IN THE CASE OF:	  

		BOARD DATE:	  8 October 2015

		DOCKET NUMBER:  AR20150002900 


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, correction of his records by –

* removing a Noncommissioned Officer (NCO) Evaluation Report (NCOER) from his Official Military Personnel File (OMPF)
* replacing the NCOER with the NCOER previously prepared by the rater and senior rater
* crediting him with completing 26 years of active Federal service (AFS)
* promoting him to the rank of master sergeant (MSG)/pay grade E-8 with a date of rank (DOR) of 1 March 1990
* placing him on the retired list in the grade of rank of MSG (E-8)

2.  The applicant states that in May 1990, he and his family were victims of an intentional act of coercion that brought his military service to a premature end.

   a.  In September 1989, he was deployed on a field training exercise (FTX).  
At the end of the two week FTX, the Deputy G-1 (D/G-1), a West Point graduate and commissioned officer serving in the rank of major (MAJ), approached him and other junior NCOs and verbally rebuked them for not assisting the Soldiers in loading a vehicle.  He responded by stating, "Yes, sir, you are right" and the
D/G-1 stomped off.

   b.  He states that he was injured prior to the FTX during an officer/enlisted soccer competition.  He was issued a 30-day, temporary physical profile and his Soldiers had encouraged him not to lift the equipment.  Since the D/G-1 stomped off, the applicant did not have the opportunity to explain the situation or advise him to offer corrective actions to NCOs in private; not in front of the Soldiers.
   
   c.  Seven or eight months later, when he returned from a deployment in South Korea (Team Spirit 1990), he was due an annual NCOER.  His rater showed him a nearly perfect rating that he and the senior rater had prepared prior to sending it to the reviewer (the D/G-1).  Three days later, the rater informed the applicant that the D/G-1 was threatening the rater and senior rater (with respect to their careers) as a means to have them change their evaluation to show the applicant was an unmotivated NCO.  

   d.  At about this same time, the Assistant Chief of Staff, G-1 (ACS, G-1) awarded him an "impact" award for his achievements during Team Spirit 1990.  In addition, after observing his performance for 12 months, the ACS, G-1, elevated the applicant to a MSG (E-8) position.

   e.  The rater later apologized to the applicant for the evaluation he was given.  The applicant then petitioned the Commanding General (CG), 25th Infantry Division (25ID), for redress of the grievance.  Although the rater and senior rater were asked to provide statements about the D/G-1's coercion, the applicant never received a response to his petition nor was he afforded the opportunity to be heard on the matter.  The D/G-1 was subsequently transferred to a brigade in the division without being relieved from the D/G-1 duty position.

   f.  The NCOER was filed in his OMPF.  The CG, 25ID, did not take action to correct the applicant's record by replacing the NCOER with the original NCOER and/or the statements that the rater and senior rater prepared.  He adds that since the unit files will not be destroyed until January 2016, the files should be retrieved for consideration by the Board.

   g.  He attempted to contact General (GEN) N___ S____, Jr. because he had personally encouraged the applicant to become a Soldier.  This occurred at his grandfather's homestead in New Jersey in the 1960s when the applicant was
13–15 years of age.  (The applicant offers a brief history of his grandfather's service in the U.S. Marine Corps during World War I and post-war participation in military service organizations.)

   h.  He notes that in 1985, after being assigned to the Office of the Inspector General (IG), 24th Infantry Division (24ID), he received a telephone call from GEN S____, CG, 24ID, welcoming him to the division.  He told the applicant, "if you ever run into a situation in the Army that you can't deal with on your own, pick up the phone, and I will see what I can do."  At the time, the applicant was a specialist five (E-5) with barely 1 year time in grade and 7 years of service, and he had been assigned to a sergeant first class (SFC)/E-7 IG position.  He adds that he believes GEN S____ had something to do with his assignment.

   i.  He states that in July 1990, the 25ID, ACS, G-1, Sergeant Major expressed to him that the ACS, G-1, was unhappy with what had transpired.  He added that the ACS, G-1, was not a West Point graduate and had very little say in the matter.  However, the ACS, G-1 was attempting to add his name to the "Division's good-ole-boy list" for delivery to the Centralized Promotion Board in Washington, which guaranteed promotion for those on it."  However, shortly thereafter, GEN S____ selected the ACS, G-1 to join his staff for Operation Desert Shield/Storm.

   j.  The applicant states that he did not appeal the NCOER because it would simply leave a "black mark" in his OMPF.  He states he would accept character references from Captain S___ M____ and Colonel A___ D____ who can attest to his leadership and professionalism.  About five years ago he petitioned the Chief of Staff, Army, for redress of this grievance, but he was denied the right to be heard.  He adds the Army's appeal process was incapable of righting this wrong.
He seeks justice by correction of his military records.

3.  The applicant provides a self-authored statement.

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 had prior honorable enlisted service in the Regular Army (RA) from 7 July 1972 through 8 December 1975 and in the U.S. Army Reserve from 
9 December 1975 through 6 July 1978.

