MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 October 2000
	DOCKET NUMBER:   AR2000039153

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Linda D. Simmons		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:  The removal of a noncommissioned officer evaluation report (NCOER) for the period of December 1992 to April 1993 from his Official Military Personnel File (OMPF) and promotion reconsideration to the pay grade of E-8.

APPLICANT STATES:  In effect, that his appeal is based on administrative error because there was no initial counseling performed by his rater, that the Department of the Army (DA) Form 2166-7-1 (Counseling Checklist) was never used, that the dates of counseling indicated on the contested NCOER never occurred, that the rater never explained why counseling was not performed, that the bullet comments are not specific enough to meet the regulatory requirements of the applicable regulation, and because there is an unexplained discrepancy between the ratings of the rater and the senior rater (SR).  He further states that he did not appeal the report within the timeframes prescribed by the regulation because he believed that it would not have a significant impact on his career given his otherwise stellar record; however, given the number of times he has been nonselected for promotion, he is convinced that the contested NCOER is the reason for his nonselection. 

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

He enlisted on 30 July 1980 for a period of 4 years and training as a personnel specialist.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 1 January 1991.

On 18 June 1993 he received a change of rater NCOER covering the period from December 1992 through April 1993 evaluating him as an administrative noncommissioned officer (NCO) at Headquarters, Forces Command (FORSCOM).  He refused to sign the report in Part Ilc.

In Part IVa under Values/NCO Responsibilities, the applicant received a “No” rating under “Is honest and truthful in word and deed”.  The bullet comments indicate that his integrity was questionable.  He received “Yes” ratings in the remaining six areas. 

In Part IVb under Competence, he received a “Needs Improvement” rating from his rater.  The bullet comments indicate that he required supervision and that he does what he is told to do.

In Part V under Overall Performance and Potential, the rater (a lieutenant colonel) deemed his performance and potential as “Fully Capable”.  The SR (a colonel) deemed his performance as “Fair” and his potential as “Poor”.  The SR’s bullet comments indicate that the applicant could do good work when he chooses to do it, that he lacks the maturity normally expected of a Sergeant First Class, and that he had limited potential for future service.
The applicant submitted an appeal of the contested NCOER to the Enlisted Special Review Board (ESRB) in April 1998 and the appeal was returned due to the lack of supporting documents to warrant an appeal.  He again re-submitted his appeal in July 1998 and his appeal was again returned without action because he had failed to file within the 5-year timeframe required by the applicable regulation and had failed to provide substantive evidence to warrant a waiver of the appeal timeframe.

A review of the applicant’s NCOER history shows that he received a “Relief for Cause” NCOER while serving as a drill sergeant during the period of July 1987 to September 1987.  The relief for cause report was based on his inability to maintain acceptable standards of physical fitness, military conduct and professionalism.  His commander indicated that he had failed a physical fitness test, that he had been counseled on trainee abuse, disregarding the welfare of his trainees, and his overall lack of maturity and self-discipline.  The applicant refused to sign the report. 

On 4 February 1991, he received a change of rater NCOER for the period of October 1990 to December 1990 in which he received “no” ratings from his rater in the areas of “Is committed to and shows a sense of pride in the unit – works as a member of the team” and “Maintains high standards of personal conduct on and off duty”.  The bullet comments indicate that he did not act as a team player and that his standards of conduct on and off duty did not reflect favorably on the NCO Corps.  In part IVd under “Leadership” he received a “Needs Improvement” rating and the bullet comments indicate that he did not set a good example for soldiers to follow and that he did not build team spirit.  There are also comments indicating that he did not use sound judgement in dealing with his superiors and subordinates.

The applicant received an NCOER covering the period from September 1992 to November 1992 and he requested a commander’s inquiry.  He cited as the basis for his request that the rater lacked objectivity.  The commander granted the applicant a commander’s inquiry and the inquiry determined that his allegations were unsubstantiated.  He (the commander) advised him to seek redress through the appeals process.  Although the specifics of his appeal are not present in the available records, his OMPF shows that the report was deleted from his records in February 1994 and the period of the report was declared as non-rated time.

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.

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 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 contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his records.

2.  The applicant’s contention that the ratings and comments made by the rater and SR on the NCOER were unjust, appear to be without merit.  After reviewing the evidence submitted by the applicant and the evidence of record, the Board is convinced that the applicant was counseled and was aware of the expectations of his rating chain, but failed to meet them.

3.  Notwithstanding the applicant’s claim that the NCOER was unjust because of the absence of actual counseling during the rated period, the applicant has failed to show that the comments and ratings he received were in error or unjust.

4.  While the Board agrees that counseling is required by the regulation, the absence of such counseling does not necessarily invalidate the ratings or comments on an evaluation report.  The Board finds that the applicant has failed to show through the evidence submitted with his application or the evidence of record that the report contains information regarding his performance and/or potential that is incorrect.

5.  The applicant’s contention that the contested NCOER is the resultant cause of his non-selection is at best speculative on his part.  It is a well known fact that promotion boards do not reveal the basis for its selections or nonselections and the applicant clearly has evaluation reports in his OMPF that are as bad or worse that the contested report.

6.  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.

7.  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

_be  ____  ___rvo __  ___lds __  DENY APPLICATION

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

INDEX

CASE ID	AR2000039153	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/10/17	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  207	111.0200/VOID NCOER	
2.		
3.		
4.		
5.		
6.