RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 May 2007
	DOCKET NUMBER:  AR20070005672 


	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. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Mr. Hubert O. Fry Jr.

Chairperson

Mr. Thomas E. O'Shaughnessy Jr.

Member

Mr. James R. Hastie

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 2004 01 through 2004 02 and the General Officer Memorandum of Reprimand (GOMOR) be removed from his Official Military Personnel File (OMPF).  Also, that he is reconsidered for promotion for the  
2006 and 2007 Selection Promotion Board.

2.  The applicant states, in effect, that the United States Army Recruiting Command (USAREC) had provided inaccurate information to the Enlisted Special Review Board (ESRB) which effected the decision of his case.  He states, in effect, that he received a GOMOR on facts that were not in accordance with USAREC Regulation 601-45 (Personnel Procurement Recruiting Improprieties Policies and Procedures).

3.  He states, in effect, that the basis for his GOMOR and Relief-for-Cause NCOER was the premise that the Soldier in question had already enlisted and was not considered an applicant.  He contends that this was an improper perception of what the regulation states.

4.  The applicant provides 15 enclosures, which he lists in a table of contents.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he is currently serving on active duty with Headquarters, United States Army, Civil Affairs and Psychological Operations Command, Fort Bragg, North Carolina, in the Army Guard/Reserve (AGR) Program in pay grade E-7.

2.  In a Relief-for-Cause Letter from the Commanding General, USAREC, dated 9 February 2004, it was determined that based on a report of investigation on the applicant for improper recruiting practices, dated 11 December 2003, the preponderance of the evidence established that the applicant committed a recruiting impropriety by interfering with the civilian criminal process on behalf of an applicant.  This is a violation of USAREC Regulation 601-45, paragraph  
2-3a(1).

3.  At the time of the contested report, the applicant was serving as a Field Reserve Recruiter, at the United States Recruiting Battalion with duty at House Springs Army Recruiting Station.  The applicant received a Relief-for-Cause NCOER for the period 2004 01 through 2004 02.

4.  The NCOER provided by the applicant for the period 2004 01 through  
2004 02 shows in item c (Rated NCO) of Part II (Authentication) the applicant's signature.

5.  On 3 May 2004, the applicant received a GOMOR for "recruiting impropriety by interfering with the civilian criminal process on behalf of an applicant."  On  
10 May 2004, the applicant acknowledged receipt of the GOMOR.

6.  On 27 May 2004, the applicant submitted a rebuttal to the GOMOR.  In the rebuttal, the applicant states that he "received a letter of reprimand for helping a Soldier with a bench warrant he did not know he had for a ticket which he thought was taken care of."  The applicant admitted that "he did help the Soldier with the bench warrant so he could pay the fine he owed and leave for basic."

7.  A letter from the Commanding General, USAREC, dated 11 June  
2004, directed that the GOMOR be filed in the applicant's OMPF.

8.  On 24 October 2005, the applicant submitted an evaluation report appeal for his Relief-for-Cause NCOER.  He based his appeal on substantive and administrative errors.  He states, in effect, that his Relief-for-Cause NCOER was based on allegation of misconduct which allegedly occurred on 23 September 2004.  He further states that the allegation was investigated and the Trial Defense Attorney (his Counsel), advised the command that he did not violate nor did he intend to violate USAREC Regulation 601-45.  Also, he states that the allegation of misconduct was without merit and legally insufficient to initiate punitive action or non-judicial punishment.

9.  He further states, in effect, that his NCOER was incorrect because the rating period and the comments were wrong.  The alleged misconduct did not occur during the rating period.  Also, the charges were found to be unsubstantiated by his commander and his Trial Defense Attorney (his Counsel) and the charges were subsequently dropped and should not have been included in the NCOER.

10.  In a 29 October 2005 letter from the applicant's commander, he states that he served with the applicant from May 2003 to February 2004.  He states, in effect, that the incident which formed the basis of the negative NCOER the applicant received was not a violation of regulation, because the Soldier was already a legal member of the U.S. Army Reserve when the legal issue occurred.  He states "USAREC Regulation 601-45, paragraph 2-3 clearly states that any legal interference with the applicant process is a violation.  This Soldier was already assessed in a 'TPU' unit and was clearly not in the applicant process."

11.  In a 4 November 2005 letter from the applicant's Station Commander from the House Spring Army Recruiting Station, he states that he observed the applicant's day to day performance from 2003 09 to 2004 03.  He states, in effect, that the applicant's appeal is based on substantive error.  The Soldier in question did not disclose the law violation prior to processing for the Army Reserve; however, after the Soldier assessed into the Army Reserve he divulged the information.  He was not an applicant when assessed into the Reserve, he was a Soldier.  He states that the applicant did what any good noncommissioned officer (NCO) would do; he attempted to help a junior Solider.

