RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 April 2004
      DOCKET NUMBER:   AR2003091493


      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             |
|     |Mr. Richard P. Nelson             |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Roger W. Able                 |     |Chairperson          |
|     |Mr. Robert J. Osborn              |     |Member               |
|     |Ms, Yolanda Maldonado             |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of a Noncommissioned Officer Efficiency
Report (NCOER) from his Official Military Personnel File (OMPF).

2.  The applicant states that the NCOER he received, covering the period
September 1996 through June 1997, contains both administrative and
substantive errors.  Army Regulation 623-205 (Noncommissioned Officer
Evaluation Reporting System) prohibits the referencing of an incomplete
investigation.  In this regard, the derogatory information contained in the
contested NCOER was based solely on the unproven perception of one of his
students.  He adds that the alleged improper conduct is totally out of
character for him, which is supported by his military history, and should
never have been believed or entered in the contested NCOER.  In addition,
the senior rater and reviewer were not part of the rating scheme.  He
concludes that the NCOER is hindering his ability to be selected for
specialty assignments to further his career.

3.  The applicant provides copies of: a memorandum, prepared by the
applicant, to the US Army Enlisted Records and Evaluation Center (USAEREC)
Evaluation and Appeals Section; a memorandum from the Deputy Commandant, US
Army Noncommissioned Officers Academy, Fort Knox, Kentucky; the USAEREC
appeal case summary; two letters of character; thirteen NCOERs, covering
other rating periods; and, the Department of the Army Enlisted Special
Review Board (ESRB) case summary.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a Regular Army Staff Sergeant serving as a small group
leader at the Noncommissioned Officers Academy, was given an NCOER for the
period September 1996 through June 1997.

2.  In Part IV – Values/NCO Responsibilities of the NCOER, the applicant’s
rater marked the “No” block for “Is honest and truthful in word and deed.”
The rater added “Wavering integrity when confronted with difficult
decisions.”  In the area of Responsibility and Accountability, the
applicant’s rater rated him as “Needs Improvement.”  His rater explained
the applicant “Needs to mature more as an NCO, applying common sense when
confronted with female soldiers and what is right and wrong.”  The rest of
the NCOER is quite laudatory, depicting the applicant as a highly
competent, professional NCO.

3.  There is no evidence to show that the applicant requested a commander’s
inquiry on this report.

4.  On 28 October 1997, the applicant appealed the contested NCOER.  He
contended that the report was administratively incorrect for two reasons:
the senior rater and the reviewer were not the correct rating officials;
and, his height was 66 inches, not 64 inches as shown.  He further
contended that the report contained substantive errors in that the rater
checked the “No” block of Part IVa.4 and commented “Wavering integrity when
confronted with difficult decisions” and that Part IVf contained the
comment “Needs to mature more as an NCO, applying common sense when
confronted with female soldiers and what is right and wrong.”

5.  The applicant explained that one of his students noticed a female
student staring at him during classes.  The applicant stated that he had
noticed the female student’s behavior also, and brought that behavior to
the attention of his superior.  When a male student mentioned that the
female student was staring at the applicant in his course evaluation, the
applicant’s superior asked him if “anything was going on” between him and
his female student.  The applicant stated that he honestly answered “No” to
that question.  Later, the male student saw the applicant talking to the
female student in a fast food parking lot and reported the incident.  When
questioned, the applicant admitted to talking to the female student.  When
his superior accused him of lying to him when he asked earlier if anything
was going on between him and the female student, the applicant replied that
the female student had approached him and apologized for staring at him.
The applicant said that the fact that his rater did not believe his
response was not sufficient to warrant a comment in his NCOER, since no
misconduct or inappropriate behavior was ever substantiated.

6.  The USAEREC Evaluation and Appeals Section recommended that the senior
rater and reviewer portions of the evaluation report be removed.  The
USAEREC Evaluation and Appeals Section then referred the report to the ESRB
for further review and final adjudication.

