PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           26 November 2002
	DOCKET NUMBER:   AR2002077427

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Hubert O. Fry, Jr.		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, that a Record of Proceedings Under Article 15, UCMJ (DA Form 2627), dated 15 October 1986, and a Relief for Cause Noncommissioned Officer Evaluation Report (NCOER), for the period March 1998 through January 1999, be removed from his Official Military Personnel File (OMPF).

3.  The applicant states, in effect, that all punishment imposed by the 15 October 1986 nonjudicial punishment (NJP) action was remitted or set-aside by the commander who imposed the punishment.  He also claims that the NCOER he received in January 1999 was the result of personality conflicts and dislikes with members of his chain of command rather than a professional evaluation of his performance of duty.  Further, he claims that the governing regulation was not complied with in the preparation and submission of this report.  

4.  In regard to the contested NCOER, the applicant claims that subsequent to receiving the report, he was transferred to another battalion, where he successfully performed duties as a battalion operations NCO, Ammunition NCO, and a Rifle Platoon Sergeant for two consecutive years, which included a rotation to the Sinai Peninsula.  He also indicates that the battalion commander of his new organization completed a commander’s inquiry on the contested report.  The battalion commander found that the applicant had accumulated a list of impressive achievements during the rating period on the contested report, and that a Relief for Cause report was unjust.  He also claims that the rating officials on the contested report did not properly follow the policies and procedures outlined in the regulation governing the preparation and submission of NCOERs.

5.  In regard to the Article 15 in question, the applicant indicates that he received the NJP in October 1986.  However, in December 1986, the imposing commander set-aside or remitted the punishment.  In addition, he contends that the DA Form 2627 has been in his record for 16 years and it has more than served its intended purpose. 

6.  The applicant’s military records show that as of the date he submitted his application to the Board, he was serving on active duty as a sergeant first class (SFC), and he was assigned to the Northern Illinois University Reserve Officer Training Corps Battalion, Dekalb, Illinois.  

7.  On 15 October 1986, the applicant accepted NJP for violating Article 92 of the UCMJ, by failing to obey a lawful general regulation by wrongfully taking a weapon off post in civilian clothing in a privately owned vehicle; and for violating Article 134 of the UCMJ, by wrongfully and unlawfully making a false statement under legal oath.  The punishment imposed included a reduction to the grade of E-4, forfeiture of $75.00 per month for two months (suspended until 12 February 1987), and 30 days of extra duty.  

8.  On 20 October 1986, the applicant’s appeal of the NJP was considered by a Staff Judge Advocate (SJA) trial counsel.  Counsel opined that he found the evidence sufficient to support punishment for violation of Article 92, but not for a violation of Article 134.  He explained that the applicant allegedly made a false sworn statement on 7 August 1986.  However, the sworn statement this allegation pertains to is dated 12 August 1986, and in it the applicant indicated that he lied to his first sergeant in an unsworn statement on 7 August 1986.  Counsel stated that it was apparently true that the applicant lied to his first sergeant on 7 August 1986.  However, truthfully swearing that one lied on an earlier date does not constitute the offense of making a false sworn statement.  Thus, counsel indicated that it may be appropriate to consider suspending the reduction from E-5 to E-4.  

9.  A Record of Supplementary Action Under Article 15, UCMJ, dated 
19 December 1986, confirms that the commander who imposed the 15 October 1986 NJP on the applicant remitted the forfeiture portion and set-aside the reduction portion of the punishment imposed. 

10.  In November 1990, the applicant’s petition to the Department of the Army Suitability Evaluation Board (DASEB), requesting that the record of NJP in question be moved from the performance portion (P-Fiche) to the R-Fiche of his OMPF, was denied.  

11.  The contested NCOER is a Relief for Cause report that covered the period March 1998 through January 1999.  The applicant was evaluated as a SFC, Platoon Sergeant, while serving in an Infantry Battalion in Hawaii.  In Part IIIf (Counseling Dates) the rater, a first lieutenant, indicated that the applicant had been initially counseled on 1 May, and received later counseling on 1 August and 5 November 1998.  

