce stress and to relieve some of the pain to counteract the negative effects of her treatment.  She was involved in both individual and group therapy, during which she indicated that her work environment contributed greatly to her level of stress.  She indicated her superior appeared to be non-supportive of her during her difficulties.  He would assign her duties that she would be unable to complete due to her frequent medical appointments.  (Exhibit 1).  

The ESRB reviewed the applicant’s appeal to the NCOER (Exhibit 5), to include the memorandums of support just described, an Inspector General (IG) action request, the results of a congressional inquiry, and counseling statements (to include statements not available to this Board).  The ESRB contacted the applicant’s rater, who stated that the report was based on the applicant’s poor performance and excessive use of her medical profiles to avoid completing assignments.  The rater reiterated that the rationale for the report was not her medical condition.  He stated that whenever he questioned her about her ability to perform tasks, she assured him she was medically fit and her profile did not prohibit her from performing her assigned duties; however, when she failed to complete the tasks, she would record her perceived misunderstanding or miscommunication.  She made herself scarce by using appointments or profiles as the reason she missed suspense dates.  She was counseled extensively.  The rater continued by saying she sought ways to escape from work.  The rater stated that he informed her of the rationale for her relief.  She was the senior Sergeant First Class in the section and would not accept positions of greater responsibility.  The rater stated that his evaluation was fair and accurate.

The ESRB contacted the senior rater who stated that the date that the applicant filed the IG complaint had no bearing on the report and that the IG investigation was not completed until several months after the report had been processed.  (The ESRB noted that the senior rater was aware of the applicant’s intentions to file an IG complaint and the NCOER was not completed prior to the applicant submitting the complaint).  The senior rater stated that the report was based on the applicant’s desires to perform and on her inability to perform to the level commensurate with her grade.  The rating officials adhered to her profile, but expected her to perform within the guidelines of her profile.  The senior rater stated that she (the senior rater) counseled the applicant verbally and in writing.  The applicant was tasked to become the NCOIC of the Animal Medicine Branch; however, the official in charge of that branch concluded that the applicant could not perform tasks assigned to her.  While sharing an office with one of the above mentioned senior civilians where she performed administrative duties (a specialist’s duties), she attempted to give her work to other instructors, which was unacceptable.    
 
The ESRB contacted the reviewer who stated that the applicant’s IG complaints were without substance.  He stated that he did not have close contact with the applicant, but that there were discussions and her name was mentioned.  He stated that her rater had an extensive counseling file that did not relate to her medical profiles, but to her every day performance.  In addition, he was kept informed of events occurring in the section.  He stated that the applicant was not a stellar soldier.  He stated that when she was offered a position of greater responsibility, she refused the offer.  He stated that she lacked a positive attitude and the zeal expected of a senior NCO.  He stated that the report was fair, that many approaches were tried to help her, and the section bent over backwards to accommodate her needs.

The ESRB indicated that the U.S. Army Enlisted Records and Evaluation Center (USAEREC) adjudicated the administrative contention that the report should reflect one non-rated month due to hospitalizations and convalescent leaves.

The ESRB determined that the applicant’s contentions were invalid.  It stated that the chain of command recognized her health problems and adhered to the limitations of her profile.  Memoranda of counseling indicate that the applicant was not straightforward in her interactions with her superiors.  She sometimes failed to keep her rating chain informed of appointments and other problems associated with her medical condition.  The NCOER was not based on her medical conditions, but on her lack of performance.  When she did not complete a task, she made excuses.  The ESRB reviewed the results of the IG complaint and indicated that the evidence shows that her allegations were either not substantiated, or neither unsubstantiated nor refuted.

The ESRB stated that the applicant had not provided compelling evidence that the bullet comments, “Does not utilize the department’s organizational structure in addressing problems,” and “Unable to perform Department’s functions within her scope of responsibility,” were inaccurate or untrue.

The ESRB states that counseling statements presented by the rater show that the rater maintained an extensive counseling file not pertaining to the applicant’s medical problems.  The ESRB stated that poor attitude, marginal performance in meeting standards, and poor leadership traits were responsible for her relief.

The ESRB stated that the third party statements stated nothing more than their opinion of specific tasks that she performed, and did not address the contested NCOER or the possible reasons for such a report.  The statements from medical professionals addressed only her medical condition and her prognosis for recovery.  The ESRB stated that none of her physical profiles limited her ability to teach or perform administrative duties as listed in the NCOER.

The ESRB stated that there was no basis to grant the applicant’s request for appeal.

