IN THE CASE OF:	  

		BOARD DATE:	        28 August 2008

		DOCKET NUMBER:  AR20080012295 


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 removal of a Noncommissioned Officer Evaluation Report (NCOER) for the period June 1990 to May 1991 from his records.  

2.  The applicant states the NCOER was unjust.  

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Self-authored statement, dated 14 May 2008.

	b.  DA Forms 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) for the period from 9811 thru 9910, 9711 thru 9810, 9606 thru 9610, 9006 thru 9105, 8909 thru 9005, and from 8806 thru 8901.

	c.  DA Forms 2166-6 (Enlisted Evaluation Report) for the period from 8711 thru 8805, 8611 thru 8710, 8512 thru 8610, 8412 thru 8511, 8312 thru 8411, 8212 thru 8311, and from 8209 thru 8211.

	d.  Certificate of Achievement, dated 10 February 1991.  

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.  The applicant's records show he initially enlisted in the Regular Army on 24 September 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 19E (Tank Crewmember).  He subsequently executed a series of extensions and/or reenlistments in the Regular Army and was also awarded MOS 19K (M-1 Tank Crewmember).  He was promoted to sergeant (SGT)/E-5 on 15 August 1982 and to staff sergeant (SSG)/E-6 on 8 December 1986.

3.  The applicant's awards and decorations include the Army Service Ribbon, the National Defense Service Medal, the Good Conduct Medal (3rd Award), the Overseas Service Ribbon (2nd Award), the Southwest Asia Service Medal with two bronze service stars, the Army Achievement Medal (1st Oak Leaf Cluster), the Army Commendation Medal, and the Expert Marksmanship Qualification Badge with Pistol Bars (9 mm and .45 caliber).  

4.  The applicant’s records also show he served as an instructor at the U.S. Army Armor Center, Fort Knox, Kentucky, and as a M1/M1A1 Tank, Countermine Equipment/New Equipment instructor in support of Operations Desert Shield/Storm.

5.  On 6 May 1991, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his (the applicant's) poor performance on the APFT (Army Physical Fitness Test) due to having three consecutive APFT failures.  The applicant was furnished with a copy of the Bar to Reenlistment Certificate and elected to submit a statement on his own behalf.  The applicant's battalion commander subsequently approved the Bar to Reenlistment Certificate on 20 May 1991.  The applicant elected not to appeal the bar to reenlistment.

6.  On 9 July 1991, the applicant submitted a request for separation in accordance with chapter 16 of Army Regulation 635-200 (Personnel Separations) for inability to overcome a locally imposed bar to reenlistment.  His request was approved on 15 July 1991 and he was accordingly discharged on 
15 August 1991.  The DD Form 214 he was issued at the time shows he was honorably discharged by reason of a locally imposed bar to reenlistment and that he had completed 11 years, 10 months, and 22 days of creditable military service.

7.  Prior to his discharge, the applicant's rating officials issued the applicant an annual NCOER for the period June 1990 thru May 1991 as follows:

	a.  Part IV (Values/NCO Responsibilities) of the DA Form 2166-7 shows the applicant received a "NO" for item a.1. “Places dedication and commitment to the goals and missions of the Army and nation above personal welfare” and item a.2. “Is committed to and shows a sense of pride in the unit, works as a member of the team.”  His Rater entered the following bullet comments:  “does not display a professional attitude toward all assigned duties; avoids decisions” and “can’t always be relied on to support the NCO Corps; not a team player”;

	b.  Part IV (Physical Fitness and Military Bearing) shows the applicant received a “Needs Improvement (Much)” rating.  His Rater entered the following bullet comments:  “failed three record APFT due to apathy”; and

	c.  Part V (Overall Potential) shows the applicant’s Rater entered an “X” in the “Marginal” block.  Furthermore, the Senior Rater entered the following bullets in Part V (Senior Rater Bullet Comments):  “does not aspire to develop his potential; sets personal needs above the Army; possesses specialized skills as platform instructor; and consistent APFT failures demonstrate lack of motivation.” The Senior Rater also marked the applicant’s overall performance as “Marginal” and his overall potential as “Fair.” 

