PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           25 June 2002                  
	DOCKET NUMBER:   AR2002067075

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Thomas Lanyi		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 her records be corrected by removing a noncommissioned officer evaluation report (NCOER) for the period August 1999 through March 2000.

3.  The applicant states, in effect, that on 15 March 2000, she was reassigned because the first sergeant accused her of being a liar and spreading rumors about him and the orderly room clerk.  As required, a NCOER was prepared.  The NCOER had a "No" in the Values section (Part IV a.).  She requested that the NCOER be held until she could speak with the reviewer.  Instead, the NCOER was submitted to the Personnel Service Battalion (PSB) for processing.  Only after threatening that she would request a commander's inquiry did the battalion command sergeant major (CSM) relent to see her.  A meeting was held with the CSM that included the applicant, her rater and her first sergeant.  At the meeting it was agreed that there were no supporting documents to justify a "No" in the Values section of her NCOER.  On 29 April 2000, the rater then prepared a new NCOER without the "No" in the Values section and submitted it to the PSB for processing.  The applicant then worked with her chain of command, the NCOER section at the PSB and a legal assistance officer to have the corrected NCOER placed in her official record.  Eventually, she was told that the first NCOER, prepared with a "No" in the Values section, had been forwarded by the PSB for filing in her Official Military Personnel File (OMPF) and that she would have to appeal to the Enlisted Special Review Board (ESRB) to have it removed. She appealed but the appeal was denied.

4.  In support of her application, she submits copies of the contested NCOER and the corrected NCOER, statements from the rater, her battalion CSM, a military legal assistance officer and the decision document from the ESRB denying her appeal.  She also includes copies of the form used to transmit the NCOER’s to the PSB.

5.  The applicant’s military records show that she is currently a sergeant first class (SFC), 88M, Motor Transport Operator, serving in the Regular Army.

6.  An NCOER was prepared to evaluate the applicant for the period August 1999 through March 2000.  In Part IV, Values (NCO Responsibilities) (Rater) the applicant received a "No" in the block titled "Is committed to and shows a sense of pride in the unit  – works as a member of the team."  The supporting bullet reads:  "admitted to making a disloyal statement against the First Sergeant."  A transmittal letter indicates that the report was forwarded to the local PSB for processing on 26 April 2000.

7.  The rating chain prepared and signed a second NCOER for the same period that did not contain a "No" entry or the supporting bullet.  The transmittal letter indicated that this NCOER was forwarded to the PSB on 1 May 2000.  However, the report is dated 14 November 2000.

8.  The rater in a 14 August 2000 statement says that the battalion NCOER clerk submitted the incorrect NCOER for the applicant covering the period August 1999 through March 2000.  He attached to his statement a copy of the correct NCOER that he says should be placed in the applicant's records.

9.  The battalion CSM, in his supporting statement, relates that the NCOER that was forwarded to the PSB and the Department of the Army Enlisted Records and Evaluation Center was erroneous and should not have been submitted.  This NCOER did not accurately reflect the applicant's performance.  The corrected NCOER, which accurately reflects the applicant’s performance, is the NCOER that should have been submitted but it was not.  The NCOER currently in her file is unfair to the applicant.

10.  A military legal assistance officer prepared a memorandum in support of the applicant's appeal of the NCOER.  He states that the basis for the appeal was substantive inaccuracy, and that after a review of the facts and circumstance relating to the NCOER, he was convinced that the NCOER was, in fact, the product of an error.  He contends that the NCOER with the "Yes" in the Values section should be placed in her records.  He notes that both the immediate commander and higher-level commander have agreed that the report with the "No" was unintended and undeserved.

11.  In its opinion denying the applicant’s appeal, the ESRB opined that the applicant failed to provide clear and compelling evidence that the rating officials failed to render a just and accurate report.  More specifically, the ESRB noted that the rater's statement did not explain why the "No" and supporting bullet was inaccurate.  Additionally, the other memoranda in support of the appeal failed to explain why it took the applicant and the command over six months from the date of the first report, 5 May 2000 to 14 November 2000 on the corrected NCOER, to realize that the "wrong" NCOER had been processed.  Furthermore, there were no supporting letters from the senior rater or reviewer submitted with the appeal. The ESRB denied the appeal and informed the applicant of their decision on 13 March 2001.

