RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                       27 OCTOBER 2005
      DOCKET NUMBER:              AR20050012110


      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. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Mr. Allen Raub                    |     |Member               |
|     |Ms. Linda Simmons                 |     |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 name be restored on the Sergeant First
Class (E-7) Promotion Selection List; that he be restored to the rank of E-
7; that he be provided all back pay and allowances due him; and that any
and all references to the words "misconduct" based on the incident in
question be removed from his Official Military Personnel File (OMPF).

2.  The applicant defers to counsel's statements.

3.  The applicant provides in support of his application, a copy of orders
dated 14 February 2002, promoting him to the pay grade of E-7; a copy of a
memorandum dated 17 March 2003, removing him from the E-7 and Advanced
Noncommissioned Officers Course (ANCOC) Promotion Selection List; a copy of
orders dated 17 March 2003, revoking his promotion orders; a letter from
his counsel addressed to the Commander, United States Army Enlisted Records
and Evaluation Center (USAEREC) dated 16 November 2004; a copy of his ANCOC
Service School Academic Evaluation Report (AER) for the period covering
23 January 2003 through 19 February 2003; a copy of his rebuttal addressed
to the Commandant, Noncommissioned Commissioned Officers (NCO) Academy,
dated 7 February 2003; a copy of his "Declaration", dated 18 August 2004; a
copy of a Military Police (MP) Report dated 30 January 2003; a copy of his
Rights Warning Procedure/Waiver Certificate; a copy of his sworn statement,
dated 30 January 2003; a copy of the Rights Warning Procedure/Waiver
Certificate of another individual; a copy of the other individual's sworn
statement; pictures of the damage that was done to his vehicle; pictures of
what he contends to be the accident site; pictures of the damage on other
individual's vehicle; a copy of his Rights Warning Procedures/Waiver
Certificate, dated 31 January 2003, along with the questions that were
asked of him by the investigating officer (IO); a copy of the IO sworn
statement dated 4 February 2003.

4.  The applicant also provides in support of his application, a copy of a
memorandum addressed to him, dated 7 February 2003, from the Chief
Instructor, ANCOC, informing him that he was being considered for
administrative relief from ANCOC; a copy of a memorandum from him,
addressed to the Commandant, NCO Academy, dated 7 February 2003; a copy of
a memorandum dated 18 February 2003, notifying him of the status of his NCO
Academy release appeal; a copy of a memorandum from the Staff Judge
Advocate dated 18 February 2003, addressed to the NCO Academy; a copy of a

memorandum addressed to the USAEREC from the applicant's commanding
officer, dated 24 February 2004; a copy of a letter from the Commander, US
Army Garrison, dated 11 February 2004, to a Member of Congress; a copy of a
letter from his counsel dated 28 May 2004, addressed to the Commander, US
Army Garrison; and copy of a letter from the Command Sergeant Major (CSM),
US Army Commandant, NCO Academy, dated 23 June 2004, addressed to his
counsel; a copy of a memorandum from USAEREC addressed to his counsel dated
9 December 2004; and a copy of portions of Army Regulation 600-8-19.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Army arrange for the applicant to return to
the NCO Academy, which would afford him the opportunity to complete the
ANCOC and that this Board direct the Commander, Human Resources Command
(HRC) to document the applicant's removal from ANCOC which would allow him
the opportunity to submit a rebuttal.

2.  Counsel states that the applicant was promoted to the pay grade of E-7
pending completion of the ANCOC and that he was administratively removed
from the NCO Academy, due to misconduct, based on the school's erroneous
belief that he was involved in a hit-and-run accident in the student
parking lot.  Counsel states that the applicant emphatically denied any
involvement in the hit-and-run incident other than as a victim.  Counsel
states that the applicant continues to maintain his innocence and has
attempted to clear his name and record, without success, for over 2 years.
He states that the applicant has exhausted his administrative remedies
through his chain-of-command and through other channels and that he has
good proof and solid legal argument that the shifted position of his
vehicle in evidence obtained by officials at Fort Huachuca was in error.
He states that the applicant attempted to submit evidence to the USAEREC
that the investigation and review conducted at Fort Huachuca were sloppy
and devoid of evidence; however, the applicant has not been able to
exercise his due process rights to dispute the misconduct and the Human
Resources Command (HRC) is not able to consider his appeal because
officials at Fort Huachuca never submitted a negative report, nor do they
intend to.  Counsel states that there is no documentation of "misconduct"
anywhere in the applicant's official file other than vague references and
that he was demoted without any supporting documents.

