MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 February 2003
         DOCKET NUMBER: AR2002078903

         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:

Ms. Joann H. Langston		Chairperson
Mr. Lester Echols		Member
Mr. Allen L. Raub		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 Relief for Cause Noncommissioned Officer Evaluation Report (NCOER) that he received for the period December 1995 through March 1996 be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that the NCOER in question was intended to be a career stopper, which would prevent him from competing for promotion in a fair and impartial manner. He claims that he feels that the rating for the period December 1995 thru March 1996 is excessively critical, prevents his chances for promotion, and that certain circumstances that he faced during the period were not taken into consideration when the report was prepared. He claims that in the fall of 1995, he encountered a series of personal setbacks that caused him severe financial and emotional distress. These events occurred while he was serving as a drill sergeant, which was a very demanding position. He claims that he strived to keep his focus on the mission, but this became increasingly difficult to do. He states that his biggest mistake was being too proud to seek assistance from the agencies that are in place to help soldiers. He instead became withdrawn and he began to drink heavily in order to drown his emotions and to find the sleep that was becoming more and more elusive. He states that this naturally impacted his performance of duty.

The applicant further states that in February 1996, he was instructed to report for an Army Physical Fitness Test (APFT) and when he failed to do so, he received what he thought was appropriate punishment. However, in a few months, after he was relieved of duty and subsequent to his mental health counseling, the fog began to clear and he realized the extent of the damage he had inflicted upon himself. He claims that he had not considered submitting an appeal previously because he believed he needed to show sufficient improved performance to warrant favorable consideration for promotion. He also claims that he had been taught that there is a price to pay whenever less than sound judgment is used, and that the price is sometimes very painful.

The applicant states that he did successfully appeal separation under the Qualitative Management Program (QMP), he was led to believe that he was extremely fortunate in doing so, and that his future in the Army would be uncertain at best, and consideration for future advancement would be highly unlikely. He claims that another factor impacting his appeal decision was that he was not certain he had a valid case. He has since been advised and convinced by several colleagues that he had indeed paid the price for his mistakes and that it was time for him to seek the challenges and responsibilities that come with promotion. He is not seeking to enlist sympathy because he did make the wrong decision. However, he now feels that he has redeemed himself and with his experience, he can be of more value to the Army by serving in higher grades with increased responsibility rather than remaining in his current grade the rest of his career.
In support of his application, he provides a copy of a medical statement from the Community Mental Health Service (CMHS), Fort Sill, Oklahoma; two supporting letters from fellow noncommissioned officers (NCO); and a promotion recommendation letter from the Commanding General (CG), Fort Sill.

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

He entered the Regular Army on 25 November 1986, and he has continuously served on active duty since that time. He is currently a staff sergeant/E-6 (SSG/E-6) and he is assigned to Fort Hood, Texas.

The contested report is a Relief for Cause NCOER that covered the period December 1995 through March 1996. The applicant was evaluated as a drill sergeant in a Field Artillery Battery at Fort Sill, Oklahoma. In Part IVa (Values/NCO Responsibilities-Rater) the rater responded “Yes” to three of the seven questions. He gave a “No” response to the following Questions: 1 (Places dedication and commitment to goals and missions of the Army and Nation above personal welfare); 2 (Is committed to and shows a sense of pride in the unit-works as a member of the team); 3 (Is dedicated and obedient to the spirit and letter of a lawful order; and 5 (Maintains high standards of personal conduct on and off duty). The bullet comments the rater provided to support these “No” responses were that the applicant’s judgment was questionable, he was not a team player, and his conduct on and off duty indicated a lack of moral values.

