APPLICANT REQUESTS That three non-commissioned officer evaluation

							ABCMR                                       Memorandum                                        of
AC97-08811
Consideration (cont)

APPLICANT REQUESTS: That three non-commissioned officer evaluation reports
(NCO-ERs) be removed from his records and that his reentry code be changed from RE-4
to RE-3.

APPLICANT STATES: In effect, that he was abused, badgered and threatened with relief
for cause by one commander. He feels that statements in his NCO-ERs are unfair and
that his NCO-ERs were re-prepared and he was forced to re-sign them. He also states that
he was unfairly removed from the Army. The applicant submits a hand receipt, two
third-party statements and an Inspector General Action Request in support of his
application.

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

He enlisted in the Regular Army on 23 November 1982. He was
trained as a unit supply specialist and continued to serve on active duty. He was promoted
to pay grade E-6 effective 1 November 1992.

At the time of the first contested NCO-ER (September 1989 through August 1990), he was
serving as a supply sergeant, pay grade E-5, with the Reserve Officer Training Corps
(ROTC) Cadet Command with duty at Eastern Illinois University.

The first contested NCO-ER is an annual report for a 12-month period. It contains two
“success” ratings and two “needs some improvement” ratings in part IVa. The applicant
questions the comments “Needs improvement in specific task accomplishment” and
“Needs to improve organization skills,” as his test scores on two individual soldier’s reports
he took during this period were 85 and 83, respectively. However, the NCO-ER also
contains the comment “Marginal satisfactory in Supply Assistance Visit,” which the
applicant does not question and which may have led the rater to feel the applicant needed
improvement in the other two noted areas. The rater also marked the applicant’s overall
potential for promotion as “marginal;” the senior rater marked his overall potential as “fair.”

At the time of the second contested NCO-ER (April through September 1993), a change of
                                                                                          st
rater report for a 6-month period, the applicant was the supply sergeant for Company C, 1
              th
Battalion, 27 Infantry, Schofield Barracks, HI. It contains four “success” ratings and one
“needs some improvement” rating. The rater marked his overall potential for promotion as
”marginal;” the senior rater marked his overall potential for promotion as “fair.”

The applicant claims the second contested report was changed after he had signed it.
The negative reports on the signed NCO-ER attached to the application were: “lost control
of $1,800 worth of MILES equipment inside the unit supply room for five days;” failed to
follow specific guidance regarding supply room accountability after being directed to do so;”


                                               2
ABCMR                                      Memorandum                                       of
AC97-08811
Consideration (cont)

and, from the senior rater, “had difficulty organizing company supply room.” Insubstantial
changes were made to the final signed NCO-ER on file in his Official Military Personnel
File. The first comment noted above was changed to “lost control of unit equipment inside
the unit supply room on three occasions.” Part III, Duty Description, was changed from a
generic supply sergeant description to a more specific description, i.e., noting supervision
of three soldiers, mentioned the dollar amount of property for which accountable. The first
two words in part IIId were dropped and the second mentioned counseling date was
changed and a third date was added.

It should be noted that the rated NCO’s authentication verifies the administrative information
in parts I and II and confirms the accuracy of the Army Physical Fitness Test and
height/weight data entries. Correction of minor administrative errors seldom serves as a
basis to invalidate an NCO-ER. Removal of a report for administrative reasons will be
allowed only when circumstances preclude correction of errors and then only when
retention of the report would clearly result in an injustice to the NCO. Appeals based solely
on the lack of full compliance with performance counseling requirements will also not
normally serve as a basis to invalidate an NCO-ER.

At the time of the third contested report (April through June 1994), a relief for cause
NCO-ER for a three month period, the applicant was the supply sergeant for Company A,
 st              th
1 Battalion, 27 Infantry, Schofield Barracks, HI. It contains three “success,” one “needs
some improvement” and one “needs much improvement” ratings. The rater marked his
overall potential for promotion as ”marginal.” The senior rater marked his overall
performance as “poor” and his overall potential for promotion as “fair.”

The applicant claims changes were made to this report after he had signed it. The
NCO-ER he signed showed an erroneous report period of April 1993 through June 1994.
The negative comments on this report were numerous. The report was changed to show
the correct report period; this report the applicant refused to sign. Changes included
adding the comment “the rated NCO has been notified of the reason for the relief” in part
IVf, expanding upon one negative comment in part IV and adding one negative comment to
part Va.

