PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  19 January 2000
	DOCKET NUMBER:   AR1999033333

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. John P. Infante		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 a Relief for Cause Noncommissioned Officer Evaluation Report (NCOER) for the period of 9401-9403, be removed, or remove specified NCOER rating comment bullets as materially inaccurate.

3.  The applicant states that the Relief for Cause NCOER was, in whole or in part, a result of racial bias as found by an Equal Opportunity investigation.  Additionally, the Relief for Cause NCOER came about because of a conflict between the applicant and his senior rater concerning maintenance and repair of a tactical vehicle.  The vehicle, a M-981, Fire Support Tactical Vehicle, was dead-lined for repairs, which could not be performed at unit or Troop level but required direct support repair at Seoul, Korea.  The fire support officer ordered certain repairs to be made to make the vehicle ready which the applicant could not do at unit level.  The officer then sought to have the applicant relieved and charge him with offenses such as disobedience of an order.  The applicant states that he could not be legally charged, so a Relief of Cause NCOER was issued.  The NCOER is all based on the one incident concerning the contested repair of the vehicle.  After relief, the applicant requested an Equal Opportunity (EO) investigation which showed that the applicant had done nothing wrong and that there were strong indications of improper conduct by the senior rater.  The applicant submits witness statements concerning the EO investigation from the Command Sergeant Major who directed the investigation and the Master Sergeant who conducted the investigation.  Both affirm that it was conducted and the results indicated improprieties.  The applicant also provides two letters from two superiors from later assignments supporting the removal to the Relief for Cause NCOER.

4.  The applicant’s military records show that the applicant enlisted in the Regular Army on 8 June 1982.  He rose to his current rank of Staff Sergeant on 22 November 1988.  He is an artillery NCO.  He was assigned to Camp Stanley, Korea, on 22 May 1993 as a Fire Support Sergeant.  He received a derogatory annual NCOER for the period 9302 to 9312.  On 23 May 1994, the applicant requested a commanders’ inquiry into irregularities in the NCOER.  The investigating officer reported on 16 June 1994 that the NCOER was in error as a result of an “unestablished rating scheme, poor counseling, an unconcerned chain of command”, and conflicting rater comments.  Accordingly, the Division Artillery Commander requested that the US Army Personnel Command (PERSCOM) delete the NCOER from the applicant’s records.  The request was approved by PERSCOM on 10 July 1994, the NCOER deleted, and the period declared non-rated time.

5.  The applicant then received a Relief for Cause NCOER for the period 9401 to 9403.  This Relief for Cause NCOER was from the same rating chain as on the previous NCOER.  The rating chain positions were the same and the reviewer was the same person on both reports.  The rater and senior rater were the replacement personnel for the previous rater and senior rater.  The applicant was rated in the same position as in the previous NCOER.  On 2 May 1994, the applicant requested a commander’s inquiry into irregularities on the Relief for Cause NCOER.  The same investigating officer, as for the previous NCOER, reported on 25 May 1994 that there was no substantial evidence to support the applicant’s accusation of a personality conflict and that the applicant was properly counseled.  On 2 June 1994, the applicant rebutted the commander’s inquiry findings stating that it failed to address the main issue of the rating chain. The applicant submitted appeal to the Inspector General and the general court-martial convening authority.  There is no record of the outcome of these last two appeals.  The applicant apparently also filed an EO complaint according to his witnesses but there is no copy available.

6.  During the CY95 Sergeant First Class (SFC)/ANCOC Promotion/
Selection Board, the applicant was identified under the Qualitative Management Program (QMP) for imposition of a Department of the Army (DA) Bar to Reenlistment.  This was due to a 9401-9403 Relief for Cause NCOER.  The applicant appealed the DA Bar.  The appeal of the DA Bar was approved on 
19 March 1996 and the DA Bar removed.  The removal was based on the applicant’s positive duty performance and the support of his chain of command up to and including a general officer.  This removal and support is a significant achievement.

7.  The applicant appealed his Relief for Cause NCOER to the Enlisted Records and Evaluation Center Enlisted Special Review Board.  On 16 February 1996, that board denied the appeal determining that the applicant had submitted insufficient evidence and the record did not support altering or withdrawing the report.  However, a memo from the board dated 4 January 1996 stated that, “The rating scheme submitted with the (Relief of Cause NCOER) report cannot be used to make a determination if this is the correct rating chain or not.  The scheme is undated and has no effective date.”

8.  The applicant requested that he be reconsidered for promotion to SFC and attendance at ANCOC.  The request was denied on 4 April 1996.  He was selected for promotion to SFC and attendance at ANCOC by the 1999 promotion board.  However, he was then deleted from the promotion list on 4 October 1999 based on having an approved retirement for 31 January 2000.

9.  He reenlisted on 17 May 1996 for an additional 6 year term.  At the time of reenlistment, he had 13 years, 11 months, and 9 days of total active service.

10.  Aside from the Relief for Cause NCOER in question, the applicant has a good record.  He has 19 average to above average NCOERS from 1984 to 1999. He has no derogatory information in his file.  He has been awarded 5 Good conduct Medals, 3 Army Achievement Medals, and 1 Army Commendation Medal.  He was promoted to SSG in just over 6 years, a rapid promotion schedule.  He was an instructor for the Field Artillery Fire Support Specialist Advanced Individual Training Course for 3½ years just prior to his assignment in Korea in 1993.

CONCLUSIONS:

1.  The Relief for Cause NCOER was given by the same rating chain as for the previous NCOER that was deleted in part because the rating chain was not published and the rating chain was unconcerned with proper procedure.  This is further supported by the Enlisted Records and Evaluation Center Enlisted Special Review Board memo which stated, “The rating scheme submitted with the (Relief of Cause NCOER) report cannot be used to make a determination if this is the correct rating chain or not.”  It is therefore concluded that the rating chain was flawed for both NCOERs, one which was deleted and one (the Relief for Cause NCOER) which was not but should have been deleted on the same premise.

2.  The counseling dates on the Relief for Cause NCOER are not specific, not showing day dates, calling into question the validity of the counseling.  It is noted that the applicant refused to sign the NCOER and by so doing affirmed that the counseling was flawed along with other administrative data on the report.  The deleted NCOER was also found to have flawed counseling by the same rating chain.  This further supports the conclusion that the Relief for Cause NCOER should be removed due to questionable counseling in record and fact.

3.  The fact that the applicant received average and above average NCOERs as an instructor at Fort Sill for 3½ years for the very job for which he was later given a three month Relief for Cause NCOER by the command in Korea, and then again given high marks for doing that same job again at Fort Benning, calls into question the validity of the remarks on the Relief of Cause NCOER such as: “lacks skill level 3 knowledge in MOS competency; failed to demonstrate adequate knowledge on tasks to fight, survive and win in combat; failed to maintain and care for equipment properly”.  Based on these questionable comments, the Relief for Cause NCOER is further suspect and should be removed from the record.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected for the individual concerned by deleting the Relief for Cause NCOER for the period 9401 to 9403 and deleting the Relief for Cause NCOER appeal denial and related documents.

BOARD VOTE:  

_RO___  __CG___  __JI___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR1999033333	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000119	
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         1.111.01	Biased/prejudiced rater	
2.		
3.		
4.		
5.		
6.