APPLICANT REQUESTS: In effect, removal of an enlisted evaluation report (EER) covering the period November 1985 through September 1986 and continuation on active duty in the Active Guard Reserve (AGR) program.

COUNSEL CONTENDS : In a comprehensive statement, he explains the facts and circumstances that occurred regarding the applicant. He states, in effect, that the contested EER was based on a finding of sexual misconduct on the part of the applicant, which was later established as false. Therefore, in the interest of justice and fairness, the contested EER and all references to the sexual misconduct should be removed from the applicant’s official military record. He alleges that, if the 12 September 1986 decision by the Commander, Headquarters (HQ), U.S. Army Recruiting Command (USAREC), to relieve the applicant and the contested EER had been properly removed from his record, the applicant would never had been considered for elimination by the 1989 or 1992 AGR Continuation Boards, and would have remained on active duty. However, even if the Board determines that the adverse entries should not be removed, the decision of the 1992 AGR Continuation Board to separate the applicant was made in violation of Army Regulation 635-200, paragraph
1-19b(3), double jeopardy concept. The 1989 AGR Continuation Board reviewed the applicant’s entire record, including the two adverse entries, and made a final decision to retain him. The conduct found to be disqualifying by the 1992 AGR Continuation Board was the same conduct that was previously considered by the 1989 AGR Continuation Board in which they concluded that such conduct was not sufficient to warrant separation. Therefore, he alleges that the decision of the 1992 AGR Continuation Board to separate the applicant based exclusively on the same adverse entries previously considered by the 1989 AGR Continuation Board is in clear violation of Army Regulation 635-100, paragraph 1-19, which prohibits double jeopardy.

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



The applicant was born on 31 July 1949. He completed 10 years of formal education. His Armed Forces Qualification Test score was 90 (Category II). He was inducted and served on active duty from 14 December 1970 through 23 July 1971, when he was discharged by reason of hardship. On 31 October 1975, he enlisted in the U.S. Army Reserve (USAR), in pay grade E-3, for 1 year. He remained in the USAR through subsequent extensions and reenlistments until his discharge on 4 March 1993. On 28 September 1981, he was ordered to active duty in an AGR status for 3 years.

A statement, dated 12 September 1986, by the Commander, HQ, USAREC (a major general), indicates that he had reviewed the report of investigation (ROI), dated 23 July 1986, concerning alleged dishonest and unethical recruiting practices; that he had determined that the preponderance of the evidence in the ROI established that the applicant was derelict in the performance of duty by processing an ineligible applicant without verifying her eligibility, despite having processed her husband for enlistment into a troop program unit (TPU) the previous month and despite knowing she had dependent children; that the applicant also engaged in adultery with two women who were both pending military training; that such conduct by the applicant was in violation of Army Regulation 600-50 and Articles 92 and 134, Uniform Code of Military Justice (UCMJ); that the compromise of his personal integrity and professional ethics rendered the applicant unsuitable for recruiting duty; and that the applicant had been notified of the reason for his relief.

A Memorandum for Record, dated 15 October 1986, by a Defense Counsel, indicates that one of the previously mentioned women stated that she desired to retract her previous statements about the applicant; that the allegations regarding the applicant were not truthful; that she made the allegations at the insistence of her husband; that the statement given on 7 July 1986 was not true; and that she expressed that fear of her husband and the repercussions of her false allegations prevented her from coming forward before.

A sworn statement, dated 15 October 1986, by the previously mentioned woman indicates that the statement which she made on 7 July 1986 was not true; that, at the time, her husband was threatening her life; that, since then, she had filed for divorce and was granted a restraining order; that, with the fear of her husband gone, she wished to make amends of the mess the investigation had caused; and that she regretted any hardships her false accusations had caused.

In another sworn statement, dated 21 October 1986, the same woman indicated, in effect, that the applicant did not tell her to lie about her husband being in a TPU; that no one asked her whether her husband was in the Individual Ready Reserve rather than a TPU; that the applicant never tried to kiss or touch her; that she never had sex with the applicant; that the anonymous letter, which she prepared to send to the 123d “USARCOM” Inspector General, was a lie; and that her husband had her write it even though it was not true.

