MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2002074854

         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. Joseph A. Adriance		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 all documents relating to his request for correction/removal from his Official Military Personnel File (OMPF) of a Noncommissioned Officer Evaluation Report (NCOER) for the period February 1994 through January 1995 be removed from the restricted portion (R-Fiche) of his OMPF; that the NCOERs on file in his record dating from 1 July 1996 be corrected to reflect service in the rank and pay grade of sergeant first class/E-7, (SFC/E-7), vice staff sergeant/E-6 (SSG/E-6), as a result of the corrective action taken by this Board on 6 February 2001; and that he be promoted to master sergeant/E-8 (MSG/E-8) based on the fact that the Total Army Personnel Command (PERSCOM) failed to correct all Army records such that the applicant was fairly considered for promotion to MSG/E-8 under the criteria of the Calendar Year 1999 (CY99), CY00, and CY01 MSG promotion selection board in accordance with this Board’s February 2001 decision.

APPLICANT STATES: In October 1999, he applied to this Board for correction of his record. He sought removal from his record of a 6 March 1995 memorandum of reprimand, to be promoted to SFC/E-7, to receive back pay and allowances, and to be considered for promotion to MSG/E-8 by a Standby Advisory Board (STAB) for each promotion period which he would have eligible but for his erroneous removal from the SFC/E-7 promotion list in July 1995. This Board granted the relief requested in its entirety. He claims that the record placed before the STAB that considered him for promotion to MSG/E-8 had not been fully corrected to reflect this Board’s relief recommendations because the applicant’s NCOERs dating from 1 July 1996, the effective date of his promotion to SFC/E-7, still reflected that he was serving as a SSG/E-6 and had not been corrected to reflect service as an SFC/E-7, making it appear that he was considered for promotion to MSG/E-8 without ever having served as a SFC/E-7. Further, he claims that documents related to his successful appeal of a memorandum of reprimand and NCOER remained in the R-Fiche of his OMPF when it placed before the STAB that considered him for promotion to MSG/E-8.

COUNSEL CONTENDS: In effect, that pursuant to the decision of this Board, dated 6 February 2001, he requests on behalf of the applicant, that the Board provide thorough and complete relief to the applicant’s Army record in accordance with the prior decision of this Board. Counsel claims that in September 2002, the applicant submitted an application to the Board requesting that it order additional corrections to his record. Specifically, the applicant’s date of rank was not changed on NCOERs so that notwithstanding the order of the Board promoting the applicant to SFC/E-7, his record continued to reflect that he served as a SSG/E-6 after he was promoted to SFC/E-7. Counsel contends that he failure to fully correct the applicant’s record obviously would have been a factor in the decision not to promote him to MSG/E-8.

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Counsel claims that this application to the Board was returned without action and he was advised to first exhaust all administrative remedies by seeking a correction of the relevant records through the Enlisted Evaluation and Records Center (EREC). Based on the Board’s direction, a request was submitted to the EREC in April 2002. EREC returned the request declining to take the requested action and suggesting that the applicant seek further correction through this Board. Therefore, the application for correction of military records is resubmitted to this Board for action. In support of this request, counsel submits a copy of request to EREC and the EREC reply.

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

Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2000042564) on day 6 February 2001.

On 9 February 1999, the applicant submitted an appeal to his February 1994 through January 1995 NCOER, requesting that the report be totally removed from his OMPF.

On 14 July 2000, the President, Deputy Chief of Staff, Personnel (DCSPER), Special Review Boards, notified the Chief NCO Evaluations Branch, EREC, that the Enlisted Special Review Board (ESRB) had determined that the evidence justifies partial approval of the applicant’s request, and that the NCOER in question would be amended accordingly. This notification also advised that the appeal correspondence would be filed in the R-Fiche of the applicant’s OMPF.