12.  In Part IVa (Values/NCO Responsibilities-Rater-Questions) the rater gave a “No” response to Question 3 (Is Dedicated and Obedient to the Spirit and Letter of a Lawful Order).  The bullet comment provided by the rater to support this entry was that the applicant had “publicly humiliated a soldier by not treating him with dignity and respect”.  There is no expanded explanation of this comment elsewhere in the report.  

13.  In Part IVb-f the rater gave the applicant three “Excellence” ratings, two “Success” ratings, and one “Needs Improvement (Some)” rating.  The Needs Improvement-Some rating was contained in Part IVf (Responsibility and Accountability).  The supporting bullet comments were as follows:  “Has been notified of the relief for cause”; “Relentlessly assists soldiers to overcome personal problems”; “Encouraged 90% of his platoon to enroll in correspondence courses”.  There was no further explanation provided to support this rating or to explain the specific reason for the relief action.  

14.  The senior rater did not render an evaluation on the contested report.  Part Ve (Senior Rater Bullet Comments) contained the entry “senior rater does not meet minimum qualifications”.  Further, there is no evidence to show that a commander’s inquiry was done within 120 days of the evaluation report being rendered, as is required by regulation.  

15.  On 23 November 1999, the applicant appealed the contested NCOER to the Enlisted Special Review Board (ESRB).  In his appeal, he alleged that on 
1 October 1998, he received his initial 45 day performance appraisal from his company commander, eight months after assuming the position.  In this counseling, the commander informed the applicant that it was his intent to relieve the applicant from his duties as a platoon sergeant if his performance did not improve.  The commander gave the applicant 45 days to show this improvement in his duty performance.  However, the applicant stated that he was relieved of his duties on the same day he received the counseling and was never afforded the opportunity to improve his performance.  The applicant also pointed out that a commander’s inquiry was never accomplished in connection with the Relief for Cause report, although he raised objections at the time. 

16.  In his appeal to the ESRB, the applicant also indicated that the rater on the contested report admitted that the company commander and first sergeant had told him on several occasions that they did not like the applicant’s personality and attitude.  In addition, the rater stated that he was told that the NCOER he initially prepared on the applicant did not accurately reflect his performance.  Further, the first sergeant told the rater that the battalion command sergeant major said that he had to change the report, and the rater admitted changing his initial report to comply.  As a result, the applicant claimed that his evaluation was unduly influenced and that the change of rater report it started out to be was inappropriately changed to a Relief for Cause report.  

17.  In his appeal to the ESRB, the applicant also alleged that the intent of the regulation was clearly violated by the entering of fictitious counseling dates, and by the failure of the senior rater on the contested report to evaluate him, and falsely stating that he failed to meet minimum senior rater qualifications.  The applicant indicated that the senior rater had in fact assumed command 51 days prior to the ending date of the report, and by regulation, the minimum senior rater qualification for a relief for cause report is only 30 days.  The applicant concluded his appeal statement by commenting that the contested report was based on personality dislikes on the part of his chain of command, and that the Army rules and regulations were clearly violated in the rendering of this report, as were his rights.  

18.  The applicant enclosed the following documents with his appeal to the ESRB:  a statement from the rater, dated 15 October 1999; a Memorandum for Record (MFR), Subject:  Assumption of Command, dated 3 December 1998; and a Memorandum from the applicant’s gaining battalion commander, dated 
29 November 1999, which indicated that this commander conducted a commander’s inquiry into the contested report. 

19.  The Assumption of Command MFR confirmed that the applicant’s unit commander and senior rater, assumed command of the unit on 4 December 1998, some 51 days prior to the applicant being relieved of his duties and the Relief for Cause report being rendered.  

