RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060011001 


	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. Gerard W. Schwartz

Acting Director

Mr. W. W. Osborn, Jr.

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Mr, David K. Haasenritter

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 a relief for cause Noncommissioned Officer Evaluation Report (NCOER) be expunged from his record.

2.  The applicant states that the subject NCOER was unjust.  After an investigation determined that he was not at fault, his commander decided on a relief for cause NCOER.  His rater was ordered to prepare a bad evaluation by the battalion commander.  He needs the change made because he is applying for a job with the Junior Reserve Officer Training Corps program.  

3.  The applicant provides no substantiating documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 30 September 1992, the date of his retirement.  The application submitted in this case is dated 11 July 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  In March 1990, the applicant was a Regular Army sergeant first class (SFC), with approximately 18 years of active duty service.  He received the subject NCOER for the period ending March 1990.  In part V (Rater) Values/NCO Responsibilities of the NCOER, the rater marked the applicant in the Needs Some Improvement boxes for "Competence" and "Leadership."  In part V, the senior rater marked him in the fourth (Fair) boxes for both overall performance and overall potential and noted that the applicant had participated in an incident that involved the falsification of a M16 qualification card. 
  
4.  In the 27 March 1990 Relief for Cause memorandum the battalion commander noted that he had directed the applicant's relief for cause.  He also acknowledged that the applicant had indeed qualified as an expert in September 1979, but pointed out that this qualification was already entered on the 
applicant's DA Form 2-1 (Personnel Qualification Record) and there had been no need to replace the allegedly missing record card.  On the other hand, the battalion commander noted that the applicant was new to the unit and to be currently qualified he need to "zero" his personal weapon, which the applicant had not done.  The battalion commander concluded that, by causing the filing of the false record firing card, the applicant was accountable for subverting the integrity of two NCO's who were junior to him.  This had occurred because the applicant had been devious even if he had not actually asked that the falsified record card be prepared and submitted.

5.  On 1 July 1990 a first lieutenant, the company executive officer, wrote that "While I honestly cannot say that I think SFC [applicant] did no wrong, I would like to make three points in support of him.  "First, I believe he was having to recreate a document that had been lost; this was standard procedure in our battalion…I think SFC [applicant's] intent was to produce a …card that duplicated his score from September 1989.…second point is SFC [applicant's] punishment…was more severe because the incident was reported on the Commanding General's hotline.…If the incident had been reported within the company or even within the battalion, I believe nothing would have been done about it.…My third point…SFC cannot walk on water, he is still a very good NCO…it is a case of killing a fly with a sledgehammer.…"

6.  On 5 June 1991 another first lieutenant wrote that he had been a platoon leader in the company at the time of the incident.  He opined that the applicant's integrity had always been beyond reproach.  He also observed that, "Although I must disagree with the way that SFC [applicant] attempted to correct his weapons qualification data, at no time whatsoever did he deny that he did not qualify on 9 March 1990."    

7.  In a 16 January 1992 memorandum, a first sergeant (E8) wrote a glowing description of the applicant's performance as a leader and trainer and observed that "…He has never compromised his integrity…"   

8.  Another SFC (the acting first sergeant at the time of the incident) wrote in a
3 February 1992 memorandum that the applicant was not attempting "…to falsify any record, because he had informed his platoon leader and company commander of his intentions prior to requesting the score card.…" 

9.  The applicant, in a 5 February 1992 memorandum, appealed to the Enlisted Special Review Board (ESRB) to remove the NCOER from his record.  He reported that he had informed his platoon leader that he had qualified with the M16 in September 1979, but that the battalion S-3 had lost the record.  He asked the firing range Noncommissioned Officer in Charge (NCOIC) for a blank record card to submit along with a DF (disposition form) so that his records could be corrected.  The range NCOIC completed and submitted a record fire card showing the applicant had qualified on or about 2 March 1990.

10.  The ESRB determined that the evidence provided did not justify expunging the subject NCOER. 

11.  The applicant retired due to length of service on 30 September 1992.

12.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) sets forth the policies and procedures for the Enlisted Evaluation Reporting System  It provides, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.  Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.  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:

1.  The applicant provided no new evidence and the evidence of record fails to clearly and convincingly show that a material error, inaccuracy, or injustice exists.  
2.  None of his supporters state categorically that the applicant was blameless. Even though some in the chain of command accepted his explanation the battalion commander's observation that the applicant's DA Form 2-1 contained the correct information demonstrates that the applicant's contention that he was simply trying to reconstruct a lost record is clearly specious.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 September 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
29 September 1995.   The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__DKH__  __LMD __  __KAN __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




__   Kathleen A. Newman___
          CHAIRPERSON




INDEX

CASE ID
AR20060011001
SUFFIX

RECON
 
DATE BOARDED
20070320 
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100
2.

3.

4.

5.

6.