On 8 August 2000, the applicant was notified by the Chief, NCO Evaluations Branch, EREC, that the ESRB had determined that the evidence did not justify withdrawing the report in question. However, the ESRB did determine that the report would be amended. The applicant was also advised that a copy of the correspondence submitted in support of his appeal would be filed in the R-Fiche of his OMPF.

In May 2000, the applicant applied to this Board and requested that his records be corrected by removing a 6 March 1995 memorandum of reprimand from his OMPF; that he be promoted to SFC/E-7 and receive all back pay and allowances due as a result; and that he be considered for promotion to MSG/E-8 on the date he would have otherwise been eligible, but for the removal from the SFC/E-7 promotion list.

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On 6 February 2001, this Board concluded, in effect, that the preponderance of the evidence suggested that had the action against the applicant been handled as first indicated by his battalion commander, the applicant would have completed the advanced noncommissioned officer course (ANCOC) and would have been promoted to SFC/E-7 on 1 July 1996. Therefore, he would have been first considered for promotion to MSG/E-8 by the promotion board that convened on 2 June 1999. Based on its conclusions, the Board finally recommended that the applicant’s records be corrected by removing the 6 March 1995 memorandum of reprimand and all related documents from the R-Fiche of his OMPF; by removing a 22 February 1995 Academic Evaluation Report (AER) from his OMPF and granting him constructive credit for completion of the advanced noncommissioned officer course (ANCOC), effective 14 March 1995, the date he would have ordinarily completed the course; by promoting him to SFC/E-7, effective and with a date of rank of 1 July 1996, and paying him all back pay and allowances due as a result; and by submitting his records to a STAB for consideration for promotion to MSG/E-8 under the criteria of the 1999 promotion selection board, and the 2000 promotion selection board if not selected under the criteria of 1999. In addition, the Board recommended that so much of the application in excess of the foregoing recommendations be denied.

The 6 February 2001 decisional document published by the Board gives no indication that the Board made any recommendation relative to the removal of any NCOER appeal documents from the applicant’s OMPF or in regard to correcting NCOERs that had been properly submitted and filed in accordance with applicable regulations during the period the appeal process was ongoing.

On 1 September 2001, the applicant applied to this Board requesting, in effect, that all documents relating to the appeal of his NCOER for the period February 1994 through January 1995 be removed from the R-Fiche of his OMPF; that the NCOERs on file in his record dating from 1 July 1996 be corrected to reflect service in the rank and pay grade of SFC/E-7, vice SSG/E-6, as a result of the corrective action taken by this Board on 6 February 2001; and that he be promoted to MSG/E-8 based on the fact that the PERSCOM failed to correct all Army records to allow for the applicant to be fairly considered for promotion to MSG/E-8 in accordance with this Board’s 6 February 2001 decision. This application was returned without action by the Board, and he was advised to exhaust administrative remedies by applying to the EREC for relief.

On 18 April 2002, applicant’s counsel applied to the EREC and requested that the applicant’s record be corrected as set forth in the 1 September 2001 application to this Board.

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On 8 May 2002, the Chief, Records Services Division, EREC, notified applicant’s counsel that the documentation placed in the R-Fiche of the applicant’s OMPF pertaining to the appeal of the evaluation report for the period February 1994 through January 1995 was filed correctly in accordance with the decision of the ESRB and regulatory guidelines. In addition, counsel was informed that this Board’s action did not direct EREC to correct documents previously filed in the OMPF, which includes the NCOERs dating from 1 July 1996, therefore these documents would not be altered. Counsel was further informed that if the applicant believed that an additional error or injustice had occurred, his only recourse was to again apply to this Board.

Army Regulation 600-8-104 prescribes the policies and mandated operating tasks military personnel information management program. Paragraph 2-5 contains guidance on OMPF access. It stipulates, in effect, that the R-Fiche is not routinely provided to promotion selection boards. The exception to this rule is that disciplinary records from the R-Fiche are provided to the command sergeant major/sergeant major/ sergeant major academy selection board. However, this does not include documents related to an NCOER or any other appeal action. Table 2-1 contains guidance on filing documents in the OMPF, and it states, in pertinent part, that documents announcing a special review board decision that is partially denied will be filed in the R-Fiche of the OMPF.