Evidence in the records also shows the applicant received an NCO-ER for the period June
1991 through May 1992 which gave him three “success” and two “needs some
improvement” ratings, the rater marking his overall potential for promotion as “marginal,” the
senior rater marking his overall performance as “poor” and his overall potential for promotion
as “fair.” The applicant does not contest that report.

Two NCO-ERs under the previous evaluation system (from August 1987 through August
1988) show almost all top marks. The first NCO-ER under the present system (September


                                              3
ABCMR                                      Memorandum                                       of
AC97-08811
Consideration (cont)

1988 through August 1989) shows mostly “excellent” and “superior” ratings plus a rater
overall potential for promotion rating of “among the best.” The remaining four NCO-ERs
on file indicate average ratings - all “success” ratings, “fully capable” rater promotion
potential ratings, and low “successful” and low “superior” senior rater ratings.

There is no evidence the applicant ever requested a commander’s inquiry after receiving
any of the three contested NCO-ERs, nor is there evidence he ever appealed these
NCO-ERs.

The two statements of support provided by the applicant are apparently from the battalion
and brigade level S-4 non-commissioned officers in charge. They were part of his appeal
of his DA-Imposed Bar to Reenlistment and state solely: “I concur with SSG Horne’s
statement.” No further elaboration is given.

The hand receipt he includes to support his claim that he did not lose the equipment that
resulted in his relief for cause NCO-ER covers the period 31 March through 1 May 1994.
However, the NCO-ER in question is dated 28 June 1994, outside of the period covered by
the hand receipt.

The applicant includes his inspector general action request, but not the results of any
investigation that resulted.

Army Regulation 623-205 establishes the policies and procedures for the NCO-ER system.
 Paragraph 4-2 states that an NCO-ER accepted for inclusion in an NCO’s OMPF is
presumed to be administratively correct, to have been prepared by the properly designated
rating officials and to represent the considered opinion and objective judgment of the rating
officials at the time of preparation. Paragraph 4—7 of that regulation also states that the
burden of proof in an NCO-ER appeal rests with the applicant. Accordingly, to justify
deletion or amendment of an NCO-ER under the regulation, the applicant must produce
evidence that clearly and convincingly overcomes the presumptions referred to above and
that action to correct an apparent material error or inaccuracy is warranted.

On an unknown date, the applicant received a Headquarters, Department of the Army (DA)
Imposed Bar to Reenlistment under the Qualitative Management Program (QMP). On 19
March 1996, the applicant’s appeal to the Bar was disapproved.

On 30 July 1996, the applicant was discharged, in pay grade E-6, under the provisions of
Army Regulation 635-200, paragraph 16-8, which directed the early release of soldiers with
a QMP bar to reenlistment when budgetary or authorization limitations require a reduction in
enlisted strength. He received a Reentry Code of RE-4, not eligible for
enlistment/reenlistment, based upon his having a DA-imposed bar to reenlistment.


                                              4
ABCMR                                       Memorandum                                         of
AC97-08811
Consideration (cont)


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. 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 tat would satisfy the
aforementioned requirement.

2. The applicant has not shown, and it does not appear to the Board, that the rating
officials’ evaluations represented other than their objective judgment or considered opinion
at the time. Furthermore, the contested reports are representative of at least one other
NCO-ER rating received by the applicant.

3. The evaluation process recognizes that, in developing an NCO-ER, it is possible to go
through several revisions before arriving at the final product. Rating officials have the right
to make necessary changes to reports before being officially filed at DA. The applicant’s
contention that the initial reports he signed were not the ones that were filed at DA is not
unusual. In any event, the applicant did sign the final version of the second contested
report, and the third had an appropriate entry of “NCO refuses to sign.”

4. Minor administrative errors do not provide a basis to invalidate an NCO-ER unless
retention of the report would clearly result in an injustice to the NCO. The applicant has
not shown that the two NCO-ERs that apparently were changed are substantially different
from the reports as originally written.

5. As regards the applicant’s request to change his reentry code, he was separated and
assigned a reentry code in accordance with regulations then in effect so there is no basis to
change it.

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


                                                5
ABCMR                              Memorandum         of
AC97-08811
Consideration (cont)


                       DENY APPLICATION




                                   Loren G. Harrell
                                   Director




                                     6