20.  The commander’s inquiry provided by the applicant’s gaining commander found that insufficient grounds for the Relief for Cause report existed at the time the report was completed.  In addition, it indicated that multiple provisions of the regulation were not properly followed by rating officials in the preparation and submission of the contested report.  The following discrepancies were noted:  no 30 day notice and remediation; the soldier was counseled on or about 5 October 1998 for unsatisfactory performance, and was relieved from his duties as a platoon sergeant and assigned to company headquarters on that same day; the contested report ran through January 1999, which was 90 days after the applicant was relieved of his duties as a platoon sergeant; the senior rater failed to evaluate the applicant although he met the 30 day minimum senior rater qualification for a Relief for Cause report; the rater, and by his own admission, was told to change his rating to support the Relief for Cause, and had never counseled the applicant despite the dates listed in the contested report.  The commander conducting this inquiry indicated that based on the unjust manner this situation was handled, the unethical conduct by several persons in key positions, and the fact that the applicant had performed superbly since his rehabilitation to his unit , he recommended that the NCOER be removed from the applicant’s record. 

21.  In his statement, the rater confirmed that he never had the applicant sign an initial counseling form.  He claimed that he and the applicant discussed their goals for the platoon and each other, and reviewed their performance on a weekly basis.  However, he never kept a written counseling record.  The rater also stated that the chain of command took little or no time to counsel the applicant, and the company commander and first sergeant told him on different occasions that they did not like the applicant’s personality and attitude.  The only counseling  the company commander had with the applicant was in blanket form on his  performance.  The rater admitted that he was present when the first sergeant admitted to the applicant that he never intended it to go this far.  The rater also stated that he was kept out of the net concerning his platoon sergeant and when he asked the company chain of command about this, he was told that decisions concerning the applicant’s future were being made at brigade level. 
22.  The rater also indicated in his statement that he had met with the first sergeant and suggested that the applicant needed a different job within the battalion.  The first sergeant agreed, and told him that the battalion sergeant major would find him a job.  The first sergeant also told him to prepare a change of rater NCOER, which he did.  He brought the report to the battalion commander and explained the lack of counseling and discussed some of the applicant’s accomplishments.  At that time, he was told that the decision on the applicant had not yet been made.  Finally, he was told by his company chain of command that the NCOER he prepared did not reflect the applicant’s performance, and that the battalion sergeant major had told them that the report had to be changed.  He changed the report as instructed and the second report was approved.  

23.  The ESRB case summary on the applicant’s appeal indicates that it was based on the applicant’s contention that the report contained both administrative and substantive errors.  However, the ESRB found all of the applicant’s contentions were administrative in nature.  The ESRB also determined that it would not be necessary for them to contact the rating officials on the contested report and that a decision could be rendered based on the evidence provided.  The ESRB finally found that the only elements of the applicant’s appeal that had merit were that the number rated months and PMOSC were inaccurate.  It further found that all the other contentions of the applicant, which included that counseling sessions reflected by the dates entered in Part IIIf were fabricated and that the senior rater was qualified to senior rate even though the statement entered in Part Ve stated senior rater does not meet minimum qualifications, were without merit.   

24.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) sets the policies and procedures governing the Noncommissioned Officer Evaluation Reporting System (NCOERS).  It gives instructions for preparing, processing, submitting DA Form 2166-7 (NCOER), and DA Form 2166-8-1 (NCO Counseling Checklist/Record).  It also gives guidance for appealing evaluation reports.

25.  Paragraph 2-9 outlines the rater’s responsibility.  It states, in pertinent part, that the rater must counsel the rated NCO on his or her duty performance and professional development throughout the rating period and define and discuss the duty description for part III of the NCOER with the rated NCO during these sessions.  At a minimum, the rated NCO will be counseled within the first 30 days of each rating period and quarterly (every 3 months) thereafter.  The DA Form 2166-8-1 is mandatory for use by the rater when counseling all NCOs.

26.  Paragraph 3-2 provides evaluation principles and states, in pertinent part, that rating officials must prepare complete, accurate, and fully considered evaluation reports.  This responsibility is vital to the long range success of the Army’s missions.  With due regard to the NCO’s grade, experience, and military schooling, evaluations should cover failures as well as achievements.  However, evaluations will not normally be based on isolated minor incidents.  

