MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  4 May 2000
	DOCKET NUMBER:   AR2000036187

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Carol J. Suiter		Member	
	Mr. James P. Stueve		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 his records by removing a letter of nonconcurrence (LON) from his reviewer concerning his noncommissioned officer evaluation report (NCOER) for the rating period from April to October 1995.

APPLICANT STATES:  In a detailed personal statement, in effect, that after the Department of the Army Suitability Evaluation Board’s (DASEB) second rejection of his appeal to remove the reviewer letter of nonconcurrence from his official records, he now provides substantive evidence to the Army Board for Correction of Military Records to show that the DASEB erred by not granting his appeal.  He further states that the unverified derogatory information contained in the reviewer’s LON contributed to a DA imposed bar to reenlistment under the Qualitative Management Program (QMP); and that his battalion commander intervened in his behalf and conducted a formal investigation which determined that since the basis for the LON specifically, a letter of reprimand (LOR), did not exist, the LON was unfounded and should be destroyed.  He also states that the LON violated several regulatory provisions because it was not reflective of a fair evaluation of his skills or potential; that the unfair evaluation was based on a few minor incidents and thereby rendered his NCOER unjust because the evaluation was at a wide variance with the actual performance which occurred and did not account for contributory or mitigating circumstances over which he had little or no control; and that the evaluation was slanderous and libelous and merely a blatantly redundant reference to an isolated incident and did not represent a pattern of misconduct or undesirable behavior.  

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

He initially entered a 4-year enlistment in the Regular Army (RA) on 11 October 1984, as a light wheeled vehicle mechanic in military occupational specialty 63B. He is currently on active duty at Fort Bliss, Texas and holds the rank of sergeant first class (SFC).  

His NCOER for the rating period from April to October 1995 indicated, in pertinent part, that the rater, a chief warrant officer two (CW2), in Part IVa., rated him “yes” in blocks 1 through 7 and commented that he was “committed to excellence in all he does”; that he was an “independent worker who can lead without supervision”; and that his “loyalty is beyond reproach”.  He further rated him as “successful (meets standards)” in four categories, section c through f, and “excellence (exceeds standards) in one category, section b, under Part IV, values/NCO responsibilities, and “fully capable” under Part V, overall performance and potential.  The senior rater, a first lieutenant (1LT), rated him as “successful” in block 2 of Part Vc., overall performance, and “superior” in block 
2 of Part Vd., overall potential for promotion and/or service in positions of greater 
responsibility.  The senior rated commented in Part Ve. that he “seeks ways to 

improve on existing programs to increase efficiency”; that he was “especially strong and effective in the execution of demanding tasks”; that he was “technically proficient”; and that the Army should “promote with peers”.

In the LON, the reviewer, a captain (CPT) and the applicant’s commanding officer, indicated, in effect, that he did not concur with the rater’s evaluation; that he would consider the NCOER a proper evaluation of performance and potential by changing Part IVa. Block 3 to “no”; that the corresponding comment should state that “soldier received a LOR for disobeying a lawful order from the first sergeant (1SG) on two separate occasions”; and by changing the remaining comments in Part IVa. to state that “soldier cannot be trusted to follow instructions unless they meet his goals and his loyalty to the unit and his subordinates is questionable at best”. 

The Enlisted Special Review Board (ESRB) proceedings indicated that the applicant’s NCOER reviewer and 1SG provided testimony to the board.  The reviewer stated, in effect, that while the applicant and rater were technically competent, they had their own agenda.  The reviewer further stated that the rater couldn’t be found after 1300 hours and the applicant covered up for him; and that neither of them could be trusted.  The reviewer also stated that applicant did receive a letter of reprimand but he did not know if the battalion commander destroyed it later; that the applicant did not request a commander’s inquiry; and that he did have a lengthy discussion with the rater and senior rater regarding their evaluation inaccuracies, specifically, that the applicant’s absence from formation was not an isolated incident.  The reviewer stated that since the rater and senior rater were unwilling to acknowledge the discrepancy, he nonconcurred with their evaluation.  

The reviewer also stated that the applicant had failed to follow orders to be present at several prior mandatory formations; that the applicant used the excuse “last order given” by his rater as his reason for being absent from formation; that the rater’s supporting statement for the applicant’s NCOER appeal contradicted the reviewer’s account of what actually occurred; that the reviewer believed the rater was “retired on active duty”; and that the rater did not set an example for others to follow.  The reviewer added that the applicant was counseled several times regarding his responsibilities and obligations; that his loyalty to the unit and soldiers was questionable; that the applicant was held responsible for his actions and his rater tried to protect him; and that the reviewer reiterated his nonconcurrence with the NCOER in question because it was not an accurate assessment of the applicant’s duty performance.

The ESRB case summary revealed corroborating testimony from the applicant’s 1SG.  The 1SG stated while he was not in the applicant’s rating chain, he was 

aware and observed his duty performance.  The 1SG further stated that although the applicant was a competent motor sergeant, he was very manipulative, he did not set an appropriate example for others to follow, he could not be trusted, and he disobeyed several orders.  The 1SG further stated that the applicant’s assignment to his unit was the fourth rehabilitative transfer from other on-post units; and that the applicant’s performance was never documented correctly due to his promotion to SFC.  The 1SG also stated that every month, he personally escorted the applicant to his ex-wife’s residence to ensure that child support was provided; that the applicant’s conduct was unbecoming; that his rater and senior rater were aware of his conduct; and that, as leaders, the applicant and rater alike set poor examples for others to follow and neither of them could be trusted to follow instructions.  

