MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  15 June 2000
	DOCKET NUMBER:  AR1999022625

	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. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Ms. Kathleen A. Newman		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 Enlisted Efficiency Report (EER) for the period June to September 1982 be expunged from his records.

COUNSEL CONTENDS: The applicant’s counsel contends that the EER contains factual errors.  (1) The rater and endorser erroneously refer to “7 days of absence”, when part of this time was “set aside” by the commander.  (2) The rater indicated he was on the overweight program.  (3) The rater indicates he was “over 40 and (has) not been medically cleared for a PT Test”, which gives a false impression.  (4) The rater indicates he “did not take the SQT this year”, which reflects badly on the applicant.  Counsel indicates the applicant’s sixteen-year-old son came to live with him in May 1982, because the boy’s mother could no longer control him and expelled him from her home.  The son’s conduct continued to deteriorate and he became delinquent, stole from his father’s household, and wrote “hot” checks and was in trouble with civilian authorities on numerous occasions.  Further, counsel requests his EER for the period November 1981 to May 1982 be expunged from his records.  He contends the applicant received low ratings because he suggested day room equipment be brought up to par; that more interaction occur between the unit’s NCO’s and the junior enlisted personnel; that the unit’s NCO’s visit the barracks more often; and that the unit’s urinalysis collection procedures were below standards.  He also recommended that soldiers be given additional regular medical training; and soldiers in MOS 91B be rotated through the hospital.  He brought to the attention of the command that NCO’s were sexually harassing many of the enlisted females in the unit.  Counsel indicates the applicant was counseled on numerous occasions by the hospital Sergeant Major about “not rocking the boat” and “not stirring up problems”.  He was warned that he would “dig himself a hole he could not get out of” if he didn’t stop pursuing the foregoing issues.  The motive behind this EER was an improper and illegal warning to the applicant.  Additionally, counsel requests Nonjudicial Punishment (NJP) which was accepted by the applicant on 29 September 1982 be expunged. Again, counsel relates the applicant’s son coming to live with him and his various deeds of misconduct.  He then relates his version of the applicant’s acceptance of NJP.

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

On 27 December 1977, he reenlisted in the Regular Army.  He had 5 years,        6 months and 10 days of prior active service.  He completed his required training and was awarded MOS 91B (Medical Specialist).  He was promoted to pay grade E-6, effective 14 September 1981, immediately prior to his assignment to Fort Sill, Oklahoma.

During the period surrounding the applicant’s affected EER, he received the following reports as a staff sergeant (E-6):

	FROM	 TO		SCORE 	ASSIGNMENT/POSITION

	8010 – 8110		120.5		Fort Rucker, AL
                                                                 WOC/Duty Soldier

	8111 – 8205		116.0		47th Field Hospital, Fort Sill
                                                                 Medical Specialist

	8206 – 8209		  69.5		47th Field Hospital, Fort Sill             Medical Specialist                                  Records show he was relieved for cause.

	8210 – 8302		110.5		47th Field Hospital, Fort Sill
                                                                  Medical NCO

	8303 – 8306		125.0		47th Field Hospital, Fort Sill              Atch: TAC NCO, Correctional Custody, Records show he was relieved for cause.

	8307 – 8308		  89.0		47th Field Hospital, Fort Sill
                                                                  Medical NCO

	8309 – 8409		124.0		HHB, 2/18th Field Artillery, Fort Sill                                                                  TAC NCO, Correctional Custody.

On 29 September 1982, he accepted NJP under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) on 17, 19, 22 and 23 August 21982 to avoid field duty.  His punishment included a forfeiture of $100 pay per month for 2 months and reduction to specialist five (suspended for 90 days).  Upon appeal, the commander showed AWOL from 17 through 23 August 1982, 7 days, but he dismissed AWOL’s for 18, 20 and 21 August 1982.  A field grade officer administered this punishment, which remained the same.

On 11 February 1986, he was barred from reenlistment under the Qualitative Management Program.  On 22 December 1986, he submitted an appeal to the bar, which was denied by the DA Reenlistment Appeals Board.  

He was honorably separated on 5 January 1988, under the provisions of Chapter 4, Army Regulation 635-200, based on the expiration of his term of service.  His Report of Separation indicates he had 15 years, 6 months and 12 days of active service.  He was assigned reentry code RE-4, not eligible for continued service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of that regulation provides, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training.  A soldier separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the soldier is in entry level status and service is uncharacterized.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

Code RE-4 applies to persons separated from their last period of service with a non-waivable disqualification, including those separated with a Departmental bar to reenlistment in effect, and who are ineligible for enlistment.

Army Regulation 623-205 establishes the policies and procedures for the NCOER system.  The regulation provides that an NCOER accepted by Headquarters, Department of the Army, and included in the official record of a noncommissioned officer, 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.  The regulation specifies that the burden of proof in an appeal of an NCOER rests with the applicant.  Accordingly, to justify deletion or amendment of an NCOER 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.

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.  The evidence of record shows he was relieved for cause on two occasions while assigned to the 47th Field Hospital (periods June to September 1982 and March to June 1983).  On one other occasion he was relieved for cause; however, he received a maximum evaluation for that period.

2.  During the period July to August 1983, he received a substandard evaluation; however, records do not show he was officially relieved.

3.  On 29 September 1982, he accepted NJP for being AWOL.  He was charged for 7 days AWOL; however, the commander set aside punishment for 3 of those days.

4.  The preceding evidence of record and discussion does not show the contested EER’s or NJP to be erroneous or unjust.  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.

5.  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 satisfy the aforementioned requirement.

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

___ot___  __mt____  __kn_____ DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999022625	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000615	
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	EER	
2.		
3.		
4.		
5.		
6.