PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            8 December 1999
	DOCKET NUMBER:   AR1999032121

	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. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James P. Huber		Member	
	Mr. Arthur A. Omartian		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, in effect, promotion to the pay grade of E-8 on a date that would be consistent with his selection by the Calendar Year (CY) 1996 Master Sergeant Promotion Selection Board, removal of a reviewer’s letter of nonconcurrence that was attached to the Noncommissioned Officer Evaluation Report (NCOER) covering the period September 1995 to February 1996, and promotion reconsideration by all promotion boards that viewed that document if promotion is not granted by the Board.

3.  The applicant states, with the assistance of counsel, in effect, that he has been the subject of a concerted, knowing blackballing conspiracy, the purpose of which is and was to deny him promotion to the pay grade of E-8.  He further states that he entered the service in 1979 and after 12 years of service had reached the pay grade of E-7, which was considered a fast track promotion rate. That he was considered by promotion selection boards for promotion to the pay grade of E-8 during CY95 through CY99 and was nonselected.  He further states that he is part of a small career management field in which the command sergeant majors know and communicate with each other and provided a means for negative/derogatory information to be disseminated to the members of the selection boards that would result in his nonselection.  He goes on to state that the reason for his nonselection cannot be found in his NCOERs and that the evolution of his nonselection began in 1994 when he was wrongfully identified as a child abuser and was wrongfully treated by his senior rater (SR).  As a result of the over-reaction of his SR and the vindictiveness of the SR due to the embarrassment he experience as a result of his over-reaction, the SR has managed to ensure that his career is negatively affected despite the fact that he was cleared of any wrongdoings.   He continues by stating that it is apparent that the negative information followed him to his new assignment because while he was in the hospital he was relieved of his position as a platoon sergeant and the NCOER covering the period from September 1995 to February 1996, which he signed prior to his rater’s departure, was illegally altered to show a less favorable rating.  It was not until he threatened to contact the Inspector General (IG) and his congressional representative that the NCOER was corrected. However, the reviewer added a statement of nonconcurrence which has a negative effect on the report.  There appears to be no other rational explanation for the events that resulted in an attempt to commit fraud and to utter a false official statement by illegally changing the NCOER, other than someone was trying to do harm to him and was willing to violate law and regulations in order to do it.  Additionally, despite the fact that an investigation was conducted under Army Regulation 15-6, it is clear that the officer was not interested in getting to the truth.  Therefore, he opines that the Board should review the Criminal Investigative Division (CID) and all other investigations conducted on him.  In support of the application he submits copies of promotion board statistics with board members names, copies of his NCOERs (to include the contested statement of nonconcurrence), a sequence of events, a doctor’s statement regarding his surgery and medical condition, copies of his temporary duty orders, medical documents, copies of congressional correspondence originated by himself and subsequent responses, a copy of the AR15-6 investigation, a request for copies of the CID investigation and AR15-6 investigation, nine articles authenticated by or about the applicant, and seven third party statements. 

4.  The applicant’s military records show that he enlisted on 26 July 1979 for a period of 3 years under the airborne training enlistment option and training as an ammunition specialist.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 1 October 1991 in military occupational specialty (MOS) 55B.

5.  The applicant completed the Advance NCO Course (ANCOC) at Redstone Arsenal, Alabama on 26 March 1993 and was transferred to Fort Polk, Louisiana for duty as a senior ammunition observer/controller at the Joint Readiness Training Center (JRTC).  While assigned there he received four NCOERs, two of which were from the officer he contends violated his rights and set out to ruin his career.  All of the reports were essentially maximum reports that were complimentary of the applicant’s performance and potential.  The applicant also received a Meritorious Service Medal (MSM) when he departed the JRTC in September 1995 for an assignment to the Army Chemical Activity - Pacific (Johnston Atoll).

6.  He served at the Johnston Atoll from 15 October 1995 to 8 October 1996.  On 3 April 1996 he received a change of rater NCOER covering the period from September 1995 to February 1996.  The report was essentially a maximum report that contained three excellence ratings from his rater in parts IVb through f.  His rater recommended promotion ahead of his peers and that he be sent to the First Sergeants Academy.  However, the reviewer nonconcurred with the rater’s assessment and added a statement of nonconcurrence which indicated that the “excellence” ratings were not supported by the bullet comments.  He agreed with the SR’s comments.

7.  There is no indication in the available records to show that the applicant ever exhausted his administrative remedies by appealing the NCOER to the Enlisted Special Review Board (ESRB).

8. On 2 July 1996 an officer (lieutenant colonel) stationed in Hawaii was verbally appointed to conduct an informal investigation under the provisions of Army Regulation 15-6 into the allegations made by the applicant, via congressional inquiries, regarding the lack of integrity in his chain of command in regards to his NCOER.  The investigating officer found no hard evidence to substantiate the applicant’s claim of lack of integrity by the chain of command or violation of Army Regulations.  While the investigating officer did find that the applicant’s commander/ SR mishandled and failed to properly process his NCOER in a timely manner, that corrective action had been implemented to preclude further occurrences.  He also determined that the applicant was not relieved of his duties but that he had simply been changed to another duty assignment and that it had previously been discussed with him.  The move was viewed by the chain of command as a professionally enhancing assignment for the applicant. Unfortunately, he was in the hospital when the move occurred.

9.  The applicant received another NCOER covering the period from March 1996 to July 1996 which was essentially another maximum rating and the same SR concurred with the rating.  He departed the Johnston Atoll in July 1996 and was transferred to Redstone Arsenal for duty as a small group leader.  He received an Army Commendation Medal for his service at Johnston Atoll.

