MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            10 March 1999  
	DOCKET NUMBER:   AC98-09515
                                              AR1998012103

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Kenneth L. Wright		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:  In effect, the removal of a general officer memorandum of reprimand (GOMOR), a noncommissioned officer evaluation report (NCOER), and a Department of the Army bar to reenlistment under the Qualitative Management Program (QMP) from his Official Military Personnel File (OMPF), or as an alternative moved to the restricted fiche of his OMPF. 

APPLICANT STATES:  In effect, that NCOER and GOMOR that were used as the basis for his bar to reenlistment under the QMP were unjustly rendered because he was not afforded due process to prove his innocence of the allegations against him.  He also contends that the NCOER was not prepared by officials authorized to do so and therefore should either be removed or transferred to the restricted fiche of his OMPF.  He goes on to state that allegations were made against him that he had improper conduct with trainees during a period when the Aberdeen scandal was fresh and that he was given a GOMOR without being afforded the opportunity to prove his innocence before a trial by court-martial and to confront his accusers.  He also contends that the relief for cause NCOER contains unsubstantiated comments and that the senior rater (SR) was not in the position long enough to render a rating.  He further states that his performance was exemplary in the fifteen years prior to and after the alleged misconduct and that his career should not be destroyed based on the material error and injustice that has occurred.

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

The applicant enlisted in Columbia, South Carolina on 12 February 1981 for a period of 4 years, training as an infantryman, assignment to Korea, and a combat arms enlistment bonus of $5,000.00.

He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 1 December 1993.

On 28 March 1997 the applicant received a GOMOR for making repeated acts of sexual misconduct and harassment towards soldiers in training.  The GOMOR referred to the applicant contained 10 enclosures consisting of sworn statements from five trainees, two interview records from separate military investigators, a statement from a fellow cadre member who witnessed the alleged misconduct, and two statements from the applicant.  The applicant submitted a rebuttal to the GOMOR in which he asserted that the multiple allegations against him were unsubstantiated and untrue. 

The commanding general after reviewing his rebuttal, directed that the GOMOR be filed in his OMPF.  Accordingly, it was filed on the performance fiche of his OMPF.

On 8 April 1997, the applicant received a relief for cause NCOER evaluating him as a senior drill sergeant at Fort Jackson, South Carolina.  In part IV, under Values/NCO Responsibilities, the applicant received “no” ratings under “Is disciplined and obedient to the spirit and letter of a lawful order”, “Maintains high standards of personal conduct” and “Has the courage of convictions and the ability to overcome fear – stands up for and does what’s right.”  He received “yes” ratings in the remaining four areas.  The supporting comments indicate that he had improper associations with soldiers in training.

In parts IVb through f, the applicant received “needs improvement” ratings under “leadership” and “Responsibility and Accountability”.  The supporting comments indicate that he failed as a leader to conduct himself professionally and that he failed to comply with regulations regarding improper association.  He received “Success” and “Excellence” ratings in the remaining three areas.

In part V, under overall performance and potential, the rater rated the applicant’s overall potential for promotion and/or service in positions of greater responsibility as “fully capable.”

The SR rated the applicant’s overall performance as “fair” and his overall potential for promotion as “Superior.”  The supporting comments indicate that his future success would be based on his ability to respect the right of fellow soldiers and his potential would depend on his ability to control his personal conduct.

The applicant submitted an appeal of the contested NCOER to the Enlisted Special Review Board (ESRB) on 12 November 1997 based on administrative and substantive error.  He contended that the period of the report was incorrect, that the SR was not qualified to render a rating, that the “No” ratings were not supported by proper bullets and that the bullet comments supporting the “Needs improvement” ratings were not supported by substantiated information.  The ESRB, following a thorough examination information available at the time, concluded that the applicant had failed to provide sufficient, clear, convincing and compelling evidence to support his contentions and denied his appeal.  

On 6 April 1998 the applicant was notified that the calendar year 1998 master sergeant promotion selection board had determined that he should be barred from reenlistment based on the GOMOR and the relief for cause NCOER.