8.  The NCOER shows the Rater and Senior rater authenticated this form by placing their signatures in the appropriate places and that the Reviewer concurred with the Rater and Senior Rater and authenticated this form by placing his signature in the appropriate place.  However, the NCOER shows the applicant refused to sign.

9.  There is no indication in the applicant's records that he requested a Commander's Inquiry or that he appealed this NCOER to the U.S. Army Enlisted Records and Evaluation Center (USAEREC), Indianapolis, Indiana. 

10.  The applicant submitted a self-authored statement, dated 14 May 2008, in which he states:

	a.  He wants the NCOER removed for posterity and in the interest of justice.  He also adds that he failed out of the Advanced Noncommissioned Officer’s Course (ANCOC) because he could not pass the run portion of the APFT due to his health issues.  Upon return to his unit, his immediate commander took that failure personally and placed him on a remedial physical fitness program that was designed to punish him instead of build him up;

	b.  he and his immediate commander were assigned the mission of developing the tactics that would allow the armored battalion to breach a mine field using plow, roller, and clear lane marking system.  They became subject matter experts and he was personally selected to present this doctrine for countermine operations to the Armor School for Army-wide use; and

	c.   he had a personality conflict with his commander during the Gulf War because his commander made serious command decisions that placed the applicant and his peers in harm’s way and the applicant confronted him.  Upon return to Fort Knox, the commander made the applicant’s life like hell.  The commander placed him on a remedial physical fitness program that was designed to punish and abuse rather than build and improve.  He still could not pass the APFT due to health issues.  This influenced both the rater and senior rater to rate him negatively.   

11.  Army Regulation 623-205 (Evaluation Reporting System), in effect at the time, established the policies and procedures for the preparation and submission of the NCOERs for corporals through command sergeants major.  Paragraph 
4-2 provided that an evaluation report accepted for inclusion in the official record of the NCO 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. 

12.  Paragraph 2-15 of that regulation states when it is brought to the attention of commanders that a report rendered by one of their subordinates or by a member of one of their subordinate commands may be illegal, unjust, or otherwise in violation of the regulation, they will look into the allegation.  These matters may be brought to the commander’s attention by the rated NCO or anyone having knowledge of the alleged illegality, injustice, or violation.  The Commander’s Inquiry will be made by a commander (major or above) in the chain of command above the designated rating official(s) involved in the allegations.  The commander will confine the inquiry to matters relating to the clarity of the report, the facts contained in the report, the compliance of the report with the regulation, and the conduct of the rated NCO and rating officials.




13.  Paragraph 4-7 of that regulation states that the burden of proof in an appeal of an NCOER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration, and that action is warranted to correct a material error, inaccuracy, or injustice. 

14.  Paragraph 6-10 of the same regulation further states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he/she must produce evidence that establishes clearly and convincingly that action is 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.

15.  Army Regulation 623-205 also states, in pertinent part, that appeals alleging bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature, and that substantive appeals must be submitted within 5 years of the NCOER's completion date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exemption, for example, extended hospitalization

16.  Chapter 2 of Army Regulation 600-8-104 (Military Personnel Information Management/Records) governs the composition of the OMPF, and states in pertinent part that the performance fiche is used for filing performance, commendatory and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from a fiche or moved to another part of the fiche unless directed by certain agencies, to include this Board.  Table 2-1 of Army Regulation 600-8-104 states, in pertinent part, that all evaluation reports are filed in the permanent section of the Performance fiche on the OMPF

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s superior knowledge in tactics, techniques, and procedures (TTP) are not in question.  Furthermore, the applicant’s EERs/NCOERs prior to the contested NCOER as well as his certificate of achievement are all noted.  However, by regulation, an NCOER must be an independent evaluation of the rated NCO for a specific rating period.  



2.  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.

3.  There is no evidence that the contested report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown that the rating officials’ evaluations represented other than their objective judgment and considered opinions at the time they prepared the contested NCOER, or that they exercised faulty judgment in evaluating him as they did.

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.  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

__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
      
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)                                         AR20080012295



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ABCMR Record of Proceedings (cont)                                         AR20080012295



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