3.  Counsel goes on to state that the absence of the supporting documents
makes it impossible for him to appeal or challenge the basis for his
demotion.  Counsel contends that the Army Personnel Command removed the
applicant's
name from the promotion list without insuring compliance with any of the
requirements of Army Regulation 600-8-19, specifically since that
regulation provides that commanders will promptly forward documentation to
the Commander, HRC – Alexandria.  Counsel states that AR 600-8-19 provides
that the recommendation for removal must be fully documented and justified,
and that the DA Form 268 will be initiated at the time.  Counsel states
that the applicant's official files reveal that none of the steps for
processing his removal from the promotion list were followed; therefore,
the removal was completely without a documented basis and the execution of
the removal, without any of the required support, denied the applicant due
process.  Counsel concludes by stating that the Army's substantiation of
the removal at both command levels was so lacking and improper that it
should be stopped from attempting to resurrect documentation at this late
date, and its lack of compliance with regulation is so egregious that the
applicant should prevail at this stage on this Board appeal.

4.  Counsel provides no additional documentation in support of the
applicant's requests.

CONSIDERATION OF EVIDENCE:

1.  After completing 3 years of net active Army service and being honorably
discharged in the pay grade of E-4 on 7 December 1983, the applicant
reentered the Army on 20 March 1991, in Little Rock, Arkansas, for 4 years,
in the pay grade of E-2.  He went on to successfully complete training as a
signal intelligence analyst.  He remains on active duty through continuous
reenlistments.

2.  Orders were published on 14 February 2002, promoting the applicant to
the pay grade of E-7 with an effective date of 1 March 2002.  In the
orders, he was informed that the promotion was not valid and would be
revoked if he was not in a promotable status on the effective date of
promotion and that staff sergeants promoted to sergeant first class who do
not have ANCOC credit are promoted conditionally.

3.  On 30 January 2003, the applicant was taken into custody and advised of
his legal rights, by MPs, on the offense of fleeing the scene of a traffic
accident (Article 134, Uniformed Code of Military Justice (UCMJ)) that
occurred on the Wilson Barracks parking lot at Fort Huachuca, Arizona.  The
MP report indicates that at 1605 hrs, the MP station was notified of a hit
and run accident and that between 1830 hrs on 29 January 2003 and 1600 hrs
30 January 2003, the applicant's vehicle was struck by an unknown means and
by an unknown person. The MP report indicates that at 1610 hrs, an MP was
notified of the hit and run accident by another soldier whose vehicle was
also involved in an accident.  The report indicates the other soldier
reported that his vehicle, while parked, secured and unattended, was struck
by an unknown means and by an unknown person between 1800 hrs, 27 January
2003 and 1600 hrs 30 January 2003.  The MP report indicates that
investigation revealed that the damage on the applicant's vehicle consisted
of a dented right front fender and a broken right front parking light.  The
damage to the other soldier's vehicle was classified as being a broken left
rear tail light and scuffed left rear bumper.  The MP report indicates that
the applicant and the other soldier were both taken into custody; that they
both submitted sworn statements; and that both were later released.  The MP
report indicates that further investigation revealed that it was the
applicant's vehicle that caused damage to the rear drivers side bumper and
brake light cover of the other soldier's vehicle.  The reports indicates
that investigators made contact with the applicant again on 31 January 2003
at which time he was again advised of his legal rights, which he waived;
however, he refused to render a sworn statement by stating that he would
stay with his statement from the previous day.

4.  In the applicant's sworn statement that he submitted on 30 January
2003, he indicated that he went to Kentucky Fried Chicken for dinner;
returned to the post; went to the commissary; and then returned to the NCO
Academy.  He stated that he then went into the barracks until it was time
for physical training (PT).  He stated that he exited the back door when he
left for PT and that he returned using the back exit. The applicant stated
that he performed barracks maintenance; showered; and that at 0815 hrs he
went to class.  He stated that he did not see his vehicle nor did he
believe that he needed to check it.  He stated that he went back to his
room for lunch and then he returned to class.  He stated that after class,
he changed into gym clothes and headed out to go to the gym and to drop off
some uniforms.  He stated that when he went to his truck, he was puzzled as
to how his truck got turned around and he went to check it out.  He stated
that he noticed that his truck had been damaged and left the truck to call
the MPs.  During the applicant's questioning he indicated that he did not
know how his vehicle got from where he parked it to where it was found;
that he did not notice that his vehicle had been moved until approximately
1600 hrs on 30 January 2003; that he did not drive or move his vehicle
between 1830 hrs on 29 January 2003 and 1600 hrs on 30 January 2003; that
he had a hide-a-key on the inside of the rear bumper on the passenger side;
that he had nothing to drink the previous night; and that he did not know
anyone who might have damaged his car.




