MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 May 2002
         DOCKET NUMBER: AR2001064493

         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. Mark D. Manning		Chairperson
Mr. Lester Echols		Member
Ms. Karen Y. Fletcher		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 an enclosure dated 10 September 1992 to a Noncommissioned Officer Evaluation Report (NCOER) be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES: That the enclosure was added to his OMPF after he had signed the NCOER. The sergeant first class who wrote, signed, and added the enclosure was not in his rating scheme. He contends that the information on the enclosure is inaccurate and false and the entire NCOER should have been removed. He states that the enclosure was removed and then placed back on his microfiche.

The applicant also states that he signed the NCOER and the rater still had to sign it and there were no enclosures listed. The NCOER states, “the NCO was notified of the relief.” He contends that this is not sufficient under regulations and there is nothing specific stated or documents to substantiate anything. Further, he states that the Article 15 was appealed and thrown out.

He continues to state that he attempted to use the military assets that were supposed to help him and they did not do their job. Through no fault of his own, he states that the paperwork was not done to have the items removed. He filed a congressional against the legal office in Hawaii because of their ineptitude and non-caring attitude. He further states that the enclosure is the only reason he can find out why he has not been selected for promotion to E-8. He states that his record is outstanding. His belief that he is not being treated fairly for promotion is altering his opinion on continuing his career in the Army. He is concerned that he is paying a price because the legal offices and personnel could not do their jobs properly. In conclusion, he states that his record will attest that he has continued to excel in his job during the last 9½ years since this incident.

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

The applicant enlisted in the Regular Army on 16 October 1984 for a term of four years in the pay grade of E-3. He successfully completed training as a fire support specialist. He remained on active duty through continuous reenlistments. The applicant is currently serving on active duty in the rank of sergeant first class.

At the time in question, the applicant was serving as an Instructor/Observer Controller of the Airborne Leader’s Course in the 82nd Airborne Division, Fort Bragg, North Carolina.

The applicant’s OMPF (Restricted Microfiche) contains a document, dated 10 September 1992, entitled “RELIEF FOR CAUSE.” In this document, the First Sergeant wrote that the applicant was arrested for shoplifting on 1 September 1992. The document further states that, when the applicant was asked if he had ever been charged or arrested with shoplifting prior to this incident, he lied to the Commandant and the First Sergeant when he denied any previous incidents of shoplifting.

On 6 November 1992, the applicant received a relief for cause NCOER for the period April 1992 through September 1992. The rater indicated under Part IV (VALUES/NCO RESPONSIBILITIES) that the applicant’s integrity was questionable. In Part IV(f) (RESPONSIBILITY & ACCOUNTABILITY), it was noted that the applicant did not take responsibility for his actions. Part IV(f) also indicates that “the rated NCO has been notified of the relief.” The rating official described the applicants overall potential for promotion and/or service in positions of greater responsibility as “marginal.” The senior rater evaluated the applicant’s overall performance as “successful” and his overall potential as “superior” (Block 3). The NCOER was reviewed by HQDA and properly filed on the applicant’s OMPF.

There is no indication that any authorized authority directed removal and refiling of the relief for cause statement to the restricted fiche.

Army Regulation 623-205 (Noncommissioned Officer Evaluation Report System) establishes policy and procedures governing the Noncommissioned Officers Evaluation Reporting System (NCOERS). Paragraph 6-8 governs enclosures to the completed NCOER. It states, in pertinent part, that no enclosures, except those listed below, will be attached to the completed NCOER:

         (1) Comments by the reviewer when nonconcurrence box in box IIe is marked.

         (2) Statement from person who directed relief-for-cause if other than rating official.

         (3) Relief-for-cause report 30 day waiver approval.

Paragraph 2-10 of Army Regulation 623-205 provides that relief for cause is defined as the removal of a NCO from a rateable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain that the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the U.S. Army. It also states that, if the relief is directed by an official other than the rater or senior rater, the official directing the relief will describe the reasons for the relief in an enclosure (not to exceed one page) to the report.



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, it is concluded:

1. Based on Army Regulation 600-8-104, documents filed in the Official Military Personnel File become a permanent part of that file and will not be removed from that file unless directed by the appropriate agency or when the documents have been improperly filed. There is no evidence of record which shows the endorsement, dated 10 September 1992, to the NCOER (for the period April 1992 through September 1992) was improperly filed in his Official Military Personnel File.

2. The Board considered the applicant’s contention that the sergeant first class who added the enclosure to the relief for cause NCOER was not in his rating scheme. It is true that the First Sergeant was not in the NCOER rating scheme for the applicant. However, the Board noted that the First Sergeant was in the applicant’s supervisory chain of command, and, in accordance with the regulation governing the NCOER system, the First Sergeant was authorized to add the enclosure to the relief for cause NCOER.

3. The Board noted the applicant’s contentions that the information on the enclosure was inaccurate and false; that the enclosure was removed and refiled on his microfiche; and, that legal offices and personnel offices have not done the paperwork to remove the NCOER and/or the attachment from his records. However, the applicant’s records do not contain any evidence and the applicant has not provided any evidence, which shows that he appealed the filing of the relief for cause NCOER or the enclosure. He also has not shown that an appropriate authority directed removal or refiling the relief for cause NCOER or the enclosure or that any specific legal or personnel office was responsible or authorized to remove or refile the NCOER and enclosure in question.
4. Based on the foregoing, there is no basis for removal of the enclosure, dated 10 September 1992, to the NCOER for the period April 1992 through September 1992.

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

MDM_____ LE______ KYF_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064493
SUFFI X
RECON	YYYYMMDD
DATE BOARDED	20020523
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	126.0400
2.
3.
4.
5.
6.