RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080000143


	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.  










      The following members, a quorum, were present:













	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, in effect, reconsideration of his earlier petition requesting that his record be corrected by revoking his 11 May 2007 discharge order, and by removing his Noncommissioned Officer Evaluation Report (NCOER) for the period from July 2004 to June 2005 from his Official Military Personnel File (OMPF).  He also submits a new request for payment of 80 days of accrued leave.  

2.  The applicant states, in effect, that the contested NCOER should be removed from his OMPF, and that his discharge order should be revoked because the charge of “Criminal Contempt - Violation of Order of Protection” against him was dismissed and expunged from his criminal record.

3.  The applicant provides the following documents in support of his application:  Page 5 of ABCMR Record of Proceedings Docket Number AR20070007991; Order for the Expungement of Criminal Offender Record; and Leave and Earnings Statement (DFAS Form 507) for the period 1 through 31 May 2007.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2007000507, on
6 February 2007; and Docket Number AR20070007991, on 25 October 2007.  

2.  During its two prior reviews of the case, the Board determined that the applicant had failed to provide sufficient relevant and convincing evidence that the contested NCOER was inaccurate or unjust.  Further, during its first reconsideration review, the Board determined that the 2003 dismissal of charges against him the applicant refers to would not have resulted in a different result of the Board of Inquiry conducted in his case given he was ultimately convicted of criminal contempt in 2005, and finally concluded that his discharge was proper and equitable.  

3.  The contested NCOER was a Relief for Cause report that covered the period July 2004 through June 2005, and evaluated the applicant as a “Retention and Transition NCO” for Headquarters, 81st Readiness Reserve Command, Birmingham, Alabama.  


4.  In Part IVa (Army Values), the rater, a master sergeant (MSG), responded “No” to questions 2, 3, 5, and 6 and provided the following supporting bullet comments: “conduct unbecoming an NCO indicated by assaulting spouse reflecting questionable moral character"; "displayed questionable integrity on at least four occasions"; and "failed to comply with supervisory guidance on more than one occasion.”  In Part IV (Rater) (Values/NCO Responsibilities) the applicant received a “Needs Improvement – Much” rating in the areas of Competence, Leadership, and Responsibility and Accountability.  He also received a “Needs Improvement-Some” rating in the area of Physical Fitness and Military Bearing.  The rater provided corresponding bullet comments in each of the values and responsibilities and in Part Va, he provided the applicant an overall rating of “Marginal."  The senior rater, a master sergeant, rated the applicant “poor” in overall performance and potential in Part Vc and Part Vd, and provided supporting bullet comments in Part Va.  The report confirms the applicant was notified of the reason for relief, and that the report was properly processed and accepted for filing in the applicant's OMPF by Department of the Army officials.  

5.  On 7 October 2005, the unit commander initiated elimination action to separate the applicant under the provisions of Chapter 14, Army Regulation
635-200, by reason of misconduct.  

6.  On 27 October 2005, the applicant acknowledged receipt of the unit commander's separation action notification, and he consulted with legal counsel. After being advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of those rights, the applicant completed an election of rights.  He requested consideration of his case by a board of officers, appointment of military counsel for representation, personal appearance before an administrative separation board, and to submit a statement on his own behalf.  However, the applicant’s statement is not on file.

7.  On 26 September 2006, having considered the evidence presented in the applicant’s case, a Board of Officers recommended that he be separated from the service under honorable conditions based on multiple acts of misconduct, including civilian-related charges.  On an unknown date, the separation authority approved the findings and recommendation of the board.

8.  On 20 April 2007, Army Human Resources Command – St. Louis (AHRC – St. Louis) issued Orders D-04-790097.  These orders directed the applicant’s discharge from the U.S. Army Reserve/Active Guard Reserve under honorable conditions on 11 May 2007.

9.  Also on 20 April 2007, the AHRC – St. Louis issued Orders C-04-711114.  These orders directed the applicant’s attachment to Fort Campbell, Kentucky for the purpose of separation processing only.

10.  On 11 May 2007, the applicant was discharged from the Army under the provisions of Paragraph 14-12c, Army Regulation 635-200, by reason of Misconduct (Commission of a Serious Offense), and he received a GD.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 6 years, 6 months, and 7 days of active service during the period covered by the separation document. 

11.  Item 16 (Days Accrued Leave Paid) of the applicant's DD Form 214 contains the entry “0.”  The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated).  