On 13 January 1986 (sic) (actually was 1987), the same woman wrote to the Commander, USAREC, indicating, in effect, that the actions taken against the applicant were unfair and not justified; that she did not take part in any sexual happenings with the applicant; that the statements that she made were forced on her by her husband; that he wanted to go back into the Regular Army, but was unable to because of trouble that he caused while he was in before; that he blamed the applicant for it; that her husband was on a personal vendetta against the applicant and forced her into making the statements; that, after making her original statements, she asked several officers in the USAREC if she could retract her statements against the applicant; that she was told that, if she did, she would be prosecuted by the Army for purgery and punished under the UCMJ; that, during her processing for enlistment, the applicant was always truthful and helpful; that he explained to her and her husband about the dependency requirements; that he told her husband that, if he went back into the inactive reserves, she would be able to enlist into the USAR; that her husband told her that he had talked to his commander; that her husband stated that he was transferring back to the inactive reserves, and that he was no longer a member of his unit; that she did not know until a later date that her husband had not transferred back to the inactive reserve; that the people at the Military Entrance and Processing Station in Indianapolis never asked her any questions concerning her husband; and that she was sorry for the mess that her false statements had caused.

The contested EER was a relief for cause EER while the applicant (a sergeant first class) was assigned as a USAR recruiter to the U.S. Army Recruiting Battalion, Indianapolis, Indiana, with duty at the Delaware Recruiting Station. The rater indicated that the applicant was relieved because of recruiter impropriety; that the applicant had on occasion done an outstanding job towards his mission accomplishment; that his ability to convey the Army’s image throughout the community and his assigned recruiting area had been outstanding; that the applicant had on every occasion displayed dependability, loyalty, and sound judgment; that, unfortunately, during a recent recruiting impropriety investigation, he was found to be guilty of not exercising those traits; that the applicant’s young career would have a temporary setback by that action; however, he was confident that there was a lesson learned by that experience and the applicant would continue the path of professionalism that he had started; that the applicant was a winner and would not quit until the mission had been accomplished; that the applicant was truly a dedicated professional and excellent soldier; and that the applicant had been informed of his relief. The rater recommended that the applicant be promoted ahead of his peers; that the applicant attend “ANCOES” for future career development; and that the applicant be continued on AGR status. The EER was mailed to the applicant on 13 February 1987.

A 4th Endorsement, dated 8 April 1987, from the Chief, Personnel Division (a colonel), HQ, Department of the Army (DA), Office of the Chief, Army Reserve (OCAR), to the Commander, U.S. Army Reserve Personnel Center, indicates that the request for involuntary release from the AGR program was disapproved; that, although the applicant was ineligible for further duty as a recruiter, per Army Regulation 601-1, documentation submitted did not substantiate release from active duty; that a review of the documentation submitted suggested that the allegations made against the applicant could have been false; that, based on the conflicting evidence and the chain of command’s recommendation, the applicant would be reassigned from recruiting duty to another AGR position; that the applicant’s personnel file indicated that he was a qualified 11B4X; and that it was recommended that the applicant be reassigned expeditiously.

A Memorandum, dated 15 August 1989, from the OCAR, Full Time Support Management Center, advised the applicant that the CAR, directed that an AGR Continuation Board be convened on 4 December 1989 to consider enlisted soldiers for continuation in the AGR program; that personnel appearing before that board had been referred by the Enlisted Promotion Board, which was tasked to identify soldiers for possible elimination from the AGR program; and that he had been identified by the 1989 Promotion Board for consideration by the AGR Continuation Board.

A roster of enlisted personnel recommended for continuation in the AGR program, dated December 1989, listed the applicant’s name.

The applicant received the Good Conduct Medal for the period 28 September 1987 through 27 September 1990, the Army Commendation Medal (Second Oak Leaf Cluster) for the period 1 October 1987 through 30 September 1990, the Army Achievement Medal for the period 3 through 24 September 1988, and the Meritorious Service Medal for the period 15 February through 15 June 1991.

The following is a record of the applicant’s available EERs/noncommissioned officer evaluation reports (NCOER) [i.e., DA Form(s) 2166-6 and DA Form(s) 2166-7]: Note that, for DA Form(s) 2166-6 only, the average score is shown with 125 being the maximum score achievable. Also, note that, for DA Form(s) 2166-7, the rating system depicted below is limited to three entries: the first entry is derived from Part Va (the rater’s rating of the NCO’s overall potential for promotion and or service in positions of greater responsibility), expressed in Roman numerals, with “I” (Among the Best) the highest and “III” (Marginal) the lowest; and the last two entries are derived from Part Vc (the senior rater’s (SR) rating of the NCO’s overall performance) and Part Vd (the SR’s rating of the NCO’s overall potential for promotion and or service in positions of greater responsibility) respectively, also expressed in Roman numerals, with “I thru III” indicating a rating of “Successful/Superior”, “IV” indicating a rating of “Fair”, and “V” indicating a rating of “Poor.”

