PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 October 2001                   
	DOCKET NUMBER:   AR2001061368

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		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 July – November 1998 be removed from his records.

3.  The applicant states that he spent 11 years in the same unit in the U. S. Army Recruiting Command (USAREC) and he should not be punished by poor leadership when times were bad in USAREC.  His rater was on temporary duty (TDY) on the date he supposedly received his initial counseling.  He requested copies of all his counseling he supposedly received and was told that his file was lost.  All NCOERs he received while in this unit, especially the annual NCOER by the same rater and senior rater just prior to this report, should have some bearing.  How could the rating officials say he needed training in higher level jobs when they recommended he be assigned as an operations NCO, guidance counselor, and USAREC Liaison, the ones that require the most responsibility.  The rater made the statement “What goes around comes around, I can’t take a stripe but I can make sure you don’t make the next one” in front of another senior NCO.  He thinks the rater acted this way because he (the applicant) recommended one of his soldiers for a Meritorious Service Medal but the recommendation was rewritten as an Army Achievement Medal and someone forged his signature.  He let the Inspector General know about this since they were already looking at other complaints made against his rater.  However, they had a company meeting and discussed the comments that were made to the Inspector General!  He provides letters that substantiate the vindictiveness of his rater.  

4.  The applicant’s military records show that he enlisted in the Regular Army on 6 July 1983.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

5.   The applicant was selected for and completed Recruiter training and on      11 April 1988 was assigned to the Recruiting Battalion, Montgomery, AL.  He was promoted to Sergeant First Class, E-7 on 1 August 1994.

6.  The applicant’s NCOER history in Part IVb and Part Va prior to the contested report is as follows:

Report ending May 1989, two “Excellence,” three “Success,” and  “Fully Capable” ratings.  Report ending September 1989, two “Excellence,” three “Success,” and “Among the Best ratings.  April 1990, four “Excellence,” one “Success,” and  “Among the Best” ratings.  November 1990, two “Excellence,” three “Success,” and “Among the Best” ratings.  November 1991, two “Excellence,” three “Success,” and “Among the Best” ratings.  September 1992, two “Excellence,” three “Success,” and “Among the Best” ratings.  January 1993, two “Excellence,” three “Success,” and “Among the Best” ratings.  June 1993, three “Excellence,” two “Success,” and “Among the Best” ratings.  June 1994, two “Excellence,” three “Success,” and “Among the Best” ratings.  September 1994, two “Excellence,” three “Success,” and “Among the Best” ratings.  January 1995, one “Excellence,” four “Success,” and “Fully Capable” ratings.  January 1996, three “Excellence,” two “Success,” and “Among the Best” ratings.  June 1996, three “Excellence,” two “Success,” and “Among the Best” ratings.  (LTC D___ assumed battalion command in June 1996).  June 1997, four “Excellence,” one “Success,” and “Among the Best” ratings.

7.  On 20 November 1997, the applicant requested reassignment within USAREC.  This request apparently never left the company and is marked “NO WAY.”

8.  The applicant received a 12-month annual NCOER for the period ending June 1998.  First Sergeant (1SG) T___ was his rater and Captain W___ were his rater and senior rater (SR), respectively.  He received all “yes” checks in Part IVa with comments of “His long hours and hard work is evidence of his dedication to duty” and “Totally committed to the Army.”  In Part IVb he received three “Excellence” and two “Success” ratings.  His rater rated his overall potential as “Among the Best.”  His SR rated his overall performance as “Successful” block 1 and his overall potential as “Superior” block 1.  He signed the NCOER on 28 July 1998.

9.  On 27 July 1998, the applicant requested reassignment within USAREC.  The company commander, Captain W___ (the applicant’s SR) signed the request recommending approval.  The battalion commander, Lieutenant Colonel (LTC) D___, recommended approval.  

