MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 May 2002
	DOCKET NUMBER:   AR2002066559

	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. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen Y. Fletcher		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 three noncommissioned officer evaluations reports (NCOER) from her Official Military Personnel File (OMPF), as well as other documents that are improperly filed on her OMPF.

APPLICANT STATES:  In effect, that she submitted an appeal to the Enlisted Special Review Board (ESRB) requesting correction of an NCOER for the period of August 1993 to July 1994 and the removal of three NCOERs covering the periods from June 1995 to May 1996, June 1996 to October 1996 and November 1996 to October 1997.  She contends that the ESRB erred in the adjudication of her appeal by making administrative changes instead of removing them in their entirety.  She further states that the ESRB rearranged the documentation she submitted, which made her request unclear to the board.  She also states that incorrect material supported the topic explained in the ESRB summary which contributed to the denial of her request.  She further states that she submitted the same information in her appeal of a Department of the Army bar to reenlistment under the Qualitative Management Program (QMP) and her appeal was approved.  She goes on to state that her OMPF contains documents that are legally not supposed to be filed and contends that the presence of the three NCOERS as well as the illegally filed documents have prevented her from being promoted to the pay grade of E-7.  She continues by stating that she should receive promotion reconsideration by all boards that have failed to select her for promotion based on the presence of all of these documents in her OMPF.  In support of her application, she submits an extensive appeals package in the form of a four inch tabbed binder as well as a copy of her OMPF dated 15 May 2001.

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

She initially enlisted on 12 July 1985 and served as an administrative specialist until she was honorably released from active duty on 11 January 1989 and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  On 11 February 1989, she was transferred to a troop program unit at Fort Belvoir, Virginia.

On 16 April 1991, she enlisted in the Regular Army in the pay grade of E-3 for a period of 4 years.  She has remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-5 on 1 August 1993, while working as a computer programmer/analyst in the Pentagon. 

The applicant attended the Basic Noncommissioned Officer (NCO) Course (BNCOC) at Fort Gordon, Georgia during the period of 14 June 1994 to 30 August 1994.  Her Academic Evaluation Report (DA Form 1059) indicates that she achieved course standards; however, it also indicates that she failed to effectively interact and promote harmony with her peers throughout the course.  

On 20 June 1995, she was assigned to a joint intelligence center in Pearl Harbor, Hawaii.  She was promoted to the pay grade of E-6 on 1 July 1995.
The applicant filed an Equal Opportunity (EO) complaint against her first sergeant (1SG) on 8 January 1996 and an investigation was conducted.  The investigating officer (a major) opined that all but one of the applicant’s allegations had either been refuted or were uncorroborated.  He also opined that there was insufficient evidence to substantiate the allegation of sexual harassment.  The sole allegation that was substantiated was the comment made by the 1SG in reference to his ability to overpower the applicant if he had wished to do so.  The allegations were found to be unsubstantiated.  However, the 1SG received verbal counseling, was issued a letter of admonition and was scheduled for EO training. 

On 15 April 1996 she submitted an Inspector General (IG) Action Request in which she requested to be transferred to a different command because she felt that she was being set up for failure due to her having filed an EO complaint against her first sergeant.

On 11 June 1996, she received an annual NCOER covering the period from June 1995 to May 1996.  The report covered a period of 8 months and evaluated her as an automated message handling system specialist.  The rater (an Air Force  E-6) gave her essentially a maximum report (all success ratings) and deemed her overall potential for promotion or service in positions of greater responsibility as fully capable.  The senior rater (SR) indicated that counseling was not conducted in accordance with the applicable regulation and did not render a rating due to lack of minimum qualifications.  

The applicant filed another EO complaint on 10 October 1996, contending that her supervisors were making racist remarks, creating a hostile work environment, resorting to name calling, recording conversations, following her throughout the building, and putting her on details for an extended amount of time that jeopardized her health.  However, on 31 October 1996, she requested that her complaint be put on hold in order to allow her time to research her rights and because she was not comfortable with the office conducting the investigation of her complaint.

A local bar to reenlistment was initiated by the commander on 21 October 1996.  He cited as the basis for the bar that the applicant had demonstrated that she was unfit for continued military service, that she does not hold herself accountable for anything, that she is dishonest, has no respect for authority or her coworkers, that repeated counseling has failed to correct her poor conduct and behavior, and that she had been afforded every opportunity to improve and made no attempt to do so.  The appropriate authority approved the bar to reenlistment on 1 November 1996.

