MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2002071271

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Paula Mokulis		Member
Mr. Donald P. Hupman, 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: In effect, that a change of rater (CR) Noncommissioned Officer Evaluation Report (NCOER) covering the period September 1996 to March 1997 be removed from her Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that the contested NCOER is substantially inaccurate and was tainted by a General Officer Memorandum of Reprimand (GOMOR) that was later declared unfair/unjust by the Department of the Army Suitability Evaluation Board (DASEB).

COUNSEL CONTENDS: In effect, that this appeal is forwarded to this Board because a subordinate agency, the Enlisted Special Review Board (ESRB) returned it without action. Counsel comments that the form letter provided by the ESRB in this case, which is used with great regularity, has nothing to do with the applicant’s case, and he can only wonder how many worthy enlisted personnel give up after receiving such a letter. Counsel contends that the ESRB has the convoluted notion that the only way to show a defect in an NCOER is through third party statements. He indicates that he is providing substantial evidence that the NCOER in question was tainted by a court-martial at which the applicant was acquitted and by a GOMOR, which the DASEB declared unfair/unjust. He comments that this is a five year old NCOER and his guess is that is why the ESRB sent the applicant the form letter. He asks that this Board take the case in light of the ESRB’s de facto denial. In support of the application, counsel provides copies of the following documents: the ESRB response to the applicant’s appeal; the appeal packet he prepared on the contested NCOER for the ESRB’s review; a copy of the contested NCOER; the DASEB memorandum that approved moving the GOMOR issued to the applicant on 24 September 1996 to the restricted portion (R-Fiche) of the applicant’s OMPF; and the GOMOR and accompanying filing decision.

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

She entered the Army in 1986 and has continuously served on active duty since that time. She is currently a staff sergeant/E-6 (SSG/E-6) and is assigned to Fort Belvoir, Virginia. At the time the contested NCOER was issued, the applicant was assigned to 546^th Transportation Company, Fort Bragg, North Carolina, performing duties as a section sergeant in a light medium truck company.

On 24 September 1996, the applicant was issued a GOMOR for being arrested by the Military Police for the criminal offense of operating a motor vehicle while under the influence of alcohol, wrongful possession of a controlled substance, and failure to maintain the legal limits of lane. It further indicates that the applicant was transported to the Provost Marshal’s office, where she refused to take a breathalyzer test, and that she was being reprimanded for this flagrant disregard for the law and the safety of her fellow soldiers and the general public.
On 22 November 1996, after accepting the comments or matters submitted by the applicant in her own behalf, the commander that issued the GOMOR directed that the applicant’s GOMOR be filed in her OMPF. The applicant was provided a copy of this filing determination.

On 1 April 1997, the applicant was provided a copy of the NCOER in question, which was a CR report that covered the period September 1996 through March 1997, and evaluated her as a section sergeant of a light medium truck company. In Part IVa (Values/Responsibilities), the rater responded Yes to all questions and provided the following comments: “totally committed to the Army mission; and “displays loyalty to superior and to the organization.” In Part IV, sections b through f, the rater gave the applicant “Success” ratings and provided positive bullet comments to support these ratings. In Part V (Overall Performance and Potential) the rater gave the applicant a “fully capable” rating in the overall potential for promotion and/or service in positions of responsibility block. The senior rater placed the applicant in the 2 block for overall performance and in the 1 block for overall potential for promotion and/or service in positions of greater responsibility. The senior rater bullet comments were “promote immediately and send to ANCOC” and “an NCO who can be counted on to accomplish the most difficult mission.”

On 19 September 1997, the DASEB acting on a 6 June 1997 request from the applicant, voted to approve the removal of the 24 September 1996 GOMOR from the performance portion (P-Fiche) of the applicant’s OMPF. The DASEB indicated that this decision was based on proof that the GOMOR was untrue/unjust. However, the decision was not to be considered retroactive and therefore, was not to be considered grounds for a referral to a Special Selection Board (SSB) for consideration for a previous non-selection for promotion.

