RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 May 2008
	DOCKET NUMBER:  AR20070014162 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 Article 15 and two noncommissioned officer evaluation reports (NCOERs), one for the period November 1996 through August 1997 and one for the period November 2000 through January 2001 (sic, probably meant November 2000 through October 2001) be removed from his records.  He also requests, in effect, that his records be corrected to show he was promoted to Sergeant First Class, E-7 with a chance for promotion to Master Sergeant,      E-8.

2.  The applicant states that the Article 15 was not just for two reasons.  One,   he never got to plead his case.  Also, he was tired of being bounced off trees.  He was not allowed to speak to the company commander.  He was in the rear in the first place because his mother was in a bad situation medically, and was in a life-threatening situation.  The first sergeant should have gotten a letter of reprimand.  His counsel said the first sergeant could not just trump up a few statements, but the only bad statements at the time were given during the            2-weeks training.  Also, he was hurt right before the 2-weeks training.  He was then involved in a civil matter, and his lawyer told him not to get into any legal matters till after they settled.  Then not long after that the unit made him split his training to keep him away from the troops.  Also, he has been in a custody battle. He has never been able to slow down since the Article 15.

3.  The applicant provides a cover fax, from his attorney, dated 1 October 1997; his attorney’s rebuttal and appeal, dated 30 September 1997, to the applicant’s relief-for-cause NCOER; his NCOERs for the period November 1996 through August 1997 and for the period November 2000 through October 2001; his Article 15, dated 10 August 1996; a DD Form 458 (Charge Sheet), undated but prepared around July 1996, with related documents; five DA Forms 4856 (General Counseling Form), dated July 1996; three DA Forms 2823 (Sworn Statement), dated July 1996; six DA Forms 4856, dated July/August 1997; and his NCOERs for the periods December 1991 through November 1992, December 1992 through November 1993, November 1996 through October 1997; and November 2001 through October 2002.

4.  The applicant also provides two handwritten, undated (but one with a fax date of 24 August 1997) evaluations; a DA Form 638 (Recommendation for Award), dated 27 July 1995; a 2001 E-6 promotion list and a 2002 E-6 promotion list; five DA Forms 4856, dated 10 January 2001, 2 March 2001, 7 April 2001, two dated 10 June 2001, and 21 March 2003; two DA Forms 3349 (Physical Profile), one dated 7 December 2001, the other’s date is illegible; a doctor’s letter, dated        5 February 2001; medical travel orders, dated 25 July 2002; a revised settlement statement, dated 22 January 2003; and a letter from the Louisiana Army National Guard (LAARNG) Inspector General (IG), dated 22 May 2003.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having had prior service, the applicant enlisted in the ARNG on 3 April 1987.  

3.  The applicant provided his 12-rated month NCOER for the period December 1992 through November 1993.  Part IV (Values/NCO Responsibilities) contains two “no” entries in Part IVa (NCO Values) and three negative comments – “Shows pride in the unit, but dedication to hard work and convictions are often suspect,” Lacks mental toughness,” and “Often concerned more with his well-being than that of his unit.”  Part IVb (NCO Responsibilities) contains all “success” ratings and no comments, either positive or negative.

4.  The applicant was promoted to Staff Sergeant (SSG), E-6 in military occupational specialty 11M (Mechanized Infantryman) on 11 April 1994.

5.  On 10 August 1996, the applicant accepted field grade nonjudicial punishment under Article 15, Uniform Code of Military Justice from his battalion commander for two specifications of absenting himself from his organization without authority and with intent to avoid field training; missing, through design, the movement of his Soldiers back to the required training area; and disobeying a lawful order.  His punishment was a forfeiture of $100.00, 14 days extra duty, and a public apology to the NCOs in his company.

6.  The first contested NCOER is a 10-rated month relief-for-cause NCOER for the period November 1996 through August 1997.  Part IVa contains three “no” entries and three negative comments – “Integrity questionable,” Places personal needs above mission and unit,” and “Lacks of mental toughness.”  Part IVb contains three “needs much improvement” and one “needs some improvement” ratings and many negative comments.  

