MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 December 1998                   
	DOCKET NUMBER:   AC98-11047

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. John H. Kern		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 the Non-commissioned Officer Evaluation Report (NCO-ER) for the period May 1992 through December 1992 be removed or upgraded.

APPLICANT STATES:  He was not assigned to his unit until 2 June 1992; he completed a motor sergeant course during the rating period; his section had a  95 percent “ER” average during the rating period; and generic statements are used that should not constitute an overall performance of “fair.”  He submits no supporting documentation.

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

He enlisted in the Regular Army on 25 June 1979.  He was promoted to Staff Sergeant on 1 March 1989 in military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  His Personnel Qualification Record shows he was assigned to Company B, 8/101st Aviation Regiment, 101st Airborne Division on    2 June 1992.

At the time of the contested NCO-ER, he was serving as a motor sergeant, pay grade E-6, with Company B, 8/101st Aviation Regiment, 101st Airborne Division, Fort Campbell, KY.

The contested NCO-ER is a change of rater report for an 8-month period.  In part IVa5, Values/NCO Responsibilities, it contains one “no” entry.  In part IVb, competence, his rater rated him as “needs some improvement” and gave one negative comment.  The rater rated his overall potential as “fully capable.”  The senior rater made one negative comment (“did not perform up to his potential”) and rated his overall performance as “fair” and his overall potential as a low-range “superior.” 

His rater on his NCO-ER immediately preceding the contested report (ending period April 1992) rated him as “success” in four areas and “excellence” in one area and rated his overall performance as “fully capable.”  His senior rater rated his overall performance and potential as a mid-range “superior.”

His rater on his NCO-ER immediately subsequent to the contested report (ending period December 1993) rated him as “success” in one area and “excellence” in four areas and rated his overall performance as “excellence.”  His senior rater rated his overall performance as a high-range “superior” and his overall potential as a mid-range “superior.”

The applicant appealed the contested report in late 1993.  The Enlisted Records and Evaluation Center returned it for his reconsideration and possible revision as he had supplied insufficient evidence.

The applicant submitted another appeal in August 1998.  It was returned to him as being submitted outside the 5-year time frame for appeals.

Army Regulation 623-205 establishes the policies and procedures for the NCO-ER system.  Paragraph 4-2 states that an NCO-ER accepted for inclusion in an NCO’s OMPF is presumed to be administratively correct, to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4—7 of that regulation also states that the burden of proof in an NCO-ER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCO-ER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

For a claim of inaccuracy or injustice of a substantive type, evidence must include statements from third parties, rating officials or other documents from official sources.  Such statements should include specific details of events or circumstances leading to inaccuracies, misrepresentations or injustice at the time the report was rendered.

Paragraph 4-3 states that substantive appeals must be submitted within 5 years of the NCO-ER’s completion date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exemption, e.g., extended hospitalization.  This time limit is imposed because as time passes, people forget and documents and key personnel are less available, making preparation of a successful appeal more difficult.

In the processing of this case, an advisory opinion was obtained from the Special Review Board, Office of the Deputy Chief of Staff for Personnel.  That opinion noted that the applicant’s appeal was submitted outside the 5-year limit and he did not provide justification to make his appeal compelling and worthy of an exception to policy.

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, it is concluded:

1.  The applicant has not shown, and it does not appear to the Board, that the rating officials’ evaluations represented other than their objective judgment or considered opinion at the time.  He has submitted no supporting documentation.  When his first appeal was returned to him, he was informed of the type of supporting documentation he would require but there is no evidence he ever obtained this documentation.

2.  The beginning period of this report is correct in that his prior NCO-ER ended in April 1992.  In addition, while his Personnel Qualification Record shows he was assigned to the unit on 2 June 1992, that is not necessarily evidence that he did not begin to work at that assignment in May 1992.  The applicant’s signature in part IIC indicates that he authenticated all the administrative data, including the number of rated months and non-rated codes entries, as being correct.

3.  Minor administrative errors do not provide a basis to invalidate an NCO-ER unless retention of the report would clearly result in an injustice to the NCO. 

4.  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

RVO_____  GDP_____  JHK_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11047	
SUFFIX		
RECON		
DATE BOARDED	19981202	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.02	
2.		
3.		
4.		
5.		
6.