On 21 November 1996, she received a change of rater NCOER covering the period from June 1996 to October 1996.  The rater (a Navy E-7) gave her “no’ ratings in the first six values in Part IVa under Values/NCO Responsibilities and a “yes” rating under “Supports EO/EEO”.  The supporting bullet comments indicate that the applicant was unable to accept and follow orders, that she performed below the level of subordinates, that she was not a team player and that she demonstrated willful deceit and overall untrustworthiness. 

In Part IVb through f, her rater gave her a “success” rating in Physical Fitness and Bearing and “needs improvement” in the remaining areas.  The supporting bullet comments indicate that she would not admit mistakes, does not seek personal improvement, has difficulty completing the simplest tasks, she preferred responsibility for routine matters instead of accepting challenges or more complex issues, she displayed blatant disrespect for authority at all levels of the chain of command, she required prompting to attend scheduled meetings and relied on others to formulate and propose solutions, she set a poor example for subordinates, she looked outside the work group to solve system problems instead of using the knowledge base available, she failed to apply herself to learning her duties, she does not share information, she displayed ignorance of basic military programs and their proper uses, and she would not acknowledge accountability for personal actions for professional responsibilities.  He rated her potential for promotion as “marginal.”

The SR (a female Army major) rated the applicant’s overall performance and potential as “poor.”  She indicated in her bullet comments that the applicant should not be promoted, that she was unsuited for any duty that requires responsibility, accountability or leadership, that she did not perform or act like an NCO, and that she demonstrated no potential for continued military service.  The applicant refused to sign the report.

The applicant was notified on 18 December 1996, that she was being considered for separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance or Chapter 14, for misconduct.  She was scheduled for a mental status evaluation and physical and an appointment was made for her to see military counsel at the trial defense service in January 1997.

The applicant took maternity, convalescent and ordinary leave during the period of 14 July to 19 September 1997.

On 24 September 1997, she appeared before an administrative separation board with her counsel, that was convened to determine if she should be separated from the service.  The board recommended that she be discharged under the provisions of Army Regulation 635-200, chapter 14, based on patterns of misconduct and issued a General Discharge Certificate.  The board also recommended that the execution of the discharge be suspended for 6 months and cancelled if the applicant satisfactorily completed the 6-month probationary period.  

On 2 December 1997, she received an annual NCOER covering the period of November 1996 to October 1997, evaluating her as a member of the facilities staff.  Her rater (a GS-11) gave her “no” ratings in the first three values of Part IVa and “yes” ratings in the remaining four values.  The supporting bullet comments indicate that she worked 5% at assigned duties and 95% on her personal agenda, that she cannot or will not function as a team member and that she rarely follows the spirit of orders and requires constant supervision.  In Parts IVb through f, he gave “success ratings in Physical Fitness and Military Bearing and Training.  He gave her “needs improvement” ratings in the remaining areas and the supporting bullets comments indicate that her performance was marginal when performing duties, lacks initiative, that she regularly places her own personal desires ahead of her duties, she set a poor example for junior personnel, that she was difficult to account for due to numerous excuses, appointments, and reasons for being absent from the duty section.  He rated her potential for promotion as “marginal.” 

The SR (male Army lieutenant colonel) rated her potential and performance as “poor” and the supporting comments indicate that she should not be promoted or retained, that she demonstrated poor performance and no potential, that although her responsibilities were minimal, she put little time and energy into her duty performance, and that she was verbally counseled throughout the rating period but not in accordance with the applicable regulation. 

The applicant refused to sign the report and submitted a request for a commander’s inquiry, contending that the report contained inaccurate and untrue statements, that unqualified rating officials were within the published rating scheme, that the ratings and counselings were not in accordance with the applicable regulation and that the evaluation lacked significant documentation to support the SR’s comments.  The commander approved her request and an inquiry was conducted by the deputy commander (an Army colonel).  The investigating officer opined that the report was properly drafted by the appropriate officials and that the ratings and comments were substantiated by extensive counseling that more than met the requirements and intent of the regulation.  He recommended that the report stand as written.

The applicant received a letter of reprimand on 11 December 1996, for a marked breach of professional judgment by failing to go to her place of duty at the specified time. 