3.  He enlisted and reentered the RA on 16 Jun 1981.  He was awarded military occupational specialty 71L (Administrative Specialist).  Through a series of reenlistments, he continued to serve in the RA through 28 February 1995.
4.  The applicant's DA Form 2-1 (Personnel Qualification Record), in pertinent part, shows in –

* item 18 (Appointments and Reductions):  SSG, effective 1 July 1985
* item 35 (Record of Assignments) –

* Duty MOS (DMOS) 71L3O, Publications and Forms Manager,
556th Personnel Service Company (PSC), 25ID, Schofield Barracks, HI, from 5 April 1989 through 15 June 1990
* DMOS 71L5O, Morale Support NCO (E-8), 556th PSC, 25ID, Schofield Barracks, HI, from 16 June 1990 through 17 July 1990

5.  A "Corrected Copy" of Headquarters, 24ID (Mechanized), Fort Stewart, GA, Orders 141-23, dated 24 July 1985, promoted the applicant to SSG (E-6), in MOS 71L3O, effective 1 August 1985 with a DOR of 1 July 1985.

6.  A review of the applicant's OMPF revealed a DA Form 2166-7 (NCOER) covering the period March 1989 through December 1989.  It shows in:

   a.  Part II (Authentication) the rating chain as –

* Rater:  SFC R___ W. S____, NCO in Charge (NCOIC), Administrative Services Branch (ASB)
* Senior Rater:  Second Lieutenant D___ E. G____, Chief, ASB
* Reviewer:  MAJ J___ W. M____, D/G-1

	b.  Part III (Duty Description) –

* block a (Principal Duty Title) – Forms and Publications Manager
* block b (Duty MOS):  71L3O

   c.  Part IV (Army Values/Attributes/Skills/Actions – Rater):
   
    	(1)  block a (Complete each question), he received "Yes" ratings for all Army Values and the bullet comment, "completes what he starts" and

    	(2)  he received "Success" ratings for the Values/NCO Responsibilities in block b (Competence), block c (Physical Fitness and Military Bearing), block e (Training), and block f (Responsibility and Accountability).


   	(3)  block d (Leadership) is marked "Needs Improvement (Some)" and shows the bullet comments –

* was not consistent in meeting the challenge as acting NCOIC of an eight man section
* needs additional leadership development prior to receiving the next higher grade
* recommend a resident leadership school
	 	
   d.  Part V (Overall Performance and Potential):
   
    	(1)  the rater marked "Marginal" with the bullet comments –

* met the standard for all assigned missions
* requires additional leadership experience in order to serve in positions of greater responsibility
* recommend further development of his leadership skills by attending a resident leadership course

    	(2)  the rater listed 3 positions in which the rated NCO (applicant) could best serve the Army at his current or higher grade –

* brigade level publications manager
* division level publications manager
* corps level publications manager

    	(3)  The senior rater marked "Successful (3)" for overall performance and "Fair (4)" for overall potential for promotion and/or service in positons of greater responsibility.

   e.  The reviewer indicated with an "X" in Part II, block a, that he concurred with the rater and senior rater evaluations.

   f.  The NCOER was signed by the rater, senior rater, reviewer, and rated Soldier (applicant) on 9 February 1990
 
7.  A DA Form 2339 (Application for Voluntary Retirement), prepared by the applicant on 20 July 1994, shows he requested retirement effective 1 June 1995.

   a.  It also shows he entered in –

* item 5 (Current Grade, Pay Grade Effective Date, and MOS):  "SSG/
E-6, 1 July 1985, 71L3O"
* item 6 (Highest Grade Served on Active Duty and Branch of Service):  "SSG/E-6, U.S. Army"

   b.  The applicant and PSC representative placed their signatures on the document.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably separated from active duty on 28 February 1995 for the purpose of voluntary early retirement.  It also shows in –

* item 4a (Grade, Rate or Rank):  SSG
* item 4b (Pay Grade):  E6
* item 11 (Primary Specialty Number, Title, and Years and Months in Specialty) [in part]:  71L3O, Administrative Specialist, 13 years, 5 months
* item 12 (Record of Service), block h (Effective Date of Pay Grade):
1 August 1985

9.  Headquarters, 25ID (Light), Schofield Barracks, HI, Orders 272-135, dated 
19 October 1994, and Headquarters, III Corps, Fort Hood, TX, 1st Endorsement, undated, released the applicant from active duty on 28 February 1995 and placed him on the Retired List, effective 1 December 1985, in the grade of rank of "SSG."  The standard name line of the orders show his rank as "SSG."  He was credited with 17 years, 4 months, and 17 days for voluntary retirement and 20 years, 0 months, and 16 days service for basic pay.

10.  A review of the applicant's OMPF failed to reveal evidence that he appealed the NCOER covering the period March 1989 through December 1989.  This review also failed to reveal orders or any other record that shows he was promoted to the rank of SFC (E-7) or MSG (E-8).

11.  Army Regulation 623-205 (Enlisted Evaluation Reporting System), in effect at the time, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. 

   a.  Chapter 3 (Rating Chain Qualifications and Responsibilities):

 	 	(1)  paragraph 3-6 (Rater responsibilities), provides that the rater will assess the performance and potential of the rated NCO using all reasonable means to prepare a fair, correct report that evaluates the NCO's duty performance, values/ NCO responsibilities, and potential.

