PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           31 October 2000
	DOCKET NUMBER:   AR2000046434

	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. Carl W. S. Chun		Director	
	Mr. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Brenda F. Hirschi		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 initially requested that her military records be corrected by changing the reenlistment eligibility code on her Enlisted Record Brief from 9L to 10; by removing her noncommissioned officer evaluation report (NCOER) covering the 12-month period ending February 1998; by reconsidering her for attendance to the Sergeants Major Course (SMC); and by reconsidering her for promotion to sergeant major/command sergeant major (SGM/CSM).  At a later date she requested the Board review the decision of the Department of the Army (DA) Enlisted Special Review Board  (ESRB) regarding her appeal of the NCOER cited above.

3.  The applicant states, in effect, that she did not receive just consideration for selection to attend the SMC, or just consideration for promotion to SGM/CSM due to erroneous processing of her NCOER.  In support of her application she has provided a binder of documents which includes a copy of the subject NCOER with the commander’s inquiry, an information paper from the office of the Command Sergeant Major, Total Army Personnel Command (PERSCOM), the DA imposed bar to reenlistment under the Qualitative Management Program (QMP), copies of her appeal requests and electronic communications between herself and various offices showing her attempts to correct the code in question.

4.  The applicant’s military records show that she enlisted in the Army for 3 years on 27 December 1983 in the rank and pay grade of private first class E-3.  At that time she held a juris doctor in criminal law.  She served in a variety of assignments both in the United States and overseas.  In 1987 she reenlisted for duty as a drill sergeant.  She quickly progressed up the ranks and was promoted to master sergeant (E-8) on 1 November 1996.  At the time of her application she was still on active duty serving as a senior supply sergeant (92Y5M) in the rank of master sergeant.

5.  The applicant’s military records further show that she received 20 NCOER’s during the period from March 1987 through June 1999.  With only one exception (the contested report), every report reflects a highly motivated, conscientious soldier, who was given high marks for her duty performance.  The NCOER for the period from February 1997 through February 1998 is not consistent with any of her previous reports or with her two subsequent reports.

6.  On 27 March 1998 the Commander, Headquarters, I Corps and Fort Lewis, Washington, published permanent change of station orders reassigning the applicant from Headquarters and Headquarters Company, 593rd Corps Support Group to Headquarters and Headquarters Company, United States Army Garrison, Fort Lewis, Washington.  Her report date was 2 April 1998.

7.  On 31 March 1998 the applicant received an NCOER for the period from February 1997 through February 1998.  That evaluation report reflected 3 rated months during the 12-month rating period.  The remaining 9 months were non-rated time due to her being intransit, a medical patient, a student, and due to the lack of a qualified rater.  In Part IVc she received a “success” rating with bullet comments of “Physical profile does not hinder duty performance”, “Does not meet height and weight standards in accordance with Army Regulation (AR)  600-9 due to current medical waiver” and “Not enrolled in overweight program.”  The Army Physical Fitness Test data is shown as “PROFILE 9802” and HEIGHT/WEIGHT data is shown as “63/163 NO.”  Part IVd shows “Needs Improvement (Some)” with negative bullet comments of “Only concerned with her advancement; disagreed with her job title as Senior Supply Sergeant despite counseling and MTOE description”, “Fails to set the example for subordinates to follow; disobeys direct orders as she feels she needs too; has her own agenda" and "Fails to display the mental toughness needed to deal with difficult situations necessary for a MSG and a Group Staff NCO.”  In Part Va she received a “Marginal” rating.  The senior rater assessed her overall performance/potential in Parts Vc and d as “Fair” with bullet comments in Part Ve of “Does not lead by example,” “Does not take responsibility for her actions” and “Do not promote.”

8.  On 3 April 1998 the applicant requested a commander’s inquiry in accordance with AR 623-205, paragraph 2-15 regarding the subject NCOER.  She stated in this request that the comments in Part IVc about her height and weight status, all comments in Part IVd, and entries in Part V were unjust.  She went on to discuss details of her working relationships within the organization and the disrespect she received from subordinate male noncommissioned officers.  She indicated that the specific problems with the NCOER all revolved around a medical problem and subsequent surgery.

9.  On 13 April 1998 the servicing personnel detachment processed the subject NCOER, indicating that a copy was forwarded to the applicant on that same date. It appears the signatures of the rating officials and the rated soldier have been dated in the same handwriting, all showing 13 April 1998.

10.  On 10 June 1998 the commander appointed an investigating officer to inquire into the allegations made by the applicant regarding the subject NCOER.

11.  On 15 July 1998 the investigating officer concluded his investigation and rendered his findings and recommendations.  He stated that the allegations made by the applicant of illegality, untruthfulness and violation of regulation regarding her NCOER were not supported by evidence found during his inquiry.  Furthermore, he found no support for the allegation of a negative command climate.  However, he did find that the NCOER was unjust in that it did not accurately reflect her total overall performance of duty, but rather centered on the last three months of the rating period.  He noted that during the rating period, the applicant was legally absent for over a month and was reassigned to another unit within a month after the ending period of the report.  He recommended deletion of the NCOER from the applicant’s military personnel record and “replace it with unrated time.”

