RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            1 February 2005
      DOCKET NUMBER:   AR20040000304


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. William D. Powers             |     |Member               |

      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 that his noncommissioned officer evaluation
report (NCOER) for the period December 1999 through August 2001 be removed
from his Official Military Personnel File (OMPF).

2.  The applicant states that the contested NCOER contains at least two
substantive errors and that the preponderance of the evidence shows that
leaving the NCOER in his OMPF is unjust because the underlying Army
Regulation 15-6 investigation was not conducted with administrative
regularity and was perhaps tainted by fraud.

3.  The applicant provides the contested NCOER; his NCOER appeal; the
investigation packet; a statement from his rater dated 8 September 2003;
and his rebuttal to his letter of reprimand.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the contested NCOER be removed from the
applicant's OMPF or, at a minimum, that statement that he accepted
responsibility for his actions should be removed from the contested NCOER.

2.  Counsel states that at least two errors exist in the contested NCOER.
First, the rated time exceeds 12 months.  Second, in part IV(f), the rater
claimed the applicant accepted full responsibility for the misconduct.
Such a statement is not supported by any evidence and new evidence provided
by the rater reveals that the statement is not true.  The preponderance of
the evidence also shows that the underlying investigation was not conducted
with administrative regularity and was perhaps tainted by fraud.

3.  Counsel states that the applicant began working with Mr. J___ on 2
August 1999 as a potential recruit.  Mr. J___ also started to discuss
recruiting options with a Marine recruiter in the same building.  The
applicant requested that Mr. J___ bring his birth certificate, social
security card, and diplomas to him for the accession packet, but he never
presented them to the applicant.

4.  Counsel states that Mr. J___ made and cancelled several appointments
with the applicant over the next three months.  The applicant's rater and
station commander, Sergeant First Class (SFC) D___, told the applicant to
tell Mr. J___ that his "packet" had been sent to the Military Entrance and
Processing Station (MEPS) notwithstanding the fact that the packet was not
complete and it had not been sent.  The applicant made data base entries in
quotes to this effect to denote that the packet was not actually complete.
5.  Counsel states that in October 1999 Mr. J___ told the applicant that he
was not interested in joining the Army.  In May 2000, Mr. J___ claimed that
he received an envelope containing his original documents cut into pieces.
On        1 June 2000, the Commonwealth Attorney issued a summons alleging
that the applicant destroyed Mr. J___'s personal property but she dropped
the charge on 28 February 2001.  There was no evidence in the investigation
explaining why the charge was dropped.  The applicant was suspended from
recruiting duties on 31 March 2001 and relieved in August 2001.

6.  Counsel states that the contested NCOER covers 20 months.  Army
Regulation 623-205, paragraph 3-29(a)(1) states that an [annual] evaluation
"will be submitted 12 months after the ending month of the last report."
He was not officially suspended from his duties until 31 March 2001.  Army
Regulation     623-205, paragraph 3-32(a) states that only the period of
time between a suspension from duties and the relief from duties shall be
non-rated time.  It appears that the applicant should have received an
NCOER for the period January 2000 through December 2000 since it seems he
was not suspended from his duties until March 2001.  (NOTE:  Counsel quotes
from the Army Regulation 623-205 version dated 17 December 2001.)

7.  In Part IV(f) of the contested NCOER, the rater (SFC D___) stated,
"Accepted full responsibility for his action."  The applicant has
repeatedly stated that he did not destroy Mr. J___'s personal documents and
there is no evidence that he accepted responsibility for such an act.  His
rater's original statement to the investigating officer (IO) was not
submitted to the approving authority and is now missing.  In a new
statement, the rater stated, "…to my knowledge, F___ J___'s documents were
never received by any recruiter in the station during my tenure there."  He
also now states that the applicant did not accept responsibility for
receiving the documents.  Therefore, at a minimum that statement should be
removed from the contested NCOER.

8.  Counsel states that normally an IO is not charged with finding
exculpatory evidence, but once such evidence is discovered he has a duty to
present it to the approval authority.  The IO took two key witness
statements from SFC D___ and Staff Sergeant (SSG) J___ but did not present
them to the approving authority as part of the investigation.  That
omission is material because their subsequent statements refute several key
pieces of evidence that the IO relied upon to make his findings.

