PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            16 March 2000
	DOCKET NUMBER:   AR2000037992

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. Christopher J. Prosser		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 the removal of a noncommissioned officer evaluation report (NCOER) covering the period from September 1994 to December 1994, retroactive promotion to the pay grade of E-7 in 1994, and standby consideration for promotion to the pay grade of E-8.

3.  The applicant states, in effect, that he has been unjustly denied promotion due to the presence of two forged derogatory NCOER’s that were placed in his Official Military Personnel File (OMPF) without his knowledge and resulted in his being barred from reenlistment under the Qualitative Management Program (QMP).  He further states that he submitted an appeal of the NCOER’s to the Enlisted Special Review Board (ESRB) to have them removed from his OMPF and the ESRB elected instead to make alterations to the reports and allow them to remain in his file.  He goes on to state that he appealed the bar to reenlistment to a Department of the Army Standby Advisory board and his appeal was granted on 25 April 1996; however, the bar to reenlistment was not removed from his OMPF until 9 March 1998.  He further states that the NCOER covering the period from September 1994 to December 1994, as modified by the ESRB, is the resultant cause of his nonselection for promotion and should be removed from his OMPF.  He also contends that he should be promoted to the pay grade of E-7 with a date of rank retroactive to 1994 and that he should receive standby consideration for promotion to the pay grade of E-8.  In support of his appeal he submits a letter of support from a Deputy Special Assistant to the Secretary of Defense as well as copies of documents used to exhaust his administrative remedies. 

4.  The applicant’s military records show that he enlisted on 29 September 1981 for a period of 4 years under the airborne and enlistment bonus option.  He successfully completed his training and has remained on active duty as an airborne/Ranger qualified infantryman through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 1 February 1989.

5.  On 14 February 1996 the applicant was notified that the Calendar Year 1995 Sergeant First Class (SFC)/Advanced NCO Course (ANCOC) Promotion Selection Board had determined that he was to be barred from reenlistment based on two NCOER’s covering the periods from April to August 1994 and from September to December 1994 which reflected deficiencies/weaknesses in physical fitness/weight control.  He elected to submit an appeal of the bar to reenlistment.

6.  On 18 March 1996 he submitted an appeal of the bar to reenlistment contending that the NCOER’s were forgeries and that he had never seen the NCOER’s in question.  He provided documentation to show that he was never in the weight control program, copies of the NCOER’s he was given at the time, proof that he was in fact available for signature during the time the reports covered despite the comments indicating otherwise, and statements from his rating officials corroborating his contentions.  His appeal was approved on 17 July 1996 and the bar to reenlistment under the QMP was removed. 

7.  The applicant then submitted an appeal of the two contested NCOER’s to the ESRB requesting the total removal of the reports from his OMPF and standby promotion reconsideration.  After reviewing the available evidence and contacting rating officials, the ESRB opined that the applicant had met the burden of proof in showing that the reports were inaccurate or unjust.  However, the ESRB opted to make administrative corrections to the reports rather than remove them in total from his OMPF.  The ESRB also directed that he receive promotion reconsideration to the pay grade of E-7 under the CY97 SFC promotion criteria and opined that due to the low rate of selection for his specialty in 1995 and 1996, he would not have been competitive and thus should not be reconsidered by those boards.

8.  On 20 July 1998 he was notified that he was not selected for promotion by the CY97 Enlisted Standby Advisory Board.

9.  A review of the contested NCOER shows that the ESRB in part IVc corrected the report to reflect that he met the height/weight requirements of Army Regulation 600-9 and changed the rating from “Needs Improvement” to “Success.”  This resulted in the applicant having all “Success” ratings and a “Fully Capable” rating from his rater.  He also received a successful “2” block rating from his SR under performance and a superior “3” block rating under potential.  The report as amended by the ESRB is not considered an adverse report.

