MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:           18 March 1999    
	DOCKET NUMBER:   AR1999007811

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

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Ms. Karen Y. Fletcher		Member	
	Mr. Ernest W. Lutz, Jr.		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:  The removal of three noncommissioned officer evaluation reports (NCOER) from his Official Military Personnel File (OMPF) that cover the periods from June 1991 to August 1993.

APPLICANT STATES:  In effect, that the three NCOER’s are untruthful and have serious material errors.  He further states that he has corrected all of his shortcomings, that he has demonstrated improved performance, and that further retention in the service will greatly benefit not only himself, but the unit and the Active Guard Reserve (AGR) program as well.  He goes on to state that the NCOER for the period from June 1991 to February 1992 was not an accurate assessment of his qualification and skills, based on the working environment at the time.  He also states that the NCOER for the period of March 1992 to February 1993 contained comments that were not supported by proof, but simply hearsay, and the rater did not give him credit for what he actually accomplished.  He also states that the NCOER covering the period from March 1993 to August 1993 did not take into account that he was performing a job for which he had not been properly trained.  He continues by stating that he was initially barred from reenlistment under the Qualitative Management Program (QMP) based on the NCOER’s covering the periods from March 1992 to February 1993 and March 1993 to August 1993.  However, he successfully appealed that bar to reenlistment and was allowed to remain on active duty.  Unfortunately, in a subsequent board, he was again barred to reenlistment under the QMP based on the same two NCOERS and the earlier NCOER covering the period from June 1991 to February 1992.  Removal of these NCOER’s will alleviate any further bars to reenlistment because he has had no further derogatory reports.

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

On 11 March 1992, while serving as a USAR (AGR) recruiter in the pay grade of E-6 in Hayward, California, the applicant received a relief for cause NCOER covering the period from June 1991 to February 1992.  

In part IVb through IVf, under Values/NCO Responsibilities, he received “Needs improvement” ratings under competence and leadership.  The supporting comments indicate that despite receiving sufficient counseling and guidance, he continued to do what he feels like doing, that he did not exercise sound judgment by not following directions given, that he refused to accept assistance to make him successful, that he failed to achieve consistency in making assigned mission, that his attitude and performance were not in tune with unit standards, that he does not display an ability to work with others, and does not maintain a degree of involvement.

In part V, under Overall Performance and Potential, the applicant’s rater rated his overall potential for promotion and/or service in positions of greater responsibility as being “Fully Capable.”  His senior rater (SR) rated his performance and potential as “Fair.”   The SR’s supporting comments indicate that the applicant did not accomplish his tasks to his full ability and recommended that he be reassigned from recruiting duty.

There is no evidence in the available records to show that he ever appealed the NCOER to the Enlisted Special Review Board (ESRB).

On 29 March 1993, while serving as a full time unit administrator at Selfridge Air National Guard Base, Michigan, he received an annual NCOER covering the period from March 1992 to February 1993.

In part IVa, under Values/NCO Responsibilities, the applicant received “No” ratings under “Is disciplined and obedient to the spirit and letter of a lawful order” and “Is honest and truthful in word and deed.”  The supporting comments indicate that he did not complete tasks given as directives and that he had said tasks were completed when they were not.

In parts IVb through IVf, he received “Needs Improvement ratings under competence, leadership, and training.  The supporting comments indicate that the applicant must improve MOS competency, he is severely lacking in technical knowledge and skills, that he has concern for soldiers and unit but needs to learn follow-up and follow through, and that he must learn more of his MOS and the mission before he will be able to share much knowledge.

In part V, the rater rated the applicant’s overall potential for promotion and/or service in positions of greater responsibility as “Marginal.”  His SR rated him as “Fair” and provided supporting comments indicating that the applicant has a good attitude and willingness to learn, that greater development of listening skills is required, that he must work to become technically proficient to enhance effectiveness, that he must develop better organizational skills, and that he must complete tasks accurately and within suspense parameters.

On 24 September 1993 he received a change of rater NCOER covering the period from March 1993 to August 1993 evaluating him as the Chief, Admin NCO of the same unit as the previous NCOER. 

In part IVb through IVf, he received “Needs Improvement” ratings under competence, leadership, training, and responsibility and accountability.  The supporting comments indicate that he had not followed through on correspondence courses for self improvement as suggested, that he had limited technical knowledge and skills, that he must learn attention to detail and follow-up actions, that he must learn to communicate with effective direct statements, and that he must learn and understand the impact and importance of his decisions and actions as unit administrator.

In part V, under Overall Performance and Potential the rater gave him a “Marginal” rating and the SR gave him a “Fair” rating.  The SR’s supporting comments indicate that the applicant has a positive attitude, strives for success, has taken steps to improve skills, improvements were made in meeting suspense targets, needs further development to become technically proficient, and must continue to work on both organizational skills and accuracy of work.  

In 1994 the applicant was notified that he was being barred from reenlistment under the QMP based on the presence of the NCOER’s covering the periods from March 1992 to February 1993 and from March 1993 to August 1993.  The applicant submitted an appeal of the bar to reenlistment with the support of his chain of command and his appeal was approved.

In May 1997 the applicant was again notified that he was being barred from reenlistment under the QMP based on the three contested NCOER’s.  The applicant again appealed the bar to reenlistment and although the results of his appeal not present in the available records, it appears that his appeal was approved because the applicant would have had to be separated within 60 days of the denial of his appeal and he continues to serve on active duty in the AGR program.

In the processing of this application the ESRB at the Army Reserve Personnel Center reviewed the applicant’s appeal of the NCOER’s covering the periods from March 1992 to August 1993 and March 1993 to August 1993.  His appeal was denied and he was so informed.  The ESRB declined consideration of his appeal of the NCOER covering the period from June 1991 to February 1992 based on his not filing within 5 years in accordance with Army Regulation       623-105.

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.

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 or she 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 appear to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing them from his records.

2.  The applicant’s contention that the ratings and comments made by the rater and SR on the NCOER were unjust, appear to be without merit.  After reviewing the evidence submitted by the applicant and the evidence of record, the Board is convinced that the applicant was counseled and was aware of the expectations of his rating chain, but failed to meet them.

3.  Notwithstanding the applicant’s claim that the NCOER was unjust because of the absence of his accomplishments during the rated period, the applicant has failed to show that the comments and ratings he received were in error or unjust.

4.  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 the aforementioned requirement.

5.  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

___jma__  ___kyf__  ___ewl__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999007811	
SUFFIX		
RECON		
DATE BOARDED	19990318	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 111		
2.		
3.		
4.		
5.		
6.