The applicant was attached to another unit at Fort Shafter, Hawaii on 2 December 1997, pending administrative action.

The appropriate authority (a major general) approved the findings and recommendation of the administrative separation board on 22 December 1997.  The applicant was reassigned to another command in Hawaii and the gaining commander was advised that she (the applicant) was to be extended to complete her 6-month probationary period.  At the end of the probationary period, a recommendation was to be submitted to the general court-martial convening authority as to whether the applicant should be allowed to remain in the service.
The applicant’s chain of command initiated action to notify the commanding general (CG) that the applicant had completed her 6-month probationary period and was recommended for retention in the service.  The chain of command also recommended lifting the bar to reenlistment.  The CG approved her retention and the applicant was allowed to reenlist on 20 May 1998, for a period of 6 years.

The applicant departed Hawaii on 12 August 1998 for assignment back to the Pentagon.  Meanwhile, on 10 August 1998, the Enlisted Records and Evaluation Center (EREC) at Fort Benjamin Harrison, Indiana, dispatched a memorandum to the applicant’s previous unit in Hawaii, notifying the applicant that the Calendar Year 1998 Sergeant First Class (SFC)/Advanced NCO Course (ANCOC) Promotion/Selection Board had determined that she should be barred from reenlistment based on three NCOER’s indicating deficiencies in performance/efficiency (all are contested reports).  The delay in the memorandum reaching the applicant at her new assignment resulted in her requesting a 30-day extension to file an appeal.

She appealed the bar to reenlistment under the QMP, with the support of her chain of command and her request was approved on 14 June 1997.

The applicant submitted an appeal of an NCOER covering the period from August 1993 to July 1994 and the three contested NCOER’s to the ESRB.  She contended that the report covering the period from August 1993 to July 1994 (NCOER #1) contained administrative and substantive errors and should be amended.  She also contended that the report did not reflect her time in BNCOC, that it was processed without her review and signature and that the rating officials gave false rating/bullet comments in part V, based on erroneous advice from the chain of command.

She contended that the report covering the period of June 1995 to May 1996 (NCOER #2) contained administrative and substantive inaccuracies and should be removed from her OMPF.  She contended that the period of the report was inaccurate, that the rater gave a false report because the 1SG/chain of command told him to change the ratings and that the report was the result of continued reprisal.

She contended that the report covering the period of June 1996 to October 1996 (NCOER #3) contained administrative and substantive inaccuracies and should be removed from her OMPF.  She asserted that the counseling dates were false, that all of the negative ratings and bullet comments were not supported by evidence and that the report was the result of continued reprisal.

She contended that the report covering the period of November 1996 to October 1997 (NCOER #4) contained administrative and substantive inaccuracies and should also be removed from her OMPF.  She asserted that her maternity leave was not reflected on the report, that the SR was not qualified to rate her, that there were no counseling dates on the report and that the report was the result of continued reprisal.

In regards to NCOER #1, the ESRB found that the only errors to be corrected were the rated months being changed to reflect 10 months with a non-rated code of “S”.

In the processing of her appeal, the ESRB contacted the rating officials of reports 2 through 4 as well as the reviewing official.  The reviewer recalled the applicant and opined, in effect, that she simply did not have the qualifications of a staff sergeant and whenever anyone demanded those standards, they were subject to allegations of sexual misconduct, racial injustice, and/or command harassment/reprisal charges from her.  He acknowledged that while the counseling forms were not always used, counseling was being conducted.  He also indicated that her allegations were never substantiated and that the one common thread in all of her allegations was her failure to provide the full story.  He indicated that she was not moved when she requested because it would have been the easy, wrong thing to do.  It was the command’s responsibility to resolve the issues and with each change, the applicant established the same track record.  He contended that the evaluation of the applicant was a true and honest assessment of her performance. 
  
In regards to NCOER #2, the ESRB concluded that there was insufficient evidence to substantiate that the report should have been a change of rater report that ended in February 1996 or that it should be removed from her OMPF. Although the rater rendered a statement indicating that he had been pressured to change the report, the ESRB contended that such a statement amounted to retrospective thinking on the rater’s part.  The ESRB denied relief on that report.

