MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 March 2002
         DOCKET NUMBER: AR2001061448

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Mr. Thomas Lanyi		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 his Article 15, dated 24 March 2000, be set aside, or that the Article 15 be removed from his Official Military Personnel File (OMPF), or that it be moved to his Restricted Fiche.

The applicant also requests, in effect, that the Noncommissioned Officer Evaluation Report (NCOER) for the period August 1999 through July 2000 [hereafter identified as the “contested NCOER”], be removed from his OMPF or that Blocks 3 through 6 of Part IV(a) and Part IV(b) be deleted.

APPLICANT STATES: That his brigade and division commanders refused to set aside a field grade Article 15 where he was found guilty beyond a reasonable doubt without sufficient legal evidence of misconduct. He was subsequently exonerated by an administrative separation board which found him not guilty and directed that he be retained. He contends that the refusal to set aside the erroneous finding of guilty and the NCOER during that time period have resulted in him being selected for discharge under the Qualitative Management Program (QMP) after nearly 17 years of exemplary service.

In support of his application, he submits a supplemental letter, a copy of the Article 15, dated 24 March 2000, an Article 15 Punishment Worksheet, the contested NCOER, a memorandum of Appointment of Administrative Board, the Findings and Recommendations of the Administrative Separation Board, two appeals to the Article 15, a notice of denial of continued active duty service under the QMP, a List of QMP Documents, a Statement of Options, his QMP (DA Form 4941-R), his Developmental Counseling Form (DA Form 4856-E), his Enlisted Record Brief, his Personnel Qualification Record, fifteen copies of NCOERs covering various dates from June 1989 through May 2001.

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

The applicant enlisted in the Regular Army on 6 November 1984 for a term of four years in pay grade E-3. He remained on active duty through continuous reenlistments and is currently serving on active duty in pay grade E-7.

On 24 March 2000, the applicant was punished under Article 15, UCMJ, for wrongfully using marijuana between 4 December 1999 and 3 June 2000. He did not demand trial by court-martial and requested a closed hearing in the Article 15 proceedings. The applicant accepted the results of the closed hearing and elected not to appeal the punishment. The imposing commander directed that the DA Form 2626 (Record of Proceedings under Article 15) be filed in the applicant's Performance Fiche. The allied documents to the Article 15, DA Form 4856 (General Counseling Form) and DA Form 2624 (Specimen Custody Document-Drug Testing), were filed on the applicant's Restricted Fiche.

On 25 August 2000, the applicant received a Change of Rater NCOER for the period August 1999 through July 2000. The rater marked “NO” in Blocks 3 through 6 under Part IVa (VALUES/NCO RESPONSIBILITIES). In the comments section, the rater indicated that the applicant’s “personal conduct is prejudicial to good order and discipline to the unit” and “fails to follow all regulations.” Under Part IVd (LEADERSHIP), the rater indicated that the applicant had a positive urinalysis and marked the “NEEDS IMPROVEMENT (Much)” block. The rating official described the applicant’s overall potential for promotion and/or service in positions of greater responsibility as “fully capable.”

The senior rater evaluated the applicant’s overall performance as “poor” and his overall potential as “fair.” The senior rater noted in his comment that the applicant “uses poor judgment” and that the applicant’s “leadership marred by actions unbecoming a noncommissioned officer.” The NCOER was reviewed by HQDA and properly filed on the applicant’s OMPF.

In a memorandum dated 29 September 2000 from the Clinical Director of the U.S. Army Medical Department Activity, it is noted that the applicant was referred to the Fort Hood Activity Alcohol and Drug Abuse Prevention and Control (ADAPCP) on 3 January 2000 as a result of a positive urinalysis for Cannabis. The Clinical Director stated that the applicant denied any use of Cannabis and at that time, "there does not seem to be a diagnosable problem in accordance with the DSM-IV-TR, therefore, no further treatment is indicated.” It was recommended that the command seek Judge Advocate General (JAG) advice for further action.

An administrative separation board convened on 25 and 26 October 2000 to determine whether the applicant should be separated prior to his expiration term of service under the provisions of Army Regulation 635-200, chapter 14, for misconduct – commission of a serious offense. The Board found that the allegation that the applicant wrongfully used marijuana was not supported by a preponderance of the evidence. The Board recommended that the applicant be retained in service. The Board further recommended that the applicant be transferred out of the unit, to another command on post, but not in the 1st Cavalry Division until he was eligible to PCS [permanent change of station]. Upon this eligibility, the Board recommended that the applicant be PCSd to another assignment in his pay grade.