9.  Counsel states that the IO found that the applicant collected Mr.
J___'s documents for two main reasons:  (1) the applicant's database entry
that the
packet was "ready to go."  However, SFC D___ stated that he told the
applicant to make that entry notwithstanding the fact that the packet was
in fact not complete and (2) Mr. J___'s statement that he gave the packet
to the applicant in the recruiting station.  However, SSG J___ told the IO
that he was in the office when Mr. J___ came in and the he did not see Mr.
J___ give the applicant any documents.  SFC D___ also stated that he never
saw or was aware of the documents in his recruiting station.  The IO left
these statements out of the investigation when he presented it to the
approving authority.

10.  Counsel states the IO found that Mr. J___ had no motive to destroy his
own documents because he was under no obligation to the Army.  However, the
applicant was told by SFC D___ to tell Mr. J___ that he was under an
obligation to the Army and that his packet had been sent to the MEPS.
Therefore, since Mr. J___ was under a perceived obligation a motive was
created for him to find a way to renounce that perceived obligation.  Also,
the IO knew the letter had been sent from Charlottesville on 24 May 2000
but he failed to copy that date out of the applicant's date book even
though he copied several other pages.  Additionally, the IO should have
known that another recruiting agency was in the same building, yet he did
not explore the possibility that Mr. J___ gave the documents to the Marine
recruiter and mistakenly believed he had given them to the applicant.

11.  Counsel also states that the Enlisted Special Review Board (ESRB)
collected additional information when it denied the applicant's appeal.
For example, Mr. J___ gave a statement to the IO that directly contradicted
one of the statements the ESRB obtained from First Sergeant J___.
Additionally, First Sergeant J___ told the ESRB that the recruiter of
credit is responsible for collecting original documents and either
personally returning them or mailing them back to the recruit.  However,
Army Regulation 601-210, paragraph 2-1c states that recruiting personnel
will examine original documents and advise the recruit to take the
documents to the MEPS.  The applicant did not keep original documents in
the station per the regulation.

12.  Counsel further states that common sense also contradicts the
findings.  The applicant's last contact with Mr. J___ was in October 1999,
yet Mr. J___ did not receive his cut up documents in the mail until late
May, long after Mr. J___ was terminated from the applicant's file.  The
investigation took over a year to complete, but the applicant was given
only four days to prepare a response.  That effectively precluded him from
taking new statements and discovering other statements the IO may have left
out.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 February 1990.  He was
promoted to SSG on 1 July 1997.  He completed the Recruiter and Retention
Course in 1998 and was assigned to the U. S. Army Recruiting Battalion,
Beckley, WV with duty in Staunton, VA in May 1998.

2.  A memorandum, dated 7 March 2001, subject:  Report of Investigation,
listed the following chronology of events:

      2 August 1999 – The applicant made an appointment to meet Mr. J___.

      4 August 1999 – The applicant met with Mr. J___ at the recruiting
station.

      9 August 1999 – The applicant met with Mr. J___ at the recruiting
station (Mr. J___ was late).

      12 August 1999 – The applicant conducted a telephonic follow-up with
Mr. J___.

      16 August 1999 – The applicant scheduled a telephonic follow-up with
Mr. J___.

      18 August 1999 – The applicant made an annotation in his planning
guide "Call AMC-MedDoc? – J___".

      18 August 1999 – The applicant scheduled a telephonic follow-up with
Mr. J___.

      20 August 1999 – The applicant made a cold house call on Mr. J___ (no
contact).

      20 August 1999 – The applicant made a cold house call on Mr. J___ and
spoke with Mr. J___'s father.  The applicant told Mr. J___'s father that he
had Mr. J___'s medical documents and his packet was ready to go.

      12 October 1999 – The applicant conducted a telephonic follow-up with
Mr. J___.  Mr. J___ not home.  The applicant told Mr. J___'s father that
the packet had been sent up and approved and that hotel reservations had
been made.

      24 May 2000 – Envelope containing destroyed documents was postmarked
in Charlottesville, VA.
      1 June 2000 – Warrant of Arrest for the applicant was issued.

