MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            4 February 1999 
	DOCKET NUMBER:   AC98-12890
                                              AR1999015789

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Van B. Cunningham		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, that his noncommissioned officer evaluation report (NCOER) covering the period from July 1996 to December 1996 be corrected to reflect a higher evaluation or that it be removed in its entirety from his Official Military Personnel File (OMPF) and that he receive promotion reconsideration.

APPLICANT STATES:  In effect, that he did not receive an accurate and fair appraisal from his rater, that there are numerous administrative inaccuracies contained in the report to include the fact that he was in fact available for signature although the report indicates otherwise, that he should have received “excellence” ratings instead of “success” ratings, that his appeal to the Enlisted Special Review Board (ESRB) was not properly and thoroughly adjudicated, and that because his case was being reviewed by the ESRB his records were not available for review by the sergeant major promotion selection board that convened in December 1997.  In support of his application he submits eight statements from other members of his unit that attest to his performance.

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

The applicant enlisted in the Regular Army on 27 June 1977 for period of 3 years and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-8 on 1 January 1995. 

On 4 March 1997 the applicant received a change or rater NCOER covering the period from July 1996 to December 1996 evaluating him as a first sergeant of a recruiting company of 26 Army recruiters for a period of 6 months.  In part IVb thru f, under Values/NCO Responsibilities, the applicant received “Success” ratings in all categories.  The supporting comments indicate that he set the example for physical fitness and weight control, that despite the loss of his commander, production showed slight improvement under his leadership, that hands on training improved prospecting and processing efficiency, and that he displayed an admirable performance in the absence of the company commander. 

In part V, under overall performance and potential, the applicant’s rater              (a sergeant major) gave the applicant a rating of “fully capable” under overall potential for promotion and/or service in positions of greater responsibility.  The senior rater (a lieutenant colonel) rated the applicant’s overall performance as “successful” and his overall potential as “superior.”  The supporting comments indicate that the applicant faces challenges head-on; competently performed the duties of commander and first sergeant during the rating period, that he was an excellent trainer, mentor, and coach, that he developed a highly competent Reserve recruiting force, that he was always mission focused, stayed on course despite tremendous adversity and personal turbulence, and that he is a total team player with the strength of character and leadership skills to excel in future assignments. The NCOER indicates that the applicant was unavailable for signature.

On 3 September 1997, the applicant’s commander submitted a memorandum to the Total Army Personnel Command (PERSCOM) indicating that after conducting a commander’s inquiry into the circumstances surrounding the contested NCOER, it was determined that the contested report should reflect that the rated months should be “4” months vice “6” months, that his height and weight information was incorrect and should not have reflected that he was within the body fat standards of Army Regulation 600-9, that the entry of data in areas of special interest and appointed duties are optional entries and their absence bears minimal impact on the report.  He also indicated that he was unable to determine the applicant’s contention that he was in fact available to sign the report but that he recommended that the erroneous data cited be deleted from the report.

The applicant appealed the contested NCOER to the ESRB on 3 October 1997 contending that he was available for signature but was not properly afforded the opportunity to do so, that the period of the report was incorrect because the rating scheme had changed, and that his performance was not properly reflected in the NCOER because it did not reflect his duties as acting commander as well as other aspects of his performance that are reflected in supporting statements submitted by other members of his unit.  His request was received by the ESRB on 9 December 1997.

The ESRB determined that the contested NCOER should be corrected to show a period of 4 months instead of 6 months, that the nonrated code of “Q” should be added to part Ij, that “Acting Commander” should be added to appointed duties in part IIIe, that his APFT and height and weight data should be changed to reflect “Pass 9611, 70/187, and that the comment “within body fat standards of AR   600-9 be deleted.  The ESRB denied the remainder of his application and determined that he was not entitled to promotion reconsideration.

The applicant was considered for promotion selection to the pay grade of E-9 below the zone in December 1997 by the Department of the Army (DA) E-9 Promotion Selection Board and a copy of his OMPF was reviewed by that board.

A review of the letters of support submitted by the applicant from other soldiers in his unit indicate, in effect, that the applicant was present in Albany, New York on 28 February 1997, that he was successful in implementing company directives and training guidance and that he trained five new station commanders, that he was a first sergeant that lead by example, that he was mission oriented and firm but fair, that he served as the first sergeant and company commander and did an outstanding job, that he was always open in his dealings and cared for his charges, that he set the example for other first sergeants in terms of physical fitness, that he is an intelligent and articulate NCO, that he always conducted himself as a professional NCO, and that he was directly responsible for the success of his company’s accomplishments.  All of the letters provided were from NCO’s and officers assigned to the applicant’s command.

Army Regulation 600-8-19 serves as the authority for the promotion of enlisted personnel.  It states, in pertinent part, that promotion reconsideration by a DA Standby Advisory Board (STAB) is not authorized for personnel who were below the zone of consideration by a duly constituted promotion selection board.  Personnel who are in or above the zone of consideration and who meet the criteria for reconsideration will be granted reconsideration as appropriate. 

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 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 report , as amended by the ESRB, appears 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 altering or removing the report from his 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 he received or that there was any basis to delete the report from his records.

3.  While the third party statements are complimentary of the applicant’s performance, it appears that none of those individuals were in a position to know the expectations of the members of the rating chain.

4.  The applicant simply has failed to provide clear and convincing evidence sufficient to warrant changing his rating or voiding the report.
5.  Additionally, the applicant’s records were reviewed by the E-9 promotion selection board and due to the fact that he was below the zone of consideration, he is not entitled to reconsideration by a STAB.

6.  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

__jhl   ___  __vbc___  __aao___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12890/AR1999015789	
SUFFIX		
RECON	 	
DATE BOARDED	1999/02/04	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  111.000	NCOER	
2.  131.090	PROM RECON	
3.		
4.		
5.		
6.