MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 August 2002
         DOCKET NUMBER: AR2002071449

         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. John N. Slone		Chairperson
Ms. Irene N. Wheelwright		Member
Mr. Jose A. Martinez		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 his Noncommissioned Officer Evaluation Report (NCOER) for the period June 1988 thru October 1988 be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that the contested NCOER is the result of his reporting the complaints of soldiers in his platoon that his married commander was having an affair with a married female sergeant in his platoon.

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

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. Failure to file within the time allotted may be excused by a correction board if it finds it would be in the interest of justice to do so. The Board has elected to conduct a substantive review of the NCOER in question in order to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file in this case.

On 30 November 1992, the applicant was honorably released from active duty (REFRAD) for the purpose of retirement. At the time, he held the rank and pay grade of sergeant first class/E-7 and he had completed a total of 20 years,
5 months, and 5 days of active military service.

The applicant was a SFC/E-7 assigned to 43^rd Surgical Hospital in Korea and was performing duties as a nuclear biological and chemical NCO at the time the contested report was rendered. The contested NCOER was a change of rater report that covered the period June 1988 through October 1988.

The applicant’s OMPF contains a copy of a modified version of the contested report. The original version of the report was removed from the OMPF. The OMPF contains a copy of a Memorandum of Record (MOR), dated 5 September 1991, prepared by the Enlisted Special Review Board (ESRB). This MOR indicates that the contested NCOER was replaced with a corrected copy of the report that was published as a result of a 30 August 1991 ESRB appeal decision.

A copy of the original contested report is not on file in the OMPF, and was not provided by the applicant. In addition, the ESRB case summary was not available to the Board because it was destroyed upon reaching the established file destruction date. The following review is based on the 1991 modified version of the contested report that was filed in the OMPF.

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In Part IV (Values/Responsibilities), section A, of the modified contested report, the rater marked “Yes” in all but one of the seven questions. The rater responded “No” to question 2 (Is committed to and showed a sense of pride in the unit – works as a member of the team). The rater explained his “No” response with the bullet comment “Frequently at odds with command directives.” In Sections B-F the rater gave the applicant two Success ratings and three Needs Improvement-Some ratings. The first “Needs Improvement-Some” rating was given in Section B (Competence). The rater explained this evaluation with the bullet comment “constantly reminded of his lack of sound judgment.” The second “Needs Improvement-Some” rating was given in Section D (Leadership). The rater supported this evaluation with the bullet comment “he has conflicted with command concerns.” The final “Needs Improvement-Some” rating was given in Section E (Training). This rating was explained with the bullet comment “his ability to teach with effectiveness was not consistent with the unit’s mission.”

In Part Va (Rater-Overall Performance and Potential), the rater evaluated the applicant as “Fully Capable.” In Part Vc and Vd (Senior Rater-Overall Performance and Potential), the senior rater placed the applicant in the third block (Successful) for Overall Performance, and the third block (Superior) for Overall Potential for Promotion. In Part Ve the senior rater provided the following bullet comments: “this NCO does not show concern for future promotions” and “has little or no interest in further military schooling.”

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.

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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 applicant’s contention that the NCOER he received for the period June 1988 thru October 1988 was tainted and unjust due to reporting his married commander was having an affair with a sergeant in his unit. However, the Board finds no evidence of record or independent evidence provided by the applicant to support this claim.

2. 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.

3. The available information and records contain no clear and convincing evidence to show that the evaluations by rating officials contained in the contested NCOER contained a material error, were inaccurate, or were unjust. Thus, the Board concludes that the applicant has failed to satisfy the regulatory burden of proof necessary for a successful appeal or to justify removing the contested report from his records. Therefore, the Board finds that the requested relief is not warranted in this case.

4. By law, applications for correction of military records must be filed within
3 years after discovery of the alleged error or injustice. Failure to file within the time allotted may be excused by a correction board if it finds it would be in the interest of justice to do so. Subsequent to a comprehensive review of the facts of this case, the Board concludes that the applicant has failed to explain or satisfactorily demonstrate by competent evidence that it would be in the interest of justice to excuse the failure to apply within the 3 year statute of limitations. Thus, the Board elects not to excuse the applicant’s failure to timely file.

DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JNS __ __INW __ __JAM __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071449
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/15
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.