The reviewer of NCOER #3 was contacted and she also remembered the applicant vividly.  She opined, in effect, that the applicant had a negative attitude and no amount of counseling, guidance or support from the rating chain or chain of command had any effect on her performance.  She did not get along with anyone and went out of her way to alienate herself from everyone.  She was counseled on numerous occasions about improving her ability to get along with everyone and it was documented on her support form.  She was not a team player and could not be trusted to tell the truth.  The reviewer opined that the evaluation was an honest assessment of her performance.

In regards to NCOER #3, the ESRB opined that the comment “Work to improve personal and professional conduct” in the area of “Special Emphasis” (Part IIId) was inappropriate in this area and directed that it be removed.  The ESRB opined that the remainder of the applicant’s issues were without merit and that once, corrected, the report should remain in her OMPF.

The rater and SR of NCOER #4 were contacted.  The rater opined, in effect, that the applicant’s performance was marginal, that he counseled her when she first arrived and several times thereafter, and that the evaluation was an accurate assessment of her performance.  The SR opined, in effect, that he did not meet the applicant until the end of the rating period because she was always gone.  However, when he did meet her, he determined that she had a negative attitude and that she accepted little or no responsibility.  He consulted with her supervisors before he rendered his evaluation and contends that it was an accurate depiction of her performance.  After reviewing the evidence and supporting statements submitted by the applicant, the ESRB opined that there was insufficient basis to warrant either correction or removal of the NCOER and denied her request.

In essence, the ESRB directed administrative changes to NCOER #1 and #3 and denied any further changes.  The ESRB also opined that there was insufficient basis to direct promotion reconsideration based on the changes made.

A review of the applicant’s OMPF shows that all of the documents she has submitted with her appeals is properly filed on the Restricted Fiche of her OMPF and the documents which directed changes to her evaluation reports are properly filed with the corrected reports, on her performance fiche.

Army Regulation 623-205, sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 3-10 provides, in pertinent part, that a rater or SR may not be directed to change an evaluation believed to be honest.  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 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 reports, to include those amended by the ESRB, appear to represent a fair, objective and valid appraisal of her demonstrated performance and potential during the period in question.  Therefore, there is no basis for altering them further or removing the reports from her OMPF.

2.  The Board also notes that neither the commander’s inquiry or the ESRB found any evidence to suggest that the applicant should have received a higher rating than she received or that there was any basis to delete the reports from her records.

3.  While the applicant has submitted extensive evidence, which includes numerous third party statements in support of her request, only one of those statements was from an individual in her rating chain who would have known the expectations of her rating chain at the time.  He now contends that he was pressured to give her a lower rating than she deserved.  Inasmuch as a rater or SR cannot be directed to change an honest rating, the Board finds that such a statement, after the fact, is either indicative of retrospective thinking or a lack of credibility on the part of the author. 

4.  After reviewing the applicant’s OMPF as well as the evidence submitted with her application, the Board finds that she began exhibiting some of the traits described in the contested reports prior to arriving in Hawaii.  The rating chain identified her shortcomings and attempted to steer her in the right direction.  In doing so, they initiated a bar to reenlistment and chapter discharge proceedings. In doing so, they, in effect, got her attention and after being afforded a second chance, it appears to have turned her performance and conduct around.

5.  The Board also notes that an integral part of being a soldier is being able to perform in a variety of assignments under different circumstances.  Some soldiers do better than others and the way the Army determines the differences in performance and potential is through the evaluation process.  In the applicant’s case, she has had a variety of rating officials and those persons in the contested reports (as well as some not contested) saw the same indicators.  Accordingly, the Board finds that the contested reports reflect an accurate representation of her performance and potential during the periods in question.

6.  The applicant’s contention that the contested reports have prevented her from being selected for promotion appear to be at best speculative on her part, because it is a well known fact that promotion board members are prohibited by law from revealing the basis for selection or nonselection.  In any event, there is no basis to remove them from her records or grant her promotion reconsideration. 

7.  While the applicant did not specify which documents were improperly filed in her OMPF, the Board thoroughly reviewed her OMPF and finds no documents that are improperly filed.  Accordingly, without specific identification and justification for removal of such a document, the Board finds no merit to her contention.

8.  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.

9.  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

__mdm__  __le_____  ___kf ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002066559	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/23	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  193	111.0000/void ncoers	
2.		
3.		
4.		
5.		
6.