MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 October 2001
	DOCKET NUMBER:   AR2001051961

	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	
	Ms. P. A. Castle		Analyst	

The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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:  In effect, the removal of a noncommissioned officer evaluation report (NCOER) from his Official Military Personnel File (OMPF) for the period of July to September 1987, reconsideration of his previous request to remove a NCOER covering the period from December 1992 to April 1993 and promotion reconsideration to the pay grade of E-8.

APPLICANT STATES:  In effect, that the relief for cause NCOER covering the period from July to September 1987 was unfair, contained unjustified comments and was not in compliance with the applicable regulations.  He goes on to state that he submitted an appeal of the NCOER to the Enlisted Special Review Board (ESRB); however, that board only made administrative corrections to the report.  He also states that the report indicates that he was relieved from the drill sergeant program, when in fact he was not and the commander did not have the authority to do so because the applicable regulations provide that as a minimum, only commanders in the pay grade of O-6 who have been delegated that authority may do so.  He contends that the remarks about his failing a physical fitness test were not authorized and were not accurate because they did not explain the circumstances of the test (record vice diagnostic).  He also states that comments were made by the commander that were not true and he believes that the commander had several issues with him because he (the applicant) was an adjutant general noncommissioned officer (NCO) who was training infantry soldiers.  He goes on to state that in his previous request to remove an NCOER covering the period from December 1992 to April 1993, the Board did not address the issues he raised in which he contended that the bullet comments were not specific enough for him to defend himself against and the failure of the reviewer to resolve differences in ratings by the rater and senior rater.  Accordingly, that report should also be removed from his records.

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

He enlisted on 30 July 1980 for a period of 3 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-6 on 16 May 1986.

On 19 September 1986, he completed the Drill Sergeant Course and was assigned to a training unit at Fort Benning, Georgia for duty as a drill sergeant.

In February 1987, he received an annual NCOER (his first report as a drill sergeant) covering the period from February 1986 to January 1987.  He received a score of 120.5 out of a possible score of 125.  In the report his rater indicated that while the applicant was highly motivated and displayed a fervent desire to be a drill sergeant, he displayed some deficiencies during the rating period.  He indicated that the applicant displayed limited leadership skills and when placed in leadership positions he did not always ensure that the tasks were efficiently supervised.  He also indicated that the applicant’s oral communications were not always clear, concise and easily understood. 

The indorser (a first sergeant) indicated that at times during his first cycle, instances of his failure to satisfactorily supervise trainees occurred and when counseled on the deficiencies, the applicant accepted responsibility for his deficiencies with an attitude towards correcting his shortcomings.

The reviewer (a captain and same reviewer in the relief for cause NCOER) signed the report on 9 February 1987.

The second report the applicant received as a drill sergeant was a change of rater NCOER for the period of February to June 1987.  He received a maximum score (125) on that report.  The comments by the rater indicate that he had made a marked improvement in his performance as a drill sergeant.  Both the rater and indorser recommended that he be assigned to personnel type duties.  The same reviewer in the previous report signed the report on 19 June 1987.

On 27 October 1987, a relief for cause NCOER was prepared on the applicant for the period of July to September 1987.  The report covered 3 rated months as a drill sergeant and he received a score of 101 out of a possible 125.  He refused to sign the report.

The rater (an E-7/senior drill sergeant) indicated that the applicant had failed to maintain acceptable standards and self-discipline required of a drill sergeant and NCO.  He required extensive counseling and had not responded to the counseling by correcting his shortcomings.  He failed to maintain proper levels of physical fitness without close supervision, failed a diagnostic physical fitness test, was overweight, and when confronted with the standards, made excuses for not meeting them.  The rater also indicated that the applicant needed to gain maturity, self-discipline and an understanding of the “Role Model” edict.  He also indicated that the applicant was notified of his relief.

The indorser (same first sergeant in previous reports) indicated that the applicant had been given numerous opportunities to establish himself as an NCO, that he had been counseled formally and informally on the standards he was required to meet and of his failure to do so.  He had a history of problems relating to physical fitness and irresponsibility and had been unable to demonstrate a consistent level of satisfactory performance.  He indicated that the relief action was taken based on his failure to correct shortcomings after repeated counseling and he was notified of the reason for relief. 

The reviewer (same commander as in previous reports) signed the report on 27 October 1987.  He also prepared a memorandum in which he indicated that he (the commander) had directed the relief of the applicant for his failure to maintain a proper level of physical fitness and failure to maintain high standards of military conduct and professionalism.  He also indicated that he had personally counseled the applicant, had rehabilitatively transferred him to another platoon, and despite repeated counseling and closer supervision, his performance remained mediocre at best.  He also indicated that the applicant had received counseling for trainee abuse, disregarding the welfare of the trainees entrusted to his care and that he experienced problems in gaining and maintaining his soldier’s respect.

It appears that the commander recommended that the applicant be removed from the Drill Sergeant Program; however, the training center commander disapproved the recommendation on 2 November 1987 and the applicant was transferred to another company in another training battalion.  

During the period of October 1987 to September 1988, he received three NCOERs and received maximum ratings as a drill sergeant.  He was subsequently reassigned from drill sergeant duty to that of a career counselor at an infantry training brigade at Fort Benning.

