MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 29 OCTOBER 2002
         DOCKET NUMBER: AR2002074797

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Thomas A. Pagan		Member
Ms. Barbara J. Lutz		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 two Noncommissioned Officer Evaluation Reports (NCOERs) be expunged from his records and that his records be corrected to reflect that he was retired from active Federal service or that his Active/Guard Reserve (AGR) tour be reinstated to enable him to complete sufficient active service for retirement purposes.

APPLICANT STATES: In effect, that the two NCOERs in question did not accurately reflect his "standards or abilities." He states that the ratings did not follow regulatory guidelines, that he was not given appropriate counsel, and that improper military protocol was used. He notes that the errors cost him "a career after 19 years and months." He states that he was "given a bad NCOER at the time for reenlistment" and that "a promotion board was unjust and unwarranted." The applicant submits no evidence in support of his request.

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

He served an initial period of active duty between July 1972 and July 1975. At the time of his release from active duty in 1975 he had 3 years and 3 days of active Federal service. Following his release from active duty the applicant was assigned to the United States Army Reserve (Control Group), except for a 1-year period between September 1976 and September 1977 when he was a member of the Army National Guard. In December 1979 the applicant enlisted in the United States Army Reserve (USAR) and was assigned to a troop program unit in Georgia.

In September 1984 the applicant was ordered to active duty under the AGR Program. His initial AGR tour was for a 3-year period. His tour was periodically extended, consistent with his reenlistments, and in 1993 he was assigned to an AGR position with a maintenance company in Hawaii. At the time he was assigned to Hawaii, his USAR enlistment was scheduled to terminate on
21 February 1996 based on his 1990 6-year reenlistment contract.

During the applicant's AGR tours he was awarded a variety of personal decorations, including two Army Achievement Medals, an Army Commendation Medal, and several Army Good Conduct Medals. His performance evaluation reports were generally successful, with only an occasional rating in the top block by his senior raters. He attended and successfully completed several military training courses, including the Basic and Advanced Noncommissioned Officer Courses, and a variety of logistic and supply courses. He was promoted to pay grade E-7 in 1991.

A Change of Rater performance evaluation report, rendered for the period September 1994 through December 1994, indicated that the applicant put his personal business ahead of his duty assignment, that he was not a team player, and that he failed to follow guidelines pertaining to his duty assignment. His rater noted that he needed improvement in all but the physical fitness and military bearing arena and that his overall potential for promotion and service in positions of greater responsibility was marginal. His senior rated noted that his overall performance was poor and his overall potential for promotion and service in positions of greater responsibility was fair. The evaluation was authenticated in November 1995 and the applicant refused to sign the report. The report did note that the applicant had been counseled on 27 October and 13 November 1994. There is no indication on the report, or contained in the applicant's file, to explain the delay between the ending period of the report and when the report was actually authenticated.

On 2 November 1995 a Relief for Cause evaluation report was authenticated by the applicant's rating chain. The report covered the period January 1995 through September 1995 and indicated that the applicant had "been notified of the reason for relief." The report noted that the applicant scheduled school and personal business during duty hours and unit functions, and that he refused to work with "reservist's work schedules." His rater, who was not the same rater as the one who had rendered the adverse Change of Rater report, also indicated that the applicant needed improvement in all areas, except physical fitness and military bearing. His senior rater, who was the senior rater on the adverse Change of Rater report, noted that the applicant's overall performance and potential was poor. He specifically recommended the applicant be reduced in rank and that he be reassigned. The applicant again refused to sign the report. The report noted that the applicant had been counseled in January, May, and July 1995.

On 3 November 1995, the day following initiation of the Relief for Cause evaluation report, the applicant's records were "flagged" under the provisions Army Regulation 600-8-2 and all favorable personnel actions were suspended. The basis for the "flag" was recorded as "adverse action." The applicant was also detailed from his position as the "Unit Trainer" (the position from which he was relieved) to a position in the General Support Group Headquarters. The detail was effective on 3 November 1995.

On 21 November 1995 the applicant initiated an appeal of the two adverse evaluation reports. He indicated the appeal was based on "substantive inaccuracy" because the "statements made are not true and the raters did not rate [him] according to [his] abilities and professionalism." In support of his appeal he submitted several statements of support from his peers and subordinates, previous evaluation reports, and miscellaneous documents associated with his duty position, including rosters and schedules of training. In April 1996 the applicant was notified that his appeal had been denied. The denial notification indicated that the applicant had not submitted evidence which would "justify altering or withdrawing the evaluation reports."

In January 1996, while the applicant's appeal was pending, he was permitted to extend his 1990 reenlistment by 3 months, thereby establishing his scheduled separation date as 21 May 1996.

