PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 March 2003
	DOCKET NUMBER:   AR2002077811

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Thomas A. Pagan		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John A. Kelley		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 the removal of a noncommissioned officer evaluation report (NCOER) covering the period of August 1996 through April 1997 from his Official Military Personnel File (OMPF) and promotion reconsideration to the pay grade of E-8.

3.  The applicant states, in effect, that the evaluation of his performance and potential was not a fair and impartial evaluation and was based on personal bias by his rater.  He further states that the documents he submits with his appeal show the personal bias that was prevalent during the rating period and is especially prevalent in the security investigation where his rater stated that she did not like him.  He also states that from the very beginning, when he and his team were attached from their unit in Germany to a unit in Bosnia, he and his team encountered resistance, a lack of support and acceptance.  At the time of his arrival he was informed that his rater would be a warrant officer one (WO1); however, months later he was informed that his rater was a second lieutenant (2LT).  To further complicate matters, he received no guidance or counseling from his rating chain until after he had been there several months and then it was in the form of criticism.  He continues in a lengthy appeal packet to state that he received numerous indicators in the form of certificates that his performance was outstanding and his NCOER contradicts those indicators.  He goes on to state that his primary focus during the period in question was the safety of his soldiers and the successful accomplishment of his mission.  Despite the efforts of his rater, he was able to successfully accomplish his mission and ensure the safety of his soldiers.  However, in many instances, it required him to seek guidance and assistance from outside his immediate chain of command and use his resourcefulness to obtain what his team needed to accomplish its mission.  He also states that he has had a record of successful accomplishment throughout his career and it was not until he was nonselected for promotion did he realize the impact the NCOER was having on his career.  In support of his application he submits numerous letters of support as well as documents in support of his contentions and copies of his NCOERS. 

4.  The applicant’s military records show that he enlisted on 9 January 1986, for a period of 4 years, training as an electronic warfare signal intelligence voice interceptor (linguist), a cash enlistment bonus and the Army College Fund.  He successfully completed his training and has remained on active duty through a series of continuous reenlistments.  He subsequently reenlisted for training as a counterintelligence agent and was promoted to the pay grade of E-7 on 1 December 1995.

5.  On 18 October 1996, while serving in a Military Intelligence Group in Germany, the applicant was deployed to Bosnia-Herzegovina for duty as a team leader of a six-person team for a forward deployed force protection team in direct support of a task force during Operation Joint Guard.  He was attached to a military intelligence battalion at that location during his duty in Bosnia.  He was responsible for the health, welfare, training and discipline of his team, which was responsible for collecting, disseminating, reporting force protection information and supervising liaison meetings with senior Bosnian Serb and Bosnian Croat political, military and police officials.  He served in Bosnia until 1 May 1997, when he was returned to his unit in Germany.  He received an Army Commendation Medal and three Certificates of Achievement for outstanding performance as the Force Protection Team Leader during his assignment in Bosnia.

6.  On 16 May 1997, he received a change of rater NCOER covering the period from August 1996 through April 1997.  It covered 5 rated months and evaluated him as a force protection team leader in Bosnia.  In part V a, under performance and potential, the applicant's rater (a 2LT) gave the applicant a rating of fully capable.  The senior rater (SR), who was a captain and the company commander, gave the applicant ratings of successful (2) under both performance and potential.  The SR's supporting comments indicate that the applicant should be promoted with his peers, that he possesses the potential to succeed as a senior leader, that he needs to improve his ability to use his chain of command and that he should be assigned to multi-disciplined tactical intelligence units to foster professional growth and development.  Additionally, the NCOER indicates that the initial counseling was conducted on 17 December 1996 and a subsequent counseling was conducted on 9 February 1997.  The report was not deemed adverse and as such was not referred to the applicant. 

7.  A review of the applicant's NCOER history shows that the contested report is the lowest evaluation he has ever received.  His OMPF also reveals no derogatory information and further shows that he has served five tours in Germany for a total of 13 years and 8 months.  He has also served in operational support in both Bosnia and Croatia for a total of 10 months.  His records also show that he has a Masters Degree in Human Relations and that he has consistently maintained the highest German language proficiency score possible to achieve (3/3).

8.  One of the incidents most notable in this case is that the applicant was ordered by his rater in late November 1996, at approximately 1600 hours, to conduct a vulnerability assessment (VA) for bases soon to close in the Gradacac area, an area approximately 1 hour from the applicant's area and out of his area of responsibility.  At the time, there was a four-vehicle rule of departure from the compound, meaning that only convoys of four vehicles could leave the compound.  The applicant's team only had one vehicle.  Additionally, the area which required the VA was known to be mined and the vehicle did not posses the required Kevlar blankets for travel into such areas and no members of the applicant's team had ever been to the area.  The applicant consulted with the two most experienced personnel regarding VA in Bosnia and both advised against it, especially since a VA has to be done in daylight.  They communicated this to his rater along with his objections and he was told it had to be done.  The applicant then proceeded to contact the next operational command who informed him that the conduct of a VA was unnecessary during the time-frame.  The applicant was subsequently reprimanded/counseled by the rater for his use of the operational chain of command and questioning her authority.  This information is corroborated by several supporting statements.