    	(2)  paragraph 3-10 (Senior rater responsibilities), provides that the senior rater's role is primarily to evaluate potential, over watch the performance evaluation, and mentor subordinates.  The senior rater will use all reasonable means to become familiar with the rated NCO's performance throughout the rating period and prepare a fair, correct report evaluating the NCO's duty performance, professionalism, and potential.
    	
   b.  Chapter 4 (Evaluation Report Redress Program), section II (Evaluation Appeals), paragraph 4-7 (Policies), places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an NCOER.

12.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF.

	a.  Depending on the purpose, documents will be filed in the OMPF in one of three folders:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

   b.  The Authorized Documents list provides guidance for filing documents in the OMPF.  It shows the DA Form 2166-7  will be filed in the performance folder of the OMPF.

13.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribes policy and procedures for career management of Army enlisted Soldiers.  Chapter 7 (Promotions) shows in:

   a.  paragraph 7-36 (General), a centralized promotion system has been in effect for promotion of enlisted Soldiers since 1 January 1969 for E-9, 1 March 1969 for E-8, and 1 June 1970 for E-7; and

   b.  paragraph 7-37 (Eligibility and general criteria for consideration), eligibility for promotion consideration to grades E-7, E-8, and E-9 is based on DOR.  Criteria for primary and secondary zones of consideration for each grade will be announced by Headquarters, Department of the Army (HQDA) before each board.  No provisions exist whereby a Soldier may decline promotion consideration.  The eligibility criteria must be met before the HQDA board convenes to qualify a Soldier for inclusion in a zone of consideration. 

14.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  

   a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, enlistment/ reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.

   b.  Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214.  It shows for:

    	(1)  item 4a and 4b, enter active duty grade of rank and pay grade at time of separation; and

    	(2)  item 12, block h, enter the effective date of promotion to pay grade.

15.  Army Regulation 15-185 provides HQDA policy, criteria, and administrative instructions regarding an applicant's request for correction of a military record.  In pertinent part, it states the Board will decide cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected by –

* removing the NCOER covering the period March 1989 to December 1989 from his OMPF
* replacing the NCOER with the NCOER previously prepared by the rater and senior rater
* crediting him with completing 26 years of AFS
* promoting him to the rank of MSG (E-8) with a DOR of 1 March 1990
* placing him on the retired list in the grade of rank of MSG

2.  The ABCMR is not an investigative agency.  Thus, the applicant's contention that the Board should retrieve pertinent records from 25ID unit files in support of his allegations is not the responsibility of the Board.  In fact, it is the responsibility of the applicant to provide relevant evidence to support his application for correction of his military records.

3.  There is no evidence of record that shows the applicant submitted an appeal with respect to the NCOER in question.  In addition, aside from the applicant's statement to this Board, he does not provide any documentary evidence that shows he sought redress regarding the alleged matter at issue (i.e. coercion by the D/G-1) that resulted in the evaluations rendered by the rating officials on the NCOER.

   a.  The NCOER is properly filed in the performance folder of the applicant's OMPF.

   b.  An evaluation report accepted for inclusion in the rated NCO's OMPF 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.  Thus, there is insufficient evidence to refute the presumption of administrative regularity with respect to the NCOER.

4.  By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal.  The applicant failed to submit evidence of a compelling nature to show that the DA Form 2166-7 filed in the performance folder of his OMPF is untrue, in error, or unjust.  Therefore, the DA Form 2166-7 is deemed to be properly filed and should not be removed from the applicant's OMPF nor should the NCOER be replaced by an NCOER previously drafted by the rater and senior rater.

5.  The evidence of record shows that promotions to SFC (E-7) and MSG (E-8) were based on specific eligibility criteria, zones of consideration, and selection by a HQDA centralized promotion board.  Despite the applicant's claim, there is no evidence of record that promotions were "guaranteed" as a result of one's name being added to the "Division's good-ole-boy list."

6.  The evidence of record shows the applicant was promoted to SSG (E-6) effective 1 August 1985 with a DOR of 1 July 1985.

   a.  His request for voluntary retirement shows he confirmed that the highest grade he served on active duty was SSG/E-6.

   b.  His final DD Form 214 reflects his correct rank/pay grade as SSG/E-6.  

   c.  Orders placed him on the retired list in the grade of rank of SSG.

   d.  There is no evidence of record and the applicant provides no documentary evidence that shows he was recommended for or promoted to a higher grade (i.e. SFC (E-7) or MSG (E-8)).

   e.  Thus, there is an insufficient evidentiary basis to correct his active duty rank/grade and DOR, or to show that he was placed on the retired list in a higher rank/grade.
7.  The applicant's separation orders show he was credited with 17 years, 
4 months, and 17 days for voluntary retirement and 20 years, 0 months, and 
16 days service for basic pay when he was placed on the retired list effective 
1 March 1995.  The evidence of record fails to show the applicant is entitled to any additional service credit or that he should be credited with 26 years of AFS.

8.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary 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)                                         AR20150002900



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ABCMR Record of Proceedings (cont)                                         AR20150002900



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