5.  In the other soldier's sworn statement he indicated that at 1600 hrs on
30 January 2003, he drove his truck to get gas and that while he was
picking up fishing tackle that he had spilled in the back, he noticed that
his vehicle had been hit.  He stated that he returned to the barracks to
call the MPs and to get a camera to take pictures of the damage and that
when he went back outside, there was an MP unit already in the parking lot.
 He stated that he was taken into custody at that time.  During the
questioning the other soldier indicated that he recalled a gray Ford being
parked in the vicinity of his vehicle; that he would be willing to submit
to a polygraph examination; that no one else had driven his vehicle; that
he believed that the individual who was driving the other vehicle attempted
to turn right into a parking spot next to his vehicle and clipped his
vehicle; that no one was with him when he noticed that damage to his
vehicle; that he had not driven his vehicle since Sunday or Monday
afternoon; that no one else had access to his vehicle; that he did not
remember if he went to his vehicle after returning from Jimbo's; that he
had been consuming alcohol (5 or 6 beers) while he was at Jimbo's; that he
consumed three at Big Beers and two or three shots of Jaegermeister; that
on a level from one to ten in intoxication, he was approximately a six;
that he never blacked out at any point; that he could recall everything
within reason from the night before; that he had not talked with an
operator regarding the incident prior to the MP's arrival at the scene; and
that he had answered all of the questions that were presented to him,
truthfully.

6.  One of the investigating officers (IO) submitted a sworn statement on
4 February 2003.  In his statement the IO indicated that the applicant told
him that the last time he was in his vehicle before he parked it was at
1830 hrs on 29 January 2003 and that he had parked it three spaces to the
right, facing north, of where the vehicle was located when he (the IO)
arrived at 1605 hrs on 30 January 2003.  The IO statement indicates that
the applicant stated that he believed someone had hit his vehicle, which
caused it to move three parking spaces to the right also causing it to face
in a southeast direction, taking up two parking spaces.  The IO further
stated that the investigation revealed that physical evidence showed there
were no tread marks (drag marks) showing that the applicant's vehicle had
been pushed or forced by impact from another vehicle in that location to
its final rest location.

7.  In his sworn statement, the IO stated that there were three lens
fragments from the applicant's passenger side front parking light
approximately three feet in front of the applicant's vehicle, which would
not be possible if the vehicle was parked three parking spaces to the left.
 The IO stated that the investigation also revealed that by backing the two
vehicles together, fit the profile that would have caused the damage to
both vehicles.  Also the other soldier’s rear bumper had
small turn signal lens fragments that matched the applicant's passenger
front side turn signal lens that was broken.  The IO stated that after a
thorough investigation conducted by another officer and himself, it was
found that the physical evidence and the applicant's verbal and written
statements did not match.  The IO stated that where the applicant's vehicle
was parked before the hit and run and where it was located after the hit
and run could not have happened without someone physically getting into the
vehicle and moving it.  In his sworn statement, the IO stated that both he
and the other officer believed that the applicant hit the other soldier's
vehicle while it was in the parking lot and then made it look like someone
hit his vehicle.

8.  On 7 February 2003, the applicant was notified by the Chief Instructor,
ANCOC that he was being considered for administrative relief from ANCOC due
to disciplinary reasons.  In the notification, the Chief reiterated the
formal charges and he informed the applicant that his conduct was very
unprofessional and that his behavior violated the standards of conduct as
stated in the student evaluation plan.  The applicant was informed that his
actions violated local and state laws, installation and command policies
along with Article 134 of the UCMJ.  He was further informed that he had
displayed conduct which was unbecoming a NCO and that his conduct would not
be tolerated by the NCO Academy or the Command.  The Chief Instructor,
ANCOC stated that he failed to adhere to the guidance of the command during
the course orientation briefings that he received from the NCO Academy
Commandant and the ANCOC Cadre.  The applicant was told that his relief
from the course may affect his selection for promotion or further
schooling.  He was also informed that the recommendation for relief would
be forwarded to the NCO Academy Commandant with or without his rebuttal;
that a decision would be made whether to relieve him from the course; and
that he had 2 days from the date of the notification to submit an appeal.