On 7 February 2002, the applicant’s counsel submitted an appeal packet pertaining to the NCOER in question to the ESRB. In it, he indicated that the appeal was based on substantive error and requested that it be removed from the applicant’s OMPF; and that she be referred to a SSB for a relook of her promotion to sergeant first class/E-7 (SFC/E-7) for fiscal year (FY) 2000. In this appeal, counsel also stated that the applicant had received a GOMOR on
24 September 1996, for driving under the influence and possession of a controlled substance. On 30 January 1997, the applicant went to court-martial and was found not guilty of all charges and specifications; however, the GOMOR remained in the applicant’s record because it was administrative in nature and unrelated to the outcome of the court-martial. The period covered by the NCOER being appealed included both the GOMOR and court-martial acquittal. Subsequent to the contested NCOER, the applicant successfully challenged the GOMOR and it was removed from the record by the DASEB based on proof that it was unfair/unjust.

Counsel contended that the NCOER in question was tainted by the GOMOR. He claimed that the doctrine of res ipsa loguitur (the thing speaks for itself) applied because no GOMOR could be ignored by a rating chain. The court-martial acquittal demonstrated that the government did not prove its case beyond a reasonable doubt. It did not mean the events alleged did not occur for all purposes to included administrative purposes. It was only when the DASEB declared the GOMOR untrue/unjust, that the GOMOR had no efficacy at law. Therefore, counsel contends the NCOER in question was tainted definitionally by the GOMOR. He claimed that by innuendo the contested NCOER reflects that the applicant was not without problems during the rating period. It is a faint praise NCOER, in which the senior rater “2” blocked the applicant’s performance while “1” blocking her potential. The rater marked her fully capable and gave her all Success ratings with bland narratives. The message of this NCOER is that the applicant had problems in performance during the rating period. Counsel comments that while subsequent and prior NCOERs have no bearing on the results of the contested NCOER, it is fair to say the NCOER in question is an anomaly with respect to all prior and particularly all subsequent NCOERs. Any rational analysis leads one to the inescapable conclusion that the discredited GOMOR tainted the contested NCOER. Counsel further suggested that tangentially perhaps, but equally compelling is the observation that this GOMOR was utterly inappropriate. He questions why do a GOMOR when court-martial charges are being preferred? Although not prohibited by law, such a course can yield a paradoxical result. It is a course that should not be favored and should be condemned by the ESRB. Counsel concludes that the applicant’s record shows that she was promoted to SSG/E-6 in 1995, but has not been promoted since. Although her overall records suggests that promotion to SFC/E-7 is appropriate. The contested NCOER makes that result problematic due to its significant downturn.

On 23 February 2002, the ESRB returned the NCOER appeal without action. The basis for this action was that the appeal, as submitted, did not meet the criteria of the Army Regulation 623-205, chapter 6. It further stated that an appeal that alleges a report is incorrect, inaccurate, or unjust must be supported by substantiating evidence, and the applicant’s appeal failed to provide evidence that the rating officials did not render an accurate and objective report in accordance with the applicable regulatory guidance. It also commented that the applicant failed to provide third party statements from senior officials in her chain of command at the time the report was rendered, who may have had knowledge of her performance and could give credence to her contentions of substantive inaccuracy.

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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 noncommissioned officer 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 established clearly and convincingly that the 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. The Board notes the contentions of the applicant that the NCOER in question was tainted by a court-martial at which the applicant was acquitted and by a GOMOR that was declared unfair/unjust by the DASEB. However, it finds insufficient evidence to support these claims.

2. While the Board understands the position taken by the applicant and her counsel that the NCOER in question was tainted by other events, it finds they have failed to provide sufficient independent evidence to support this claim. The evidence of record confirms that the NCOER in question was prepared and filed in the OMPF in accordance with applicable regulations. Further, rating officials make no reference to either the applicant’s court-martial acquittal or to the GOMOR in question. In the opinion of the Board, the ratings and comments rendered by rating officials in the NCOER in question were not derogatory and in many cases were complimentary. Further, the Board is unable to detect any specific negative rating or comment that can be connected to either the applicant’s court-martial acquittal or GOMOR.

3. By regulation, the burden of proof for a successful NCOER appeal rests with the applicant. It requires that the applicant produce evidence that establishes clearly and convincingly that the 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.

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4. Lacking any clear and convincing evidence to show that the applicant’s
court-martial acquittal or GOMOR tainted the evaluation rendered by rating officials in the NCOER in question, the Board finds the applicant has failed to satisfy the regulatory burden of proof necessary for a successful NCOER appeal. Based on this lack of clear and convincing evidence, the Board is compelled to deny the requested relief.

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

___LLS__ __PM___ __DPH__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071271
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/06
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.	111.0000
2.
3.
4.
5.
6.