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ARMY | BCMR | CY1990-1993 | 9313666
Original file (9313666.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, correction of his military records by correcting the Noncommissioned Officer Evaluation Report (NCOER) covering the period of 8906-9005 by changing Part IVa3 to “Yes”, (“Is honest and truthful in word and in deed”); by changing IVb to a “success” rating instead of “Needs improvement” rating; and by deleting the comment about “shows lack of sound judgment when he asked a fellow soldier to impersonate his supervisor.”
APPLICANT STATES : In effect, that the subject NCOER contained administrative and substantive inaccuracies.
The applicant claims that the contested report contains erroneous information regarding counseling dates; that it deviates from the established rating chain; that it lacked full compliance with performance requirements; that it was influenced by an alleged misconduct which was adjudicated after the rating period and for which he was exonerated; that the Senior Rater (SR) unfairly influenced the preparation of the report and the reviewer failed to exercise his responsibility to resolve the differences.
He adds that the Enlisted Special Review Board (ESRB) in the Office of the Deputy Chief of Staff for Personnel denied the his request. In support of his request, the applicant has submitted letters of support.

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

He was born on 20 October 1946. On 30 September 1968, he was inducted into the Army of the United States for 2 years.
He was honorably discharged on 10 September 1970, after serving 2 years of active service. On the same day, he was transferred to the United States Army Reserves (USAR). His service in the USAR, thereafter was continuous through reenlistments and extensions. His military occupational specialty is 11B40 (Infantryman).

In December 1989, the applicant was taken into custody by civil authorities for committing a homosexual act; however, he was never formally arrested because the alleged act was consensual. Civil authorities decided to simply release the applicant on his own recognizance upon notification and agreement of his unit commander. Allegedly the applicant had a fellow soldier impersonate the unit commander to obtain his release from civil authorities.

This would have ended the matter except that the civilian authorities and the military police had a good relationship and the applicant’s incident became a joke of conversation. The incident was mentioned in the presence of a CID agent who initiated an investigation. The applicant’s record indicates that he confessed to a CID agent that he had another soldier to impersonate the unit commander. (Later the applicant withdrew his statement).

On 5 January 1990, the applicant was relieved of his duties as an instructor. The applicant then requested leave and did not return until late January 1990. Upon his return, the applicant was placed on limited duty as an instructor trainer with no contact with trainees.

On 29 March 1990, court-martial charges were preferred against the applicant for sodomy, perjury, and misprision of a serious offense. When the case finally came to trial, it was discovered that the applicant was not given due process in that his rights were not read to him. The military judge then dismissed the case and all charges were withdrawn.

In May 1990, the applicant’s annual rating was due. The rater indicated that the applicant’s performance had been outstanding throughout the rating period. The SR, after reviewing the NCOER, had a meeting with the rater and informed him that the applicant’s evaluation had to include the alleged misconduct. The rater at first refused to reconsider the NCOER, so the SR referred him to the Army regulation that covered the area in question. Upon review of the regulation, the rater then agreed that the incident had to be addressed. The rater rewrote the evaluation and presented the report to the SR. During the course of time, the applicant apparently admitted to the rater that he had someone to impersonate him because civilian police would not accept anyone else for his release from incarceration. The rater apparently believed this was a minor incident and should not so dramatically cloud the evaluation report.
For that reason, and because the rater believed that he was pressured into rewriting the NCOER; the rater assisted the applicant with the appeal and provided a letter of support.

On 5 May 1990, after reviewing his NCOER, the applicant submitted an appeal to the ESRB for review of the contested NCOER for the periods 8906-9005 and 9006-9105. The appeal was based on his contention that the report contained substantive and administrative errors.

On 6 October 1992, the ESRB determined that evidence submitted by the applicant did not justify withdrawing the contested NCOERs. However, the board decided to partially approve the appeal for the period of 9006-9105, by removing the remark in part IVb which reads “scored 56 on CTT” and the “X” in the “Needs Improvement” block of Part IVb; and by filing the appeal correspondence on the applicant’s restricted fiche (R-fiche).

On 14 January 1993, the applicant requested reconsideration of his appeal of the contested NCOER to the ESRB. The second appeal was based on new supporting evidence in which the applicant contended that the counseling dates were in error; that senior rater influenced preparation of the NCOER’s; and that the reviewer failed to exercise his responsibility to resolve the differences between the evaluation of the rater and the SR.

On 8 March 1993, after reviewing the applicant’s second appeal, the ESRB partially approved the applicant’s second appeal for the period of 8906-9005, by deleting the SR’s evaluation, by correcting Part Ii to reflect 8 rated months, and by adding the nonrated code “Q” to Part Ij.

On 2 November 1993, the applicant applied to this Board requesting further correction of the contested NCOER as noted above.

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

2. Although there are indications of a disagreement between the rater and SR concerning the contested NCOER, it does not appear that the SR exerted command influence with the rater forcing him to rewrite the NCOER to include any untruths.

3. The applicant has not proven that the NCOER contains substantive inaccuracies. The incident for which he was arrested by civilian authorities occurred during the rating period and, thus, it was appropriate to comment on it in the contested NCOER.

3. The applicant made two requests to the ESRB seeking to have the contested NCOERs modified or deleted. The ESRB, after investigating the applicant’s allegations, granted partial relief concerning administrative errors, determined that the rater’s evaluation was valid and proper; and that the rating would remain an integral part of the applicant’s OMPF.

4. The contested NCOER, after being modified by the ESRB, appears to be a fair and valid appraisal of the applicant’s performance during the period in question.

5. 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

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