MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            19 January 2000                  
	DOCKET NUMBER:   AR1999029195

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. John P. Infante		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 Non-Commissioned Officer Evaluation Report (NCOER) for the period 9305-9404 be removed from her Official Military Personnel File (OMPF).

APPLICANT STATES:  That the subject report is both administratively and substantively inaccurate; that the report does not reflect her true performance and potential; that the report is based upon an untrue statement concerning her integrity.  She contends that her rater gave her comments typed on bond paper and signed, blank DA Forms 2166-7 (NCO Evaluation Report), telling her to complete her own NCOER.  She states that she returned to her rater and questioned the compatibility of bullet statements with the block checks directed and that her rater permitted her to improve the block checks to be compatible with his bullet comments.  Later, she was accused of altering her NCOER and given the subject NCOER.

In support of her application, the applicant submits a copy of her 22 April 1999 appeal of the subject report to the Enlisted Special Review Board (ESRB) which contains 14 enclosures.

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

She is a sergeant first class serving in military occupational specialty (MOS) 75.  From May 1993 through April 1994, she served as NCOIC (In Charge) of Military Personnel for Defense Reutilization and Marketing Region—Europe.  In April 1994, she was relieved of her duties and given a relief-for-cause NCOER.

The subject NCOER stated that she did not demonstrate the following NCO values and responsibilities in Part IVa:  (1)  dedication and commitment to the goals and missions of the Army; (3)  disciplined and obedient to the spirit and letter of lawful order; (4) honest and truthful in word and deed; (5)  high standards of personal conduct; and (6)  courage of convictions.  In Part IVb, she was cited for using poor judgment by altering her NCOER to strengthen bullet comments and that she needed some improvement in her level of competence.  In Part IVd, her leadership was cited as needing some improvement and her ethics were questioned in the bullet comments.  In Part IVf, she was cited as needing some improvement in responsibility and accountability with negative comments added concerning her trustworthiness.  In Part Va, her rater stated that her overall potential for promotion was marginal.  In Part Vc and d, the senior rater described her overall performance as fair and her overall potential as poor.  In Part Ve, the senior rater stated that she had compromised her integrity and had no advancement potential.

The applicant appealed the subject OER.  In her appeal, she stated that her rater had given her his ratings on a separate sheet of paper and had told her to complete her own NCOER.  She said that there were certain discrepancies between her rater’s comments and block checks, and that she went to him for clarification.  She said that he instructed her to resolve any inconsistencies in her favor.  When she had completed her NCOER, it went forward and the reviewer questioned it.  When the reviewer spoke to the rater and senior rater concerning their glowing evaluation of the applicant, both individuals failed to acknowledge letting the applicant complete it and, instead, accused her of altering their original report.  This resulted in the relief-for-cause NCOER.

The applicant’s rater authored a memorandum for record on 29 March 1994 which appears in the ESRB case file.  In it, he agrees that the applicant challenged his rating in Part IVb (Competence) and that he reluctantly agreed to raise her rating from success to excellence, but he disagrees that anything else was challenged or changed.  He states that when the report went to the reviewer, he was called in, shown the report, and asked about his overly laudatory assessment of the applicant’s performance.  He adds that he told the reviewer that the applicant had changed his ratings without his permission and that he confronted her and she admitted having done so.  He states that he then rendered the subject NCOER.

The ESRB denied the applicant’s appeal on 23 February 1995 citing a lack of evidence to justify withdrawing or altering the subject report.

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.

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 burden of proof rests with the applicant to submit relevant material and competent evidence to establish clearly and convincingly that her NCOER was inaccurate and unjust.  She has failed to submit evidence that would satisfy the aforementioned requirement.  The applicant’s rater in a memorandum for record written during the period of the preparation of the subject NCOER indicates that she did agree to a limited number of changes, but that the applicant made substantial, unauthorized changes that significantly improved her rating.  The applicant has not disproved this allegation by her rater.

3.  The ESRB, after reviewing the applicant’s appeal and all evidence provided by her, denied her request to have the subject report deleted or altered.

4.  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

___RVO_  __CLG__  __JPI ___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029195	
SUFFIX		
RECON		
DATE BOARDED	20000119	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	111.0000	
2.	111.0200	
3.		
4.		
5.		
6.