Army Regulation 623-205 prescribes the enlisted evaluation system. It states that the system is designed to assist NCOs to meet the professional challenges of the future through the indoctrination of Army values and basic responsibilities. Paragraph 6-6 stipulates that a report accepted for filing in a NCOs record is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. Paragraph 6-10 contains guidance on the burden of proof necessary for a successful appeal of an NCOER that has already been accepted for filing in the OMPF. It states, in pertinent part, that in order to justify amendment or deletion of a report, clear and convincing evidence must be provided to show that the presumption of regularity should be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.

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 and carefully considered the issues and contentions of the applicant and his counsel. However, after a careful review of all the facts in this case, it finds insufficient evidence of probable error or injustice that would support granting the additional relief requested.

2. The evidence of record confirms that the relief now being requested by the applicant and his counsel was not included in the Board’s original 6 February 2001 recommendation. Further, this relief would not have been an automatic result of the correction authorized by the Board in that recommendation. The current relief request is not related to the Board’s original consideration and is now being considered on its own merits.

3. By regulation, all documents related to an ESRB decision of partial approval of an NCOER appeal will be filed in the R-Fiche of the OMPF. The evidence of record confirms that the ESRB found that the evidence submitted by the applicant in his appeal of the NCOER in question did not support removing the report from the OMPF. The ESRB granted partial relief and directed that the report be amended. It also directed the filing of all appeal documents in the
R-Fiche of the applicant’s OMPF in accordance with the applicable regulation.

4. The Board also notes that the NCOER appeal information on file in the applicant’s R-Fiche of his OMPF would not normally be made available to promotion selection boards, and would not have been reviewed by the STAB that considered him for promotion to MSG/E-8. Therefore, lacking independent evidence to show these documents would result in an injustice being served upon the applicant, the Board concludes that there is no evidentiary basis for removing them at this time.

5. By regulation, NCOERs that are filed in the OMPF are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. In order to justify amendment or deletion of a report, clear and convincing evidence must be provided to show that the presumption of regularity should be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.

6. The Board carefully considered the request of the applicant and counsel that all NCOERs dating from 1 July 1996 be corrected to reflect service in the grade of SFC/E-7, vice SSG/E-6. However, although, the 6 February 2001 action by this Board resulted in the applicant’s promotion to SFC/E-7, with an effective date and date of rank of 1 July 1996, this does not render the reports in question invalid. These reports were properly prepared and filed in accordance with the applicable regulation, and were accurate at the time they were submitted. Thus, the Board finds no material error or inaccuracy in the submitted reports.

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7. In the opinion of the Board, there is also no evidence that would support a conclusion that these reports would result in an injustice being served on the applicant. It is the normal course of the STAB to review records of members that required some corrective action subsequent to the normal promotion selection process. As a result, these special boards are well versed in the causes and reasons why inconsistencies may exist in the records it reviews, and especially in the evaluation record subsequent to a successful appeal.

8. STAB members are also thoroughly briefed and are fully capable of recognizing the reasons for and establishing the basis for any of the inconsistencies that may exist in the records reviewed. Therefore, the Board concludes that the STAB that considered the applicant for promotion to MSG/E-8 would have easily identified the reason the applicant’s reports dated subsequent to his SFC/E-7 promotion date indicated he was a SSG/E-6, and would have not used this a discriminator in considering him for promotion to MSG/E-8. Thus, the Board finds no evidence to show this factor was the basis for the applicant’s
non-selection for promotion to MSG/E-8, and it finds no propriety or equity basis for granting this requested relief.

9. 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	AR2002074854
SUFFIX
RECON	2001/02/06
DATE BOARDED	2002/08/06
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2.
3.
4.
5.
6.