RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20070000507 


	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. Michael L. Engle

Analyst


The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Edward E. Montgomery

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 correction of his official military personnel file (OMPF) by removing the relief for cause noncommissioned officer evaluation report (NCOER) he received for the period from July 2004 through June 2005.

2.  The applicant states, in effect, that the entries in Part IVa (Army Values) of the contested NCOER violate the provisions of Army Regulation 623-205, paragraphs 3-17a,b,c(1) and c(2), which prohibit references to unproven derogatory information.     

3.  The applicant provides copies of the contested NCOER, the preceding NCOER, Criminal Court judgment, four letters of support, and the Enlisted Special Review Board (ESRB) Case Summary. 

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving on active duty in the United States Army National Guard/Reserve (AGR), as a sergeant first class, pay grade E7.

2.  On 19 July 2005, the applicant received a relief for cause NCOER for the 
12-month period from July 2004 through June 2005.  He was evaluated in military occupational specialty (MOS) 79V4O (Retention and Transition Noncommissioned Officer).

3.  Part IVa (Army Values), of the contested NCOER, reflected that the applicant had failed to exhibit satisfactory values in the areas of Duty, Respect, Honor, and Integrity.  The bullet comments stated, " conduct unbecoming a noncommissioned officer indicated by assaulting spouse reflecting questionable moral character; displayed questionable integrity on at least four occasions; failed to comply with supervisory guidance on more than one occasion."

4.  The contested NCOER further reflected that the applicant had performed successfully in the area of training by conducting several First Line Leader classes for assigned units.  However, it also showed that he needed improvement in the areas of competence, physical fitness and military bearing, leadership, and responsibility and accountability.  In competence, the evaluation indicated that he failed to follow proper procedures on multiple occasions when reenlisting Soldiers, consistently provided improper counseling forms for attempts to recover non-participants, and could not be trusted or relied upon to accomplish basic tasks of his current MOS.  In the area of physical fitness and military bearing (which includes mental and physical toughness), he refused to undergo Domestic Violence Group sessions as ordered by his commander. In leadership, the evaluation indicated that he displayed hostility and insubordination on numerous occasions toward his supervisor, set a poor example for fellow Soldiers to follow, and repeatedly displayed unacceptable behavior during counseling sessions by exhibiting immature, nonverbal facial expressions.  In the area of responsibility and accountability, the evaluation indicated that he had failed to take responsibility for his own actions, remained defiant when held accountable, and refused to check- in as required.  His rater evaluated his overall potential as marginal.  The senior rater's bullets stated, "do not promote; QMP at earliest opportunity; Soldier has been provided numerous opportunities to overcome his deficiencies; failed to follow directives and guidance given to him by his superiors; do not allow Soldier to transfer into any Army Reserve unit".   The senior rater evaluated his overall performance and overall potential as poor.

5.  On 1 June 2006, the applicant appealed the contested NCOER to the ESRB.  He based his appeal on the argument that the comments in Part IVa of the NCOER violated the provisions of Army Regulation 623-205, paragraphs 3-17a, b, c (1), and c (2), in that no reference may be made to unproven derogatory information and paragraph 3-19 concerning comments about marital status and spouse.  The applicant requested that the subject NCOER be removed from his OMPF.
  
6.  On 14 September 2006, the ESRB responded to the applicant’s appeal stating it determined that the evidence did not justify alteration or withdrawal of the report.  It further stated that the investigation conducted by the ESRB discovered that there were several domestic violence charges against the applicant with substantiating documentation.

7.  The four letters of support provided by the applicant are from individuals in other units who have worked with the applicant in the course of normal business. These letters discuss the applicant's high level of support that he provided to those organizations. 

8.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), then in effect, set forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 4-2 stated, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO was presumed to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4-7 stated, in pertinent part, that when submitting an appeal, the burden of proof rested with the applicant and that he must produce evidence that clearly and convincingly established that action was 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.

9.   Army Regulation 623-205, paragraph 3-17a, b, c (1) and c(2) and d provided that no reference would be made to an incomplete investigation (formal or informal) concerning an NCO; that references would be made only to actions or investigations that had been processed to completion, adjudicated, and had final action taken before submission of the NCOER.  If the rated NCO was absolved, comments about the incident would not be included in the NCOER.  This restriction was intended to prevent unverified derogatory information from being included in evaluation reports. It also prevented information that would be unjustly prejudicial from being permanently included in a Soldier's OMPF, such as-- (1) Charges that are later dropped; (2) Charges or incidents of which the rated Soldier may later be absolved.  Any verified derogatory information (information that was already proven factual by a preponderance of the evidence) may be entered on an NCOER. This is true whether the Soldier is under investigation, flagged, or awaiting trial. While the fact that a Soldier is under investigation or trial may not be mentioned in an NCOER until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information. For example, when an interim report with verified derogatory information is made available to a commander, the verified information may be included in an NCOER.   Paragraph 3-19 provided that no evaluation comments, favorable or unfavorable, would be based solely on a Soldier's marital status.   Evaluation comments would not be made about the employment, educational, or volunteer activities of a Soldier's spouse.  There are limited circumstances, involving actual and demonstrable effect on the rated Soldier's performance or conduct, when comments containing reference to a spouse may be made. These comments must be focused on the rated Soldier's actions, not those of the spouse. For example, "SSG Doe continued outstanding, selfless service, despite her husband's severe illness," or "SGM Doe's intemperate public confrontations with his wife were detrimental to his status as a noncommissioned officer," are permitted. 

DISCUSSION AND CONCLUSIONS:

1.  The contested report appears to represent a fair, objective and valid appraisal of the applicant's demonstrated performance and potential during the period in question; therefore, there is no basis for removing it from his OMPF.

2.  The applicant has failed to provide sufficient, relevant and convincing evidence that his relief for cause was unwarranted and that the NCOER is inaccurate or unjust and should be removed from his OMPF.

3.  Comments by the ERSB indicate that there is substantiating evidence showing the applicant was involved on several occasions in incidents of domestic violence.  Furthermore, the comments in Part IVa of the contested NCOER are general in nature and do not address any specific court case or pending investigation.    Therefore, the applicant's contention that the rater's comments in Part IVa of the contested NCOER violate regulatory provisions is found to be without merit.

4.  The Board notes the affirmations of support provided by the applicant’s military and civilian co-workers.  However, none of these individuals were aware of the expectations of his rating chain or were in a better position to appraise the applicant’s performance than his rating chain.
 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEA___  _JLP ___  __EEM __  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
AR20070000507
SUFFIX

RECON
 
DATE BOARDED
20070206 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
134.0000
2.

3.

4.

5.

6.