10.  A review of the applicant’s records shows that he was first considered below the zone for promotion to SFC in 1992.  There was no SFC board in 1992 but there were two boards in 1993 and the applicant was in the primary zone of consideration and was nonselected by both of those boards and all subsequent boards as well.

11.  In the processing of this case a staff member of the Board contacted officials at the Department of the Army Secretariat for Promotion Boards at the Enlisted Records and Evaluation Center (EREC) to ascertain the information that was presented to the CY97 Standby Advisory Board when the applicant was reconsidered for promotion.  Officials at the EREC reviewed the promotion board files and informed the staff member of the Board that there was no indication of a bar to reenlistment in the documents submitted to the board at the time he was reconsidered.

12. Army Regulation 600-8-19 serves as the authority for the promotion of enlisted personnel.  It states, in pertinent part, that promotion reconsideration by a DA Standby Advisory Board (STAB) is not authorized for personnel who were below the zone of consideration by a duly constituted promotion selection board. Personnel who are in or above the zone of consideration and who meet the criteria for reconsideration will be granted reconsideration as appropriate. 

13.  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 represent the considered opinion and objective judgment of rating officials at the time of preparation. 

14.  Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he 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.

CONCLUSIONS:

1.  The applicant has clearly met the burden of proof by establishing that the report in question was inaccurate and unjustly rendered and is documented as such by the findings of the ESRB.  Although the ESRB elected to amend the report rather than removing it from his OMPF as the applicant requested, the Board finds that the entire report was suspect to begin with and that it should be removed from his OMPF in its entirety. 

2.  Although officials at the EREC have confirmed that there was no indication of a bar to reenlistment present in the records that were presented to the CY97 SFC Standby Advisory Board that reconsidered him for promotion, the contested NCOER was present in the records at the time.

3. Accordingly, he should receive the benefit of the doubt by receiving promotion reconsideration to the pay grade of E-7 by all promotion boards (beginning in 1995) that reviewed the NCOER in question.

4.  It is a well known fact that promotion boards do not reveal the basis for selection or nonselection for promotion and the Board does not have the benefit of reviewing the records of all of the applicant’s peers as a promotion board is afforded.  Therefore, inasmuch as the applicant was nonselected for promotion at least three times prior to the period covered by the contested NCOER, the Board will not attempt to second guess the promotion process by attempting to rationalize why the applicant was not promoted or by directing that he be promoted.

5.  However, the applicant will be afforded the opportunity to fairly compete for promotion under the criteria used by the boards that nonselected him without the contested NCOER present in his OMPF.  In the event he is selected for promotion to the rank of SFC, he will be afforded the opportunity to attend the ANCOC and upon graduation from that course and promotion with the appropriate DOR, he will be afforded promotion consideration by a Standby Advisory Board for promotion to the pay grade of E-8 if he is otherwise eligible.

6.  Additionally, if the applicant is selected for promotion, he will be entitled to all back pay and allowances based on a retroactive DOR.

7.  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 ending on December 1994 from the OMPF of the individual concerned and by placing a non-prejudicial statement in its place to designate the period as non-rated time. 

2.  That his records, as thus corrected, be placed before the appropriate Enlisted Standby Advisory Boards for reconsideration for promotion to the pay grade of  E-7 under the criteria used by all SFC boards since 1995 that reviewed the contested NCOER and failed to select him for promotion.

3.  In the event he is selected for promotion to SFC, he will be given the first available class to attend the ANCOC and upon completion and promotion with the applicable DOR, he will be afforded promotion consideration to the pay grade of E-8 if he is eligible by virtue of his DOR.  Additionally, he will be entitled to all back pay and allowances that result therein.

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

BOARD VOTE:  

__owt ___  __cjp____  __jlp____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Jennifer L. Prater____
		        CHAIRPERSON

INDEX

CASE ID	AR2000037992	
SUFFIX		
RECON		
DATE BOARDED	2000/03/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  221 	111.0005/void ncoer	
2.  311 	131.0100/relook bd	
3.		
4.		
5.		
6.