MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 August 2000
	DOCKET NUMBER:   AR2000036151

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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:  Correction of two Noncommissioned Officer Evaluation Reports (NCOERs).  NCOER #1 covers the period 9605-9701 and NCOER #2 covers the period 9702-9709.  He also requests reconsideration for promotion to sergeant first class.

APPLICANT STATES:  That the subject NCOERs were used as instruments of discrimination in that they lack objectivity for overall performance toward promotion.  Essentially, he contends that his rating on leadership in the first NCOER is substantively inaccurate and he requests it be removed.  In the second report, he also contends that the promotion potential remark made by his senior rater is substantively inaccurate and wants it removed.  In support of his request, the applicant submitted a number of documents specifically indexed in block 10 of his application, along with his detailed statement.

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

He was a career noncommissioned officer (NCO) who entered active duty in September 1978.  He served 20 years and retired on 30 September 1998 in the rank of staff sergeant.  His last duty assignment was Fort Drum, New York.

NCOER #1 is a change of rater report evaluating the applicant as a Battalion Schools NCO in a field artillery battalion at Fort Drum.  In part IVd (Leadership), under Values/NCO Responsibilities, his rater (a sergeant first class) gave him a rating of “Needs Some Improvement.”  The supporting comment indicated that the applicant failed to maintain proper control of (his) assigned weapon during a major field training exercise (FTX).

On 17 December 1996, the applicant received a letter of reprimand from his battery commander for losing positive control of his assigned weapon on 
26 October 1996.

NCOER #2 is a change of rater report evaluating the applicant as a gunnery sergeant in a field artillery battery, also at Fort Drum.  The senior rater (a captain, the battery commander) rated the applicant’s performance and potential as “superior” in part V, Overall Performance and Potential, and made a comment to “promote to sergeant first class (SFC) if possible.”

On 2 March 1998, the applicant appealed the contested NCOERs to the Enlisted Special Review Board (ESRB).  The reasons cited for the appeal were essentially the same as those he made to this Board.  He provided additional information concerning the issue raised about NCOER #1, affirming that he lost positive control of his individual weapon on 26 October 1996 during an FTX.  He stated that neither his commander nor his rater counseled him verbally or in writing until 2 months after the incident occurred.  In regard to NCOER #2, the 

applicant charged that the bullet comment, “promote to sergeant first class if possible,” made by his senior rater was indirect sarcasm, invisible discrimination, and distorted representation of the truth.

The ESRB deemed it unnecessary to contact the rating officials about the first NCOER, noting a just decision could be made based on the evidence provided.  The board did contact the senior rater on the second NCOER and informed him of the applicant’s contentions and a need for further information.  The senior rater was asked what he meant by the bullet comment “promote to sergeant first class if possible,” and he replied that the applicant was an average performer and should only be promoted if the Army had a shortage of SFCs.  He also stated that the applicant was verbally counseled about the NCOER and bullet comment.

After a thorough review of the appeal and evidence submitted, the ESRB concluded that the applicant failed to provide clear and convincing evidence to substantiate his contentions that the two reports were inaccurate and unjust.  The appeal was denied and the applicant was informed of this decision on 5 February 1999.

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.

Paragraph 3-1 of the regulation defines the role of the rating officials as having the responsibility to balance their obligations to the rated NCO with their obligations to the Army.  Rating officials must make honest, fair evaluations of the NCOs under their supervision.  On the one hand, they must give full credit to the rated NCO for his/her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army selection boards and career managers can make intelligent assignments and career management decisions.

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 show through the evidence submitted or the evidence of record that the contested NCOERs were in error or unjust.

2.  The ESRB did an extensive and thorough review of the facts and evidence and came to the proper conclusion that there was insufficient evidence to grant the applicant’s request to alter the contested reports.

3.  The applicant’s contention that the ratings and comments made by the rater and senior rater on the NCOERs were substantively inaccurate is 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.

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

5.  The burden of proof rests with the applicant to submit relevant material and competent evidence to clearly and convincingly establish that his NCOERs were inaccurate and unjust.  He has failed to submit evidence that would satisfy the foregoing requirement.

6.  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

__sk____  __jea____  __reb____  DENY APPLICATION

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

INDEX

CASE ID	AR2000036151	
SUFFIX		
RECON		
DATE BOARDED	20000808	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.02	
2.		
3.		
4.		
5.		
6.