IN THE CASE OF:	   

		BOARD DATE:	  18 June 2014

		DOCKET NUMBER:  AR20130016787 


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, that his “Relief for Cause” Noncommissioned Officer Evaluation Report (NCOER) covering the period 1 April 2009 through 
12 February 2010 be removed from his Official Military Personnel File (OMPF).  

2.  The applicant defers comments to counsel. 

3.  The applicant allows counsel to provide supporting documents with his application. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the “Relief for Cause” NCOER covering the period 
1 April 2009 through 12 February 2010 be removed from the applicant’s OMPF.

2.  Counsel states, in effect, that after charges were preferred against the applicant for the wrongful use of marijuana, he was given a “Relief for Cause” NCOER covering the period 1 April 2009 through 12 February 2010 that contained a number of substantive inaccuracies.  He goes on to state the applicant adamantly denied having used marijuana and demanded trial by court-martial.  He continues by stating that the applicant was found not guilty by a special court-martial which makes the comments on the NCOER essentially unproven derogatory information that the governing regulation prohibits from being entered on the evaluation report.  Accordingly, it should be removed from his records. 
3.  Counsel provides a 12-page brief explaining the application which includes a list of supporting documents on page 10.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 2 April 1998.  He completed training as a food service specialist and remained on active duty through a series of continuous reenlistments.  He deployed to Afghanistan during the period 
15 April 2005 through 15 April 2006 and he was promoted to pay grade E-6 on 
1 November 2007.

2.  On 12 April 2010, charges were preferred against the applicant for the wrongful use of marijuana between 6 December 2009 and 6 January 2010.

3.  On 22 April 2010, the applicant was issued a “Relief for Cause” NCOER covering the period 1 April 2009 through 12 February 2010 evaluating him as the Command Finance NCO of a Cavalry Squadron.

4.  In Part IV under Army Values/Attributes/Skills/Actions, the applicant received “NO” ratings under “Honor” and Integrity.

5.  In Part IV under Values/ NCO Responsibilities, he received a “Needs Improvement” rating under “Competence.”  The Rater commented that the applicant tested positive for THC (Tetrahydrocannabinol) during a random troop urinalysis.  He received “Success” in all other areas.   

6.  In Part V under Overall Performance and Potential, his Rater gave him a rating of “Marginal” for overall potential for promotion and his senior rater (SR) gave him “Fair” ratings for performance and potential.  His SR also stated the applicant should not be promoted at this time or selected for further military schooling.  He could have potential for continued service after completing the Army Substance Abuse Program and stated that the applicant refused to sign the NCOER.

7.  On 13 July 2010, the applicant was found “not guilty” of the charge of wrongful use of marijuana by a special court-martial.

8.  On 15 November 2010, the applicant was honorably discharged under the provisions of Army Regulation 635-40, chapter 4, due to disability, severance 


pay, non-combat related.  He had served 12 years, 7 months, and 14 days of active service.

9.  The applicant appealed the contested NCOER to the Enlisted Special Review Board (ESRB) and on 26 April 2011.  The ESRB determined by a unanimous vote that the applicant had failed to provide sufficient evidence to show the contested report contained material error, inaccuracy, or constituted an injustice.  The ESRB opined that the applicant's case did not warrant the relief requested and denied his request.

10.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System.  It states an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that the regulatory presumption of regularity referred to in this regulation will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice.

11.  Army Regulation 623-3, paragraph 3–23 of the version in effect at the time, states no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA.  If the rated individual is absolved, comments about the incident will not be included in the evaluation.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  It will also prevent unjustly prejudicial information from being permanently included in a Soldier’s OMPF, such as (1) charges that are later dropped, or (2) charges or incidents of which the rated individual may later be absolved.  Any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated individual is 


under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s use of verified derogatory information.  Previously reported information later proven to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report in accordance with chapter 6.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the NCOER covering the period 1 April 2009 through 12 February 2010 from his OMPF has been carefully considered.  However, there is insufficient evidence of a clear and compelling nature that would support overriding the presumption of regularity attached to reports accepted for filing by HQDA.

2.  One of the applicant’s/counsels contentions was that the applicant's NCOER unjustly and erroneously contains unproven derogatory information, especially since he was exonerated by a special court-martial, has been noted appears to lack merit based on the available evidence. 

3.  The contested NCOER indicates the applicant tested positive for THC during a random unit urinalysis and the applicant has not provided any evidence to dispute that fact.

4.  The regulation in effect at the time stated that any verified derogatory information could be entered on an evaluation report.  Notwithstanding any punishment he may have or have not received in regards to the positive urinalysis, the fact remains that the Army possessed a positive urinalysis report attributed to him at the time the NCOER was prepared.

5.  Additionally, he failed to provide sufficient evidence to show the contested NCOER does not represent the considered opinions and objective judgment of the rating officials at the time of preparation.

6.  The only document in the applicant’s record is the Report of Result of Trial.  If the applicant can provide evidence indicating that the charge was connected to the urinalysis report, he may request reconsideration. 

7.  After reviewing all of the available evidence of record and documents submitted by the applicant, there appears to be no basis to remove the contested NCOER from his OMPF at this time.



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)                                         AR20130016787



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ABCMR Record of Proceedings (cont)                                         AR20130016787



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