MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        



         BOARD DATE: 29 JANUARY 2002
         DOCKET NUMBER: AR2001059515

         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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: That a “no” response in part IV (Values/NCO Responsibilities) of his May 1995 NCO Evaluation Report (NCOER) be removed and that the remark “Had one rare lapse in complete truthfulness” be expunged from that same report.

APPLICANT STATES: In effect, that the “undocumented remark on the subject NCOER was unjustified and unsubstantiated” and was not in accordance with the provisions of Army Regulation 623-205, paragraph 6-12(e). He states that he did not intentionally delay submitting an appeal to have the information removed from the report, but rather the delay resulted from “defective information at the time…concerning the substance and effect of the remark, [his] rights with regard to appeal, and the potential effect of the remark on [his] career.” In support of his request he submits an extract from Army Regulation 623-205, a copy of the report, an “After Action Review for the CY01 MSG Selection Board” document, and electronic message (e-mail) traffic between a military personnel technician at the Enlisted Records and Evaluation Center (EREC) and a military personnel clerk at Fort Gordon, Georgia.

COUNSEL CONTENDS: That the “no” entry on the applicant’s NCOER is erroneous because the “supporting bullet is insufficient to satisfy the requirements and spirit of AR 623-205.” He notes that the bullet does not “concisely” explain the “no” entry and “leaves open to unreasonable speculation by reviewing Service personnel the alleged deficiency.” Counsel states the bullet comment is inconsistent with other ratings and bullets on the report. He maintains that the “failure to provide a realistic and objective report is a disservice to the noncommissioned officer and to the Service personnel making decisions affecting the career of the soldier.” He asks that the “no” entry and its accompanying bullet be redacted.”

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

He entered active duty on 13 June 1978 and has served continuously. He was promoted to pay grade E-7 in 1993 and as of the date of his application to this Board was serving as a Legal NCO at Fort Gordon, Georgia.

In June 1995, while serving as the Chief, Legal NCO at Fort Eustis, Virginia, the applicant received a performance evaluation report on which his rater responded “no” in response to “Is honest and truthful in word and deed.” In support of the “no” rating, the applicant’s rater indicated that the applicant “Had one rare lapse in complete truthfulness.” The remaining comments on the report are all positive and the rater indicated the applicant was fully capable for “promotion and/or service in positions of greater responsibility.” His senior rater rated his overall performance and potential in the second block. There is no evidence the applicant questioned the evaluation report at the time it was written.

The applicant’s performance evaluation reports, prior to and after, the 1995 evaluation report were excellent. He was consistently rated as among the best by his raters and in the top block by his senior raters. He was rated either excellent or successful in competence, physical fitness and military bearing, leadership, training, and responsibility and accountability.

The e-mail traffic, submitted by the applicant in support of his request, was initiated in March 2001. The first e-mail was from a military personnel technician (Ms. B.) at EREC to a military personnel clerk (Ms. S. – same last name as applicant) at Fort Gordon, Georgia. Ms. B noted in the 5 March 2001 e-mail to Ms. S. that, “the bullet you mentioned will not work. The bullet needs to be more specific, perhaps explaining the lapse in judgement.” Ms. S. then went on to request information regarding the avenues of appeal. In an e-mail initiated by her (Ms. S.) on 6 March 2001 to Ms. B, Ms. S indicated that the NCOER in question “is May 1995” and related that she understood the requirement to submit substantive appeals within 5 years. She indicated that she had informed the soldier of this information. However, Ms. S. related that “she [the recipient of the evaluation report] questioned the NCOER at the time she received it and was told by the NCOER clerk that the bullet was sufficient support of the NO Block.” (Emphasis added.)

The “After Action Review” indicated that the CY01 MSG Selection Board had noted several discrepancies in evaluation reports, which were seen by the selection board, including that “values” were checked “no” without narrative support.

Army Regulation 623-205 establishes the policies and provisions for rendering performance evaluation reports. Paragraph 6-12c(1) states that bullet comments in part IV of the evaluation report should be short, concise and to the point. Paragraph 6-12e states that the rater will answer each question in part IVa (Values) by placing a handwritten “X” in either the “YES” or “NO” box. It states that bullet comments are used to explain any area where the rated individual is particularly strong or needs improvement and that bullet comments are mandatory for “NO” ratings and “must be specific.”

In June 2001 EREC declined to act on the applicant’s appeal of his 1995 evaluation report. They noted substantive appeals must be submitted within 5 years of the NCOER’s completion date and that failure to submit an appeal within this time frame may only be excused if the individual submitting the appeal provides “exceptional justification to warrant” an exemption. Officials at EREC stated that the applicant’s appeal did “not meet the exceptional justification requirements to be considered.”

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 that the applicant’s request to have the unfavorable information contained in his May 1995 evaluation report expunged appears to be based on two contentions: 1) that the information is not true and; 2) that it does not meet the requirements of the regulation which require that bullet comments in response to “no” rating must be specific.

2. There is no evidence, nor has the applicant provided any, which substantiates his contention that the comment is not true. His “evidence” only surrounds his contention that the comment does not meet the regulatory requirements of Army Regulation 623-205. In fact, the Board notes that the e-mails submitted by the applicant appear to relate to a “female’s” evaluation report and not his. However, even if gender reference in the e-mail were merely a typographical error and was in fact related to the applicant, the Board concludes that the comment that he had “one rare lapse of complete truthfulness” is sufficiently specific to meet the regulatory requirements. It may not contain the exact date, time, or nature of the applicant’s lapse of complete truthfulness, but it does provide sufficient information to let readers know that his rater felt that his one lapse was significant enough to warrant a “no” rating. The comment is no less vague than any of the other bullets contained in the applicant’s evaluation reports.

3. 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. He has failed to satisfy that requirement.

4. 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

___AAO_ __MHM__ __KAH __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059515
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020129
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.	111.02
2.
3.
4.
5.
6.