12.  The applicant submits an Order for The Expungement of Criminal Offender Record.  This document shows that his charge of “Criminal Contempt – Violation Order of Protection” was dismissed on 7 December 2007.  

13.  The applicant submits a copy of his LES for the period 1 – 31 May 2007.  This document shows that he had a remaining balance of 80 days of leave at that time.

14.  A review of the applicant's master pay record maintained by the Defense Finance and Accounting Service (DFAS) confirms that at the time of his discharge, the applicant had 78.5 days of accrued leave, and that he received pay for 60 days of this accrued leave in accordance with the applicable law and regulation.   

15.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) sets the policies and procedures governing the Noncommissioned Officer Evaluation Reporting System (NCOERS).  Paragraph 3-2 provides evaluation principles and states, in pertinent part, that rating officials must prepare complete, accurate, and fully considered evaluation reports.  This responsibility is vital to the long range success of the Army’s missions.  With due regard to the NCO’s grade, experience, and military schooling, evaluations should cover failures as well as achievements of the rated NCO.  

16.  Chapter 6 of the evaluation regulation contains guidance on NCOER appeals.  Paragraph 6-6 stipulates that a report accepted for filing in an NCO’s 
record is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  

17.  Paragraph 6-10 of the same regulation contains guidance on the burden of proof necessary for a successful appeal of an NCOER that has already been accepted for filing in the OMPF.  It states, in pertinent part, that in order to justify amendment or deletion of a report, clear and convincing evidence must be provided to show that the presumption of regularity should be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable or general discharge may be awarded; however, an under other than honorable conditions (UOTHC) discharge is normally considered appropriate for members separated under these provisions. 

19.  The Department of Defense Financial Management Regulation, Volume 7A Paragraph 350101A provides the general entitlements for accrued leave.  It states in, pertinent part, that a member who is discharged under honorable conditions is entitled to payment of unused accrued leave unless the member continues on active duty under conditions that require accrued leave to be carried forward.  Effective February 10, 1976, a military member is entitled to receive payment for no more than 60 days of accrued leave during a military career.  However, after December 5, 1991, the 60-day leave payment limitation does not apply when a member’s service on active duty is in support of a contingency operation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that the contested NCOER should be removed from his OMPF and AHRC Orders Number C-04-711114, dated 20 April 2007, should be revoked based on the dismissal of civilian charges placed against him in 2005; and that he should be paid for 80 days of unused accrued leave have been carefully considered.  However, there is insufficient evidence to support these claims.

2.  The evidence of record clearly shows that in the contested NCOER, the applicant was clearly rated based on his performance and the potential demonstrated during the rated period, and that the basis for the report was not solely related to civilian charges as he claims.  Further, the dismissal of those civilian charges was known to and available to the Board during its prior review of the case and provides no new evidence that would call into question the validity of the original findings and recommendation of the Board on this issue.  As a result, the evidence of record and independent evidence provided by the applicant fail to provide clear and convincing evidence that the NCOER in question contained a material error, inaccuracy, or injustice, and the regulatory requirements necessary to support a successful NCOER appeal and removal of the report from his OMPF have still not been met in this case.  

3.  The evidence of record submitted by the applicant confirms that his civilian conviction charge of “criminal contempt – violation of order of protection” was dismissed subsequent to his discharge from active duty.  However this document provides no reason for the dismissal to indicate the applicant’s innocence.  In addition, based on the additional offenses committed by the applicant, as indicated in the Board of Officers Report, the applicant’s separation by reason of misconduct was and still remains valid.  

4.  The evidence of record further confirms that the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  As a result, there is insufficient evidence to support revocation of the applicant's attachment or discharge orders as he has requested.  

5.  The applicant's DFAS master pay record confirms he received pay for the maximum 60 days of accrued leave allowed by law during his separation processing.  Lacking any evidence to show he served in support of a contingency operation and was authorized special leave accrual, there is an insufficient evidentiary basis to support payment for any additional accrued leave in excess of 60 days.  Therefore, there is also an insufficient evidentiary basis to support granting this portion of the requested relief.  

6.  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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx  ___  __xxx   _  __xxx   __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR2007000507, dated 6 February 2007 and Docket Number AR20070007991, dated 25 October 2007.  

2.  The evidence presented also does not demonstrate the existence of a probable error or injustice related to the amount of accrued leave for which the applicant was paid at separation.  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)                                         AR20080000143



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