The applicant appealed the bar to reenlistment to a Department of the Army Standby Advisory Board (STAB) on 27 May 1998 with several letters of support from his chain of command indicating that his subsequent performance has been outstanding and that he should be retained in service.  The applicant contended that the GOMOR was unjustly imposed against him without his being afforded the due process of refuting the charges against him.  The STAB denied his appeal on 3 December 1998 and directed that he be separated no later than 31 March 1999.

The applicant applied to the Department of the Army Suitability Evaluation Board (DASEB) on 28 June 1998 to remove the GOMOR from his records.  The DASEB opined that the applicant had failed to refute the misconduct or to convince the board that the intended purpose of the GOMOR had been served.

A review of the applicant’s records shows that nonjudicial punishment (NJP) was imposed against the applicant in the pay grade of E-5 on 5 March 1987 for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and extra duty.  He also received NJP in the pay grade of E-6 on 6 January 1989 for committing assault on a family member by striking her in the head and body with his fists and feet and inflicting grievous bodily harm.  His punishment consisted of a reduction to the pay grade of E-5 (suspended for 6 months), a forfeiture of pay, and restriction for 45 days.  Both of the records of NJP were directed to be filed on the restricted fiche of his OMPF.

In the processing of this case the applicant’s application and supporting documents were forwarded to the ESRB for an advisory opinion (COPY ATTACHED) regarding the matter of his appeal to that board.  The ESRB in response to the request, reviewed the applicant’s request as well as his previous appeal and determined that the applicant had submitted no new evidence that would warrant reversal of the ESRB’s previous decision in his case.  The response from the ESRB was forwarded to the applicant on 22 December 1998 for comments and/or rebuttal.

Army Regulation 600-37 sets forth the basic authority for the filing of unfavorable information in the OMPF.  It states, in pertinent part, that a memorandum of reprimand or admonition will be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction over the recipient.

Army Regulation 27-10 serves as the authority for the imposition of NJP.  It states, in pertinent part, that only one record of NJP can be filed on the restricted fiche of the OMPF for individuals serving in the pay grade of E-5 and above.

Army Regulation 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to (1) enhance the quality of the enlisted career force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, records for grades   E-5 through E-9 are regularly screened by the Department of the Army promotion selection boards.  The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

Army Regulation 623-205, sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.

Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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.  The applicant has failed to submit evidence that would justify the aforementioned requirement.

2.  After reviewing the evidence submitted by the applicant as well as the evidence of record, the Board is convinced that the contested NCOER represents 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 record. 

3.  The applicant’s contention that he had an exemplary record of service both prior to and subsequent to the alleged misconduct appears to be without merit.  Although the applicable regulations prohibit the filing of more than one record of NJP in the pay grade of E-5 or above on the restricted fiche of the OMPF, the applicant has two records of NJP that were imposed in the pay grades of E-5 and E-6.  Therefore, had the last record of NJP been properly filed on the performance fiche, that record of NJP would also have served as a document in support of his bar to reenlistment under the QMP.  Inasmuch as the applicant has received some sort of punishment in every NCO grade in which he has served, the Board does not find, contrary to his assertion, that his service has been exemplary. 

4.  The applicant’s contention that he was denied due process because he was given a GOMOR and was not afforded the opportunity to dispute the allegations against him also appears to be without merit.  The GOMOR was referred to the applicant with supporting evidence and was afforded the opportunity to submit matters in his own behalf.  He took advantage of this opportunity and submitted matters in his own defense.  However, the imposing officer was not convinced by his argument and chose to file the GOMOR in his OMPF.  Although, the applicant did not address the issue, the Board also notes that the applicant had the opportunity to request an audience with the imposing officer under the commander’s open door policy if he felt that he was being wrongfully accused.  There is no evidence in the available evidence to show that he exercised that option.  Therefore, the Board finds that the applicant was afforded the due process that he was entitled to receive. 

5.  Accordingly, the Board finds that he was properly barred from reenlistment under the QMP in accordance with the applicable regulations and the applicant has failed to show through the evidence submitted or the evidence of record that the bar to reenlistment should be removed.

6.  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

__klw ___  __mw___  __fkm ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-09515/AR1998012103	
SUFFIX		
RECON		
DATE BOARDED	1999/03/10	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  193	NCOER	
2.  329	GOMOR	
3.  7	BAR TO REUP/QMP	
4. 		
5.		
6.