                                                                                 Score/
         Period    Type Report       Rank              Rater/SR

Jul 75-Aug 76    Annual                     E-4               87
Nov 80-Sep 81    Change of Rater  E-7               125
Oct 81-Sep 82    Annual                     E-7               121*
Oct 82-Sep 83    Annual                     E-7               125
Oct 83-Jul 84    Change of Rater  E-7               125
Jul 84-Oct 85    Annual                     E-7               122**
Nov 85-Sep 86    Relief for Cause         E-7               123***
Oct 86-Sep 87    Annual                     E-7               119.5****
Oct 87-May 88    Final                      E-7               114*****
Jun 88-May 89    Annual                     E-7               I/II/II
Jun 89-Nov 89    Complete the Record      E-7               I/I/I
Dec 89-Sep 90    Change of Rater  E-7               I/I/I
Oct 90-Sep 91    Annual                     E-7               I/I/I
Oct 91-Sep 92    Annual                     E-7               I/I/I******
Oct 92-Feb 93    Change of Rater  E-7               I/I/I
__________
*The indorser stated that the applicant’s performance at the beginning of the rating period was judged to be outstanding; that, as time progressed, his performance had slipped down; and that he had the ability to do better, but somehow a lot of his work required some correction and follow-up.
**The rater stated that the applicant had, on occasion, done an admirable job. The indorser stated that the applicant had occasionally done an outstanding job as a U.S. Army recruiter; and that he possessed limited experience, but had rapidly grasped the essential techniques necessary for success and employed those tools to considerable advantage.
***This was the contested EER.
****The rater stated that, during his assignment with Operations, the applicant, at times, found it very difficult to adapt to working in the Battalion Operations Section; that, even through this difficult time, the applicant still tried to demonstrate his professionalism through his technical skills as an administrative assistant; and that the applicant had performed his duties in a satisfactory manner, but needed to more diligently strive to fulfill his potential as a professional NCO. The indorser stated that the applicant performed various miscellaneous duties in a generally average to acceptable manner; and that the applicant needed to more fully demonstrate his integrity and loyalty.
*****The rater stated that, upon arrival, the applicant appeared to be outstanding; that his performance, however, was not what was expected of a senior NCO; that the applicant had the ability to improve his performance; and that the applicant had on occasion done an outstanding job towards accomplishing the unit’s mission. The indorser stated that the applicant had on occasions performed certain tasks in an outstanding manner; that the applicant was aware of his duties and responsibilities, but failed to manage his time effectively to complete needed tasks; and that the applicant had on occasions been insubordinate and failed to display the degree of responsibility indicative of a senior NCO.
******The reviewer (a colonel) nonconcurred with the SR’s (a lieutenant colonel) evaluation of the applicant. He indicated that, while he agreed in the main with the comments and the report, he disagreed with the SR’s assessment of the applicant’s potential. He believed a more accurate assessment of his potential would place the applicant in block number 2.
__________


A Memorandum, dated 15 April 1992, from the OCAR, Full Time Support Management Center, advised the applicant that the CAR, directed that a USAR AGR Continuation Board be convened on 22 June 1992 to consider enlisted soldiers who had been referred by Enlisted Promotion Boards; that the board identified those soldiers whose records contained substantial evidence that a significant act of misconduct, or moral or professional dereliction had been committed and/or their degree of efficiency and manner of performance were below the level of their contemporaries; and that the Master Sergeant/Sergeant Major Promotion Board referred him for consideration by a USAR AGR Continuation Board. He was further advised of his right to submit missing documents from his record and to submit a statement in his own behalf.

A 1st Endorsement, dated 21 August 1992, forwarded the results of the 22 June 1992 AGR Enlisted Continuation Board to the applicant’s command. It indicated that the applicant was not recommended for continuation in the AGR program, and that the applicant would be given a letter of acknowledgment for his acknowledgment/action as appropriate, which was to be returned.

Subsequent to the decision by the 1992 AGR Continuation Board, requests for reconsideration of the applicant’s separation were submitted by USAR individuals, to include the Commander, HQ, 91st Division (Training) (a major general), the Commander (a lieutenant colonel), the Executive Officer (a major (promotable)), the Chief, Processing and Control Division (a major), the Command Sergeant Major, and the Chief Processing NCO (a sergeant major) of the 6219th U.S. Army Reception Battalion, and the Manager, U.S. Army Training and Doctrine Command AGR USAR Liaison NCO Program (a sergeant major). All of the statements were highly commendatory of the applicant.

Orders indicate that the applicant was initially scheduled for separation on 4 December 1992; however, it was changed to 4 March 1993.