      5 June 2000 – Commander's Inquiry was initiated with Captain R___ as
the IO.

      14 June 2000 – Warrant of Arrest for the applicant was served.

      28 February 2001 – The civilian court ordered a nolle prosequi on the
prosecution's motion.

      1 March 2001 – Captain S___ was appointed as the IO.

3.  In the 7 March 2001 memorandum, the IO (Captain S___) noted that the
applicant denied all involvement in the destruction of Mr. J___'s personal
documents but found that the evidence indicated otherwise.  The IO believed
Mr. J___ had no motive to destroy his own documents.  While the IO did not
find Mr. J___'s statement alone that he provided the applicant with the
documents convincing evidence, the IO found that other evidence indicated
the applicant had possession of all documents needed to process Mr. J___
and lent credence to Mr. J___'s assertion:

      (1)  The applicant indicated that he "did packet" on Mr. J___ on 9
August 1999 and noted he was missing medical documents;

      (2)  The applicant stated that the packet had been sent up and was
approved;

      (3)  The applicant stated that "the packet is ready to go" on 20
August 1999;

      (4)  Nowhere in the planning guide or on the available ARISS (Army
Recruiting Information Support System) files did the applicant indicate
that he was missing any documentation other than the medical documents;

      (5)  The handwriting on the envelope containing Mr. J___'s documents
appeared to be consistent with the known handwriting samples from the
applicant; and

      (6)  The applicant's ARISS entries and planning guide notes indicated
he was actively pursuing contact with Mr. J___ as late as October 1999.

4.  The IO found that the preponderance of the evidence indicated the
applicant deliberately destroyed Mr. J___'s personal documents.
5.  A document in the Report of Investigation packet indicated the
applicant lived in Staunton, VA, approximately 40 miles from
Charlottesville, VA.

6.  In a statement dated 31 May 2000, Mr. J___ had stated that somewhere
around August 1999 the applicant contacted him at his home to talk to him
about enlisting.  He met with the applicant at the recruiting office where
the applicant told him that the next time they met he should bring his
birth certificate, diplomas, and social security card.  Mr. J___ stated
that a couple days later they met at the recruiting office and that was
when he gave the applicant his papers.  He stated he told the applicant a
couple weeks later he could not go to Richmond [to the MEPS] because he
fractured his ankle at work.  The applicant tried to get him to go anyway
and not tell [the MEPS] about his ankle.  He stated he called the applicant
several times wanting his papers back and the applicant said he would get
them to him.  He stated he went by there [the recruiting station?] several
times and no one was ever there.  Finally, in May 2000 the papers he left
with the applicant were sent to him in the mail.  Each document was cut up
into pieces.

7.  On 5 January 2005, the Defense Finance and Accounting Service (DFAS)
informed the Board analyst that their records show the applicant's Special
Duty Assignment Pay (SDAP) was terminated effective 26 April 2000.

8.  The applicant provided email traffic dated June 2000 indicating he had
been convicted by civil court of a sexual assault.  This email traffic also
indicated that the case was on appeal and that the applicant's battalion
had conducted an investigation of the same charges and found them
unsubstantiated.  Information obtained from U. S. Army Recruiting Command
(USAREC) on 26 January 2005 indicated a "sexual misconduct" (with a Delayed
Entry Program recruit) incident was reported 10 November 1999 against the
applicant.  He was convicted of sexual battery, he appealed, and all
charges were dropped.  Apparently the alleged victim filed civil [suit]
charges in March 2000.  USAREC did not know the disposition of the civil
charges.

9.  By memorandum dated 21 March 2001, the U. S. Army 1st Recruiting
Brigade Judge Advocate indicated she had reviewed the investigation, found
that it was conducted in compliance of applicable law and regulation, and
that the evidence submitted was sufficient to establish that the applicant
destroyed the personal documents of Mr. J___.

10.  On 30 April 2001, the applicant was given a memorandum of reprimand
(MOR) for the incident.  He rebutted the MOR on 10 May 2001.  He stated he
did not destroy Mr. J___'s documents nor did he have the motive to do so.
He stated it was unclear why one desiring "revenge" would wait such a long
period of time to act (from August 1999 to May 2000).  He stated Mr. J___'s
statements were not credible.  For one thing, he was told early in the
investigation that Mr. J___ claimed that the destroyed documents were given
to him in the presence of SSG
J___.  SSG J___ indicated that, while he was present when Mr. J___ came to
the recruiting station, Mr. J___ did not provide any documents to the
applicant as Mr. J___ once claimed.