The 1SG added that the applicant was involved in many issues that were not for the betterment of the Army; that the applicant was referred for court-martial due to a rape charge which was subsequently dismissed on a technicality (the ESRB noted that this incident occurred outside of the NCOER rating period); that the applicant taught a subordinate how to falsify an official document which resulted in that subordinate’s administrative separation; that the applicant’s action showed poor judgement and a lack of caring for the welfare of soldiers; that neither the rater or senior rater can deny that they were not aware of the reviewer’s concern over the applicant’s NCOER evaluation; and that as his 1SG, he questioned the validity of the report. 

The ESRB case summary concluded, in effect, that the applicant did not provide clear, convincing, or compelling evidence that the contested NCOER was inaccurate or unjust.  The ESRB further concluded that he did not provide probative evidence nor persuasive argument to support his contentions; and that without evidence to the contrary, the NCOER under appeal was considered an accurate and objective appraisal of his performance and potential during the rating period.  

A letter from the U.S. Army Enlisted Records and Evaluation Center (USAEREC) dated 19 June 1997, advised the applicant that the ESRB determined that the evidence did not justify altering or withdrawing the contested NCOER.  The letter also advised him to apply to the Board if he believed there was an error or injustice in adjudicating his appeal.

His NCOER for the rating period from November 1996 to August 1997 was a relief-for-cause report.  The NCOER indicated, in pertinent part, that his rater, a 1LT, rated him “yes” in Part IVa., blocks 1, 2, 4, 6, and 7, and “no” in blocks 
3 and 5.  The rater commented that he was “not at his appointed place of duty”; that he was “receiving counseling in an effort to control his temper”; and that he 

had “some difficulty in managing soldiers and resources”.  The rater further rated him as “successful (meets standards)” in three categories, section b, c, and e, and “needs improvement (some) in two categories, section d and f, under Part IV, values/NCO responsibilities.  The rater rated him “marginal” under Part V, overall performance and potential.  The senior rater, a CPT and his company commander, rated him “fair” in Part Vc., block 2, overall performance, and “fair” in Part Vd., block 2, overall potential for promotion and/or service in positions of greater responsibility.  The senior rated commented in Part Ve. that his “actions are not of the high standards expected of an NCO”; that he “has trouble controlling his temper, occasionally leading to undesirable circumstances”; and that he should “remain at current grade for further development”.

There was nothing contained in his records to indicate that he appealed his relief-for-cause NCOER.

A letter from USAEREC dated 2 April 1999, advised him that a DA bar to reenlistment was imposed against him under QMP.  The letter indicated that the DA-imposed bar to reenlistment was based on performance and discipline deficiencies outlined in the NCOERs for the period from April to October 1995 and November 1996 to August 1997. 

On 13 May 1999, he submitted an appeal to the DA-imposed bar to reenlistment, including chain of command endorsements, which was subsequently approved by a DA Standby Advisory Board on 24 August 1999.  The Board noted that the official notification document contained language stating that the removal of the DA imposed bar to reenlistment did not preclude future imposition of a local or DA imposed bars to reenlistment should the applicant records so warrant.  The Board also noted that the notification document was silent concerning the rationale for approving his request.

A letter from USAEREC dated 25 May 1999, advised him that his second appeal to the contested NCOER was returned without action because he did not provide any new evidence to warrant reconsideration.  The letter further advised him to petition this Board for relief.

Army Regulation 623-205 pertains to the noncommissioned officer reporting system.  Chapter 2 of that regulation states, in effect and in pertinent part, that the rated soldier may request a commander’s inquiry to investigate suspected illegality, injustice or violation regarding the preparation of an NCOER.  The purpose of a commander’s inquiry is to provide greater command involvement in preventing injustices to the rated soldier and correcting errors before they become a matter of permanent record or clarifying errors or injustices after the NCOER is received at the U.S. Army Enlisted Records and Evaluation Center.

There was nothing contained in his records to indicate that he exhausted other administrative remedies by requesting a commander’s inquiry.  

Also, there was nothing in his records to indicate the existence of a formal investigation concerning a LOR or the existence of such document.

Chapter 4 of the regulation states, in effect and in pertinent part, that an appeal may be submitted for a claim of inaccuracy or injustice, however, such a claim must include substantive, competent, and relevant evidence from third party sources, rating officials, or other documents from official sources and must be of a clear and compelling nature.  Third parties are persons other than the rated NCO or rating officials who have knowledge of the rated NCO’s duty performance during the rating period or persons who served in positions that afforded them the opportunity to observe the rated NCO’s duty performance, first hand, as well as the interactions with rating officials.

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.  The evidence of record and evidence submitted by the applicant does not substantiate his claim that the LON was unwarranted and should be removed from his records.  

2.  The Board concludes that despite the DA-imposed bar to reenlistment that was partially based on the contested NCOER and related LON which was subsequently removed on his appeal, the evidence of record, particularly, the comments to the ESRB during his NCOER appeal process from both his reviewer along with the corroborating comments from his ISG who observed his duty performance from a “third party” vantage-point, suggests that his duty 
performance was unacceptable and had been so for a considerable period of time.  Therefore, the Board believes that the reviewer was justified in issuing the letter of nonconcurrence.  

3.  The foregoing conclusion is reinforced by the fact that his rating officials were compelled to render a relief-for-cause NCOER for similar substandard duty performance the following year.  

4.  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.

5.  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

_LS____  __CS____  ___JS___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR2000036187	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000504	
TYPE OF DISCHARGE	NA	
DATE OF DISCHARGE	NA	
DISCHARGE AUTHORITY	NA  	
DISCHARGE REASON	NA	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	134	
2.		
3.		
4.		
5.		
6.