MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 August 2001
         DOCKET NUMBER: AR2001053404

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Joe R. Schroeder		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 his Noncommissioned Officer Evaluation Report (NCOER) that began in February 1994 (NCOER #1) be removed from his Official Military Personnel File (OMPF). In addition, in a supplemental letter request, he asked that his NCOER covering the period December 1994 to October 1995 (NCOER #2) be removed from his OMPF.

APPLICANT STATES: In effect that the contested NCOERs were the result of retaliation and harassment by his unit and battalion commanders based on his having highlighted several deficiencies in the unit maintenance section during an inspection. He states that his chain of command tried to discredit his duty performance as an noncommissioned officer (NCO) in order to have him removed from the Active Guard/Reserve (AGR) program. He states that the harassment stopped only when he filed a complaint with his Member of Congress (MOC) and the Inspector General (IG), which resulted in his being transferred to another unit. He states that NCOER #1 is incomplete, was not prepared in accordance with Army Regulation 623-205, and should have not been placed on his OMPF. He also states that he had no direct contact with his rating officials and was ordered to sign a blank NCOER by his reviewer. He further comments that command influence caused his removal from the promotion list to sergeant first class/E-7 (SFC/E-7) and that he should be granted this promotion in the interest of justice.

In his supplemental request, prepared upon his being notified by the Board staff that NCOER #1 had never been officially submitted or accepted for filing in his OMPF and was not currently on file in his record, he substituted a request that NCOER #2 be removed for the same reasons cited for removal of NCOER #1. In support of his application, he submits copies of the following documents: unofficial extract from NCOER#1; IG complaint with enclosures; note outlining the inspection deficiencies he addressed with his commander; associated military documents pertaining to earned awards and accomplishments; and a request for reassignment.

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

On 24 August 1996, he was released from active duty (REFRAD) and discharged, under the provisions of paragraph 4-24b(3), Army Regulation
635-40, by reason of physical disability with severance pay. At the time of his discharge he was serving on active duty in an AGR status and held the rank and pay grade of staff sergeant/E-6 (SSG/E6). The record contains no evidence to show the applicant was ever selected for or placed on a valid Department of the Army (DA) SFC/E-7 promotion standing list.

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The unofficial extract of NCOER #1 provided by the applicant contained a beginning period of February 1994. However, this contested NCOER is not contained in his OMPF and there is no evidence to suggest that this report was ever officially rendered on the applicant.

The applicant’s record shows that NCOER #2, which was an annual report covering the period December 1994 to October 1995 that evaluated him as the Assistant Battalion Operations Sergeant for a logistics support battalion located at Fort Lewis, Washington was provided to the applicant and was filed in his OMPF. Part I (Administrative Data) shows that the period of the report was December 1994 through October 1995 (10 months), the total rated months covered by the report was 5, and it contained a nonrated time code of “Z” (previous command did not render a report) in explanation of the 5 months of nonrated time included in the report period.

Part IVa (Values/Responsibilities) of NCOER #2 contained all “Yes” responses. In Part IV, section b (Competence) the rater evaluated the applicant as “Needs Improvement” and provided the following supporting bullet comments: the applicant displays initiative through self-study; needs training in unit operations; and does not pay attention to details. The rater also evaluated the applicant as “Needs Improvement” in section d (Leadership) and provided the bullet comments that the applicant was lacking knowledge, goes out of his way to help soldiers, and requires close supervision. In all other sections of Part IV (Physical Fitness & Military Bearing, Training and Responsibility, and Accountability) the rater gave the applicant “Success” ratings and provided positive bullet comments.

In Part Va (Overall Performance and Potential), the rater marked the applicant as marginal and recommended him for assignment to Motor Sergeant and Maintenance Supervisor positions. In both Parts Vc and Vd (Overall Performance and Potential) the senior rater placed the applicant in the four block (Fair) and provided the following supporting bullet comments in Part Ve: applicant tries to meet goals; has been functioning as the S-3 NCO; needs more training in using computers to manipulate files and data; needs more training in Modern Army Record-Keeping System (MARKS) and organization of office files; and requires close supervision.

There is no evidence that the applicant applied to the Enlisted Special Review Board (ESRB) to have the contested NCOERs removed from his OMPF within its 5-year time limit.

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 OMPF of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation. 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 or she must produce evidence that clearly and convincingly establishes that the 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.

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. The Board notes the applicant’s contention that he received the contested reports as a result of reprisal for his noting deficiencies during a unit inspection and that this unjust command influence resulted in his being removed from the SFC/E-7 promotion list. However, it finds these claims are not supported by either the evidence of record or the independent evidence submitted by the applicant.

2. The evidence of record shows that NCOER#1 was never officially submitted or accepted for inclusion in the applicant’s OMPF and that he was never selected for or placed on a valid DA SFC/E-7 promotion standing list. Therefore, the Board concludes that there is no effective relief that could be granted based on these issues.

3. By regulation, the burden of proof for a successful NCOER appeal rests with the applicant, who must produce evidence that clearly and convincingly establishes that removal of a contested report 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.

4. Lacking any evidence suggesting that NCOER#2 was rendered as a result of reprisal by rating officials and was unjust for this reason, the Board is compelled to conclude the applicant has failed to meet the regulatory burden of proof necessary to support removing this contested report from his record.

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:

__WTM _ __REB _ __JRS __ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2001053404
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/08/14
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	111.00
2.
3.
4.
5.
6.