12.  The applicant was first considered but not selected by the fiscal year 2002 master sergeant selection board.

13.  Army Regulation 623-205, Noncommissioned Officer Evaluation Reporting System, provides in pertinent part, that the NCOER appeals system protects the Army's interest and ensures fairness to the NCO.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. An evaluation report accepted for inclusion in the official record of an NCO is presumed to be administratively correct, have been prepared by the proper rating officials and represent the considered opinion and objective judgment of rating officials at the time of preparation.  Appeals alleging bias, prejudice, inaccurate or unjust ratings, incorrect APFT or height/weight data, or any matter other than administrative error are substantive in nature and will be adjudicated by the ESRB.  The burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy or injustice.

14.  The same regulation provides that commanders at all levels will charge the CSM or sergeant major with the responsibility for quality control of NCOER's, to include ensuring that reports are accurate and submitted on time.  However, no one can direct a rater or senior rater to render or change bullet comments on a report felt to be accurate and just.

15.  The same regulation provides also that in an appeal, the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration.  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.  Simply put, if the adjudication authority is convinced that an appellant is correct in some of his or her assertions, the clear and convincing standard has been met with regard to those assertions.  For a claim of inaccuracy or injustice of a substantive type, evidence must include statements from third parties, rating officials, or other documents from official sources.

CONCLUSIONS:

1.  While the Board does not fault the ESRB for holding to a strict standard of proof before denying the NCOER appeal, the Board concludes that the applicant’s contentions have merit.

2.  The ESRB is correct in its determination that the rater in his supporting statement did not properly explain the reason for the "No" entry or why he was changing the evaluation.  The ESRB logically questioned why it took the applicant and the command from 1 May 2000 until 14 November 2000, to realize that the "wrong copy" of the NCOER had been submitted.  The Board notes that the corrected NCOER was transmitted to the PSB on 1 May 2000.  The rating chain signatures and the date the PSB returned a copy to the applicant is date stamped 14 November 2000 by the PSB, not the rating chain.  In fact, the rating chain completed the corrected report on 1 May 2000.  The 14 November 2000 date does not reflect the date that the corrected NCOER was signed or the date the error was discovered.  The Board also distinguishes between the authority and responsibilities of the applicant, the rating chain and the command.  It believes that it is unfair to hold the applicant responsible for the mix up in submitting the NCOER's.  The applicant states she continually raised the issue of the contested NCOER and sought assistance from the rater, the battalion CSM and a legal assistance officer.  She had no authority however, to direct the filing of the corrected NCOER.

3.  The Board is aware that receiving an NCOER with a "No" in the Values section is likely to prevent the rated soldier from future promotions or selection for schools or special assignments.  Rendering an adverse evaluation should take place only after much thought and consideration on the part of the rating officials.  In light of the circumstances in this case, the Board believes that a thoroughly considered evaluation of the applicant’s performance did not take place.  It appears that the "No" in values section of the original NCOER was the result of a single, possibly emotional, incident that when reconsidered by the responsible parties was determined to be unintended and inappropriate.  When discussed with the battalion CSM (the overseer of the NCOER system at unit level) the rating chain agreed that the "No" was not an accurate assessment of the applicant's overall performance.  Further, the Board believes that the applicant has produced arguments and evidence that establishes convincingly that the presumption of regularity, referred to in Army Regulation 623-205, is not applicable to the report under consideration, and that it would not only be an injustice but a career ending error to officially file a report that the rater does not believe accurately reflects the ratee's performance.

4.  The applicant has submitted statements from her rater, a third party, a corrected NCOER signed by her rating chain and a transmittal form showing that the corrected NCOER was submitted and processed by the PSB.  The Board believes that the applicant has met the burden of proof criteria and is correct in 

her assertions that the corrected NCOER should be placed in her official records. However, the Board concludes that removing only the adverse elements and not the entire NCOER would be the appropriate and equitable correction in this case.

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 the case be corrected by:  

a.  amending Part IV a. of the applicant's NCOER for the period August 1999 through March 2000, by moving the "X" from the No to the Yes column and removing both bullets comments currently in item IV; and

b.  providing her records to a Standby Advisory Board for promotion consideration to the grade of master sergeant as required by this correction.

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

BOARD VOTE:  

___jns___  ___eja__  ___tl____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

__________John N. Slone_________
CHAIRPERSON

INDEX

CASE ID	AR2002067075	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020625	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	111.02	
2.		
3.		
4.		
5.		
6.