12.  In a 22 December 2005 letter from the applicant's Battalion Commander, he states that he conducted an informal inquiry into the situation and circumstances of the applicant's Relief-for-Cause NCOER.  He found that the NCOER was substantially unjust and inaccurate, in that the applicant was absolved of the allegation of misconduct for violating USAREC Regulation 601-45.  He states that if the applicant had been charged with misconduct in his previous unit, his contention regarding his NCOER would have been indisputable whether guilty or innocent.  He has endured the punitive effect of adverse action without due process, resulting from an unproven allegation.  He states that the applicant has been a member of his command since May 2005 and has been the most professional, honest and dedicated NCO in his command and one of the best NCOs he worked with during his 25 year career.

13.  On 9 March 2006, the applicant's appeal was forwarded to Department of the Army, Enlisted Special Review Board for adjudication in accordance with Army Regulation 635-205 (Enlisted Evaluation Reporting System) and Department of the Army Memorandum 600-1.

14.  13 April 2006, the Special Review Board adjudicated the appeal by partially approving it to add a "1" in Part Ik (number of enclosures) of the applicant's NCOER and by adding the Commanding General's Relief-for-Cause memorandum as an enclosure to the NCOER for the period 2004 01 to 2004 02. Also, the appeal correspondence was directed to be filed in the restricted portion of the applicant's OMPF.

15.  On 27 June 2006, the applicant submitted an appeal to the Enlisted Special Review Board's decision.  In his appeal, he states that USAREC and his rater had provided the board with inaccurate information regarding the DEP and "GED" Enlistment Programs for the Army, which effected the Board's decision on his appeal.  He states, in effect, that the recruiting commands and brigades did not have the DEP (IRR) when the Soldier he helped enlisted; it was not on line as yet.  In 26 April 2005, St. Louis Recruiting Battalion started the DEP (IRR) program.  He states, in effect, Reserve applicants were assessed on the day they enlisted into the Reserves when the Soldier he helped was enlisted.

16.  In a letter from USAREC, Operations NCO in Charge, dated 27 June 2006, he states, that "USAREC explained that once an individual is accepted into the DEP, the individual must take an oath, then prior to accessing into the military, the individual must take another oath, at this time the individual is enlisting in the military.  This is correct for the Regular Army; it is incorrect for the Army Reserve."

17.  In the letter he further states, in effect, that there has been some confusion in USAREC due to the transition from the U.S. Army Reserve (USAR) DTP to the Reserve DEP (RDEP).  On 24 April 2005, all of the new (USAR) Soldiers in 5th Recruiting Brigade came under RDEP in accordance with USAREC "OPORD  
5-0007 and FRAGOS 1 & 2."  Under this program a new USAR Soldier takes the oath on the day they enlist and is held in a pool by USAREC pending until they ship to "BT/AIT."  The new Soldier no longer has to take another oath before he departs for training.

18.  The applicant provides a copy of the Soldier he helped enlistment contract to show that he enlisted on 31 October 2003.

19.  USAREC Regulation 601-45, states, in pertinent part, that Field Recruiter improprieties includes acts or omissions in violation of law or regulation with the intent to enlist a person not qualified for enlistment or whom the recruiter believes is unqualified for enlistment.  Any Acts or omissions in violation of law or regulation with the intent to grant a person a specific option, MOSC, educational benefit, bonus, or other enlistment benefit for which an applicant is ineligible or whom the recruiter does not believe is eligible.  Gross negligent acts or omissions in violation of law, regulation, or policy resulting in a fraudulent, erroneous, or defective enlistment or reporting to active duty (AD) or transfer of an unqualified person.  Absent evidence of an innocent purpose intentional violations of any specific prohibition identified in paragraph 2-3, whether or not any processing or enlistment occurred.

20.  Paragraph 2-3a(1)(2), states, in pertinent part, that recruiters are prohibited from interfering with the civilian criminal process.  Recruiters will not allow persons who have an unpaid fine or are pending charges (including unfiled charges known to the recruiter) to enter the Delayed Entry Program (DEP) Future Soldier Training Program (FSTP) or access until all such restrictions are removed.  Likewise recruiters will not allow individuals who are confined in any criminal justice facility, on probation, parole, or similar status to enter the DEP FSTP or access until all such restrictions are removed.  Recruiters are further prohibited from participating in the release of individuals from such restrictions, whether by paying fines, appearing in court with applicants, testifying for applicants, or interceding on behalf of these individuals in any manner.  Applicants are required to disclose all prior and pending law violations, whether civilian or military.  Recruiters are prohibited from concealing, assisting in the concealment, or advising an applicant to conceal any disqualifying information.

