IN THE CASE OF:	   

		BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20140008553 


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) ending on 31 August 2009 from his Official Military Personnel File (OMPF).

2.  The applicant states he received a “NO” rating under integrity for driving under the influence (DUI).  He was never charged for DUI and the case has been completely dropped.  He was accused of something he did not do and it took 4 years before the case was closed.  Additionally, the comments on the NCOER referring to the DUI are unjust. 

3.  The applicant provides a copy of a court document dated 9 January 2013 and a copy of the contested NCOER.

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 was serving in the pay grade of E-6 in a Ranger Company at Fort Benning, Georgia when he received a change of rater NCOER covering the period 20090401 – 20090831, evaluating him as a reconnaissance sergeant.

3.  In Part IV – Army Values/Attributes/Skills/Actions, the applicant received a “NO” rating under “Integrity.”  The bullet comments in Part IV indicate that a singular incident of poor judgment and decision making kept him from living up to the Army values.

4.  In Part IV – Values/NCO Responsibilities, the applicant received a “Need Improvement” rating under “Competence.”  The supporting comments indicate “his extremely poor judgment and decision making resulted in his being arrested for DUI”

5.  In Part V – Overall Performance and Potential, his rater gave him a “Fully Capable” rating for overall potential for promotion and/or service in positions of greater responsibility.

6.  His senior rater gave him a successful rating for overall performance and a “Superior” rating for overall potential for promotion and/or service in positions of greater responsibility

7.  The court document submitted by the applicant dated 9 January 2013 indicates he was found not guilty of DUI and impeding traffic.  The document does very little to explain the circumstances or the reason for a delay in the decision of the court.

8.   A review of his official records failed to show that the applicant applied to the Enlisted Special Review Board (ESRB) for correction or removal of the contested NCOER.

9.  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.

10.  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.  For 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 contention that the contested NCOER should be removed from his OMPF because he was never charged with or received a DUI has been noted and appears to lack merit. 

2.  The contested NCOER does not state that he was charged with or received a DUI, it simply states that he was arrested for DUI, a statement for which the applicant has not provided any evidence to refute. 

3.  It should also be noted that there would be no need for the disposition of charges such as the applicant has submitted if no charges were ever made.

4.  In any event, there is insufficient evidence in this case to establish exactly what happened in his case and he has not provided sufficient evidence to overcome the presumption or regularity that must exist in the absence of evidence to show otherwise.
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.  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)                                         AR20140008553





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ABCMR Record of Proceedings (cont)                                         AR20140008553



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