11.  The MOR was filed in the applicant's OMPF.

12.  The applicant provided a statement from SFC D___ dated 8 May 2001.
SFC D___ noted that it was the second statement made on the incident, the
first being made in or around the month of April 2000.  He stated that he
had been the Station Commander of Staunton Army Recruiting Station since 13
September 1999 and had known the applicant throughout that time period.
SFC D___ stated he rarely left his office at the Station and during the
incident there were four Soldiers stationed in his office.  Mr. J___ called
only once to say he had sprained his ankle and would not be able to join
right now.  After that, he never called back or came by the office.  If he
had called between 8:30 a.m. and 10:00 p.m. someone should have been there
or he could have left a message on their voice mail or he could have left a
note using the pen and paper they always had posted on the wall next to
their door.  SFC D___ stated that, as a recruiter should do, the applicant
tested Mr. J___ by telling him that if he just had a sprain that he could
still go to the MEPS and join.  SFC D___ stated they never heard from Mr.
J___ again until the accusation with his documents was made.

13.  The applicant provided a statement from SSG J___ dated 10 May 2001.
He stated that he was in the recruiting station when the applicant
conducted the interview with Mr. J___.  In that time, he never saw Mr. J___
give the applicant any documents or paperwork concerning him enlisting in
the Army.  The applicant also never came by the station or called and asked
if the documents were at the station.  He was in the office the evening Mr.
J___ came in the office. SSG J___ stated that he told the IO that he did
not see Mr. J___ give the applicant any documents and that was all taken in
a statement to the IO.

14.  The applicant provided a memorandum from his legal assistance attorney
   to the Commander, U. S. Army 1st Recruiting Brigade, Fort Meade, MD
dated     8 May 2001.  His attorney noted the applicant had received an MOR
via fax.  On 5 May 2001, his attorney requested a 5-day delay in responding
to the MOR.  His request was denied and he was instead given a new suspense
date of 10 May 2001.  He requested reconsideration of his request.

15.  A memorandum dated 27 August 2001 from the Commander, U. S. Army  1st
Recruiting Brigade to the Commander, USAREC indicates the applicant was
suspended from recruiting duties on 31 March 2001, had his SDAP terminated
effective 31 March 2001, and was relieved from recruiting duties on or
about      27 August 2001.

16.  The contested NCOER is a 3-rated month relief-for-cause report for the
period December 1999 through August 2001.  SFC D___ was the rater.  Part
IVa5 (Maintains high standards of personal conduct on and off duty)
contains a "no" entry with a related comment.  Part IVf (Responsibility and
Accountability) contains a "needs some improvement" rating with the
comments, "The rated NCO has been notified for the reason for the relief,"
"Improper judgment affected his ability to continue recruiting tasks and
duties," and "Accepted full responsibility for his actions."  The rater
rated his overall potential for promotion and/or service as "fully capable"
(out of possible ratings of "among the best," "fully capable," and
"marginal").  The senior rater made no overtly negative comments (one
comment was, "Future performance may indicate increased promotion
potential") and rated both his overall performance and potential as
"successful 3" (out of possible ratings of "successful 1, 2, or 3," 1 being
the highest; "fair 4," and "poor 5").

17.  The applicant appealed the contested NCOER in August 2002.  He based
his appeal upon a failure to properly substantiate the alleged misconduct
and for actions on the part of the command that constituted a potential
violation of the Whistleblowers' Protection Act.  He stated the derogatory
entries on the NCOER were based upon an incompletely prepared ROI that was
substantially tainted by fraud and destruction of evidence that was
exculpatory.  That, coupled with his command's unwillingness to provide him
time to prepare a defense, led him to file a complaint with the USAREC
Inspector General (IG).  Although the command did finally grant time to
prepare a response, they never responded to the clear evidence of the
failure of the IO to include exculpatory information from at least two
individuals.

18.  The applicant provided a statement, dated 8 September 2003, from SFC
D___.  SFC D___ stated that he had arrived in September of 1999 as the
Station Commander of Staunton Army Recruiting Station, Staunton, VA where
the applicant was one of three detailed recruiters.  He stated that the
applicant had contacted Mr. J___ several times to schedule an appointment
with him to complete his "packet" (application) (quotation marks and
parentheses in the original).  The applicant was either stood up or had the
appointment canceled by Mr. J___ almost every time.  SFC D___ stated that,
after weeks of canceling and rescheduling appointments, he sent the
applicant to Mr. J___'s home and instructed him to tell Mr. J___ that they
had sent his "packet" (quotation marks in the original) to the MEPS.  That
was a technique used by field recruiters to determine the sincerity of the
applicant.  SFC D___ further stated that, to his knowledge, Mr. J___'s
documents were never received by any recruiter in the station during his
tenure there.