The applicant retired from the Army on 31 August 1997.
On 15 December 1998 the VA awarded the applicant an 80 percent service connected physical disability rating for various medical conditions, to include a hysterectomy, flat feet and bunions, acromioclavicular subluxation with fibromyalgia, anterior cervical disk fusion, postoperative with degenerative joint disease and fibromyalgia, myringotomy with PE tubes, migraine headaches, and fifth (trigeminal) and seventh (facial) cranial nerve paralysis.  (Exhibit 3). 

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, has been prepared by the proper rating officials, and represents the considered opinion and objective judgment of rating officials at the time of preparation.  Appeals alleging bias, prejudice, inaccurate or unjust ratings, incorrect Army Physical Fitness Test (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.  The applicant indeed did have medical problems during the period of the contested NCOER as evidenced by medical personnel at Brooke Army Medical Center.  Her condition apparently was painful, requiring continued medical appointments.  She expressed to both the physician assistant and the clinical psychologist who were treating her that she was experiencing frustration in her work environment.

2.  Her rater and her senior rater had determined that her performance was poor. Her senior rater, the same official that had rated her as more than adequate on a previous report, stated that she should not be promoted and that health problems affected her overall performance.  Her rater indicated that her profile and her medical condition hindered her performance.  Those statements by rating officials infer that her medical problems were the cause of her difficulties, and the reason that she was relieved for cause.

3.  Nonetheless, the applicant apparently could perform certain duties admirably and commendably during the rating period, as reflected in the third party statements she submitted with her appeal to the ESRB and included with her application.  It appears that the two senior civilians considered her performance exemplary.  She was healthy enough to perform well with those individuals, and neither her medical condition nor her medical appointments interfered with those duties.  

4.  The applicant’s rater has clearly indicated that the applicant had not performed to his expectations, and that she did those duties that she saw fit to do, that she avoided work and responsibility when possible, and that in effect, she sidestepped personnel in her chain of command.  He implies that she used her medical condition, which was valid, as a crutch, as an excuse, to not do what she did not want to do. 

5.  The case summary of the NCOER appeal clearly shows that a comprehensive review was made by the ESRB, to include the exhibits submitted by the applicant.  That board contacted the applicant’s rater, senior rater, and reviewer, and concluded that there was no sufficiently convincing evidence that the NCOER was inaccurate, unjust, or that it did not adequately reflect the applicant’s performance.  The ESRB stated that members of the applicant’s chain of command were aware of the applicant’s medical condition, her profiles, and the limitations thereof.  The ESRB also indicated that there were additional counseling statements pertaining to the applicant’s duty performance that were considered by that board.  The ESRB noted the statements from the medical personnel and the third party statements submitted with the appeal.  

6.  It appears that the applicant’s appeal to the ESRB received fair consideration and that she received fair treatment overall.  She apparently had temporary profiles, information of which is unavailable to this Board, which prevented her from some activities during the periods of the profiles; however, this Board believes that she simply did not do what it was her responsibility to do, profile or no profile.  The Board believes that the NCOER  represents the considered judgment and opinion of the rater and the senior rater, and that the report was not unfair or unjust.

7.  The Board has noted that the applicant’s commanding officer had requested that the applicant be medically evaluated for continued military service. Apparently, competent medical authorities determined that she did not warrant a MEBD, despite her medical condition.  The Board is not privy to her medical records; however, she did receive medical treatment, to included surgery, before, during, and after, the rating period as evidenced by the memoranda from medical personnel at Brooke Army Medical Center.  Applicant’s counsel so acknowledges the surgery and treatments that she received.  Consequently, this Board can only conclude that her medical condition was not such that called for a MEBD, despite counsel’s contentions to the contrary.  The applicant’s medical condition as shown by the disability rating that she received from the VA is also noted.  However, it is presumed that she was medically fit for retirement.  The physician assistant who had been treating her indicated in January 1997 that her prognosis for a full and complete recovery was excellent and that he saw no further problems arising.  Neither the applicant nor counsel has submitted any probative medical evidence to show that she was medically unfit for retirement.  Her continued performance of duty raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with her separation.

8.  Neither the applicant nor counsel has shown that the contested NCOER was unfair or unjust, and that the report represented other than an objective and valid appraisal of her demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from her OMPF.

9.  Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of her request.   

10.  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.

11.  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

___mhm_  ___jhl___  ___jns___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999028640	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000629	
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.  193	111.02	
2.		
3.		
4.		
5.		
6.