The applicant appealed the relief for cause NCOER to the ESRB on 28 December 2000 requesting that the report be totally removed or at a minimum corrected to reflect the correct data.  He contended at that time that the report was administratively incorrect because the rated months was incorrect and because the report indicates that he was relieved from the drill sergeant program, when in fact, he was reassigned to another company because the recommendation for removal was disapproved.  The ESRB determined that the contested report should be corrected to reflect that the report covered 2 rated months and 1    non-rated month and denied the remainder of his request on 16 January 2001.

Meanwhile, after completing his assignment at Fort Benning, the applicant was transferred to Germany on 22 May 1989.  He was promoted to the pay grade of E-7 on 1 January 1991 and completed his tour there on 17 March 1992.  He was then transferred to Fort McPherson, Georgia.

On 18 June 1993, he received a change of rater NCOER covering the period of December 1992 to April 1993.  The report indicated that he had been counseled in December 1992, March 1993 and April 1993.  He refused to sign the report.

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.

The applicant then submitted an appeal to this Board in March 2000 contending that the report should be removed from his OMPF because there was insufficient justification or explanation of the bullet comments and because rating officials failed to perform their responsibilities in the preparation and processing of the report.  The Board opined that the applicant was aware of the expectations of his rating chain and simply failed to meet them.  The Board also opined that he had failed to show that the report did not represent a valid appraisal of demonstrated performance and potential and voted unanimously to deny his appeal on 17 October 2000.  The denial is contained in the Board’s Memorandum of Consideration (AR2000039153) of the same date. 

A review of the applicant’s OMPF reveals that in 1989 he applied to the Department of the Army Suitability Evaluation Board (DASEB) to have two records of nonjudicial punishment (NJP) transferred from the performance fiche to the restricted fiche of his OMPF based on intent served and the fact that he was serving in the pay grade of E-6 and had not received any NJP in 7 years.  The DASEB approved his request and transferred them to the restricted fiche on 23 October 1990.  The restricted fiche of his OMPF also contains a record of NJP dated 7 December 1990 that the applicant received for becoming involved in a verbal and physical altercation in the NCO Club in Germany.  The imposing officer directed that it be filed in the restricted fiche of his OMPF.

A review of his records also shows that the applicant received an NCOER for the period of September to November 1992 and that he requested a commander’s inquiry based on the rater’s lack of objectivity.  The commander’s inquiry found his allegation unsubstantiated and advised him to seek redress through the appeals process.  The applicant did so and the report was removed from his records.  The specifics of his appeal are not present in the available records.

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.

Army Regulation 614-200 provides the criteria for removal from the Drill Sergeant Program.  It provides, in pertinent part, that Army Training Center commanders (may delegate to commanders in grade of O-6 or higher) may remove personnel from the drill sergeant program and withdraw the special qualification identifier “X”.  Commanders may remove a soldier from drill sergeant status for a variety of reasons ranging from failure to maintain high standards of military appearance, courtesy, bearing, conduct and professionalism, failure to maintain a satisfactory level of physical fitness and body weight, infractions of training policies, lack of motivation, failure to complete the drill sergeant candidate course, hardship or family problems or medical reasons.  

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.  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 this requirement.

2.  The contested reports appear to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the periods in question.  Therefore, there is no basis for removing them from his records.

3.  The applicant’s contention that the ratings and comments made by the raters and senior raters 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.
4.  The applicant’s contention that the reviewer failed in his responsibility to resolve discrepancies between the rater and SR, as well as questioning the bullet comments, also appears to be without merit.  The Board sees no discrepancy and notes that it is the reviewer’s call to question anything that does not appear to be clear in their mind at the time.  It is apparent that the reviewer was comfortable that the report adequately explained itself under the circumstances and the applicant has failed to convince the Board that such was not the case.

5.  The applicant’s contention that the commander did not have the authority to relieve him from drill sergeant duties is also without merit.  While the company commander did not have the authority to remove him from the drill sergeant program, he did have the authority to relieve him of his duties in his (the commander’s) company and to initiate a request to have him removed from the program.  This was properly accomplished and the applicant was transferred to another company as a rehabilitative transfer instead of being removed from the program and having his SQI withdrawn.

6.  The applicant’s contention that his failure of a diagnostic physical fitness (PT) test and the differences he had with his commander were unjustly used as a basis to relieve him from his duties, is also without merit.  The report and the attached addendum to the report clearly shows that the reference to the PT test was one of many reasons used to relieve him and that there was no single reason for his relief, but instead a culmination of events.  In regards to his contention that his commander had issues with him because he was not an infantry NCO, the Board notes that in the beginning, the commander supported his good ratings in his first two evaluation reports and the applicant did not challenge the commander’s judgment or the ratings/comments in those reports.  It appears that the applicant’s performance began to deteriorate to the point that the commander had no choice but to take the action he did.

7.  It is also apparent to the Board that the applicant was aware, or should have been aware of the process for requesting a commander’s inquiry or filing an appeal of the reports at the time.  The Board is also convinced that as a personnel sergeant and as an NCO, the applicant had a responsibility to question anything on the report that he was unsure of at the time.  He clearly did not do so and now appears to be trying to clear up his record after-the-fact to make himself more competitive for promotion.  In doing so, he has not convinced the Board that the reports were then or are now in error. 

8.  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

___alr___  __teo ___  ___slp___  DENY APPLICATION

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

INDEX

CASE ID	AR2001051961	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/23	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  221	111.0005/VOID NCOER	
2.		
3.		
4.		
5.		
6.