10.  The applicant received a 5-month change of rater NCOER for the period ending November 1998.  1SG T___ and Captain W___ were his rater and SR, respectively.  Part IIIf is annotated that he received his initial counseling on       13 July 1998 and a later counseling on 2 October 1998.  Part IIIf contains blocks for four counseling dates.  He received a “no” check in Part IV in the category “Is honest and truthful in word and deed.”  Three negative comments were made:  “His fidelity is often in doubt,” “Not sincere concerning issues relating to soldiers and their status,” and “Often goes against the directives of his superiors.”  He received a “Needs Some Improvement” rating in Part IVd with four related negative comments:  “His station lacks enthusiasm, soldiers do not understand why or how to perform common tasks expected of them in their duty MOS,” “Noted by brigade commander as not being in charge of his soldiers,” “Station only achieved 34 percent of its 4th quarter mission,” and “Current DOD market share is 30 percent, unacceptable for success.”  His rater rated his overall potential as “Marginal.”  His SR rated his overall performance as “Successful” block 3 and his overall potential as “Superior” block 2.  His SR made two negative comments and one perceived negative comment: “Has had a significant decline in his performance during the rated period,” “Continued development is needed for positions of greater responsibility,” and “Promote with contemporaries.”  The fiche copy of the NCOER indicates it was signed by all rating officials and the applicant on 16 December 1998.  

11.  The applicant departed Montgomery, AL on 20 November 1998 for assignment to USAREC Fort Knox, KY with duty station Fort McClellan, AL.

12.  The applicant appealed his NCOER on 15 July 1999.  The Deputy Chief of Staff for Personnel Enlisted Special Review Board (ESRB) determined that the evidence did not justify altering or withdrawing the report.  The applicant had contended that the NCOER was a direct act of retaliation for his desire to progress to another position within recruiting.  Upon LTC D___’s departure from Montgomery, AL he signed the applicant’s request for reassignment.  LTC D___ was assigned as the Deputy Director of Recruiting Operations and he offered the applicant a position as the Liaison NCO.  LTC D___ provided a 4-page letter in support of the applicant’s contentions that the NCOER was in retaliation for his trying to move up within USAREC.  LTC D___ had stated that another of the NCOs had been harassed by 1SG T___ when that soldier had an opportunity to be reassigned to the Delta Force Recruiting Team.  LTC D___ stated that 1SG T___ had called the NCOIC in the Plans and Policies Division at Headquarters, USAREC and told him the applicant was a poor choice for the job and did not recommend him, after he (LTC D___) had informed the Chief of Plans and Policies that the applicant was the perfect professional soldier, well-suited for the job.  LTC D___ admitted that he could have relieved 1SG T___ during his tenure as the battalion commander and made a mistake in not doing so.  He stated that 1SG T___ did everything he could to delay the applicant’s orders until the brigade commander had to get involved.  LTC D___ stated Captain W___ was a weak company commander who allowed 1SG T___ to get away with the harassment of the soldiers.  

13.  The other NCO mentioned by LTC D___ provided a letter of support.  That NCO stated that he overheard 1SG T___ remark to the applicant “What goes around comes around, I can’t take rank but I can make sure you never get the next one.”  

14.  The applicant further contended that he did not receive his initial counseling on 13 July 1998 because the rater was TDY on that date.  He contended that he did not receive his initial counseling until 17 September 1998, with three other counseling statements.  The ESRB contacted the reviewer on 22 January 2001.  The reviewer stated that the NCOER was based on the applicant’s demonstrated duty performance during the rating period and was not written out of retaliation.  He stated the applicant’s request for reassignment was worked “off line” by the previous battalion commander (LTC D___) without the chain of command’s knowledge.  The reviewer recalled there was a perception that the applicant and two other NCOs were “protected” during LTC D___’s regime because they were “Gulf buddies.”  The ESRB opined that the applicant provided no proof to support his contention that his rater was TDY on 13 July 1998 or that the NCOER was in retaliation for the applicant’s request for reassignment.

