MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            12 May 1999       
	DOCKET NUMBER:   AR1998022369

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Gale Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. James E. Anderholm		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his records be corrected by removing his Noncommissioned Officer Evaluation Report (NCOER) for the period 9306-9405 from his records. 

APPLICANT STATES:  That he appealed the NCOER in question; that this report was the sole basis for his administrative separation under the DA initiated QMP bar to re-enlistment; that false statements in his NCOER were drummed up against him to support his battalion commander and CSM push for an Article 15, that was later set aside; and that he was unjustly and inaccurately treated. 

EVIDENCE OF RECORD:  The applicant's military records show:

On 31 August 1978, he enlisted in the Regular Army for a period of 4 years.

On 21 October 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ), for failure to go to his appointed place of duty on 27 September 1981 and 5 October 1981.  His punishment was reduction to pay grade E-3, forfeiture (suspended) and correctional custody (suspended).

On 31 March 1994, he accepted NJP under the provisions of Article 15, UCMJ, for failure to go to his appointed place of duty on 25 March 1994.  His punishment was forfeiture (suspended) and extra duty.

On 14 September 1994, he accepted NJP under the provisions of Article 15, UCMJ, for disobeying a lawful order on 6 August 1994; missing the movement of his battery on 8 August 1994; and for making a false statement to a superior NCO on 11 August 1994.  His punishment was reduction to pay grade E-5 and a forfeiture.  On 11 January 1995, this report was wholly set aside because during the period of the alleged missing movement, the applicant was on leave.

On 11 October 1995, as a result of the setting aside of the above mentioned Article 15, this Board restored the applicant to his former grade of E-6 with a date of rank of 9 July 1986, and an effective date of 1 July 1986, with all pay and allowances.  The Board further directed that the Article 15 proceeding be transferred from his performance fiche of his Official Military Personnel File (OMPF) to his restricted fiche.   

On 21 September 1995, the applicant was notified of a DA Imposed Bar to Reenlistment under the Qualitative Management Program (QMP), Enlisted Qualitative Early Separation Program.  

The applicant’s appeal of the bar to reenlistment was denied on 19 March 1996.  The board judged that his past performance and estimated potential was not in keeping with the standards expected of the Noncommissioned Officer Corps.
On 26 January 1996, the applicant submitted an appeal of his NCOER for the period June 1993 to May 1994.  This reports indicates that the applicant did not conduct himself as a Noncommissioned Officer, that his integrity was questionable and that he displayed no loyalty to his unit.  His Senior Rater rated his overall performance and potential for promotion as poor. 

The Enlisted Special Review Board (ESRB) denied the applicant’s appeal to remove his NCOER for the period June 1993 to May 1994 from his records.  The ESRB determined the NCOER to be an accurate and objective appraisal of the applicant’s performance and potential during the rating period in question.  They did however, make administrative changes to correct the applicant’s grade to SSG, date of rank to 9 July 1986, unit and organization assignment to Battery C, the reason for submission to change of rater, and deleted the reviewers information in Section IId.

Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) states that the NCOER appeals system protects the Army’s interest and ensures fairness to the NCO.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause.  An evaluation report accepted for inclusion in the official record of an NCO is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  Appeals alleging bias, prejudice, inaccurate or unjust rating, incorrect APFT or height/weight data, or any matter other than administrative error are substantive in nature and will be adjudicated by the ESRB.  The burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that established clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy or injustice.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.

2.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

3.  The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question,
therefore there is no basis for removing it from his OMPF.
4.  The expunged Article 15 was imposed as the result of incidents which occurred in August 1994, after the ending date of the report.  The NCOER and the Article 15 in question were not related. 

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___gdp__  ___aao__  ___jea__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR199802369	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990512	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 111.02		
2.		
3.		
4.		
5.		
6.