IN THE CASE OF:	   

		BOARD DATE:	         7 October 2008

		DOCKET NUMBER:  AR20080007544 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his previous request for removal of the Noncommissioned Officer Evaluation Report (NCOER) covering the period from June 1996 through April 1997 and removal of Special Court-Martial (SPCM) Order Number 20, dated 26 August 1977 which includes a reprimand for maltreatment of a subordinate, from his Official Military Personnel File (OMPF).  The applicant further requests that he receive all pay, allowances, promotions, and retirement in lieu of Court-Martial, for the good of the service.

2.  The applicant states the selection for the Qualitative Management Program (QMP) was based on the contested report for the period of June 1996 through April 1997 and the “General Officer Letter of Reprimand” contained in SPCM Order Number 20.  The applicant states there were no indicators of poor performance in his OMPF prior to this incident.

3.  The applicant provides the following documents: a Self-Authored Statement, dated 1 May 2007; a copy of Special Court-Martial Order Number 20; NCOER Expedite Cover Page; Enlisted Record Brief; NCOER Counseling Checklist/
Record (DA Form 2166-7-1); Contested NCOER; NCOER Rating Scheme; Record of Trial Extract; NCOER Appeal, dated 10 September 1998; Intranet Document Extract; Army Achievement Medal; Award Certificates; Recommendation for Award (DA Form 638); Individual Soldier's Report; Enlisted Records and Evaluation Center (EREC) Memorandum, dated 10 November 1998; and two witness statements in support of this application.  


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 AR20070007296 on 31 January 2008.

2.  The applicant argues that the General Officer Letter of Reprimand and the NCOER previously considered by the Board be removed.  He essentially provided new arguments that were not previously considered by the Board.

3.  The applicant's military personnel records show that he initially enlisted and entered active duty on 20 June 1984.  He was awarded and served in military occupational specialties (MOS) 77F (Petroleum Supply Specialist) and 31U (Signal Support Systems Specialist). 

4.  Change of rater NCOER for the period June 1996 through April 1997 evaluated the applicant as a "Petroleum Section Chief" for an Aviation Regiment at Hunter Army Airfield in Georgia.

5.  On 1 May 1997, the applicant authenticated the administrative portion of the contested report.

6.  In Part IV (Values/NCO Responsibilities) a.5 (Maintains high standards of personal conduct on and off duty), the rater placed an "X" in the NO box and provided the following: "conduct unbecoming of an NCO" and "personal values outweighed leadership values."

7.  In Part IVa.7 (Supports EO/EEO), the rater placed an "X" in the NO box and provided the following: "violated the Commanding General's sexual harassment policy."

8.  In Part IVd (Leadership), the rater placed an "X" in the Needs Improvement (Much) box and provided the following comments: "area of responsibility failed FORSCOM inspection" and "leadership style displayed a lack of concern for Soldiers."

9.  In Part IVe (Training), the rater placed an "X" in the Needs Improvement (Much) box and provided the following comments: "did not share knowledge and experience with Soldiers" and "Soldiers untrained and unaware of daily tasks."

10.  In Part IVf (Responsibility and Accountability), the rater placed an "X" in the Needs Improvement (Much) and provided the following comment: "monthly fuel reports failed inspections for the entire rating period." 

11.  In Part V (Overall Performance and Potential) a (Rater), the rater placed an "X" in the Marginal box.

12.  The Senior Rater blocks of “Overall performance” and “Overall potential for promotion and/or service in positions of greater responsibility” are blank.  However, the Senior Rater Bullet Comments bock contains the following comment: “Senior rater does not meet minimum qualifications.”

13.  On or about 29 October 2006, the applicant allegedly maltreated a subordinate Soldier, in violation of Article 93 of the Uniform Code of Justice (UCMJ).

14.  On 23 January 2007, the applicant was offered an Article 15 by his company commander for sexual harassment (maltreatment of a subordinate), violating Article 89 (disrespectful towards a superior commissioned officer), and violating Article 91 (disrespectful in deportment towards a superior noncommissioned officer).  The applicant denied all charges and requested a Court-Martial.

15.  On 26 August 1997, the applicant appeared before an SPCM and was found guilty of maltreatment of a subordinate.  The applicant was sentenced to a reprimand and a fine in the amount of $500.

16.  On 10 August 1998, the applicant was notified of his Department of the Army (DA) Imposed Bar to Reenlistment Under the Qualitative Management Program (QMP).

17.  On 10 September 1998, the applicant appealed the NCOER in question based on his receipt of the DA imposed bar to reenlistment under QMP.  Included with his appeal were letters from his battalion command sergeant major 
and battalion adjutant who indicated a commander’s inquiry should have been completed before the NCOER in question was submitted.  These letters provided no specific comments regarding the fairness or unfairness of the report.

18.  On 10 November 1998, the Enlisted Records and Evaluation Center (EREC) returned the applicant’s appeal of the contested NCOER and indicated that the appeal did not contain sufficient evidence to substantiate his claim and as a result did not meet the evidentiary standard for appeals outlined in the governing regulation.

19.  On 31 March 1999, the EREC disapproved the applicant's appeal of the DA imposed bar to reenlistment.  He was informed that he would be discharged under the provisions of paragraph 16-8, Army Regulation 635-200, by reason of reduction in force no later than 31 July 1999.  On 31 July 1999, the applicant was honorably discharged accordingly.

20.  The separation document issued to the applicant on the date of his discharge shows he completed a total of 15 years, 1 month, and 11 days of active military service.  It also confirms he was discharged under the provisions of paragraph 16-8, Army Regulation 635-200, by reason of reduction in force.

21.  Army Regulation 623-205 (Noncommissioned Evaluation Reporting System), in effect at the time, prescribed the enlisted evaluation function of the military personnel system and provided guidance regarding redress programs, including appeals.  Chapter 6 of the evaluation regulation contained guidance on NCOER appeals.  Paragraph 6-6 stipulated that a report accepted for filing in an NCO’s record was 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.

22.  Paragraph 6-10 of the enlisted evaluation regulation contained guidance on the burden of proof necessary for a successful appeal of an NCOER that had already been accepted for filing in the OMPF.  It stated, 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 not be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and determined to be without merit.

2.  There is no evidence in the available records and the applicant has not provided sufficient evidence which supports his claims that the contested NCOER was erroneously prepared or otherwise flawed.   Additionally the applicant's records do not contain and he has not provided sufficient evidence that shows the “General Officer Letter of Reprimand” was issued contrary to law and/or regulation.



3.  Absent evidence to show that either document was issued contrary to applicable law or regulation, there is no basis to grant the relief requested.

4.  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

__X_____  ____X___  _X_____  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 AR2007007296 dated 31 January 2008.

2.  Additionally, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned with regard to removal of Special Court-Martial Order Number 20, dated 26 August 1977; and payment, allowances, promotions, and retirement in lieu of Court-Martial.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007544



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ABCMR Record of Proceedings (cont)                                         AR20080007544



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