9.  On 7 February 2003, the Commandant, NCO Academy notified the applicant
that he had reviewed the recommendation for resident student relief and
that his relief was approved.  He was informed that he had a right to
appeal the decision and that his appeal must be reviewed by the Judge
Advocate prior to submission. The applicant was further informed that the
reviewed appeal must be submitted in writing within 2 days after receipt of
the notification.

10.  On 7 February 2003, the applicant submitted a rebuttal to the resident
student relief consideration.  In the rebuttal, he basically repeated to
the Commandant, NCO Academy, the same contentions contained in his sworn
statement.

11.  In the form of a memorandum dated 18 February 2003, addressed to the
NCO Academy, US Intelligence Center and Fort Huachuca, the Staff Judge
Advocate (SJA) concluded that based on the MP report and an interview with
the responsible MP, the relief packet was legally sufficient.  The SJA
stated that it was clear that the applicant's version of the events related
to the damage to his vehicle and that of the other soldier was not
accurate.  He stated that the applicant's sworn statement to the MPs was
not accurate and that there were no witnesses to the collision between the
vehicles; however, the MP report makes it clear that it was not physically
possible for the collision and the resulting position of the vehicles to
have taken place as the applicant contended.  In the memorandum, the SJA
stated that the applicant submitted an appeal stating that he had no role
in the collision and that he left his vehicle secured and that it was not
possible for him have left his vehicle secured and for him to have had no
role in the accident.  The SJA noted that there were no forced entry marks
on the applicant's vehicle and that his vehicle was moved a few spaces over
from where he left it parked, according to his statement.  The SJA
concluded by stating that the only plausible explanation for the
circumstances was that the applicant did play a role in the events and that
he was either responsible for the collision or untruthful in his sworn
statement.  The SJA stated that there were grounds for the applicant's
relief from the NCO Academy.

12.  The applicant's rebuttal to the resident student relief consideration
was reviewed on 18 February 2003, and his appeal was disapproved.

13.  On 19 February 2003, the applicant was administratively relieved from
the ANCOC (Signal Intercept Analyst).  The Service School AER that he was
furnished shows that he failed to achieve course standards, as he did not
adhere to the ANCOC Student Evaluation Plan by violating Article 134 of the
UCMJ.  The Service School AER shows that he fled the scene of an accident
and that he damaged private property.  The report also shows that he
produced an initial unsatisfactory Military Intelligence Mission Thread
(MIMT) paper; he delivered an initial unsatisfactory MIMT briefing; he
displayed a high level of leadership potential throughout the course; he
maintained an academic grade point average of 77.5 percent, failing the
Military Intelligence Technical Examination Number 1; and he shared
personal experience and knowledge which enhanced the overall learning
environment.

14.  A review of the applicant's official records fails to show that the
Service School AER in question has ever been filed anywhere in his OMPF.


15.  Orders were published on 17 March 2003, revoking the 14 February 2002
orders promoting the applicant to the pay grade of E-7.

16.  On 17 March 2003, the applicant was notified that he had been
considered and selected for promotion to the pay grade of E-7; however,
based on his release from ANCOC due to misconduct, his name had been
administratively removed from the list.  He was also informed that a copy
of his notification would be filed in the performance section of his OMPF.

17.  In response to an inquiry from a Representative in Congress, on
11 February 2004, the Commander, US Army Garrison (Fort Huachuca) stated
that a second review of the accident was conducted by the Provost Marshal
and the Office of the SJA and that the original findings were upheld and
the case was legally sufficient.  The Commander stated that no prints were
taken from the applicant's vehicle hide-a-key because there were no signs
of forced entry or tampering; that no potential witnesses were interviewed
because there were no eye witnesses identified in the vicinity of the
accident scene; that the Commandant of the Academy did not have the
authority to influence the speed or outcome of the investigation, as the
applicant alluded; that the NCO Academy was not preventing the applicant
from attending any future courses; and if his unit was dropping the charges
and supporting his case, then the applicant was following the correct
course of action by submitting a rebuttal to the Army HRC.

