RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            26 October 2006
      DOCKET NUMBER:   AR20060013656


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Marla Troup                   |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Mr. John Heck                     |     |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 the removal from his Official Military Personnel
File (OMPF) of a Noncommissioned Officer Evaluation Report (NCOER) dated
31 March 2001 and a DA Form 2627 (Record of Proceedings under Article 15,
UCMJ) dated 14 March 2001.

2.  The applicant states, in effect, that he realizes that his actions at
the time were not in keeping with the traditions of the Noncommissioned
Officer (NCO) Corps or the United States Army; however, he has learned from
his mistakes and he believes that the documents have served their intended
purpose.  He also states that the presence of these documents are hindering
his ability to serve in a higher capacity and thus prevents the Army from
benefiting from his potential.  He continues by stating that he has been a
competent and confident leader who will continue to do great things for the
Chemical Corps and the Army.

3.  The applicant provides a Memorandum for Record addressed to the
department of the Army Suitability Evaluation Board (DASEB), a copy of the
memorandum from the DASEB returning his appeal and a copy of the DA Form
2627 he is appealing.

CONSIDERATION OF EVIDENCE:

1.  He enlisted on 16 September 1997 for a period of 2 years and 22 weeks
and training as a chemical operations specialist.  He successfully
completed his training and has remained on active duty through a series of
continuous reenlistments.  He was promoted to the pay grade of E-5 on 25
August 2000.

2.  On 14 March 2001, while the applicant was stationed in Germany,
nonjudicial punishment (NJP) was imposed against him for wrongfully
operating a privately owned vehicle (POV) without a valid drivers license
and for unlawfully striking a female junior soldier in the eye with his
fist.  His punishment consisted of a reduction to the pay grade of E-4, a
forfeiture of pay (suspended for 2 months) and extra duty.  The imposing
officer directed that the DA Form 2627 be filed on the Restricted Fiche of
his OMPF and the applicant did not appeal the punishment.

3.  On 1 May 2001, the applicant received a change of rater NCOER
evaluating him as a chemical operations NCO during the period of August
2000 through March 2001.  In Part IVa, the rater gave the applicant “No”
ratings under “Is disciplined and obedient to the spirit and letter of a
lawful order”, “Is honest and truthful in word and deed”, “Maintains high
standards of personal conduct on and off duty”, and “Has the courage of
convictions and the ability to overcome fear – stands up for and does what
is right”.

4.  The supporting comments indicate that the applicant struck a junior
Soldier in an off duty altercation, that he left seniors in doubt as to
whether what he was saying was actually true and that he did not live up to
the seven Army values.

5.  In Parts IVd and IVf, under “Leadership” and “Responsibility and
Accountability”, his rater gave him “Needs Improvement” ratings.  The
supporting comments indicate that he failed to follow regulations and
lawful orders, that he did not set a positive example for junior Soldiers,
that he violated the trust and confidence of his chain of command, on
several occasions, by not being at the proper place of duty, and that he
used deception and questionable excuses when asked about possibly violating
a commanders orders.  His rater gave him a “Marginal” rating in Part V,
under Overall Performance and Potential.

6.  The senior rater gave the applicant a “Poor” rating for Overall
Performance and a “Fair” rating for Overall Potential.  The rater’s
supporting comments indicate that the applicant had the potential to be an
outstanding leader once he learns to deal with his personal problems, that
he displayed poor judgment and his conduct was not appropriate of an NCO
and that he needs to prove himself to be a valuable asset to the Army.

7.  The applicant was again promoted to the pay grade of E-5 on 1 February
2002 and then to the pay grade of E-6 on 1 July 2004.

8.  The applicant applied to the DASEB on 7 February 2006, requesting that
the DA Form 2627 be removed from the Restricted Fiche oh his OMPF because
it was hindering his advancement and had served its purpose.  His request
was returned without action and he was informed that only the Board could
act on such a request.  There is no evidence that the applicant applied to
the Enlisted Special Review Board (ESRB) to have the NCOER removed from his
records.

9.  Army Regulation 27-10 prescribes the guidelines for the filing of NJP.
It states, in pertinent part, that the decision to file the original DA
Form 2627 on the performance or restricted fiche of the OMPF will be
determined by the imposing commander at the time punishment is imposed.
The filing decision of the imposing commander is final and will be
indicated in item 5, DA Form 2627.

10.  Army Regulation 600-8-104 serves as the authority for the filing and
release of documents authorized for filing in the OMPF.  It states, in
pertinent part, that the restricted fiche is used for historical data that
may normally be improper for viewing by selection boards or career
managers.  The release of information on this fiche is controlled and will
not be released without written approval from the Commanding General, Total
Army Personnel Command or the Headquarters, Department of the Army
selection board proponent.

11.  Army Regulation 623-205 sets forth the policies and procedures for the
Enlisted Evaluation Reporting System.  Paragraph 4-2 states, 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.

12.  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.  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 the requirement.

2.  It appears that the NJP was imposed in compliance with applicable laws,
regulations, and policies by a commander empowered to do so.  The
punishment was not disproportionate to the offense and there is no evidence
of any violations of the applicant’s rights.

3.  Although the applicant would like the Board to believe that the record
of NJP has hindered his advancement, such does not appear to be the case.
The Board notes that the commander placed the record of NJP in the
restricted fiche of his OMPF; which would lead the Board to believe that he
gave the applicant some consideration by placing it where it would not
hinder his career.

4.  As a general rule, selection boards are not routinely provided access
to the restricted fiche of the OMPF for soldiers in the applicant’s grade.
Therefore, his assertion that his advancement potential has been hindered
by the presence of the record of NJP in his OMPF appears to be without
merit.


5.  Likewise, the contested NCOER appears to represent a fair, objective
and valid appraisal of his demonstrated performance and potential during
the period in question.  The applicant has not provided any evidence or
argument to dispute the evaluation at the time and there appears to be no
valid reason to remove the NCOER.

6.  While the Board understands the applicant’s concerns, the Army has an
interest in maintaining such documents, and the applicant has not shown
sufficient reasons why they should not remain a matter of record, even
after considering his entire record.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____MT _  ___RR __  ___JH  __  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.





                                  ______  Marla Troup______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013656                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061026                                |
|TYPE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DATE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DISCHARGE AUTHORITY     |N/A AC Soldier on AD                    |
|DISCHARGE REASON        |N/A AC Soldier on AD                    |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |193/NCOER                               |
|1.111.0000              |                                        |
|2.126.0000              |277/NJP                                 |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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