PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 June 2003
         DOCKET NUMBER: AR2003087464


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Lana E. McGlynn		Member
Mr. William D. Powers		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that the DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 19 October 2000, [herein identified as the "contested AER"] be removed from his Official Military Personnel File (OMPF).

3. The applicant states, in effect, that the punishment was unjust because of the mitigating circumstances and witness interviews were not considered prior to his dismissal. He contends that he was provoked with verbal and mental abuse daily from "SSG ……" [hereafter referred to as the fellow student] while attending the Basic Noncommissioned Officer Course (BNCOC) in October. He also contends that the verbal abuse led him to strike the fellow student which resulted in his dismissal from the Academy. He contends that intimidation and fear of indirect retaliation by his Squad Leader prevented him from going to the BNCOC First Sergeant or the Commandant. He states that frustration and the influence of alcohol caused him to make the wrong decision to strike the fellow student. He claims that he should not have to regret this decision for the rest of his career and that this incident should not prevent him from being promoted to the next higher grade. He also contends that his records are impeccable and contain no history of DUIs, letters of reprimand, or Articles 15. He further states that he graduated from BNCOC with a "94.4" GPA which is a true reflection of his performance as an NCO.

4. In support of his application, the applicant submitted an addendum to his application; a copy of the contested AER; five memorandums; six endorsements; four Developmental Counseling Forms; a Certification of Breath Alcohol Test; a Rights Warning Procedure/Waiver Certificate; a Fort Lee Holiday Vehicle Safety Inspection Checklist; two personal statements; ten Evaluation Sheets from the BNCOC Training Plan; an Information Briefing Checklist; a Quartermaster NCO Academy Logistics Warrior Student Evaluation Checklist; an Army Physical Fitness Test Scorecard; a Body Fat Content Worksheet; two letters of support from fellow students; and five sworn statements.

5. The applicant’s military records show that after having prior U.S. Army Reserve service, he enlisted in the Regular Army on 1 March 1990. He has continued to serve on active duty through a series of reenlistments and is currently serving on active duty in the rank of staff sergeant.

6. Records show the applicant was selected for attendance to the BNCOC Resident Class Number 514-2000 for the period 9 August 2000 through 19 October 2000.

7. On 16 October 2000, the applicant was notified by the Deputy Commandant of the NCO Academy that he was being referred for dismissal from BNCOC 92Y (Unit Supply Specialist), Class 00-514. The Deputy Commandant cited the applicant's charge of assault on 14 October 2000 as a basis for his action. He further advised the applicant that failure to complete BNCOC would make him ineligible for promotion, possibly result in removal from the promotion standing list, make him a candidate for the Qualitative Management Program (QMP), and result in restrictions on future assignments. On 16 October 2000, the applicant acknowledged that he had been counseled by the Deputy Commandant and indicated that he fully understood the basis for his action and consequences of dismissal. He elected to submit evidence in his own behalf; however, no such evidence is available.

8. On 18 October 2000, the Acting Commandant of the NCO Academy informed the applicant that his dismissal from BNCOC 92Y 00-514, was being initiated in accordance with Army Regulation 351-1, paragraph 5-30a(1) (Individual Military Education and Training), based on the charge of assault. The Acting Commandant again advised the applicant that failure to complete BNCOC would make him ineligible for promotion, possibly result in removal from the promotion standing list, make him a candidate for QMP, and result in restrictions on future assignments. The applicant was further advised that he had the right to appeal the action by submitting a rebuttal. On 18 October 2000, the applicant acknowledged that he had been counseled by the Commandant, that he fully understood the basis for his action and consequences of dismissal, and elected to submit an appeal.

9. The applicant submitted an appeal on 19 October 2000. He states, in effect, that he has a problem with alcohol which is the root of the problem which occurred on 13 October 2000. He states that his wife has enrolled him in classes and they have agreed to attend together. He claims that this problem has affected his family and it is time for him to put their needs before his needs. He outlined a plan of action to pursue regarding his alcohol problem. He plans to attend classes to help him with some personal and alcohol problems; he will educate soldiers and peers regarding the appropriate procedures and resources to solve problems; and he will think before he makes a decision that will affect his family, career, and himself as a leader within his unit. In conclusion, he states that, if given a second chance to proceed on and graduate, he will make good on the second chance that will be given to him.