18.  In a memorandum dated 24 February 2004, addressed to the USAEREC, the
Adjutant, Bravo Company, 742nd Military Intelligence Battalion stated that
he found the applicant to be very consistent with the details in his case
and that the other party involved admitted to being intoxicated on the
night of the incident and could not remember if he went back to his vehicle
or not.  The Adjutant stated that he would have expected the case to stay
open until more evidence was gathered and potential witness interviewed;
instead, there seemed to be a rush to close out the case at the Fort
Huachuca end.  The Adjutant further stated that with the lack of evidence
provided to him; his own review of the case; and the applicant's
willingness to keep him abreast of the situation, he found it impossible to
bring charges against him.  He stated that he supported the applicant in
hopes of helping him overturn the report and regain his rank.  The Adjutant
concluded that he personally believed the applicant was innocent and that
the evidence, or lack thereof, spoke for itself.




19.  By letter dated 28 May 2004, the applicant's attorney contacted the
Commander, US Army Garrison (Fort Huachuca) regarding his letter dated 11
February 2004, addressed to the Representative in Congress.  In the
attorney's letter, she expressed her beliefs regarding the incident and she
disagreed with the SJA's findings and conclusions.  The attorney stated
that a review of the police log for the date in question would confirm that
the applicant's uncontroverted statement that he was the one who called the
MPs.  The attorney stated that the only available evidence shows that the
applicant discovered his vehicle damage and then called the MPs, who in
turn showed up to find the applicant waiting for them; that reading between
the lines, it seems that the MPs did not like the applicant or his
voluntary statement; that his client was never written up for making false
official statements; and that there is no evidence to create a reasonable
suspicion or otherwise suggest that the applicant violated Article 134 of
the UCMJ and no logic behind endorsing his charged offenses given that one
of the offenses under Articles 134 is not even a crime.  The applicant's
attorney went on to state that in his letter (the Commander, US Army
Garrison) he stated that the correct course of action for her client was to
submit a rebuttal to the Army Human Resources Command.  She stated that she
disagreed with the statement and that the best and the only honorable
course of action would be for the command to concede that the investigation
and review were neither thorough, adequate nor legally sufficient, and for
it to direct its best efforts to restore her client to the position he was
in before the botched and unprofessional administrative action.  She
concluded her letter by stating that the Army owed nothing less to her
client, a dedicated soldier with a spotless record, who has done nothing
wrong.

20.  On 23 June 2004, the CSM, US Army Commandant, NCO Academy, contacted
the applicant's attorney and informed him that after careful consideration
and further review in the matter, he determined that the administrative
action taken against the applicant by the NCO Academy was appropriate.  The
CSM stated that the standard of proof for an administrative action is
preponderance of evidence and that his (the attorney) letter suggested that
he believed that removal from the NCO academy must be supported by
adjudication such as a court-martial.  The attorney was informed that his
assumption was not correct and that under the governing regulation, Army
Regulation 350-1, and the student evaluation plan, the Academy may remove a
student for misconduct and that the misconduct need not constitute a
violation of the UCMJ.

21.  In his letter to the applicant's attorney, the CSM stated that it was
clear that the applicant's and the other soldier's vehicles were involved
in a collision and that the applicant apparently reported the incident as a
hit and run.  The CSM
stated that the applicant's version was that someone hit his secured
vehicle causing it to turn around and move three parking spaces away, and
that, simply put, his version was not believable.  The CSM went on to state
that the only plausible explanation for the incident was that the applicant
wanted to avoid responsibility for hitting the other soldier's vehicle and
he parked his vehicle in such way after the accident so that he could later
report a hit and run accident.  The CSM stated that three legal reviews
have supported the same conclusion and that the discussion of whether the
applicant's conduct constituted a violation of Article 134, UCMJ, was not
dispositive to the administrative action.  He stated that under the
Assimilative Crimes Act, the conduct may properly be considered as an
offense under Article 134 and that he was satisfied, by a preponderance of
the evidence, that the applicant was not truthful in his report of the
matter as a hit and run accident.

22.  On 9 December 2004, the applicant and his attorney were notified by
the Chief, Records Service Division (RSD) USAEREC, that the Service School
AER appeal was being returned without action.  The Chief, RSD stated that
his appeal was not denied; however, it was being returned without action.
The Chief stated that the referenced Service School AER had not been
accepted by their center for inclusion in his OMPF.  They were informed
that the applicant may wish to contact the school a Fort Huachuca to
determine the current processing status of the report and that if after
consideration, he still desired to continue with his appeal process, a
statement from him concurring would be required.

