MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 March 2002
         DOCKET NUMBER: AR2001063430

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Stanley Kelley		Member
Mr. Elzey J. Arledge, Jr.		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 Noncommissioned Officer Evaluation Report (NCOER) and a Record of Nonjudicial Punishment (DA Form 2627) dated 6 June 1996, be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that nonjudicial punishment (NJP) was imposed against him with the punishment suspended, he was given a relief for cause NCOER covering the period of December 1995 to July 1996 and he was removed from the Drill Sergeant Program because of one incident of fighting in his bachelor enlisted quarters (BEQ). He also stated that he was also barred from reenlistment under the Qualitative Management Program (QMP), which almost ended his career. He continues by stating that at the time, he was working in an Academy and because it was high profile, he was made an example of. He also states that the derogatory information contained in his OMPF has caused him to be repeatedly passed over for promotion and he believes that it is criminally unjust and a direct result of undue command influence.

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

He enlisted in the United States Army Reserve (USAR) on 30 March 1981, and was assigned to a troop program unit (TPU) in South Carolina. He completed his training as a combat engineer and remained in the USAR until he enlisted in the Regular Army on 27 September 1983, for a period of 3 years and assignment to Europe. He has remained on active duty through a series of continuous reenlistments and extensions. He was promoted to the pay grade of E-6 on 1 November 1988.

On 20 June 1990, NJP was imposed against him for assaulting a private by striking him in the face. His punishment consisted of a forfeiture of pay, extra duty (suspended) and restriction (suspended). The imposing authority directed that the DA Form 2627 be filed on the Restricted Fiche of his OMPF and the applicant did not appeal the punishment.

Upon completion of his tour in Germany, he was reassigned to Fort Leonard Wood, Missouri, where he was assigned as a small group leader in the Noncommissioned Officer (NCO) Academy. He remained in that assignment until he attended and completed the Drill Sergeant Course on 3 August 1994, and was designated the Distinguished Honor Graduate.

Upon completion of drill sergeant training, he was assigned to a unit at Fort Leonard Wood to serve as a drill sergeant. He was promoted to the pay grade of E-7 on 1 January 1995 and remained as a drill sergeant until he was transferred back to the NCO Academy for duty as an instructor of drill sergeant candidates.

On 10 June 1996, NJP was imposed against him for unlawfully striking a civilian female in the mouth and back of the head with his fist. His punishment consisted of a forfeiture of pay (suspended) and the imposing commander directed that the DA Form 2627 be filed on the Restricted Fiche of his OMPF. However, because the applicant already had a DA Form 2627 filed on the Restricted Fiche of his OMPF, the Enlisted Records and Evaluation Center (EREC) changed the filing location to the Performance Fiche of his OMPF.

On 12 September 1996, he received a relief for cause NCOER covering the period from December 1995 to July 1996. In Part IVa, under Values/NCO Responsibilities, the rater gave the applicant a “No” rating under “Maintains high standards of personal conduct on and off duty”. The supporting bullet comments indicate that he allowed his off-duty personal conduct to reflect unfavorably on the NCO Corps. In part IVb, under Competence, his rater gave him a “Needs Improvement” rating. The supporting bullet comment indicates that the applicant’s misconduct and lack of sound judgment resulted in his removal from the Drill Sergeant Program.

In Part V, under Overall Performance and Potential, the rater gave him a “Fully Capable” rating and the senior rater (SR) gave him a level “3” successful rating under performance and a level “4” fair rating under potential. The SR’s supporting bullet comment indicates that the applicant was relieved from duties for being apprehended for assault. There is no indication in the available records to show that the applicant ever appealed the NCOER to the Enlisted Special Review Board (ESRB).

The applicant was subsequently assigned to Korea where on 6 April 1998, a memorandum was dispatched to the applicant informing him that the Calendar Year (CY) 1998 Master Sergeant Promotion Selection Board had determined that he should be barred from reenlistment under the QMP based on the presence of the “Relief for Cause” NCOER and the Record of NJP in his OMPF. The applicant appealed the bar to reenlistment and his appeal was granted on 3 December 1998.

On 18 May 2000, he petitioned the Department of the Army Suitability Evaluation Board (DASEB) to have the Record of NJP transferred to the Restricted Fiche of his OMPF. In his petition to that board, he explained his accomplishments before and after the imposition of the contested NJP and contended that it had served its intended purpose and should be moved. He also contended that the presence of the NJP was preventing his further advancement and that it was unjust to be forever penalized for one mistake.

In reviewing the applicant’s appeal, the DASEB noted that the applicant had not submitted any documents of support from his chain of command, that he had received NJP on two separate occasions for assault while serving as an NCO and that his argument was based on his premise that the NJP he received was an isolated incident. The DASEB opined that the evidence of record indicated that the applicant had an anger problem and that he had failed to show that the contested NJP had served its purpose. The DASEB denied his appeal on 10 August 2000.

AR 27-10 prescribes the guidelines for the filing of NJP. It states, in pertinent part, that the decision to file the original DA Form 2627 on the performance or restricted fiche of the OMPF will be determined by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is final and will be indicated in item 5, DA Form 2627. However, paragraph 3-6 of that regulation provides that if a record of NJP has been designated for filing in the Restricted Fiche, the soldier’s OMPF will be reviewed to determine if a previous record of NJP, whose punishment has not been set aside, has been filed on the Restricted Fiche, that was imposed while the soldier was serving in the pay grade of E-5 or higher. If such a circumstance does exist, the record of NJP will be filed on the Performance Fiche of the OMPF by the records custodian.

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 official record 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 establishes clearly and convincingly that 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. 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.

2. It appears that the NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so. The punishment was not disproportionate to the offense and there is no evidence of any violations of the applicant’s rights. The Board also finds that the record of NJP is properly filed on the performance fiche of his OMPOF in accordance with the applicable regulation.

3. Likewise, the contested NCOER appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question. Given the circumstances in this case, the Board finds that the actions taken to remove the applicant from the Drill Sergeant Program were appropriate and that there is no basis for removing it from his records.

4. The applicant’s contentions have been noted and the Board finds them to be without merit. Neither the evidence submitted with his application or the evidence of record shows that the NCOER or the Record of NJP were in error or unjust.

5. While the Board understands the applicant’s concerns, the Army has an interest in maintaining such documents, and the applicant has not shown sufficient reasons why they should not remain a matter of record, even after considering his entire record.

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

__slp____ ___sk___ ___eja___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063430
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/03/19
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 328	134.0000/REM DER INFO
2. 277	126.0000/NJP
3. 193	111.0000/REM NCOER
4.
5.
6.