MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 August 2003
         DOCKET NUMBER: AR2002079666

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Robert L. Duecaster		Member
Ms. Marla J. N. Troup		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: That his DA Form 2166-8, Noncommissioned Officer Evaluation Report, (NCOER) for the period June 2000 through December 2001 be completely removed from his Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that the subject NCOER is administratively and substantively incorrect. He alleges that the period covered by the report is incorrect and that he had departed his unit on permanent change of station (PCS) orders in August 2000, but that he was forced to return due to a criminal investigation into his performance as a recruiter. He also states that his principal duty title is incorrect because he was not a recruiter during any of the time covered by the subject report.

In support of his request, the applicant submits: a copy of an unofficial iteration of the subject NCOER with a rating period of July 2000 - December 2001 indicating that he would be best suited for future positions as a "Rifleman" or "Grenadier;" a corrected copy of the NCOER which changes the rating period to June 2000 - December 2001 and deletes the future position recommendations; a copy of an NCOER for the period July 2000 - June 2001 during which time the applicant was attached to Fort Hood, Texas, while undergoing a criminal investigation; a copy of his undated appeal of the subject NCOER to the Enlisted Records and Evaluation Center (EREC); a copy of Orders 238-050, dated 25 August 2000; a copy of a completed Installation Clearance Record, dated 29 August 2000; a copy of a DA Form 31 (Request and Authority for Leave), dated 30 August 2000; a copy of Orders Number 126-553, dated 5 May 2000; a copy of Orders Number 237-528, dated 24 August 2000; a copy of an 8 September 2000 memorandum for Record; a copy of an undated memorandum with subject: Attachment to III Corps; a copy of Orders S-255-1, dated 11 September 2000; a copy of Orders S-234-1, dated 22 August 2001; a copy of a 20 February 2002 memorandum; and a copy of a 20 September 2000 memorandum with 1st endorsement, dated 5 October 2000, and 1st endorsement, dated 10 September 2001.

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

He is a staff sergeant (SSG/E-6). In 2000, he was a recruiter assigned to the US Army recruiting Battalion - Dallas, Irving, Texas. In May 2000, he received PCS orders transferring him to Fort Benning, Georgia, with a reporting date of 20 July 2000. Subsequently, he received amendments to his PCS orders changing his reporting date to 20 September 2000, then revoking the PCS order altogether.

The applicant became the subject of a criminal investigation into recruiting irregularities. During the conduct of the investigation, he was relieved of all recruiting duties and attached to Fort Hood.

The investigation resulted in court-martial charges being preferred against the applicant for multiple specifications of effecting fraudulent enlistments and violating lawful general regulations. He was tried before a general court-martial at Fort Hood between 6 June-23 July 2001. He was found guilty and sentenced to be reprimanded, to forfeit $200.00 pay per month for 12 months, and restriction for 60 days.

On 27 February 2002, the applicant received the subject NCOER, a relief-for-cause report as a result of recruiter improprieties. The NCOER covered the period June 2000 - December 2001. It found that he did not exhibit the proper values/attributes/skills/actions in the area of integrity in that he "compromises personal integrity and professional ethics." It cited "recruiter impropriety; soldier fraudulently enlisted unqualified and ineligible applicants." He was not recommended for further recruiting duty and was only recommended for lower enlisted duty positions (rifleman and grenadier).

On 26 April 2002, the applicant appealed to the EREC, Indianapolis, Indiana, seeking removal of the subject NCOER based on administrative and substantive errors. The EREC determined that the US Army Recruiting Battalion - Dallas was the applicant's parent unit during the entire rating period, including his attachment to Fort Hood while undergoing investigation.

On 17 June 2002, the applicant's appeal was forwarded to the Department of the Army Enlisted Special Review Board (ESRB), Office of the Deputy Chief of Staff for Personnel (DCSPER). The ESRB determined that based on the information available, the applicant was properly shown as a "Field Recruiter" on the subject NCOER because it was the only authorized position listed on the Recruiting battalion's modified table of organization and equipment (MTOE). Further, although the applicant was attached to several positions/duty stations, his rating officials did not change during the entire 18-month period that is shown on his NCOER. After a thorough review of all the evidence, the ESRB determined there was no justification for withdrawing subject NCOER. However, the ESRB determined the EREC would remove the two positions listed in Part Vb of the NCOER.

On 27 August 2002, the EREC notified the applicant of the ESRB's decision to amend the NCOER; there was no justification for removal. The applicant was also notified that a copy of the memorandum and correspondence submitted in support of his appeal was entered on the restricted portion of his OMPF. A copy of the memorandum and the EREC Form 191 had also been entered on the Performance portion of his OMPF in accordance with the required regulations and guidelines. The applicant was provided a copy of his OMPF.

Further details concerning the applicant's contested NCOER, and the ESRB's rationale for denying a more favorable decision on the contested NCOER are set forth in the ESRB Case Summary and need not be reiterated.

Army Regulation 623-205 prescribes the enlisted evaluation function of the military system. It links to Army Regulation 600-8 and provides principles of support, standards of serve, policies, tasks, rules, and steps governing all work required in the field to support the NCOERs. It also provides guidance regarding redress programs including commander's inquiries and appeals.

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. 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.

2. The Board, after reviewing the facts and evidence presented by the applicant, agrees with the ESRB that the US Army Recruiting Battalion-Dallas was the applicant's parent unit during the entire period shown on the contested NCOER and that the proper chain of command rated him.

3. The Board further agrees that, even though the applicant may not have performed recruiting duties, he was assigned on the unit MTOE as a field recruiter even though he did not work in that capacity.

4. Since there is no basis for granting the applicant relief for his request pertaining the contested NCOER, there is likewise no basis for removing the NCOER from his OMPF.

5. 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

__rjw___ __rld___ __mjnt__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079666
SUFFIX
RECON
DATE BOARDED	20030826
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.0000
2.
3.
4.
5.
6.