BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100025979 


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 the removal of a Noncommissioned Officer Evaluation Report (NCOER) for the period 1 March 2006 through 28 February 2007 from his Official Military Personnel File (OMPF).

2.  The applicant states he believes the NCOER ending on 28 February 2007 to be in error and unjust because it was based on the assumption that he withheld information on his special operation forces personnel application questionnaire and he believes the evidence he submits with his application will show that he did not withhold the information.

3.  The applicant provides:

* His contested NCOER
* His Enlisted Record Brief (ERB)
* His assignment history
* Orders awarding him the Parachutist Badge
* General remarks from his electronic records
* His Record of Emergency Data
* Orders transferring him to Pensacola, Florida
* His DA Form 4187 requesting assignment to a Ranger Regiment
* His Personnel Application Questionnaire
* Two third-party statements of support
* His subsequent NCOER 


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the contested NCOER from the applicant’s OMPF.

2.  Counsel states that the applicant has provided evidence to show he did not withhold information regarding his termination of airborne status during his application for assignment to a Ranger Regiment and, therefore, the NCOER is invalid and should be removed.  He goes on to state that the applicant informed the recruiters and his supervisor of his airborne termination and the recruiters told him to submit his application and it would be sorted out later.

3.  Counsel provides a four-page letter explaining the applicant’s position.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 July 1994 for a period of 4 years and training as a personnel records specialist.  He completed his one-station unit training at Fort Jackson, SC and his airborne training at Fort Benning, GA on 29 November 1994 before being transferred to Fort Bragg, NC.

2.  On 14 April 2004, while the applicant was stationed in Italy, assignment instructions were issued reassigning the applicant to the 82d Airborne Division at Fort Bragg.

3.  On 1 June 2004, officials at the Human Resources Command in Alexandria VA received a request from the applicant to decline the airborne assignment and to terminate his parachutist duty.  Accordingly, his assignment was deleted and he subsequently received assignment instructions to Pensacola, FL.  Meanwhile, he was promoted to the pay grade of E-6 on 1 November 2004.

4.  The applicant was assigned to a Military Intelligence (MI) company in Pensacola in June 2006 for duty as a human resources sergeant.

5.  The applicant submits a copy of a DA Form 4187, dated 13 November 2006, requesting assignment to a Ranger Regiment.  The form is not signed by the unit commander and it contains no enclosures.  It also makes no mention of his termination of airborne status.

6.  The applicant also submits a copy of a questionnaire related to his request for assignment to a Ranger regiment and it also contains no enclosures or comments regarding his termination of airborne status.


7.  The applicant received an annual NCOER covering the period 1 March 2006 through 28 February 2007.  In part IVa.6. under “Army Values - Integrity: Does what is right - legally and morally” the applicant received a “NO” rating from his rater.  The bullet comments block contains the entry “Withheld airborne termination from application to Special Operations Forces, misleading recruiters and chain of command.”  The remainder of the report contains no additional derogatory comments or ratings. 

8.  There is no evidence in the available record to show the applicant requested a commander’s inquiry or that he appealed the contested NCOER to the Army Special Review Board (ASRB) within the 3 years required by the applicable regulation.

9.  The applicant was subsequently reassigned to recruiting duty in Florida.

10.  The applicant provides statements from his platoon sergeant and the S3 NCO in charge (NCOIC) at the time who state they believe the contested NCOER is not an accurate evaluation of the applicant’s leadership or values.

11.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) sets forth the policies and procedures for the Enlisted Evaluation Reporting System  It provides, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.  Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or 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.

12.  Army Regulation 614-200 (Selection of Enlisted Soldiers for Training and Assignment) provides policies and procedures for selection of enlisted personnel for assignment, details, transfers and training.  It provides, in pertinent part, that all male Soldiers may apply for ranger training or assignment to a ranger battalion except those who previously terminated airborne or ranger duty, unless because of extreme family problems.  Each exception will be considered individually and all requests must be forwarded to Headquarters, department of the Army for final approval.  The same policy applies to airborne and special forces duty as well. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the contested NCOER is in error and unjust because it was based on the false assumption that he withheld his termination from airborne status on his application for assignment to a Ranger Regiment has been noted and appears to lack merit.

2.  While the applicant has not submitted a complete copy of his application containing signatures and enclosures, the documents he has submitted do not accurately reflect his contention that he made his termination known to all concerned at the time.

3.  He also claims he made his termination known to the recruiters and his supervisor; however, he has not provided any evidence to substantiate this claim.

4.  It is also noted that the applicant is a Human Resources Sergeant and he should have been fully aware of the regulations regarding the requirements for ranger training and the effect airborne terminations had on such assignments.

5.  While airborne terminations are not definite disqualifiers, such information should be made known up front before managers begin to make decisions regarding training and assignments.  Exceptions are required to be made only by Department of the Army personnel and there is no evidence he made a request for any such exception.

6.  Accordingly, the applicant’s contention that he made his termination of airborne status known is not supported by sufficiently convincing evidence and it appears that the contested NCOER accurately reflects the considered judgment of his rating chain at the time.  Therefore, there appears to be no basis to void the contested report.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100025979



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ABCMR Record of Proceedings (cont)                                         AR20100025979



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