Facts relating to the applicant’s counsel’s contention that the contested EER should be removed from the records are contained in the opinion (COPY ATTACHED) by the Enlisted Special Review Board (ESRB) in the Office of the Deputy Chief of Staff for Personnel (ODCSPER), which is incorporated herein and need not be reiterated. The opinion of the ESRB was that there is no basis to grant the applicant’s request for appeal.

Facts relating to the applicant’s counsel’s contention that the applicant should not have been removed from the AGR program and separated are contained in the opinion (COPY ATTACHED) by the OCAR, which is incorporated herein and need not be reiterated. The OCAR opined that the applicant was properly removed from active duty. Denial of his request was recommended.

Facts relating to the applicant’s counsel’s contention that the determination to deny the applicant continued service in the AGR program, pursuant to the approved recommendations of the June 1992 USAR AGR Enlisted Continuation Board, violated the “double jeopardy” provisions of Army Regulation 635-200, paragraph 1-19b(3), are contained in the opinion (COPY ATTACHED) by the ODCSPER, which is incorporated herein and need not be reiterated. The ODCSPER opined that there was no basis to grant any measure of relief.

In a comment (COPY ATTACHED) to the Board, which is incorporated herein and need not be reiterated, the Office of The Judge Advocate General (OTJAG), DA, opined, in effect, that the consideration by the AGR Enlisted Continuation Board of the contested report did not violate the provisions of Army Regulation 635-200, paragraph
1-19b(3), and the recommendation of the DCSPER ESRB that the applicant’s belated appeal of the contested report be denied is not legally objectionable.

On 28 May 1996, copies of the advisory opinions from the OCAR, the ODCSPER, and the OTJAG, and the case summary from the ESRB, pertaining to the applicant’s case were furnished
the applicant and his counsel for information and possible rebuttal. No rebuttal was received from the applicant or his counsel.

Army Regulation 623-205, then in effect, established the policies and procedures for the preparation and submission of EERs for soldiers in pay grades E-5 and above. Paragraph
4-1 provided that an evaluation report was presumed to be correct when accepted for inclusion in the Official Military File (OMPF). Paragraph 4-2 of that regulation stated that the burden of proof in an appeal of an EER rested with the applicant. Accordingly, to justify alteration or removal of a report, the applicant had to produce evidence that established clearly and convincingly that the presumption of regularity should not be applied to the report under consideration, and that action was warranted to correct administrative error or inaccurate or unjust evaluations.

Army Regulation 635-200, at paragraph 1-19b, provides that separation under Army Regulation 635-200 normally should not be based on conduct which has already been considered at an administrative or judicial proceeding and disposed of in a manner indicating that separation was not warranted.

DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, 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 that would satisfy the aforementioned requirement.

2. The Board notes that an Army Regulation 15-6 investigation was conducted, and that the applicant did not respond within the 90 day limit to the results of the investigation. The Board concludes that, if the applicant was innocent as he alleged, he would have submitted a timely rebuttal to that investigation.
3. Despite the retracted statements regarding sexual relations with the applicant from two female individuals, the evidence of record supports the applicant’s sexual misconduct. Therefore, the Board is not convinced that he was not having sexual relations with women other than his spouse.

4. Based on the available evidence, the Board concludes that the applicant committed improprieties in connection with the recruiting of one individual by not verifying her spouse’s status in the USAR, which was contrary to USAREC policy. This incident alone was sufficient for the applicant’s relief for cause and the adverse EER.

5. The applicant has not shown that the contested report contains any serious administrative deficiencies or was not prepared in compliance with applicable regulations and policy.

6. The applicant has not shown that the rating officials’ evaluations represented other than their objective judgment and considered opinions at the time they prepared the contested EER, or that they exercised faulty judgment in evaluating him as they did.

7. Cognizance is taken of the supporting statements furnished on behalf of the applicant. While the third party statements are complimentary to the applicant, the persons submitting it did not occupy vantage points similar to the rating officials and was not privy to the interaction between the applicant and the rating officials, or the requirements and expectations of the rating officials.

8. The Board is aware of the applicant’s EERs/NCOERs prior and subsequent to the contested EER. However, an EER must be an independent evaluation of the rated NCO for a specific rating period.



9. The contested report 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 removing it from his OMPF.

10. The applicant’s release from active duty was as a result of his consideration by an AGR Enlisted Continuation Board. Therefore, the provisions of Army Regulation 635-200, paragraph 1-19b, do not apply.

11. In view of the foregoing, there is no basis for granting the applicant's requests.

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

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director