23.  Army Regulation 600-37 sets forth the basic authority for the filing
of unfavorable information in the OMPF.  It states, in pertinent part, that
once an official document has been properly filed in the OMPF, it is
presumed to be administratively correct and to have been filed pursuant to
an objective decision by competent authority. Thereafter, the burden of
proof rests with the individual concerned to provide evidence of a clear
and convincing nature that the document is untrue or unjust, in whole or in
part, thereby warranting its alteration or removal from the OMPF.

24.  Military Personnel (MILPER) message number 94-24 dated 22 October
1993, announced conditional promotions to the rank of SFC and sergeants
major (SGM) for individuals whose sequence numbers had been reached and who
had not attended the ANCOC or United States Army Sergeants Major Academy
(USASMA).  It provided, in effect, that conditional promotions are
contingent upon the successful completion of the required level of
Noncommissioned Officer Education System requirements.  Soldiers who prior
to 1 October 1993, fail to complete ANCOC or USASMA due to academic or
disciplinary reasons, or who were denied enrollment will not be
conditionally promoted.  Those soldiers who on or after 1 October 1993,
accept a conditional promotion and are subsequently declared an academic
failure or fail to meet course requirements, will have their promotion
revoked by the PERSCOM and will be removed from the promotion list.

DISCUSSION AND CONCLUSIONS:

1.  In accordance with the provisions of his accepting the promotion to the
pay grade of E-7, conditional on his successful completion of the ANCOC,
the applicant's name was properly removed from the E-7 Promotion Selection
List once he was deemed an academic failure.  He was released from the
course for failure to achieve course standards and his promotion was
properly revoked.  Therefore, he is not entitled to any back pay and
allowance in the pay grade of
E-7.

2.  The applicant did not successfully complete the required ANCOC
requirements for permanent promotion.  Consequently, there is no basis for
restoring his pay grade to E-7.

3.  The contentions made by the applicant and his counsel regarding his
release from the NCO Academy and the investigation conducted by the MPs
after the accident have been noted.  However, the available records
indicate that there have been a number of reviews conducted by competent
authorities regarding these issues and the results were the same as the
initial review.  In each review, it was determined that the applicant had
been untruthful in the sworn statement that he provided or he was
responsible for the collision and either of the two circumstances is
grounds for relief from the NCO Academy.

4.  The Board has also noted counsel's contentions regarding the other
soldier's sworn statement in which he admitted to drinking heavily on the
evening in question and that he could not remember if he went to his
vehicle after coming
back from Jimbo's Beach Shack.  However, the information contained in that
soldier's sworn statement is insufficient proof that the results of the
investigation are in error or unjust and this Board is reluctant to
substitute its opinions for the opinions of the officials who were on the
scene during and shortly after the investigation.

5.  Consideration has been given counsel's request that his Board direct
the Commander, HRC to document the applicant's removal from the ANCOC.
However, it is not the policy of the Board to direct that unfavorable
information be filed in an individual's official records.  Although a
review of the applicant’s official records fail to show that the Service
School AER has ever been filed, the applicant's release from ANCOC is
documented in the form of a memorandum dated 17 March 2003, which informed
him that his name had been administratively removed from the Promotion
Selection List, due to misconduct.  Additionally, the applicant has the
right to forward a copy of his Service School AER to the USAEREC for filing
in his OMPF if he so desires.

6.  The memorandum dated 17 March 2003, does show that the applicant was
released from ANCOC due to misconduct.  However, neither the applicant nor
his counsel has shown to the satisfaction of this Board that the
applicant's removal from the ANCOC was not due to misconduct.  Both have
failed to show that the filing of the memorandum in the applicant's OMPF
was in error or unjust.  Therefore, there is no basis for granting the
applicant's request for removal of a document that appears to be
administratively correct and to have been filed pursuant to an objective
decision by competent authority.

7.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____MM_  ____AR _  ____LS__  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.




                                  _____Melvin Meyer_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050012110                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051027                                |
|TYPE OF DISCHARGE       |N/A AD (AC) Soldier                     |
|DATE OF DISCHARGE       |N/A AD (AC) Soldier                     |
|DISCHARGE AUTHORITY     |N/A AD (AC) Soldier                     |
|DISCHARGE REASON        |N/A AD (AC) Soldier                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 125-185                              |
|ISSUES         1.  206  |111.0100/ACADEMIC REPORT                |
|2.  192                 |110.0300/REINSTATE TO ANCOC             |
|3.  312                 |131.0200/REM FROM SEL LIST              |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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