10. On 23 October 2000, the proposed dismissal action was reviewed by an Attorney Advisor and was found to be legally sufficient.

11. On 27 October 2000, the applicant was notified by the Commandant of the NCO Academy that he had been dismissed from the BNCOC 92Y, Class 00-514, for being arrested for assault. He acknowledged receipt of the action on 27 October 2000.

12. On 27 October 2000, the applicant received the contested AER and the preparing official marked the block "FAILED TO ACHIEVE COURSE STANDARDS" in item 13 (Performance Summary). In item 16 (Comments), the preparing official indicated that the applicant was administratively relieved from the course due to disciplinary reasons (assault). In item 14c (Leadership Skills), the preparing official marked the block "UNSAT" and further indicated that the applicant performed satisfactorily in the classroom, but his behavior off duty was unbecoming of an NCO. The applicant acknowledged receipt of the report and elected to submit a written rebuttal concerning the report; however, his rebuttal is not available.

13. There is no other record of disciplinary action taken against the applicant for the offense of assault.

14. Records show the contested AER was properly filed on the performance fiche of the applicant's OMPF.

15. The applicant successfully completed the BNCOC Common Core Phase 1, Class 002-2002 and the BNCOC 92Y Phase 2, Class 002-2002.

16. The evidence of record shows the applicant was promoted to the rank of staff sergeant effective 19 December 2001.

17. The applicant has received top block senior rater ratings on his NCOERs covering the period May 2000 through April 2001 and May 2001 through February 2002. The senior rater recommended advancement to sergeant first class and attendance at the Advanced Noncommissioned Officer Course.

18. The applicant has received the third award of the Army Commendation Medal, the third award of the Army Achievement Medal, and the fourth award of the Good Conduct Medal subsequent to his dismissal from BNCOC 92Y,
Class 00-514.

19. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by: the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the OMPF custodian when documents have been improperly filed, Total Army Personnel Command as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.



20. Army Regulation 351-1 (Individual Military Education And Training) provides the policies and procedures for individual military education and training. It states, in pertinent part, that students may be removed from Noncommissioned Officer Education System (NCOES) courses by the service school or NCO Academy commandant before course completion for disciplinary reasons, lack of motivation, other valid reasons such as illness or injury, and academic deficiencies. Soldiers eliminated for cause may, by appropriate authority, be removed from the Army standing promotion list, barred from reenlistment, received nonjudicial punishment, or be reclassified.

CONCLUSIONS:

1. The evidence of record shows the applicant was dismissed from the BNCOC 92Y (Unit Supply Specialist), Class 00-514 on 19 October 2000, for being arrested for assault. However, there is no further evidence of record to show disciplinary action was taken against him for this offense.

2. The contested AER and all related documents were properly filed on the performance fiche of the applicant's OMPF.

3. The applicant successfully completed Phase 1 and Phase 2 of BNCOC 92Y, Class 002-2002. He received an AER covering the period of the course and it was properly filed in his OMPF.

4. Subsequent to receiving the contested AER, the applicant received excellent NCOERs and awards for meritorious service and meritorious achievement.

5. While there does not appear to be any regulatory basis for removing the contested AER, the Board determined that, in the interest of justice, it would be appropriate to transfer the contested AER from the performance fiche to the restricted fiche of the applicant's OMPF.

6. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by transferring the AER, dated 19 October 2000, from the performance fiche to the restricted fiche of the OMPF of the individual concerned.




2. That so much of the application as it relates to complete removal of the contested AER be denied.

BOARD VOTE:

JNS____ LEM____ WDP_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  John N. Slone_________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003087464
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030619
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	126.0400
2.
3.
4.
5.
6.