21.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records, DASEB, Army Appeals Board, the Chief of Appeals and Corrections Branch of the USAHRC, or the Official Military Personnel File custodian when documents have been improperly filed.   
Table 2 of the regulation pertains to the composition of the OMPF.  It states, in pertinent part, that NCOERs will be filed on the Performance Fiche.

22.  Army Regulation 623-3 (Evaluation Reporting System) states, in pertinent part, that an NCOER report is required when an NCO is relieved for cause regardless of the rating period involved.  Relief-for-Cause is defined as the removal of an NCO from a rateable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain.  A Relief-for-Cause occurs when the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army.  The rating official directing the relief will clearly explain the reason for the relief in his/her portion of the NCOER.  If the relief is directed by an official other than the rater or senior rater, the official directing the relief will describe the reasons for the relief in an enclosure to the report.

23.  Army Regulation 623-205, in effect at the time, established the policies and procedures for the enlisted evaluation system.  It provided that an NCOER, accepted by Headquarters, Department of the Army, and included in the official record of the soldier, 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.  The regulation states that the burden of proof in an appeal of an NCOER 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant requests to remove his NCOER and GOMOR from the OMPF have been carefully considered.  He contends that the Enlisted Special Review Board made allegations on inaccurate information in his case for violating USASREC Regulation 601-45, paragraph  2-3a(1)(2), was all based on the definition of the word "applicant."

2.  According to the evidence, the Soldier enlisted for USAR, on 31 October 
2003 and was placed into the DTP awaiting shipment to "BT/AIT."  The applicant is contesting that the Soldier status changed from "applicant" to Soldier, because he was assessed into the USAR on the date of his enlistment, therefore, he could not have violated USAREC Regulation 601-45, paragraph  2-3a(1).

3.  The applicant's station commander and his Battalion Commander and all the other letters of support attests to the same point that the applicant did not violate USAREC Regulation by interfering with legal process of an "applicant."  However, the applicant did not deny that he interfered with the legal process; he is denying that he did not violate the USAREC Regulation 601-45, because the Soldier was already assessed, so he should have been able to help the Soldier.

4.  Unfortunately, whether the Soldier was assessed in the USAR or not, the interference by the applicant was clearly not in compliance with the USAREC Regulation 601-45, because a Field Recruiter cannot interfere with legal processing of anyone whether or not any processing or enlistment occurred.

5.  There was no confusion on the part of USAREC.  The Soldier was waiting to ship to "BT/AIT" and could not ship without paying his fine.  The recruiter crossed the boundary established by USAREC Regulation 601-45 when he intervened in the civilian criminal process.  If the Soldier was assessed into the USAR system, as stated, then it should be the Soldier's chain of command responsibility to ensure that the Soldier ship to "BT/AIT."

6.  The Commanding General of USAREC requests for the Relief-for-Cause based on the report of investigation concerning recruiter impropriety for interfering with the civilian criminal process on behalf of an "applicant".  The Commanding General directed that the Relief-for-Cause be made an enclosure to the applicant's NCOER.  Both documents were directed to be filed in the applicant's OMPF.

7.  The fact that the applicant's chain of command absolved him of misconduct does not preclude the Commanding General, USAREC from directing the applicant's a Relief-for-Cause for interfering with the civilian criminal process.
8.  Based on the Board’s denial of the applicant’s request to remove his GOMOR and Relief-for-Cause NCOER, there is no basis for considering his other requests.

9.  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.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____hof__  ____teo_  ____jrh__  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.




__________Hubert O. Fry Jr._______
          CHAIRPERSON




INDEX

CASE ID
AR20070005672
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070522
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.


The Board notes that the applicant's NCOER and GOMOR were properly filed in the OMPF in accordance with applicable regulations.

10.  The Board also notes that the applicant has failed to provide compelling evidence that his NCOER for the period 2004 01 through 2004 02 should be removed from his OMPF.  Therefore, the applicant is not entitled to correction of his records to remove the NCOER and GOMOR from his OMPF.

11.   Additionally, as for the applicant's request for being consider for promotion on the 2006 and 2007 Selection Promotion Board, there is no evidence that the applicant would have been promoted to master sergeant if it had not been for the Relief-for-Cause NCOER. Therefore, he is not entitled to correction of his records to be consider by the 2006 and 2007 Selection Promotion Board.