MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 April 2001
         DOCKET NUMBER: AR2001051719

         I certify that hereinafter is recorded the record of consideration 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. John H. Kern		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Margaret V. Thompson		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that he be reinstated in the Active Guard/Reserve (AGR) program.

APPLICANT STATES: In effect, that the Enlisted Special Review Board (ESRB) approved his appeal of a Noncommissioned Officer Evaluation Report (NCOER) that had kept him from getting promoted to master sergeant/E-8 (MSG/E-8) and forced him to retire early. In support of his application, he has provided the enclosed letter from the Army Reserve Personnel Command (ARPERSCOM), which notified him that the ESRB partially approved his NCOER appeal and a copy of his complete NCOER appeal packet.

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

On 31 January 2000, he was released from active duty (REFRAD) for the purpose of retirement after completing a total of 21 years and 14 days of active military service. On the date of his separation, he held the rank and pay grade of sergeant first class/E-7 (SFC/E-7) and on the following day he was placed on the Retired List in that rank.

On 5 March 1997, the applicant received a change of rater NCOER that covered the period August 1996 to March 1997. This contested report evaluated him as an SFC/E-7 serving as a battalion Training NCO in Paducah, Kentucky. In Part IV b-f of the contested report the rater gave the applicant four “Success” ratings and one “Excellence” rating, which was in the area of “Physical Fitness & Military Bearing.” In addition, the rater evaluated the applicant as “Fully Capable” in Part V (Overall Performance and Potential). The senior rater (SR) assigned score values of 4 for the applicant’s overall performance and potential in Part Vc and d.

The bullet comments provided by the rater in Part IV b-f were for the most part complimentary, with the exception of a bullet comment in Part Ve (Training), which stated “did not always share knowledge and insight with others.” In Part Ve the SR bullet comments included two positive statements, which were “possesses excellent physical endurance, scored 300 on last APFT” and “very knowledgeable.” The SR also entered two less than complimentary bullet comments, which were “has not always shown a willingness to be a team player” and “does not communicate information up and down the chain of command.”

The reviewer on the contested NCOER added a statement of non-concurrence, in which he commented that since the last rating period the applicant had not shown the desire to become a team member. He also made additional comments and finally recommended that the applicant be removed from the AGR program.

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On 2 November 1997, the applicant submitted an appeal of the contested NCOER to the ESRB. His appeal was based on both an administrative and substantive basis. His administrative appeal was based on the rating chain being incorrect and his substantive appeal was based on counseling not being conducted on the dates listed in the report; negative bullet comments; bias on the part of the rater and SR; and negative comments contained in the reviewer’s non-concurrence.

On 17 October 2000, the applicant was notified in a letter from ARPERSCOM that the ESRB had determined that the evidence he submitted justified partial modification of the contested NCOER but did not justify promotion reconsideration.

In connection with the processing of this case, the appeal case summary pertaining to the applicant was requested of and received from the ESRB. This case summary confirms that the partial approval of the applicant’s appeal went
to amending Part Ii (Rated Months) to read “7” and adding the code “Q” to
Part j (Nonrated Codes), which accounted for the date of the rater’s assignment.

However, the ESRB case summary also shows that it was determined that the applicant’s other substantive allegations, pertaining to the validity of the evaluations rendered in the contested NCOER, lacked merit. The ESRB finally concluded that the applicant had failed to meet the burden of proof necessary to overcome the presumption of regularity given reports accepted for filing by Department of the Army (DA) and necessary to change or remove the contested evaluations or the reviewer statement of non-concurrence from the record.

Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) sets the policies and procedures governing the Noncommissioned Officer Evaluation Reporting System (NCOERS). Paragraph 4-2 (Policies and standards) states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to be administratively correct, have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

Paragraph 4-7 (Burden of proof and type of evidence) states, in pertinent part, that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 4-2 should not be applied to the report under consideration.

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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. Notwithstanding the applicant’s contention that he should be reinstated in the AGR program based on a successful appeal of the contested NCOER, given the approved portions of the appeal do not go to the overall performance and potential evaluations rendered, the Board finds that this factor is not sufficiently mitigating to warrant relief.

2. The Board notes that the ESRB found the applicant’s primary substantive allegations lacked merit and that he had failed to meet the burden of proof necessary to overcome the presumption of regularity assigned to reports accepted for filing by DA. Further, the ESRB clearly ruled that promotion reconsideration was not warranted based on their partial appeal approval.

3. In the opinion of the Board, the findings and conclusions of the ESRB in this case do not provide an evidentiary basis on which to grant the applicant’s request that he be reinstated in the AGR program. Therefore, the Board finds relief is not warranted in this case.

4. 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 this requirement.

5. 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

__mvt___ ___mm__ ___jhk___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001051719
SUFFIX
RECON
DATE BOARDED	2001/04/17
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2000/01/31
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 192	110.0300
2.
3.
4.
5.
6.