15.  Army Regulation 623-205 establishes the policies and procedures for the NCO-ER system.  Paragraph 4-2 states that an NCO-ER accepted for inclusion in an NCO’s OMPF 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 of that regulation also states that the burden of proof in an NCO-ER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCO-ER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Paragraph 6-2 states that the rater will conduct the first counseling session within the first 30 days of the rating period.  Later counseling sessions will be conducted by the rater during the rating period at least quarterly. These counseling sessions differ from the first counseling session in that the primary focus is on telling the rated NCO how well he or she is doing.  The absence of counseling will not be used as the sole basis for an appeal.

16.  Army Regulation 600-8-19 prescribes the policies and procedures for promotion of enlisted personnel on active duty.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s nonselection by a promotion board and that, had such error been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

17.  The applicant was first considered for promotion to Master Sergeant, E-8 in the primary zone with the board that convened in February 1998.

18.  In the processing of this case, an advisory opinion was obtained from the Deputy Chief of Staff for Personnel, Enlisted Accessions Division.  That office verified that the applicant’s rater had been TDY on 13 July 1998 and so could not have given the applicant his initial counseling on that date.  Based on the applicant’s previous track record in the same unit in USAREC for 10 years and the rater’s TDY status during “a fabricated counseling session” that office recommended removal of the contested NCOER from the applicant’s records.

19.  A copy of the advisory opinion was provided to the applicant for comment.  He concurred with the advisory opinion.
CONCLUSIONS:

1.  The Board finds no error in the ESRB’s determination that the evidence provided did not justify altering or withdrawing the report.  The ESRB did not verify that the applicant’s rater had been TDY and relied on the reviewer’s contention that the NCOER was based on the applicant’s demonstrated duty performance during the rating period and was not written out of retaliation.  

2.  However, the Board notes that the rater’s TDY during the period of the alleged initial counseling was verified, which calls that recorded counseling session into some question.  The Board notes that the award recommendation cited by the applicant was substantially rewritten and downgraded and it appears that his signature was written by someone other than the applicant.  The applicant believed that the recommendation was rewritten by someone in his chain of command or with that someone’s knowledge.

3.  The Board concludes that LTC D___ presented a convincing argument that the NCOER was unfairly written.  LTC D___ did not depart the USAREC environment when he departed as the battalion commander.  He moved to a position, as the Deputy Director of Recruiting Operations, where he could remain knowledgeably informed on the operations of his old battalion and the applicant’s unit.  The reviewer’s contention that the applicant’s request for reassignment was worked “off line” by LTC D___ without the chain of command’s knowledge is spurious.  As battalion commander, LTC D___ was in the chain of command in addition to which the company commander, the applicant’s SR, signed the request recommending approval.  The reviewer’s contention that there was a perception that the applicant was “protected” during LTC D___’s regime does not account for his several above average NCOERs (more “Excellence” than “Success” ratings) received prior to LTC D___’s arrival in the unit.  

4.  The contested NCOER was a dramatic downturn in performance from his previous NCOER yet the rater indicated that the applicant had been counseled only twice (with some indication that the first recorded counseling session did not take place).  The Board finds it curious that this report could be so negative with so little evidence that the applicant was counseled concerning the downturn in his performance.  While the lack of counseling in itself is not grounds for an appeal, the Board concludes that all the evidence presented and as outlined above provides sufficient doubt that the rating was fair and just.  Therefore, the Board concludes that the contested NCOER should be removed from the applicant’s records.  It would then be appropriate to have the applicant’s records reconsidered for promotion to Master Sergeant beginning with the criteria of the board that convened in February 1999, the first board that considered his records that should have contained this NCOER.

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 NCO-ER for the period July – November 1998 from the applicant’s records.

2.  That the applicant’s records be made available to the next scheduled Enlisted Standby Advisory Board for promotion consideration to MSG under the 1999 and, if necessary, later criteria after the above corrections is made.

BOARD VOTE:  

__jhl___  __mdm___  __jam___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Joann H. Langston
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001061368	
SUFFIX		
RECON		
DATE BOARDED	20011011	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	111.02	
2.		
3.		
4.		
5.		
6.