PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           8 February 2001
	DOCKET NUMBER:   AR2000046992

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston 		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Donald P. Hupman		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 that his Noncommissioned Officer Evaluation Report (NCOER) for the period 9804-9809 be removed from his Official Military Personnel File (OMPF) and the period declared non-rated.

3.  The applicant states, in effect, that he appealed the subject NCOER to the US Army Enlisted Records and Evaluation Center (USAEREC) and it was removed from his OMPF.  Later, the Headquarters, Department of the Army (HQDA) Enlisted Special Review Board (ESRB) reversed the USAEREC decision and placed the NCOER back in his record.  He contends the NCOER is unjust and inaccurate because:  it was not written by his rater, but by his senior rater alone; the relief-for-cause upon which the NCOER was written was improper; and the senior rater never showed him the report, but merely annotated "NCO refuses to sign" in the ratee signature block.  He adds that he was not selected for promotion to master sergeant by the 1999 Master Sergeant Promotion Board and was identified for separation under the HQDA Qualitative Management Program (this was subsequently reversed on appeal).

4.  The applicant’s military records show that he is a career NCO serving in the rank of sergeant first class (SFC/E-7).  At the time of the subject NCOER, he was a platoon sergeant in Company C, 1st Battalion, 27th Infantry, Schofield Barracks, Hawaii.  While at the Joint Readiness Training Center (JRTC), Fort Irwin, California during July-August 1998, it was alleged that he verbally and physically abused soldiers in his platoon.  He was relieved of his assignment as a platoon sergeant and an investigation under the provisions of Army Regulation (AR) 15-6 was conducted.  The investigation revealed that during a static load training drill, he physically pulled a soldier out of the wrong seat on an aircraft and put him in his proper seat.  It was also confirmed that he had used profanity on occasion.  No other incidents of physical or verbal abuse of individual platoon members were substantiated.

5.  As a result of the AR 15-6 investigation, the applicant's battalion commander issued him a letter of reprimand on 18 September 1998.  At the direction of the brigade commander, the letter was filed in the applicant's Military Personnel Records Jacket (MPRJ) and not in his OMPF.  This was accomplished in early October 1998 and he was then reassigned to Headquarters and Headquarters Company, 25th Infantry Division as an instructor in the Division Combat Leader's Course.

6.  The subject NCOER was rendered on the applicant in November 1998.  The rater was a second lieutenant, platoon leader and the senior rater was a captain, company commander.  The reviewer was the battalion commander.  The report was submitted as a relief-for-cause NCOER.  Under Part IV (Values/NCO Responsibilities), the rater gave the applicant a "no" rating for the following areas:  a3.  Is disciplined and obedient to the spirit and letter of a lawful order; a4.  Is honest and truthful in word and deed; a5.  Maintains high standards of personal conduct on and off duty; and a6.  Has the courage of convictions and the ability to overcome fear - stands up for and does what's right.  In Part IVd (Leadership), he was rated as needing some improvement and it was stated:  "Physically and verbally abused soldiers, Disrespectful toward superiors, Failed to lead by example."  In Part V (Overall Performance and Potential), the rater rated him as "marginal."

7.  The senior rater, in Part V, made the following comments:  "Excellent tactical and technical skills, Relieved for physical and verbal abuse of soldiers, Potential for continued service in current grade, Do not promote or select for leadership positions."  He rated the applicant's performance as "fair" and his potential as "poor."  The report was never given to the applicant for his review.  Instead, Part IIc (Authentication - Rated NCO's signature) was annotated with the statement "NCO refuses to sign" and it was forwarded for inclusion in the applicant's OMPF.

8.  When the applicant learned of the NCOER, he requested a commander's inquiry citing irregularities in the NCOER and in his relief-for-cause as a platoon sergeant.  Because the NCOER had already been forwarded to HQDA for inclusion in the applicant's OMPF, the brigade commander conducted an informal investigation.  It determined that there were serious faults with the original AR 15-6 investigation and that 25th Division policies and regulations regarding relief-for-cause for senior NCOs were not followed, to include failure to notify brigade headquarters where, the brigade commander states, the relief action would have been withdrawn.  The commander's inquiry also determined, in a sworn statement from the applicant's rater, that he [the rater] did not write his portion of the report.  Rather, the senior rater wrote the entire report and directed the rater to sign as if he [rater] had properly completed his portion.

9.  The applicant appealed the subject NCOER to USAEREC on 21 June 1999.  The USAEREC reviewed the appeal and granted the applicant's request to have the report removed from his OMPF on 27 October 1999.  On 8 February 2000, the ESRB notified the applicant that the USAEREC did not have the authority to remove the report from his file and that the ESRB review determined that the report was valid and would not be removed.  With one change (changing the phrase "NCO refused to sign" to "NCO unavailable for signature"), the report was placed back in the applicant's OMPF.

10.  Army Regulation 623-205 establishes the policies and procedures for the NCOER system.  Paragraph 4-2 states that an NCOER accepted for inclusion in an NCO's Official Military Personnel File is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4-7 states that the burden of proof in an NCOER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCOER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct apparent material error or inaccuracy is warranted.  Paragraph 3-6 outlines the rater's responsibilities in preparing an NCOER and states that he/she must assess the performance of the rated NCO, using all reasonable means and prepare a fair, correct report evaluating the NCO's duty performance, values/NCO responsibilities, and potential.

CONCLUSIONS:

1.  The applicant was investigated for allegations of verbal and physical abuse of his soldiers while he was serving as an infantry platoon sergeant.  It was determined that he used profanity on occasion and that he had physically moved a soldier to his proper seat on an aircraft.

2.  The applicant's relief-for-cause as a platoon leader was not accomplished in accordance with 25th Infantry Division policy that such actions must be elevated to the brigade commander and brigade command sergeant major.  The brigade commander stated that, had the correct procedures been followed, he would not have approved the relief action.

3.  The applicant's rater stated that he did not write his portion of the subject NCOER; that the senior rater wrote the entire report and directed him to sign it.

4.  The subject report was not given to the applicant prior to being forwarded to HQDA for inclusion in his OMPF.  An incorrect statement, "NCO refuses to sign," was placed in the applicant's signature block and the report was processed.

5.  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 subject NCOER from the OMPF of the individual concerned and that an appropriate, non-prejudicial statement explaining the absence of the subject evaluation report be placed in his records.

2.  That, following administrative implementation of the foregoing, his records be submitted to duly constituted special selection boards for promotion consideration to the rank of master sergeant (MSG/E-8) and that, if he is selected for promotion, he be promoted and assigned an appropriate date of rank.

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

BOARD VOTE:  

__jl_____  __gdp___  __dph___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Joann Langston_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000046992	
SUFFIX		
RECON		
DATE BOARDED	20010208	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	111.0000	
2.	111.0005	
3.	111.0200	
4.		
5.		
6.