27.  Paragraph 3-5 states, in pertinent part, that face-to-face performance counseling between the rater and the rated NCO is accomplished in order to improve performance and professionally develop the rated NCO.  It is the process by which the rater develops and communicates performance standards to the rated NCO.  The goal of performance counseling is to get all NCOs to be successful and meet standards.

28.  Paragraph 3-32 provides guidance on submitting Relief for Cause NCOERs. It states in pertinent part, that the minimum rater and senior rater qualifications and minimum period of the report is 30 days.  It also stipulates that the official directing the relief will clearly explain the reason for the relief in Part IV, if the relieving official is the rater, and if the relieving official is the senior rater, in Part Ve. 

29.  Paragraph 6-10 provides guidance on the burden of proof necessary to support a successfully appeal of an NCOER.  It states, in pertinent part, that in order to support a successful appeal of an NCOER, the applicant must provide clear and convincing evidence of a compelling nature, not merely proof of the possibility of an administrative error or factual inaccuracy.  Simply put, if the adjudication authority is convinced that the applicant is correct in some of his/her assertions, the clear and convincing standard has been met.  

30.  Army Regulation 600-37 sets forth policies and procedures that ensure that the best interests of both the Army and the soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  Chapter 7 contains guidance on appeals requesting removal or unfavorable information from the OMPF and/or transfer of records of NJP imposed under the provisions of Article 15, UCMJ to the R-Fiche of the OMPF.  It stipulates that appeals are to be directed to the DASEB.  

31.  Paragraph 7-2 states, in pertinent part, that records of NJP may be transferred upon proof that  their intended  purpose has been served or that their transfer would be in the best interest of the Army.  The burden of  proof rests with the soldier concerned  to provide substantial evidence that these conditions have been met.  It also specifies that any claim that an Article 15 is untrue or unjust, in whole or in part and removal from the OMPF will not be considered by the DASEB, and that the authority to adjudicate such claims rests with this Board after the recipient has exhausted other means for administrative remedy.
CONCLUSIONS:

1.  The Board notes the applicant’s contention that the contested NCOER and record of NJP in question should be removed from his OMPF, and it finds merit in these claims.  

2.  By regulation, rating officials must prepare complete, accurate, and fully considered evaluation reports, and evaluations will not normally be based on isolated minor incidents.  Further, at a minimum, counseling of the rated NCO by the rater will be conducted within the first 30 days of each rating period and quarterly thereafter, and it is mandatory that these sessions be recorded in a formal counseling statement.  

3.  In this case, the evidence of record clearly shows that an incomplete bullet comment in Part IVa was used to explain the reason for the Relief for Cause report.  Further, the bullet comment provided in Part IVf does not support the Needs Improvement (Some) rating given by the rater, especially given the extremely complimentary nature of the other bullet comments contained in the same block.  The rater admitted to the ESRB that he was told by members of the chain of command to change the initial change of rater report he prepared on the applicant to a Relief for Cause report, and he complied.  

4.  By regulation, the clear and convincing evidence burden of proof necessary to support a successful appeal of an NCOER is met by a soldier if the adjudicating authority is convinced that any of the applicant’s assertions are true.  In this case, the Board finds the evidence of record shows significant inconsistencies in the rendering and processing of the contested NCOER, and it finds that the applicant’s assertions have merit.  

5.  The Board concurs with the ESRB findings that resulted in a partial approval of the applicant’s appeal.  It also agrees with the administrative changes to the contested NCOER directed by the ESRB.  However, the Board also finds that the inconsistencies in the contested NCOER warrant further corrective action.  

