IN THE CASE OF:	  

		BOARD DATE:  15 November 2012

		DOCKET NUMBER:  AR20120016157 


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 that General Court-Martial Order Number 44, dated 
26 October 2006, and DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period June 2005 through May 2006 be transferred from the performance section of his Army Military Human Resource Record (AMHRR) to the restricted section of his AMHRR. 

2.  The applicant states:

	a.  on 7 June 2006, he was found guilty of violating Article 108 (selling military property) and he was sentenced to confinement for 180 days and a reduction to E-1.  He was returned to active duty upon completion of his sentence. 

	b.  since his release, he has attained the rank in which he was reduced, staff sergeant, and has held this grade for over 3 years.

	c.  he has been on active duty for 13 years and considered for promotion to sergeant first class twice.

	d.  he knows his actions embarrassed the Army and his fellow Soldiers, for that he is sorry.  He would like to continue in his military career and assume the responsibilities of the next rank position.   




3.  The applicant provides:

* General Court-Martial Order Number 44
* Relief for Cause (RFC) NCOER
* Enlisted Record Brief
* Four subsequent NCOERs since his RFC NCOER
* Letters of support 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 June 1998.  He has remained on active duty through continuous reenlistments.   He was promoted to staff sergeant on 1 June 2003.

2.  The contested RFC NCOER covers the period June 2005 through May 2006.  In Part IVa (Army Values), the rater placed an "X" in the "No" box in the following items:

* Loyalty
* Duty
* Selfless-Service
* Honor
* Integrity 

3.  He was rated as "Needs Improvement (Some)" for "Competence" by his rater with bullet comments:
  
* established systems in the Company Training Room to track the administration of over 160 Soldiers in the Company
* did not always use sound judgment when making decisions

4.  He was rated as "Needs Improvement (Much)" for "Leadership" by his rater with bullet comments:
  
* conducted pre-combat inspections to ensure that his squad was prepared for training events
* influenced a Soldier to sell government property which resulted in a summary court-martial




5.  He was rated as "Needs Improvement (Some)" for "Responsibility and Accountability" by his rater with bullet comments:
  
* the NCO has been notified of the reason for the relief
* maintained accountability of most of the squad equipment

6.  He was rated "Marginal" by his rater for his overall potential for promotion and/or service in positions of greater responsibility.  

7.  He was rated "Fair-4" by his senior rater for overall performance and for overall potential for promotion and/or service in positions of greater responsibility with bullet comments:

* do not promote at this time
* do not send to BNCOC (Basic Non-commissioned Officer Course)
* Soldier was administratively relieved by the chain of command

8.  General Court-Martial Order Number 44, dated 26 October 2006, shows that on 7 June 2006, contrary to his pleas, the applicant, a staff sergeant, was convicted by a general court-martial of:

   a.  without proper authority, selling to an undercover agent military property (Meals Ready to Eat) of a value of $8,800.00; and
   
   b.  without proper authority, disposing of by giving to an undercover agent military property (chemical light sticks), a value of $100.00.	

9.  He was sentenced to a reduction to E-1, forfeiture of $650.00 pay per month for 6 months, confinement for 180 days, restriction for 60 days, and a reprimand. On 26 October 2006, the convening authority approved only so much of the sentence as provided for reduction to E-1, confinement for 180 days, and a reprimand. 

10.  He was promoted to staff sergeant on 1 November 2008.

11.  His NCOERs for the periods 1 March 2008 through 20 December 2011 show his rater rated him "Among the Best" in his overall potential for promotion and/or service in positions of greater responsibility and his senior rater rated him "Successful" in overall performance and "Superior" for overall potential for promotion and/or service in positions of greater responsibility. 



12.  He provided a letter of support from a former company commander who states:

* he had the honor as serving as the applicant's company commander during the period December 2010 to December 2011
* during that time, the applicant demonstrated his superior competence and abilities and desire to serve in the Army
* he was selected to attend and graduated from the Senior Leader Course in early 2012
* he was an exemplary NCO and deserves to be viewed as such as he is considered for promotion and future duties  

13.  In other letters of support to remove the general court-martial order and RFC NCOER from the applicant's AMHRR, fellow Soldiers attest:

	a.  while the applicant made a tremendous error of judgment in 2006, he faced the consequences, learned from it, and dedicated himself to redeeming his reputation and character.  

	b.  he served in Afghanistan.

	c.  he has proven his skill, leadership, professionalism and dedication to the Army commensurate with that of a sergeant first class.

	d.  he served with honor and distinction.

	e.  he made a bad decision and learned from his mistake.     

14.  In 2012, he petitioned the Department of the Army Suitability Evaluation Board to remove the RFC NCOER.  The board determined he did not present any evidence to justify deletion of the evaluation and his request was returned without action.

15.  A review of the applicant's performance section of his AMHRR on the interactive Personnel Electronic Records Management System revealed a copy of the general court-martial order and RFC NCOER.

16.  Army Regulation 600-8-104 (Army Military Human Resources Record Management), formerly known as "Military Personnel Information Management/
Records," prescribes the policies governing the AMHRR, the military personnel records jacket, the career management individual file, and Army Personnel Qualification Records.  Table 2-1 of the regulation states:

   a.  that court-martial orders will be filed in the performance fiche when there is an approved finding of guilty on at least one specification.

	b.  that an NCOER will be filed permanently in the performance section of the AMHRR. 

17.  Army Regulation 623-3 (Evaluation Reporting System) states, in effect, that an evaluation report accepted for inclusion in the official record of a rated Soldier’s AMHRR 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 the rating officials at the time of preparation.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documentation were carefully considered.

2.  The general court-martial order is properly filed in his military records in accordance with the governing regulation.  There is no evidence that it was improperly imposed.  

3.  The governing regulation states NCOERs will be filed in the performance section of the AMHRR.  The NCOER in question is properly filed in his military records in accordance with the governing regulation.  

4.  His subsequent good service and promotions are acknowledged.  However, it would not be equitable to place the applicant on the same competitive footing as Soldiers who have no blemish on their records.  

5.  Based on the foregoing, there is an insufficient basis for granting the 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)                                         AR20120016157





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ABCMR Record of Proceedings (cont)                                         AR20120016157



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