7.  The applicant provided a memorandum, dated 30 September 1997, subject:  Rebuttal and Appeal to Relieval for Inefficiency and to Reduction Board from his counsel, apparently to the applicant’s commander.  In this memorandum, counsel contended that, on 23 August 1997, the applicant received six counseling statements at one time.  Counsel contended that the command’s attempt to issue six counseling statements at the same time was a thinly-veiled attempt to circumvent the fundamental requirements of justice and fair play.  Counsel contended that, in addition, eight other counseling statements were submitted with the relief-for-cause package, ranging in dates from 21 February 1991 to     10 September 1995.  Several of those eight statements should have been destroyed in January 1996, when the applicant transferred to his present unit.  

8.  There is no evidence of record to show the applicant appealed the relief-for-cause NCOER under the provisions of Army Regulation 623-205.  However, this relief-for-cause NCOER is not filed in his records in PERMS.

9.  The applicant received a 12-rated month annual NCOER for the period November 1996 through October 1997.  This NCOER is filed twice in his records in PERMS.

10.  The second contested NCOER is a 12-rated month annual NCOER for the period November 2000 through October 2001.  Part IVa contains three “no” entries in Part IVa and four negative comments.  Part IVb contains three “needs some improvement” ratings and many negative comments.

11.  There is no evidence of record to show the applicant appealed the second contested NCOER under the provisions of Army Regulation 623-205.

12.  The applicant provided two DA Forms 3349 that show he was issued a temporary physical profile for a fractured right foot on 7 December 2001 and sometime later issued a permanent physical profile for foot pain.  

13.  On 22 March 2003, the applicant applied to the IG for assistance in obtaining a copy of a DA Form 4856.  The LAARNG IG provided him the DA Form 4856, dated 21 March 2003, which concluded the IG’s inquiry into the matter.

14.  On 30 October 2003, the applicant was discharged from the ARNG and transferred to the Retired Reserve.  

15.  Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states that a commander will personally exercise discretion in the non-judicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated; determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and determining the amount and nature of any punishment if punishment is appropriate.

16.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), in effect at the time, established the policies and procedures for the NCOER system.  It stated that an NCOER accepted for inclusion in an NCO’s OMPF was presumed to be administratively correct, to have been prepared by the properly designated rating officials and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.  It also stated that the burden of proof in an NCOER appeal rested with the applicant.  Accordingly, to justify deletion or amendment of an NCOER under the regulation, the applicant must have produced evidence that clearly and convincingly overcame the presumptions referred to above and that action to correct an apparent material error or inaccuracy was warranted.

DISCUSSION AND CONCLUSIONS:

1.  The non-judicial punishment proceedings were conducted in accordance with applicable law and regulations and the punishment imposed was within legal limits.  The applicant contended that he never got to plead his case and that he was not allowed to speak to the company commander.  However, he provides no evidence to show that he never got to plead his case and it is noted that the Article 15 was imposed by his battalion commander and not his company commander.  In the absence of extraordinary circumstances the Board is reluctant to substitute its judgment for that of the commander who was on the scene on the question of guilt, at this late date, and on the basis of incomplete evidence.

2.  The applicant requested in part that his relief-for-cause NCOER for the period November 1996 through August 1997 be removed from his records.  This NCOER is not filed in his records on PERMS.  In addition, the applicant received a 12-rated month annual NCOER for the period November 1996 through October 1997, which is filed in his records in PERMS and which includes the period covered by the relief-for-cause NCOER.  It appears that his rebuttal to the relief-for-cause NCOER was successful.  

3.  In regard to the second contested NCOER, the applicant has not shown and it does not appear that the rating officials’ evaluations represented other than their objective judgment or considered opinion at the time.  Furthermore, the contested report is representative of at least one other NCOER rating he previously received.

4.  Given the above conclusions, there is insufficient evidence that would warrant granting the relief requested pertaining to showing the applicant was promoted to Sergeant First Class, E-7 with a chance for promotion to Master Sergeant, E-8.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.




      __           xxx                   __
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070014162


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508