19.  On 1 July 2002, the applicant was promoted to SFC.

20.  Army Regulation 601-1 (Assignment of Enlisted Personnel to the U. S.
Army Recruiting Command), paragraph 5-7 states that suspension from
recruiting duty is the removal of a recruiter from all contact with
prospects and applicants for enlistment and from the processing of any
documentation concerning active applicants for enlistment.  The provision
for suspension exists to prevent recurrence of incidents of impropriety and
misconduct involving recruiters and to minimize the adverse impact such
incidents or suspected incidents have on the public image of the U. S.
Army.

21.  Army Regulation 601-1, paragraph 5-7 further states that suspended
recruiters are not entitled to SDAP because they are removed from their
recruiting duties.  Termination of SDAP is effective on the date of
suspension.  Paragraph 5-10 states that the recruiting brigade commander
will either approve or disapprove a request for involuntary reassignment
[based on unsuitability – failure to meet or maintain acceptable standards
of conduct].  Before acting on such a request, the case will be referred
for legal review.  Headquarters, USAREC will review the action for
completeness, documentation, and validity of reassignment and
reclassification recommendations.  USAREC will ensure that a detailed
Soldier's NCOER has been completed and action initiated to terminate his
SDAP.

22.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting
System) establishes the policies and procedures for the NCOER system.
Paragraph 4-2, of the version effective 20 April 1992 and in effect at the
time of the contested NCOER, states that an NCOER accepted for inclusion in
an NCO’s OMPF is presumed to be administratively correct, to have been
prepared by the properly designated rating officials and to represent the
considered opinion and objective judgment of the rating officials at the
time of preparation.  Paragraph 4-7 of that regulation also states that the
burden of proof in an NCOER appeal rests with the applicant.  Accordingly,
to justify deletion or amendment of an NCOER under the regulation, the
applicant must produce evidence that clearly and convincingly overcomes the
presumptions referred to above and that action to correct an apparent
material error or inaccuracy is warranted.

23.  Army Regulation 623-205, version effective 20 April 1992, defines
period of report as the period of time the report covers including rated
and nonrated time  beginning with the month following the ending month of
the last report with the through date that is the month of the event
generating the report.  Paragraph     2-10 (Relief-for-cause reports),
subparagraph e states that the date of relief
determines the "thru" date of the report (paragraph 6-9i(2)).  Paragraph 6-
9i(2)) states that the number of rated months is computed by taking the
total number of calendar months in the rating period from the beginning
month through the ending month and subtracting the nonrated months to
obtain the rated months.

24.  On 24 January 2005, the NCOER Policy Branch, U. S. Army Human
Resources Command informed the Board analyst that it is possible to have an
NCOER with a rating period of greater than 12 months; for example, if the
applicant had been suspended from recruiting duties a few months after the
rating period began but the investigation leading to his relief from duties
took over 12 months to complete.

25.  On 12 January 2005, the USAREC IG office informed the Board analyst
that they provided assistance to the applicant in 2001 regarding giving him
more time to respond to a memorandum of reprimand.  The IG's records
indicated the applicant had been given more time in response to their
assistance.  They had no records to show they investigated any complaint
that his NCOER was unfair or that the investigation that led to his relief
from recruiter duties was tainted by fraud or that there was a violation of
the Whistleblower Protection Act as the result of his making a protected
communication.

DISCUSSION AND CONCLUSIONS:

1.  From the available evidence of record it appears the applicant never
stated that he accepted responsibility for his actions [concerning the
destroyed documents].  Therefore, it would be equitable to correct Part IVf
of the contested NCOER to remove the comment, "Accepted full responsibility
for his actions," as the applicant, through counsel, requests.

2.  The regulation does not prohibit an NCOER from covering a period
exceeding 12 months.  Counsel was citing paragraphs in the current Army
Regulation     623-205 that discuss annual NCOERs.  The contested NCOER is
not an annual NCOER; it is a relief-for-cause NCOER.

3.  The Board acknowledges that a memorandum dated 27 August 2001 from the
Commander, U. S. Army 1st Recruiting Brigade to the Commander, USAREC
indicates the applicant was suspended from recruiting duties on 31 March
2001, had his SDAP terminated effective 31 March 2001, and was relieved
from recruiting duties on or about 27 August 2001 (whereupon his relief-for-
cause NCOER was initiated).