10.  The supporting statements submitted with his application consists of a statement from his rater during the period of September 1995 to February 1996 indicating that he had received the NCOER back after it had been signed and was informed that the supporting bullets were too weak to support excellence ratings.  He states that he changed the wording slightly and left the boxes checked as he had originally done.  He also left some signed blank forms to be used if corrections were necessary.

11.  He also submits statements from six other individuals who attest, in effect, that it was common knowledge that the NCOER was being changed, that he was being moved from the platoon sergeant position, and that it was wrong for him to be relieved of his duties.

12.  The copies of board membership and selection rates for the CY95 through CY99 Master Sergeant Selection Boards indicate the membership of the boards and the selection rates for the various specialties.  It shows that beginning with the CY95 board through the CY99 board there was a 29.0, 0.8, 8.8, 5.5 and 15.5% selection rate, respectively, for the applicant’s grade and MOS.

13.  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. 

14.  Paragraph 3-8 of the regulation outlines the reviewer’s responsibilities.  It states, in pertinent part, that it is the reviewer’s responsibility to ensure that the proper rater and indorser complete the report, to resolve and clarify discrepancies and inconsistencies that may exists when the rater and SR honestly disagree about a soldier’s performance, professionalism, or potential and to approach the rating officials to determine the basis for the apparent discrepancy or inconsistency.  If the ratings officials elect not to acknowledge the problem or change the evaluation, then the reviewer has the responsibility to explain the situation by adding an inclosure to make the report more understandable to a future reader.  In doing this, the reviewer does not have the responsibility or authority to render his own third evaluation of the rated soldier.  The rater’s mission is to clarify, not to concur or nonconcur with the evaluators.

15.  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.

CONCLUSIONS:

1.  Although the record is silent in regards to the applicant’s contention that he was wrongfully accused as a child molester, he has failed to show through the evidence of record or the evidence submitted with his application that his SR, through vindictive efforts attempted to negatively affect his career.  In fact, the Board notes that the SR rendered glowing reports on the applicant and that he received a MSM when he departed that assignment.  Notwithstanding that the applicant was exonerated of the allegations against him, his allegations that his rater has taken on a quest to ruin his career appears to be nothing more than speculation on his part that is not supported by credible evidence.

2.  The Board notes that the applicant was not relieved of his duties as he suggests and that an investigation was conducted by an impartial officer from another duty location who determined that the allegations were unfounded.  While the applicant has submitted supporting third party statements from individuals who were stationed with him, their statements, when compared to the actual NCOER and the results of the investigation do not bear out that he was relieved or that it was an adverse action being taken in retaliation for an underlying reason or act.

3.  The applicant’s contention that his NCOERs do not reflect a basis for nonselection and that the underlying reason for his nonselection lies with the negative information provided to the Board members appears to be without merit and purely speculative on the applicant’s and his counsel’s part.  The applicant has provided no evidence to support such a contention and a review of the selection rates for his MOS appear to be overall very low; which makes selection more difficult.

4.  While it is a commonly known fact that selection boards do not reveal their reasons for selection or nonselection, speculation that the Board was tainted with unfavorable derogatory information pertaining to the applicant without providing proof of an evidentiary nature is merit-less.  Furthermore, only one member of the applicant’s enlisted MOS sits on the panel that considers him for promotion and there are at least seven total members.  Therefore, proof would be necessary to show that that person convinced the majority of members to vote against the applicant in all boards that considered the applicant.  Conduct of this nature is not permitted on promotion boards and such evidence has not been presented to this Board to show that such a conspiracy did in fact exist.

5.  However, although the Board does not accept the applicant’s conspiracy theory as a basis to remove the statement of nonconcurrence, the Board does find that the statement of nonconcurrence rendered by the reviewer on the NCOER covering the period from September 1995 to February 1996 was not prepared in accordance with the spirit and intent of the applicable regulation.  The regulation specifically states that the reviewer’s responsibility was to resolve discrepancies and provide clarification when the discrepancy could not be resolved; not to concur, nonconcur, or to render his or her own evaluation.  The statement of nonconcurrence issued by the rater clearly was not intended to clarify any discrepancies and clearly indicates the reviewer’s ratings of the applicant’s performance and potential.

6.  Therefore, the Board finds that the statement of nonconcurrence is invalid and should be removed from his Official Military Personnel File (OMPF), that his NCOER should be corrected to reflect concurrence in part IIe (Authentication), and that the applicant should receive promotion reconsideration to the pay grade of E-8 by all boards that viewed the statement of nonconcurrence attached to the contested NCOER.

7.  The Board also notes that had the applicant exhausted his administrative remedies by appealing the NCOER to the ESRB, his appeal most likely would have been approved based on the same reasons the Board has identified.

8.  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:

a.  by changing part IIe (Authentication) of the NCOER ending on February 1996 pertaining to the individual concerned to show that the reviewer concurred with the rater and SR’s evaluation;

b.  by removing the Reviewer’s Nonconcurrence memorandum dated 26 March 1996 from the OMPF of the individual concerned; and   

c.  by submitting his records, as thus corrected, to a duly constituted special promotion selection board for promotion reconsideration under the criteria followed by those boards that either nonselected or failed to consider him.

2.  That in accordance with paragraph 21e, Army Regulation 15-185, following completion of the administrative correction directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

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

BOARD VOTE:  

___rvo __  __aao___  __jph____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.__
		        CHAIRPERSON

INDEX

CASE ID	AR1999032121	
SUFFIX		
RECON		
DATE BOARDED	1999/12/08	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  193 	111.0000/NCOER	
2.  320 	131.1000/NONSELECT	
3.		
4.		
5.		
6.