6.  The evidence of record clearly shows that rating officials did not fulfill their responsibilities in rendering the contested NCOER.  The applicant was never initially counseled on his responsibilities as a platoon sergeant, and was never formally counseled on his performance of duty during the rating period.  In his statement to the ESRB, the rater admitted that he brought the contested NCOER to the battalion commander to explain the lack of counseling, and some of the applicant’s accomplishments during the rating period.  This as much as confirms the applicant’s claim that the counseling dates in the contested report were fabricated.  The Board finds these facts are sufficient to contradict the ESRB finding that the applicant’s contention in regard to counseling was without merit. 
7.  The Board also disagrees with the ESRB finding that there was insufficient evidence to show that the senior rater met the qualifications to evaluate the applicant on the contested report.  The assumption of command MFR provided by the applicant with his appeal confirms that the senior rater assumed command 51 days prior to the ending date of the contested report, which was over the minimum 30 days required to render an evaluation on a Relief for Cause report.  

8.  In the opinion of the Board, the fact that Part Ve contains the entry “senior rater does not meet minimum qualifications” further supports the applicant’s contention that the rater was unduly influenced to change his initial change of rater report to a Relief for Cause report by the chain of command.  Had the contested report been submitted as a change of rater report, as initially intended by the rater, the entry “senior rater does not meet minimum qualifications” in Part Ve would have been a correct entry.  However, it is clearly incorrect in the Relief for Cause report submitted.  

9.  The evidence of record also confirms that the applicant was relieved of his duties as a platoon sergeant on the same day that he was counseled of the commander’s intent to relieve him from his duties if he did not improve his performance of duty within 45 days.  The Board finds that this clearly shows that his chain of command was acting arbitrarily in trying to meet the regulatory processing requirements for a Relief for Cause report that they clearly had not complied with.  

10.  Based on the two sole negative comments contained in the contested report, it appears to the Board that the report in question was based on an isolated incident of the applicant not treating a soldier with dignity and respect.  However, in the opinion of the Board, the rating officials failed to comply with regulatory guidance that requires a full explanation of the reasons for relief be provided in the report.  Further, the Board finds that the generally good ratings and favorable narrative comments provided in the contested report fail to support a Relief for Cause report.  Thus, the Board finds that based on the failure of rating officials to fulfill their regulatory responsibilities in rendering this report, and the lack of supporting evidence to justify the report, it would be appropriate, in the interest of justice and equity, to remove the contested report from the applicant’s record at this time. 

11.  The evidence of record also confirms that as a result of a successful appeal, the commander who imposed the 15 October 1986 NJP on the applicant significantly modified the punishment.  He remitted the forfeiture portion and
set-aside the reduction portion of the NJP.  In addition, the Board finds that given 16 years have passed since the NJP was imposed, it has served its intended purpose.  In view of these facts, the Board finds that it would serve the interest of justice and equity to remove the record of NJP from the applicant’s OMPF at this time. 
12.  As a result of the decision to recommend that the NCOER and NJP action in question be removed from the applicant’s record, the Board also finds that it would be appropriate, once the contested NCOER and DA Form 2627 are removed, for the applicant’s corrected record to be placed before a promotion Stand-By Advisory Board (STAB), for promotion reconsideration.  STAB reviews should include reconsideration using the criteria used by all master sergeant promotion selection boards that considered the applicant for promotion while the contested NCOER was on file in his OMPF.  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 by removing the Record of Proceedings Under Article 15, UCMJ (DA Form 2627), imposed on 15 October 1986, and the NCOER with the ending date of January 1999, from the OMPF of the individual concerned; by declaring the period of service covered on the NCOER a nonrated period of service; and by placing his corrected record before a STAB, in order for him to be reconsidered for promotion using the criteria of every master sergeant promotion selection board that considered him for promotion while the NCOER and NJP action were on file in his OMPF.  

BOARD VOTE:  

_ _SAC  _  __RWA_  ___HOF__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Samuel A. Crumpler    _
		        CHAIRPERSON

INDEX

CASE ID	AR2002077427	
SUFFIX		
RECON		
DATE BOARDED	2002/11/26	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  1034	126.0600	
2.  193	111.0000	
3.		
4.		
5.		
6.