RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 October 2005
      DOCKET NUMBER:  AR20050011755


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 November 1998 through February 1999 be
expunged from his records.

2.  The applicant states the contested NCOER depicts him in a very negative
light.  The cause of the negative report was a decision he made as a fire
direction control (FDC) chief during a field exercise in January 1999 not
to fire a mission.  He believed it was unsafe to fire after the time for
the mission had passed.  The fire direction officer (FDO) on site wanted to
fire the mission.  The applicant suggested they call the battalion FDC, but
that suggestion did not relieve the FDO's mind and they engaged in an
argument.

3.  The applicant states he takes full responsibility for the incident as
he was the senior person (in terms of time in service) and he should have
handled it in a more professional manner.  He never appealed the NCOER
because he never knew how to go through the process and now he cannot
appeal because the     5-year limit has passed.  The only proof he can
produce that his competence was never a question prior to the incident are
[previous] NCOERs as the FDC chief during his time in the unit.

4.  The applicant provides his NCOERs for the periods January 1997 through
December 1997 and January 1998 through October 1998.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 September 1987.  He
was promoted to Staff Sergeant (SSG), E-6 on 1 December 1996 in military
occupational specialty 13E (Cannon Fire Direction Specialist).

2.  The applicant was assigned to Battery B, 1st Battalion, 5th Field
Artillery, Fort Riley, KS around January 1997.

3.  In his NCOER for the period ending December 1997, the applicant
received four "success" ratings and one "excellence" rating in the five
areas of NCO responsibilities.  His rater rated his overall potential as
"fully capable" (with a possible high of "among the best").  His senior
rater rated his overall performance as "2" successful (with a possible high
of "1" successful) and his overall potential as "2" superior (with a
possible high of "1" superior).

4.  In his NCOER for the period ending October 1998, the applicant received
three "success" ratings and two "excellence" ratings in the five areas of
NCO responsibilities.  His rater rated his overall potential as "fully
capable."  His senior rater rated his overall performance as "2" successful
and his overall potential as "2" superior.

5.  In the contested NCOER, the applicant received two "no" checks in NCO
values (Is committed to and shows a sense of pride in the unit – works as a
member of the team and Is disciplined and obedient to the spirit and letter
of a lawful order).  Two negative comments were also made – "Poor attitude
toward unit and MOS" and "Excessive infractions of discipline and
regulations."

6.  In the contested NCOER, the applicant received three "success" ratings
and two "needs some improvement" ratings in the five areas of NCO
responsibilities.  His rater rated his overall potential as "marginal."
His senior rater rated his overall performance as "4" fair and his overall
potential as "4" fair.  The senior rater was the same senior rater as on
his NCOER for the period ending October 1998 (as was the reviewer).

7.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting
System), paragraph 6-6 states an NCOER accepted for inclusion in an NCO’s
official record 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.

8.  Army Regulation 623-205, paragraph 6-10 states 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.  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 AND CONCLUSIONS:

The contentions of the applicant and the previous NCOERs he provided have
been carefully considered.  Regrettably, they do not provide the clear and
convincing evidence required by regulation to overcome the presumption the
contested NCOER represented the considered opinion and objective judgment
of his rating officials.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jea___  __jam___  __lmd___  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.




                                  __James E. Anderholm__
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050011755                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051025                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |111.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]