In Part IVb-f the rater gave the applicant two “Success” ratings, and three “Needs Improvement-Much” ratings. The first Needs Improvement-Much ratings were in the following three areas: Competence; Leadership; and Responsibility & Accountability. In Competence, the rater’s supporting bullet comments were that the applicant could not be trusted to use good judgment, he reported late for work on numerous occasions, and he failed to respond to performance counseling. In Leadership, the rater’s supporting bullet comments were that the applicant did not display leadership traits appropriate for a drill sergeant and he allowed personal problems to override his commitment to the goals and mission of the Army. Finally, in Responsibility & Accountability the rater’s supporting bullet comments were that the applicant failed to appear before the NCO of the Quarter Board due to being intoxicated and he did not assume responsibility for his own mistakes and shortcomings; in addition, in this area the rater entered the bullet comment that the rated NCO had been notified of the reason for his relief.

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In Part V (Overall Performance and Potential) the rater gave the applicant a “Marginal” rating. The senior rater rated the applicant “Poor” in both Overall Performance and Overall Potential. The supporting bullet comments provided by the senior rater to support his ratings were that the applicant did not display a positive approach to discipline which resulted in his relief, he had limited potential to serve in positions of greater authority, and he lacked competence in making sound decisions.

The reviewer provided an enclosure to the contested report. He commented that on 6 March 1996, the applicant was unable to perform his assigned duties of completing common task testing in conjunction with appearing before the Battalion Drill Sergeant/NCO of the Quarter Board) due to alcohol intoxication. He further indicated that over the next seven days, the applicant failed to report and was absent from his assigned duties, and on two of these occasions alcohol was involved. The reviewer stated that counseling was performed by the applicant’s entire chain of command regarding his poor judgment, the impact of his job performance, and these efforts had no affect. For these reasons, action was initiated to remove the applicant from the Drill Sergeant Program and to relieve him for cause.

The letters of support submitted by the applicant chronicle his initial duty performance during the rating period, his declining performance as a soldier, and his duty performance subsequent to being relieved of his duties as a drill sergeant. Also, they provide comments that if the applicant’s chain of command had reacted sooner the applicant’s problems could have been favorably resolved. Finally, the letters of support attest to the future potential of the applicant to serve in the Army, and favorable consideration of the applicant’s case is requested.

The CMHS memorandum, dated 21 March 1996, contains comments that indicate that as a result of severe depression, the applicant had been attending both medication management and individual treatment sessions since the beginning of March 1996. The social worker who authored the memorandum stated that the applicant’s symptoms of a depressed mood, a decrease in pleasurable activity, sleep delay and disruption, fatigue, a decreased appetite, poor concentration, and increasing amounts of self doubt are consistent with a diagnosis of major depression. Also, this type of disorder can greatly impair a soldier’s ability to function and perform duties to standard. Further, it was stated that although the applicant was experiencing mood related disturbances, he was aware that he was fully responsible for his actions. Finally, the social worker opined that it was his professional opinion that the applicant’s condition should be taken into consideration when his performance and behavior were evaluated.

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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 intended to be a career stopper and has prevented him from competing for promotion in a fair and impartial manner. However, it finds that this factor is not sufficiently mitigating to warrant the requested relief.

2. By regulation, the burden of proof for a successful NCOER appeal rests with the applicant, and to support a successful appeal the applicant must 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 evidence of record confirms that the NCOER in question was prepared and filed in the OMPF in accordance with applicable regulations. In addition, the applicant has failed to show, through the evidence submitted or the evidence of records, that the comments on the contested NCOER are not an accurate reflection of his performance during the respective rating period. Further, by the applicant’s own admission, he committed the offenses that ultimately led to the contested report.

4. Notwithstanding the supporting third party letters and the CMHS Memorandum, the Board finds the applicant’s prior and subsequent duty performance and the mitigating factors raised in these documents are not sufficient to support the requested relief.

5. Lacking any clear and convincing evidence to the contrary, the Board concludes that the applicant has failed to satisfy the regulatory burden of proof necessary for a successful NCOER appeal. Therefore, based on this lack of clear and convincing evidence, the Board is compelled to deny the requested relief.
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 this requirement.

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

__JHL__ __ LE _ __ ALR __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078903
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/02/20
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.
2.
3.
4.
5.
6.