IN THE CASE OF:  	  

		BOARD DATE:  14 May 2015	  

		DOCKET NUMBER:  AR20150004560 


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, removal of a noncommissioned officer (NCO) evaluation report (NCOER) covering the rating period 21 April 2010 through 20 April 2011 from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the ratings he received were unjust and solely based on unfounded false accusations.  He goes on to state that the administrative data was incorrect, but he was ordered to sign it because his name, rank, social security number, rank, date of rank, unit, and physical training data was correct.  He continues by stating that there were no counseling sessions performed, the content of the NCOER contains unproven derogatory information, and he was moved under a new rating chain on 29 November 2010.   

3.  The applicant provides copies of a letter written to the Fiscal Year 2015 Master Sergeant Promotion Selection Board and a redacted Criminal Investigation Division (CID) Report of Investigation.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 June 1998 for a period of    5 years and training as a military policeman.  He completed his training and has remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-7 on 1 December 2009.  


2.  The applicant was serving as a military policeman at West Point, New York when the applicant and another NCO were titled and an investigation was initiated by the CID for conspiracy and aggravated sexual assault on
28 November 2010.  The investigation involved a female specialist who was the applicant's subordinate and resided in an off-post apartment.  The investigation concluded that the charges were unfounded; however, adultery and fraternization were not within the investigative guidelines of the CID and should be referred to the applicant's unit commander for disposition.

3.  On 31 March 2011, nonjudicial punishment (NJP) was imposed against him for wrongfully having sexual intercourse with a female specialist, a married woman, not his wife.  The applicant did not appeal the punishment and the imposing commander directed that the DA Form 2627 be filed in the performance section of his Official Military Personnel File (OMPF).

4.  On 15 July 2011, the applicant received an annual NCOER covering the period 21 April 2010 through 20 April 2011 evaluating him as an operations sergeant.  In Part Iva, under Army Values, he received “NO” ratings under “Selfless Service” and “Integrity” from his rater.  The rater commented that the applicant exercised poor judgment and failed to do what was morally and legally required and he demonstrated selfish behavior by taking advantage of an enlisted Soldier.

5.  In Part IVc, he received a “Needs Improvement” rating from his rater under Leadership and the rater commented that the applicant demonstrated behavior that warranted assignment supervising “0” Soldiers and that he abandoned Army values when faced with temptation and failed to set a positive example for subordinates.

6.  In Part Va, under Overall Performance and Potential, the rater gave the applicant a “Marginal” rating for overall potential for promotion and/or service in positions of greater responsibility.

7.  The senior rater gave the applicant a “Fair” ratings under Overall Performance and Potential and commented that he should be promoted only after retraining has been completed, continue to supervise and challenge, continue to train and place in area of increased responsibility to develop potential.  He also commented that the applicant had displayed the potential to recover from his shortfall.   

8.  There is no evidence in his OMPF to show he ever appealed the contested NCOER to the Enlisted Special Review Board. 

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 paragraphs 3-39 and 6-7 of 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 3-4, provides that failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report.  Additionally, the senior rater will ensure that support forms are returned to the rated individual when the report is forwarded to HQDA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the NCOER covering the period  
21 April 2010 through 20 April 2011 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, especially a report that was not appealed by the applicant.

2.  The applicant received NJP for having sexual relations with a subordinate female Soldier and he has provided insufficient evidence to show the NJP was improperly or unjustly imposed against him.  While the CID report shows the charges of aggravated sexual assault was unfounded that report does not address the charges for which NJP was imposed.

3.  Additionally, the applicant 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 or that he was not rated by proper rating officials.

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

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)                                         AR20150004560



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ABCMR Record of Proceedings (cont)                                         AR20150004560



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