MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 25 OCTOBER 2001
         DOCKET NUMBER: AR2001058438

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Ronald E. Blakely		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: The applicant requests that his NCO evaluation report (NCOER) for the period December 1991 through November 1992 be removed from his official military personnel file (OMPF), transferred to the restricted portion of his OMPF, or that the senior rater comments be deleted from that NCOER.

APPLICANT STATES: That the Board should consider the whole soldier concept when reviewing his appeal. He states that the report was not a true reflection of his performance or efficiency, that he attended BNCOC during the rating period, achieving course standards and receiving two superior ratings. He states that he never had the opportunity to review the NCOER and no formal counseling was conducted during the rating period. The report has been reviewed many times by promotion boards; however, he has been promoted to sergeant first class after the submission of the report. He states that he failed to appeal the NCOER because he did not fully understand the appeal process early in his career. He states that he was unaware of the letter written by his reviewer. That letter, which is inaccurate and without supporting documentation, was forwarded without his knowledge. He was never informed of any problem with members of his chain of command. He did a good job to support the company’s mission. The senior rater comments are inaccurate and there was no negative counseling statement presented to him at any time. He did get promoted and has held many leadership positions in his military career. His rater on that report indicated that he was successful in meeting standards and that he was fully capable. The rater and senior rater ratings are inconsistent.

The applicant submits a 6 June 2001 memorandum from the Rock Island Arsenal sergeant major in support of his request.

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

The applicant entered on active duty in 1984 and has remained on continuous active duty since that time. He has had numerous assignments during his military career, has received awards of the Army Commendation Medal, the Army Achievement Medal, and the Good Conduct Medal. Additionally, he has received numerous certificates of achievement. The applicant has completed the Advanced NCO Course, and has completed numerous functional courses, both resident and non-resident during his career. Add

The applicant received nonjudicial punishment under Article 15, UCMJ, on 11 March 1986 for making a false and fraudulent claim against the government in the amount of $642.93.

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The applicant’s NCOER report for the period April 1989 through February 1990 shows that he was considered a marginal NCO by his rater. There was no rating by a senior rater because that official did not meet the minimum qualifications to senior rate the applicant. There is no evidence to show that he appealed that report.

The applicant’s NCOER immediately following shows that he was considered a fully capable NCO by his rater. His senior rater placed him in the third block (out of five) in both the overall performance and overall potential portions of that report.

The applicant’s report for the period December 1990 through November 1991 indicates that he was considered a marginal NCO by his rater. His senior rater placed him in the third block in both overall performance and overall potential portions of that report. He appealed that report. He was notified on 2 September 1994 that his appeal was denied.

The applicant completed the basic NCO course (BNCOC) on 16 March 1992 at Fort Lee, Virginia.

The applicant’s NCOER which he is contesting in his application to this Board shows that his rater considered him to be successful in all the attributes on that report and that he was a fully capable NCO. However, his senior rater stated that he lacked the maturity and experience required of a staff sergeant; could not earn the respect of his peers or subordinates, lacked the experience, leadership, and MOS (military occupational skill) for jobs of increased responsibility; and should not be considered for promotion at that time. He placed him in the fourth block in overall performance and the last block in overall potential portions of the report. In a 12 January 1993 document, the applicant’s reviewer, his commanding officer, stated that he did not concur with the rater’s comments. He stated that the applicant’s military bearing was poor and that he was singled out by the battalion command sergeant major for his substandard performance in November 1992. He stated that the applicant on one occasion did not know the whereabouts of two of his soldiers, and that he did not know how many soldiers were assigned to his squad. He stated that the applicant needed improvement in the areas of competence, military appearance, leadership, and responsibility. He concurred with the senior rater’s comments. There is no evidence that he appealed that report.

The applicant completed the advanced NCO course (ANCOC) at Fort Lee on 8 August 1996. He was promoted to sergeant first class on 1 October 1997.

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The applicant’s evaluation reports since then show, for the most part, that his rating officials considered him a fully capable NCO. On the report ending in January 1998 his rater stated that he was among the best, as did his rater on the report ending in September 1999 and September 2000. That latter report, however, shows that he did not maintain high standards of personal conduct – that he lacked personal conduct during a total package fielding briefing.

On 18 July 2000 the applicant received a memorandum of reprimand from the Commanding General of the Tank-Automotive and Armaments Command in Warren, Michigan, for driving under the influence of alcohol. Although the applicant indicated that he would provide a rebuttal to the reprimand, there is no evidence that he did so. The memorandum was placed in the performance portion of his OMPF.

On 20 April 2001 the applicant was notified that he was denied continued active duty under the Qualitative Management Program (QMP). The applicant’s evaluation reports for the periods December 1991 through November 1992 and October 1999 through September 2000; and the memorandum of reprimand that he received on 18 July 2000, were cited as a basis for his bar to reenlistment.

In the processing of this case an advisory opinion was obtained from the DCSPER Special Reviews Board. That board stated that his application was not adjudicated due to the delay in submission and the lack of clear and compelling evidence. The appeal was returned without action. The applicant was furnished a copy of the advisory opinion on 28 August 2001 for his information and possible rebuttal. He failed to respond.

Army Regulation 623-205 states that the NCOER appeals system protects the Army's interest and ensures fairness to the NCO. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. An evaluation report accepted for inclusion in the official record of an NCO is presumed to be administratively correct, has been prepared by the proper rating officials, and represents the considered opinion and objective judgment of rating officials at the time of preparation. Appeals alleging bias, prejudice, inaccurate or unjust ratings, incorrect APFT or height/weight data, or any matter other than administrative error are substantive in nature and will be adjudicated by the Enlisted Special Review Board. 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 should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy or injustice.

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Army Regulation 600-8-104 sets forth the basic authority for filing of documents in the OMPF (official file) and provides, in pertinent part, that the NCOER will be filed in the performance fiche of the OMPF, and that administrative letters of reprimand or admonition of a nonpunitive nature would be filed on the performance fiche of the OMPF only if the provisions of Army Regulation 600-37 had been complied with.

Army Regulation 600-37 sets forth the basic authority for the filing of unfavorable information in the OMPF. Paragraph 3-4 of that regulation provides, in pertinent part, that a nonpunitive letter of reprimand or admonition would be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction over the recipient.
That regulation states that only letters of reprimand may be the subject of an appeal for transfer to the restricted fiche.

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, it is concluded:

1. The applicant has not shown that the adverse NCOER contained any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy. It was correctly filed on the performance fiche of his OMPF.

2. The applicant has failed to convince the Board that the adverse NCOER was unfair or unjust, and that the report represented other than an objective and valid appraisal of his demonstrated performance and potential during the period in question, notwithstanding the letter of support that he has received from a command sergeant major. Therefore, there is no basis for removing the document from his official file or transferring it to the restricted portion of his file. By the same token, he has provided no good reason to delete the senior rater comments contained in that report. Notwithstanding the applicant’s contention, he did understand the appeal process, as evidenced by his appeal of his NCOER ending in November 1991.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

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 that requirement.

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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

__RJW__ __KAN __ __REB _ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058438
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011025
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.	267
3.
4.
5.
6.