IN THE CASE OF:	  

		BOARD DATE:	  30 December 2008

		DOCKET NUMBER:  AR20080015674 


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, removal of a noncommissioned officer evaluation report (NCOER) covering the period February 1989 through November 1989 from his Official Military Personnel File (OMPF) and reconsideration for promotion to master sergeant by a standby advisory board (STAB).

2.  The applicant states, in effect, that the comments and evaluations rendered by the rater and senior rater on the NCOER in question were in response to a minor incident that occurred on 24 November 1988 when he was a specialist, 2 months prior to his promotion to sergeant and the beginning of the rating period.

3.  The applicant provides the following documents in support of his application:  NCOER appeal memorandum to Human Resources Command, St. Louis 
(HRC-St. Louis), dated 5 May 2008; HRC-St. Louis denial memorandum, dated 16 May 2008; NCOER appeal memorandum to HRC, Indianapolis 
(HRC-Indianapolis), Indiana, dated 6 June 2008; contested NCOER; Statement of Medical Examination and Duty Status (DA Form 2173); line of duty determination; Service School Academic Evaluation Report (DA Form 1059); enlistment contracts (DD Forms 4, Enlistment/Reenlistment Document – Armed Forces of the United States); Oath Of Extension of Enlistment (DA Form 1695); promotion order and amendment; separation orders; and 8 November 1989 separation document (DD Form 214, Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army (RA) and entered active duty in that status on 9 July 1985.  He continuously served on active duty in an RA status until 8 November 1989, at which time he was honorably released from active duty (REFRAD) and transferred to the United States Army Reserve (USAR) to complete his military service obligation.

2.  Prior to his REFRAD from his RA service, while serving as a sergeant in Germany, the applicant received an NCOER covering the period February 1989 through November 1989 in which he was evaluated as an infantry team leader in military occupational specialty 11B (Infantryman).  In Part IVa (Values/NCO Responsibilities (Rater)) the rater responded "NO" to questions a2 (Is committed to and expresses a sense of pride in the unit-works as a member of the team) and a5 (Maintains high standards of personal conduct on and off duty), and provided the comments "personal conduct has led to life threatening situations" and "withdraws himself from the squad or platoon during athletic events" to explain the "NO" responses.

3.  In Part IV the rater gave the applicant a "Needs Improvement (Much)" rating in IVc (Physical Fitness) and supported this rating with the comment "loses control when confronted with personal crisis."  The rater also gave the applicant a "Needs Improvement (Some)" rating in IVd (Leadership) and provided the comment "possesses positive leadership qualities, but has a tendency to let down" to explain this rating.

4.  In Part V (Overall Performance and Potential) the rater gave the applicant a "Marginal" rating and the senior rater placed the applicant in the "4 (Fair)" block in Part Vc (Overall Performance) and in the "5 (Poor)" block in Part Vd (Overall Potential).  He provided the comment "soldiers (sic) psychological instability renders him unsuitable for leadership positions" to support his ratings.

5.  The applicant is currently a member of the USAR and is serving on active duty in the rank of sergeant first class in the Active Guard Reserve (AGR) program.

6.  On 5 May 2008, the applicant submitted an appeal to the NCOER in question to HRC-St. Louis requesting the NCOER in question be removed from his record based on substantive inaccuracy.  He claimed that the ratings and comments made in the report by the rater and senior rater were related to a minor incident that took place on 24 November 1988, before the beginning of the rating period and two months before he was promoted to sergeant.
7.  On 16 May 2008, HRC-St. Louis informed the applicant that even though he was a Reservist, since he received the contested NCOER while he was on active duty in the RA he had to submit his NCOER appeal to HRC-Indianapolis.  The applicant submitted his appeal to HRC-Indianapolis on 6 June 2008 and was informed that because he was an AGR Soldier and not an RA Soldier, they would not consider his appeal.

8.  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 contained guidance on NCOER appeals.  Paragraph 6-6 stipulated 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.  Paragraph 6-10 contained 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 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 attached to reports accepted for filing by Department of the Army 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 contention that the evaluations rendered in the contested NCOER were based on a minor incident that took place prior to the rating period was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evaluations and ratings contained in the NCOER in question contain no specific reference to or comments related to one specific incident as asserted by the applicant.  The evaluations and comments on the contested report are generic in nature and it must be presumed that they represent the considered opinion and objective judgment of the rating officials at the time the report was prepared.  Absent any clear and convincing evidence that that would support a conclusion that the report in question is inaccurate or unjust, the regulatory burden of proof necessary to support a successful appeal for removal of the NCOER in question has not been satisfied.  As a result, there is an insufficient evidentiary basis to support removing the NCOER in question from his OMPF.

3.  Further, since the NCOER in question is not being removed from the OMPF and absent any evidence of a material error or an injustice, there is also an insufficient evidentiary basis to support the applicant’s promotion reconsideration by a STAB.

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:

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.



      __________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)                                         AR20080015674



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ABCMR Record of Proceedings (cont)                                         AR20080015674



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