12.  On 19 August 1998 the Chief of Administrative Law, Fort Lewis, Washington, concluded that the commander’s inquiry was not legally sufficient because the recommendation that the NCOER be replaced with non-rated time was inconsistent with Army Regulation 623-205.  He did find that apart from the recommendation, the inquiry complied with all legal requirements and the evidence supported the findings.

13.  On 20 August 1998 the servicing personnel detachment returned the subject NCOER to the applicant’s unit for a correction to Part IVc.  The only change apparent is the addition of the comment “Not enrolled in overweight program.”

14.  On 28 August 1998 the investigating officer resubmitted his original findings and determination that the NCOER was unjust, but with the recommendation that the rater and senior rater reconsider their bullet comments and evaluation blocks in Parts IV and V, and that the reviewer reconsider his concurrence with those evaluations.  He added that the purpose of this recommendation was to ensure that the comments and evaluations reflected the rating chain’s evaluation of the applicant’s performance for all of the rated time and did not give a disproportionate weight and focus to negative events of the last month.  The Administrative Law Attorney, Fort Lewis, Washington, found this version of the inquiry to be legally sufficient.

15.  On 2 October 1998 the Staff Judge Advocate published a memorandum for the I Corps commander informing him that the commander’s inquiry was legally sufficient and that the recommendation by the investigating officer to return the NCOER to the rating officials for consideration was appropriate.  However, the rating officials could not be pressured or forced to change their evaluations.  He further explained that if the rating officials corrected the NCOER to account for matters revealed in the inquiry, then the report would be sent to the United States Army Enlisted Records and Evaluation Center (USAEREC) with no reference to the inquiry or action taken.  If the rating officials did not agree with the need for change, as identified in the inquiry, then the results of the inquiry would be forwarded, along with the NCOER, to PERSCOM in accordance with                AR 623-205, paragraph 2-15c(3).

16.  On 21 October 1998 a staff judge advocate internal memorandum indicates that the subject NCOER was inappropriately processed to USAEREC and was not forwarded to the Commander, PERSCOM as required by regulation.

17.  On an unknown date the commanding general approved the commander’s inquiry and provided the guidance from the staff judge advocate to the rating officials for their review and necessary action.

18.  On 3 December 1998 the Commander, USAEREC published a memorandum for the applicant informing her that the Department of the Army had imposed a bar to reenlistment against her under the Qualitative Management Program (QMP).  The memorandum identified the subject NCOER as the sole basis for the bar to reenlistment.  The applicant was counseled on 14 December 1998 and subsequently elected to appeal the imposed bar to reenlistment.

19.  On 5 January 1999 the commanding general published a memorandum for the Commander, PERSCOM, wherein he summarized the findings of the commander’s inquiry and recommended that this memorandum be filed with the subject NCOER in the applicant’s official military personnel file.  A copy of the inquiry was enclosed but not the subject NCOER.

20.  On 11 January 1999 the applicant appealed the Department of the Army bar to reenlistment imposed under the QMP on the basis that the subject NCOER was the subject of an investigation at the time of the QMP decision.  Also, her OMPF did not contain an NCOER for the follow-on period due to the on-going investigation.

21.  On 16 January 1999 the applicant appealed the subject NCOER on the basis of both administrative and substantial error.  She contended that rater qualification had not been met since she only had 49 days of rated time under her supervisor.  She denied that any incident of insubordination ever took place.  She also pointed out that she had a profile issued on 23 February 1998 exempting her from the height/weight standard, which was the same day she exceeded the authorized body fat by 0.98 percent.  Three doctors agreed that she should not be held to any physical fitness standard at that time due to her recent surgery.  Lastly, she related the findings of the commander’s inquiry wherein the investigating officer concluded that the NCOER was the result of perceived poor performance in the last month of the rating period and that the report overall was unjust.

22.  On 31 March 1999 the Commander, USAEREC notified the applicant that her appeal of the Department of the Army imposed bar to reenlistment was approved.  The commander directed removal of all references to the bar to reenlistment from the applicant’s Department of the Army Forms 2A and 2-1 and indicated that the correspondence notifying her of this approval would be filed in accordance with Army Regulation 600-8-104. 

23.  On 3 August 2000 the Commander, USAEREC notified the applicant that in the opinion of the ESRB the evidence presented in her appeal of the subject NCOER did not justify altering or withdrawing the report

24.  In October 1999 the applicant was considered in the secondary zone for attendance at the SMC and for promotion to SGM/CSM.  The applicant’s records at that time contained the subject NCOER without the commander’s inquiry and with an Enlisted Record Brief showing a code of 9A, signifying she was ineligible for reenlistment due to lost time.