On 2 November 2000, the applicant submitted a request, through his defense counsel, to the Brigade Commander to set aside the Article 15, dated 22 (sic) March 2000. The applicant’s request was denied by the commander on 4 November 2000. The commander stated that pursuant to Army Regulation 27-10, paragraph 3-28a, future adverse effect on the soldier’s retention or promotion potential does not meet the basis for setting aside an Article 15 and that the Article 15 would stand and remain on the applicant’s Performance Fiche.
On 12 January 2001, the applicant appealed to the Commanding General, through his defense counsel, to set aside the Article 15, dated 24 March 2000.

By a memorandum dated 20 April 2001, the applicant was informed of a Department of the Army Imposed Bar to Reenlistment under the QMP. The Board noted the basis for the bar to reenlistment was the contested NCOER and the DA Form 2627, dated 24 March 2000. The applicant completed the Statement of Options (DA Form 4941-R) and acknowledged that he was notified on 2 May 2001 that he had been denied continued service under the QMP. He indicated that he carefully read, had been counseled, and understood the options available to him. He elected to submit an appeal. The applicant’s commander indicated that he presented the QMP notification memorandum to the soldier and counseled him on the ramifications and options available on 2 May 2001, and did not submit an appeal on behalf of the soldier. There is no record of an appeal of the bar to reenlistment under the QMP in the applicant’s personnel file.

On 8 May 2001, the Commanding General denied the applicant’s request to set aside the punishment imposed upon him by proceedings under Article 15, UCMJ, dated 24 March 2000.

On 11 June 2001, the applicant petitioned the DA Suitability Evaluation Board (DASEB) for transfer of the Article 15 to his Restricted Fiche. The applicant was informed on 15 August 2001 that his petition to the DASEB was denied.

On 24 August 2001, the applicant applied to the this Board [ABCMR] to set aside the Article 15 and remove it from his OMPF or, in the alternative, transfer it to his Restricted Fiche. He also requested that this Board remove the contested NCOER or, in the alternative, amend Blocks 3 through 6 of Part IVa and Part IVd.

In the processing of this case, an advisory opinion was obtained from the President of the DA Special Review Board (SRB), Office of the Deputy Chief of Staff for Personnel (ODCSPER). This office stated that the applicant had appealed to the DASEB on 11 June 2001 in accordance with (IAW) Army Regulation 600-37 to have the Article 15 transferred to his Restricted Fiche based upon the contention that it had served its purpose. The DASEB denied the appeal on 13 August 2001 because the applicant failed to provide adequate evidence to prove he had been rehabilitated and that such conduct would not reoccur. The opinion further stated that the applicant has not, as of this date, appealed to the Enlisted Records and Evaluation Center (EREC) concerning his NCOER IAW Army Regulation 623-205 and therefore has not exhausted all other remedies prior to submission to the ABCMR.

The SRB noted that the applicant was advised of his right to demand a trial by court-martial prior to the initiation of the Article 15 hearing in accordance with Army Regulation 27-10. It was noted that the applicant was given the opportunity to discuss his options with defense counsel and elected to have his case resolved by Article 15 proceedings. Further, the SRB noted that the applicant elected not to appeal the findings and directed punishment of [commander’s name]. It is further opined that the applicant was provided due process and a fair and just decision was made by [commander’s name]. The SRB did not consider the administrative separation board’s recommendation to be adequate evidence to overturn the presumption of regularity concerning the original filing of the Article 15 or the NCOER. In conclusion, the opinion stated that the applicant did not provide the SRB evidence that the administrative board reviewed and cannot determine if the administrative board’s decision was based upon any “new” evidence. The SRB recommended that this Board [ABCMR] return this application without action or deny the application.

On 25 September 2001, the applicant was provided 30 days to submit matters in rebuttal to this opinion. In a memorandum, dated 22 August 2001, to the ABCMR, the applicant requested an extension of Board consideration due to the current readiness status at Fort Hood, Texas, and that he was unable to speak with a legal advisor earlier than 15 October 2001. As of 14 March 2002, the applicant has not provided any information or rebuttals to the advisory opinion.