9.  A supporting statement from the applicant's battalion commander of his assigned unit in Germany during the period in question indicates that the commander began to receive feedback shortly after his soldiers deployed to Bosnia that personality conflicts were developing between members of the attached battalion in Bosnia and his soldiers.  He goes on to state that it appeared that his soldiers were not well received or regarded and that there appeared to be an unhealthy rivalry.  He also states that his battalion sergeant major (SGM) and the group command sergeant major (CSM) felt the need to investigate the matter in person and did so.  He continues by stating that while he was not privy to the applicant's performance record, he had first hand knowledge of the applicant's performance in Germany and the evaluation is out of character for what he believes is one of the finer counterintelligence agents and noncommissioned officers in the Army.  

10.  A supporting statement from the group CSM indicates that the collection battalion sergeant major brought to his attention issues concerning the treatment and employment of the Force Protection Team by the attached unit.  As a result, he and the SGM went to Bosnia to address the issues with command elements of the attached battalion.  He goes on to state that he found a prevailing command rivalry existed, which amounted to a premise by the attached unit (a tactical unit) that the applicant and his team, as well as any other members of the Military Intelligence Group in Germany, were suit-wearing, non-tactical soldiers assigned at the Echelon Above Corps level.  He continues by stating that he discussed the issues involving the applicant and they painted a picture of the applicant that was indicative of willful misconduct and insubordination.   

11.  The CSM goes on to state that he asked for specific instances that supported such an appraisal and was offered weak or inconclusive evidence.  In all of his discussion with the applicant's rater, he felt that the applicant had conducted himself in an appropriate and professional manner with mission accomplishment and soldier safety utmost in mind.  During the discussion, the rater showed the CSM an NCOER (draft) she intended to submit on the applicant, which contained at least four "Needs Improvement" ratings.  After lengthy discussions with the applicant's chain of command, he (the CSM) told the chain of command that they had painted the exact opposite picture of the applicant's performance and while the rater might consider the applicant to be argumentative, hindsight had proven merit in the applicant's position and process.  What was perceived as improper use of the chain of command was in fact, prudent use of both command and operational channels to ensure soldier safety and mission accomplishment.  In other words, the applicant's assessment of the situation had been correct in each instance.  The CSM indicated that the CSM of the attached unit assured him that the situation would be monitored and that he would ensure that attached personnel were being properly treated.

12.  The applicant has submitted several other letters of support from individuals who were present during the contested period and all serve to support the applicant's contentions.

13.  The applicant has also submitted a copy of a Department of Defense (DOD), Defense Investigative Service (DIS) investigation conducted for the applicant's security clearance.  During the process of the investigation, the applicant's rater during the contested report was interviewed and she stated that she personally did not like the applicant.  She also stated other things such as his failure to properly utilize the chain of command.

14.  The applicant appealed the NCOER to the Enlisted Special Review Board (ESRB) on 1 July 2002 and the ESRB declined to accept his appeal because it was not submitted within 5 years of the ending date of the NCOER as required by the applicable regulation.

15.  A review of the Officer Record Brief of the applicant's rater of the contested NCOER shows that she was commissioned as a second lieutenant on 3 June 1995 and upon completion of the Military Intelligence Officer Basic Course, she was transferred to Germany on 13 March 1996.  On 18 October 1996, she was deployed with her unit to Bosnia.  She was promoted to the rank of first lieutenant on 24 June 1997 (a month after the applicant departed).  On the date she deployed to Bosnia, she had 1 year and 4 months in service, of which 7 months had been spent in Europe.  On that same date, when the applicant deployed to Bosnia, he had 11 years of service of which over 6 years had been spent in Europe.

16.  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. 

17.  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. 

18.  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 contested NCOER is not considered an adverse report within the guidelines of the applicable regulation, it is the lowest rating the applicant has received to date and is not especially complimentary of his performance or potential, when compared to the remainder of his evaluation reports.

2.  A review of the evidence submitted by the applicant, as well as the evidence of record, tends to support the applicant's contention that the contested report does not accurately reflect his performance and potential during the period in question.  This is especially true given the awards he received during the contested period.

3.  The Board finds the supporting letters from the parent unit battalion commander and group CSM to be especially significant in supporting the applicant's contention that his rater did not like him and that he was not receiving the support he needed.  This is further corroborated by the rater's admission to DIS investigators.

4.  The Board also finds that the evidence in this case suggests that the applicant was placed in a position where he was the most experienced person on the ground in an area where experience was tantamount to the safety of soldiers and successful accomplishment of the mission.  However, he was attached to a unit where he was not the senior leader and recognized that mistakes were being made by the senior leader (his rater), who was also the least experienced.  His actions in that situation indicate that he took appropriate steps to ensure the safety of soldiers rather than worry about how his actions would be perceived by his rater.  In short, it appears that he took the route of the hard right over the easy wrong.  In doing so, it appears that he received a mediocre evaluation report for his efforts.

5.  It is a well-known fact that promotion selection boards do not disclose the basis for selection or nonselection; therefore, the Board cannot nor will it attempt to second guess why the selection boards have not selected him for promotion.  However, the Board does find that the contested NCOER should be removed from his records and he should be afforded promotion reconsideration by all promotion selection boards that viewed the contested NCOER and failed to select him.
6.  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 NCOER for the period of August 1996 through April 1997 from the OMPF of the individual concerned and that he be afforded promotion reconsideration (Special Selection Board) by all boards that viewed the NCOER and failed to select him for promotion.  In the event he is selected, he is entitled to all back pay and allowances associated with a retroactive promotion. 

BOARD VOTE:  

___tap __  ___ra ___  ___jak __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Thomas A. Pagan____
		        CHAIRPERSON

INDEX

CASE ID	AR2002077811	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/03/13	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  221	111.0005/VOID NCOER	
2.  320	131.1000/PASSOVR	
3.		
4.		
5.		
6.