On 21 May 1996 the applicant was released from active duty under the provisions of Army Regulation 635-200 for completion of required active service. His separation document notes that he had a total of 15 years, 8 months, and
1 day of active Federal service. However, in reality, based on documents contained in his file, the applicant only had 14 years, 8 months and 1 day of active Federal service at the time he was released from active duty in May 1996. It is possible that individual's preparing his separation document credited his
1 year of service with the Army National Guard as active Federal service when, in actuality, there is no indication in his file that he was on active duty during that 12 month period (30 September 1976-29 September 1977).

Although the applicant was not permitted to reenlist for the purpose of remaining in the AGR Program, he was permitted to reenlist in the USAR on 21 May 1996 and assigned to the USAR Control Group (Reinforcement). He was voluntarily reassigned from the USAR Control Group (Reinforcement) to a Troop Program Unit in Georgia on 14 March 1997 and voluntarily returned to the USAR Control Group (Reinforcement) in July 1997. The applicant apparently remained in the USAR Control Group (Reinforcement) until 21 June 1999 when he was transferred to the Retired Reserve after completing "20 or more creditable years of service for retirement…."

As part of the applicant's 1990 reenlistment action, he acknowledged that he was aware that his voluntary entry on active duty in an AGR status did not guarantee that he would be offered a subsequent AGR tour or that he would be able to attain 20 years of active Federal service for retirement purposes.

Additionally, information contained in the applicant's file indicates his records were forwarded to a promotion selection board in 1995, but there is no indication he was ever selected for promotion.

Army Regulation 140-11s states that the AGR Program provides a highly qualified corps of personnel for USAR projects and programs. These personnel are serving on active duty in an AGR status and are attached to either Active Army or USAR commands. It notes that when a soldier serving on AGR status is within 6 months of his scheduled separation date and wishes to continue on AGR status he should submit a reenlistment request. If it is determined that the soldier is not eligible for a subsequent AGR tour his request for reenlistment will be denied and the individual will be processed for discharge at his scheduled separation date under the provisions of Army Regulation 635-200. However, such soldiers may be offered the opportunity for continued USAR service upon being released from active duty in the Individual Ready Reserve or a Troop Program Unit.

Army Regulation 623-205 states that the NCOER appeals system protects the Army's interest and ensures fairness to the NCO. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. An evaluation report accepted for inclusion in the official record of an NCO is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. Appeals alleging bias, prejudice, inaccurate or unjust ratings, incorrect APFT or height/weight data, or any matter other than administrative error are substantive in nature and will be adjudicated by the appropriate Enlisted Special Review Board. The burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy or injustice. Paragraph 4-2 of that regulation states specifically that appeals based solely on the lack of full compliance with performance counseling requirements will not normally serve as a basis to invalidate an evaluation report unless accompanied by additional evidence of inaccuracy or injustice.

Army Regulation 623-205, paragraph 2-10 states that a relief-for-cause is defined as the removal of a noncommissioned officer (NCO) from a ratable 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 Army.

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 that the applicant's records were provided for promotion consideration in 1995. There is no indication that he was selected for promotion and the applicant has not provided any information or details regarding his contention that the "promotion board was unjust and unwarranted."

2. The evidence available to the Board does indicate, however, that both adverse evaluation reports were administered in accordance with applicable regulations and there is no evidence of any substantive violation of the applicant's rights. While the applicant may not agree with the comments and evaluation of his rating chain, he has provided no evidence which substantiates that they were incorrect in their appraisal of the his performance.

3. Although documents associated with the applicant's desire to remain in an AGR status were not available to the Board, it appears that the applicant's chain of command made a decision to deny his continued service in that status and as such, he was not permitted to reenlistment in 1996 and was released from active duty upon completion of his required active service. There is no evidence of error or injustice in that action.

4. The applicant's contention that the evaluation reports cost him his "career after 19 years" is without foundation. While the applicant may have had more than 19 years of "military service" at the time of his 1996 release from active duty, his records indicate that he had approximately 14 years and 8 month of active Federal service. While the Board notes that the applicant did not have sufficient active Federal service to qualify for immediate receipt of retired pay, his records do indicate that he was permitted to continue his military service in the USAR and he was ultimately transferred to the Retired Reserve and will be eligible for retired pay at age 60.

5. The applicant has not provided any evidence which would serve as a basis for the Board to conclude that it would be appropriate, or in the interest of justice, to correct his records to show that he retired from active duty, to reinstate him in the AGR Program, or to expunge the two evaluation reports from his record.

6. 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 that requirement. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

7. 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

_KAK ___ __TAP __ __BJL___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074797
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021029
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.	110.00
2.
3.
4.
5.
6.