By a memorandum, dated 2 October 2001, EREC notified the applicant that his contested NCOER was returned without action. The memorandum stated that the evaluation report appeal, dated 22 August 2001, did not meet the criteria outlined in Army Regulation 623-205, Chapter 4-2f. The memorandum also stated that the Army Enlisted SRB determined the applicant failed to provide sufficient clear and convincing evidence for the Board to consider at that time. The memorandum further stated an appeal which alleges a report is incorrect or inaccurate or unjust without useable supporting evidence will not be considered.

On 28 November 2001, the applicant submitted a request to the DASEB for reconsideration of his case, specifically to transfer the Article 15, dated 24 March 2000, to his Restricted Fiche. To support his request, the applicant submitted a letter from the Clinical Director at the U.S. Army Medical Activity at Fort Hood, dated 29 September 2000, a Drug Testing Custody and Control Form, dated 16 November 2001, and two memorandums from his defense counsel at the U.S. Army Trial Defense Service. There is no record of the results of the appeal from the DASEB.

Army Regulation 27-10 (Military Justice), in pertinent part, states the applicable policies for nonjudicial punishment. The regulation states that nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a soldier’s record of service from unnecessary stigma by record of court-martial conviction; or further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings will be recorded on DA Form 2627. The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a soldier’s record.

Paragraph 3-8 of Army Regulation 27-10, states that setting aside and restoration of nonjudicial punishment is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. The regulation states that nonjudicial punishment is “wholly set aside” when the commander who imposed the punishment, as successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. The regulation also states that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. It further states that “clear injustice” means that there exists an unwaived legal or factual error which clearly and affirmatively injured the substantial rights of the soldier. An example of “clear injustice” would be the discovery of new evidence unquestionably exculpating the soldier. “Clear injustice” does not include the fact that the soldier’s performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the soldier.

Army Regulation 623-205 establishes policy and procedures governing the Noncommissioned Officers Evaluation Reporting System (NCOERS).
Chapter 4 of this regulation sets the policies and procedures for the appeals systems. It states, in pertinent part, that substantive appeals must be submitted within 5 years of the NCOER’s completion date. Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered. If the appeal is denied, an applicant may request reconsideration, seek new additional evidence and submit a new appeal, or he may appeal to the next agency in the Army’s redress system.

Paragraph 4-2 of Army Regulation 623-205 states that an evaluation report accepted for inclusion in the official record of a noncommissioned officer is presumed to be administratively correct, to have been prepared by the proper rating officials and represent the considered opinion and objective judgment of the rating officials at the time of preparation.

Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by : the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board, Army appeals board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the Official Military Personnel File custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

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 reviewing this case, the Board noted the decision of the administrative separation board to retain the applicant in the Army. The Board also noted the decision of the Brigade and Division Commanders not to set aside the Article 15. The Board also reviewed the applicant’s submissions to the DASEB and to the Enlisted SRB and their responses to his appeals.

2. The Board considered the applicant’s request that the Article 15, dated 24 March 2000, be removed from his Official Military Personnel File. However, there is no evidence, and the applicant has provided no evidence, that the Article 15 was in error or unjust. Army Regulation 27-10 and Army Regulation 15-185 (Policy and Procedures for Applying to the Army Board for Correction of Military Records) specifically preclude the removal of a valid DA Form 2627 from a soldier’s record, by the Army Board for Correction of Military Records, without compelling evidence. The Board finds no compelling evidence to support removal of the applicant’s Article 15. Therefore, this record of proceedings under Article 15, UCMJ, dated 24 March 2000 will not be expunged.

3. The Board considered the applicant’s request to move the nonjudicial punishment to his Restricted Fiche. However, the Board did not find sufficient evidence to warrant transferring this nonjudicial punishment to his Restricted Fiche.

4. The Board considered the applicant’ s request to remove or amend the contested NCOER. The Board reviewed all matters submitted in appeal of the contested NCOER. The applicant has provided no evidence that the contested NCOER was improperly prepared, was prepared by the wrong rating officials, was improperly filed or did not represent the considered opinion and objective judgment of the rating officials. Therefore, the Board determined that there is no basis to remove or amend the contested NCOER.
5. 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.

6. 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

FNE_____ LE______ TL______ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061448
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020328
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.	126.0500
2.	111.0000
3.
4.
5.
6.