4.  However, the Board also notes the June 2000 email traffic indicating
the applicant had been convicted by a civil court.  While other information
revealed he successfully appealed the [criminal] conviction, it also
revealed that a civil suit was filed against him in March 2000.  Records at
DFAS indicate the applicant's SDAP had been terminated effective 26 April
2000, which would fit into the civil conviction timeframe.  The document-
destroying incident occurred in May 2000.  In the absence of evidence to
the contrary, it appears the applicant was continually suspended from
recruiter duties from at least April 2000 until the ROI regarding the
destroyed documents was completed in March 2001 and he was relieved from
recruiting duties in August 2001.  Therefore, it appears the period covered
by the contested NCOER (December 1999 through August 2001), with three
rated months, is correct.

5.  There is no evidence to show the ROI was "not conducted with
administrative regularity and was perhaps tainted by fraud."

6.  The Board notes counsel's argument that SFC D___ told the applicant to
tell Mr. J___ that his "packet" had been sent to the MEPS notwithstanding
the fact the packet was not complete and it had not been sent and that the
applicant made data base entries in quotes to this effect to denote that
the packet was not actually complete.  Counsel also argued that, in a new
statement SFC D___ stated, "…to my knowledge, F___ J___'s documents were
never received by any recruiter in the station during my tenure there."

7.  Mr. J___ alleged that he gave the applicant his documents in August
1999.  SFC D___ stated that he did not arrive at the Recruiting Station
until September 1999.  It therefore appears logical that SFC D___ would not
have had personal knowledge of Mr. J___ giving documents to the applicant.

8.  The Board also notes that, in his 8 September 2003 statement, SFC D___
stated only that he sent the applicant to Mr. J___'s home and instructed
him to tell Mr. J___ that they had sent his "packet" to the MEPS as a
technique used by field recruiters to determine the sincerity of the
applicant.  SFC D___ did not state that the applicant never had the
documents.

9.  The Board does note that, in SSG J___'s statement dated 10 May 2001, he
stated that he was in the recruiting station when the applicant conducted
the interview with Mr. J___ and never saw Mr. J___ give the applicant any
documents or paperwork concerning him enlisting in the Army.  He provides
no evidence, however, of why it would have been necessary for him to
observe the applicant during every minute of his interview with Mr. J___.
Taken alone, his statement is insufficient evidence that the applicant did
not receive the documents.
10.  Based on the later statements taken from SFC D___ and SSG J___, the
Board concludes that any similarly worded earlier statements taken from
them would not have been exculpatory.  Therefore, while it is unfortunate
the original statements were not available to the approving authority,
there does not appear to have been any intentional harm intended or any
material harm done.

11.  Counsel's contention that Army Regulation 601-210, paragraph 2-1c
states that recruiting personnel will examine original documents and advise
the recruit to take the documents to the MEPS [and therefore] the applicant
did not keep original documents in the station per the regulation is noted.
 However, it is not evidence that the applicant did not act contrary to the
regulation and keep the documents.

12.  Counsel contends that the IO knew the letter had been sent from
Charlottesville on 24 May 2000 but he failed to copy that date out of the
applicant's date book even though he copied several other pages.  It
appears counsel means the 24 May 2000 entry from the applicant's date book
would have been proof that the applicant was not in Charlottesville that
day and so he could not have mailed the letter.  However, the applicant did
not provide that entry from his date book to prove he was not in
Charlottesville, either.  In addition, Staunton and Charlottesville are
less than 40 miles apart.  Such an entry would not be proof that he did not
mail the letter during nonduty hours or that he did not have someone else
mail the letter for him.

13.  The Board notes counsel's contention that common sense contradicts the
findings of the IO since the applicant's last contact with Mr. J___ was in
October 1999, yet Mr. J___ did not receive his cut up documents in the mail
until late May.  The Board has considered this contention with counsel's
other contention - that the IO found Mr. J___ had no motive to destroy his
own documents because he was under no obligation to the Army yet he was
under a perceived obligation because the applicant told him that his packet
had been sent to the MEPS.

14.  If common sense dictates that the applicant would not have waited
until May 2000 to destroy the documents, the Board concludes that common
sense would also dictate that Mr. J___ would not have waited until May 2000
to destroy his own documents and accuse the applicant.  Since these two
"contradictions of common sense" appear to cancel each other out, the Board
must presume the IO and the approving authority based their findings and
actions based on the remaining evidence.  The applicant has provided
insufficient evidence to override that presumption.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__wtm___  __jtm___  __wdp___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by deleting the comment "Accepted full
responsibility for his actions" from Part IVf of his NCOER for the period
ending August 2001.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
removing the contested NCOER from the applicant's OMPF.




            __Walter T. Morrison__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000304                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050201                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |111.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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