7.  The ESRB adjudicated the applicant’s appeal.  The ESRB, through contact
with the applicant’s rater and first sergeant, ascertained that the rating
scheme was proper.  A copy of the rating scheme was provided to the ESRB at
that time.  However, the ESRB partially approved the applicant’s appeal on
21 January 2000 and directed:

      a. that USAEREC will change Part IVc (Height) of the contested report
from 64 inches to 66 inches;


      b. that promotion reconsideration is not warranted because of the
change in height;


      c. that the rating officials on the contested report are correct;


      d. that the supporting documentation submitted by the applicant lacks
the necessary force to counter the official ratings;
      e. that the third party statements submitted by the applicant are not
sufficiently compelling to overcome the presumption of regularity referred
to in paragraph 9, below; and,


      f. that the appeal correspondence will be filed on the applicant’s
restricted “R” fiche.

8.  Army Regulation 623-205, paragraph 3–17, states that no references will
be made to unproven derogatory information.  This paragraph specifies that:

      a. No reference will be made to an incomplete investigation (formal or
informal) concerning an NCO;


      b. References will be made only to actions or investigations that have
been processed to completion, adjudicated, and had final action taken
before submitting the NCOER.  If the rated NCO is absolved, comments about
the incident will not be included in the NCOER;


      c. This restriction is intended to prevent unverified derogatory
information from being included in evaluation reports.  It will also
prevent information that would be unjustly prejudicial from being
permanently included in an NCO’s OMPF, such as -


            (1) Charges that are later dropped.


            (2) Charges or incidents of which the rated NCO may later be
absolved.


      d. Any verified derogatory information (information that is already
proven factual by a preponderance of the evidence) may be entered on an
NCOER. This is true whether the NCO is under investigation, flagged, or
awaiting trial.  While the fact that an NCO is under investigation or trial
may not be mentioned in an NCOER until the investigation or trial is
completed, this does not preclude the rating chain’s use of verified
derogatory information.  For example, when an interim report with verified
derogatory information is made available to a commander, the verified
information may be included in an NCOER.


9.  This regulation also states, in pertinent part, that an evaluation
report accepted for inclusion in the official record of an NCO is presumed
to be administratively correct, to have been prepared by the proper rating
officials, and to represent the considered opinion and objective of the
rating officials at the time of preparation.  This is known as “presumption
of regularity.”  To justify amendment or deletion of a NCOER, the applicant
must produce evidence that clearly and convincingly overcomes this
presumption.

10.  The applicant is currently serving on active duty with C Company, 2d
Squadron, 8th Cavalry, 1st Cavalry Division, Fort Hood, Texas, as a Platoon
Sergeant, in pay grade E-7.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not shown, and it does not appear, that the rating
officials’ evaluations represented other than their objective judgment or
considered opinion at the time.

2.  The applicant’s rating chain received complaints from a student in his
group that it appeared that the applicant may be having an inappropriate
relationship with one of his female students.  When questioned if this was
true, the applicant denied any relationship with the female student.  That
denial was accepted by his rating officials.  However, when the applicant
was later seen with the female student off post, his rating officials came
to the conclusion that the applicant hadn’t been truthful when he said that
he wasn’t having an inappropriate relationship with one of his female
students.

3.  Since Army Regulation 623-205 only precludes the use of incomplete
investigations, and there is no evidence that any investigation was
considered or initiated, this prohibition is not applicable in the
applicant’s case.  The applicant’s rating officials determined that there
was sufficient evidence to conclude that he was not being truthful with
them.

4.  It would appear reasonable that an instructor who knows that he is
suspected of having an inappropriate relationship with a student would
avoid that student at all costs.  If he was, in fact, approached by the
female student, the prudent course of action would be to tell her that he
would discuss any issue she wished to discuss in a duty setting.  The fact
that the applicant chose to talk to the female student in an off-post
setting would, if his story had been accepted, more than likely resulted in
derogatory remarks about his judgment being entered in his NCOER.

5.  The ESRB determined that the applicant’s rating scheme was proper, and
the applicant has not submitted any evidence that would show the ESRB was
in error.  However, it should be noted that even if the senior rater and
reviewer portions of the report were removed, as recommended by the USAEREC
Evaluation and Appeals Section, the bullet comments that the applicant
considers to be derogatory in nature would remain in the report.  It should
be further noted that the applicant has been selected for promotion to
sergeant first class since receipt of the contested report, negating his
contention that the report is hindering his career.

6.  In order to justify correction of a military record, the applicant must
show, 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___rjo ___  ____ym __  ___rwa_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            ________Roger W. Able______________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091493                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040413                                |
|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.                      |                                        |