25.  Data extracted from the Enlisted Distribution and Assignment System (EDAS) shows that as of 4 October 2000 the applicant’s Enlisted Record Brief reflects a reenlistment code of 10, signifying no disqualification for reenlistment.  Electronic communications between offices located in Europe and Fort Lewis, Washington indicate that the code was inadvertently changed from 9L (QMP BAR) to 9A (LOST TIME) at the time the QMP appeal was approved and was not corrected to code 10 until sometime after 8 March 2000.

26.  In October 2000 the applicant will be in the primary zone of consideration for selection to attend the SMC and for promotion to SGM/CSM.

27.  Army Regulation 351-1 prescribes policies and procedures for individual military education and training of Army personnel.  It provides, in pertinent part, that the prerequisites for selection to the SMC are to be an enlisted person in the rank of master sergeant or first sergeant, E-8, with at least 1-year time in grade as of 1 August, but not more than 5 years time in grade as of 31 July of the calendar year the United States Army Sergeants Major Academy (USASMA) Selection Board convenes, have 23 years or less time in service as of 31 August of the calendar year following the calendar year in which the USASMA Selection Board convenes, have not submitted an application for retirement, have not been denied reenlistment through a local or DA-imposed bar to reenlistment.

28.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 4-14d(3)f provides that only soldiers who were not selected from a primary zone of consideration will be reconsidered for promotion.  Soldiers who were considered in the secondary zone will not be reconsidered.

29.  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 a noncommissioned officer 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 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’s reenlistment code is currently correct and thus requires no further action.

2.  The findings and recommendation of the ESRB to deny the applicant’s appeal of the subject NCOER are within the guidance of the appropriate regulations.  

3.  However, while the ESRB was constrained to limit its review to the validity and accuracy of the contested report, the Board is convinced and concurs with the investigating officer (Commander’s Inquiry) that the report is unjust, in that it did not reflect her total overall performance of duty during the rating period, but rather centered only on the last 3 months.

4.  The commander’s inquiry, as approved by the commanding general supports this foregoing conclusion.

5.  The staff judge advocate’s internal memorandum indicating that the NCOER was improperly processed supports the applicant’s contention that she did not receive a fair consideration for schooling or promotion.

6.  After an extensive review of the applicant’s records, the Board notes that her 17 previous reports and 2 subsequent reports evaluated her as an outstanding soldier in all areas.  The disparity between those reports and the subject report is too wide to just ignore.  Furthermore, 3 months of rated time should not be allowed to erase an entire career of excellent service nor should it become an obstacle to future favorable personnel actions and career progression.

7.  All things considered the Board is of the opinion that leaving the subject NCOER with or without the commander’s inquiry on any part of the official military personnel file will only serve to harm the applicant.  Therefore, the subject NCOER and all associated documents should be removed from the OMPF. 

8.  Furthermore, the sole basis for the QMP bar imposed against the applicant was the subject NCOER.  The approval of her appeal resulted in the bar to reenlistment being voided.  Nonetheless, associated documents still remain on her OMPF.  In fairness to the applicant and to permit an accurate evaluation of her performance by future selection boards, all documents associated with the QMP bar should also be removed from her OMPF.

9.  The applicant was considered from the secondary zone for promotion to E-9 and attendance at the SMC with the contested NCOER and erroneous reenlistment code on her Enlisted Record Brief.  Unfortunately, there are no provisions for reconsideration for promotion or schooling for applicants considered from the secondary zone.

10.  The Board is aware that soldiers are considered several times for schooling and promotion and that the applicant will have an opportunity to be considered for promotion and attendance at the SMC once her records are corrected.

11.  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:

	a.  by removing from the performance fiche of the individual concerned the NCOER for the period from February 1997 through February 1998 and all associated documents, to include the commander’s inquiry and the applicant’s appeal; and

	b.  by removing the DA QMP bar to reenlistment and all associated documents.

2.  That a non-prejudicial statement be placed on the performance fiche of her official military personnel file indicating that the period from February 1997 through February 1998 was non-rated.

3.  That following administrative implementation of the foregoing corrections, and provided she was not selected for promotion by the October 2000 SMC/SGM/CSM Selection Board, her corrected records be referred to a standby advisory board (STAB) convened under the criteria of the October 2000 regular board for promotion reconsideration to sergeant major (E-9).

4.  That if selected for promotion to pay grade E-9 by a STAB, the individual be integrated into the E-9 centralized selection list with appropriate sequence number, and that she be promoted accordingly with the appropriate date of rank, provided she is otherwise qualified.

5.  That following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to the Board for permanent filing.

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

BOARD VOTE:  

__EJA___  __ALB__  __BFH___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		      _Elzey J. Arledge__
		        CHAIRPERSON

INDEX

CASE ID	AR2000046434	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001031	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT (Partial)	
REVIEW AUTHORITY		
ISSUES         1.  267		
2.  310		
3.		
4.		
5.		
6.