MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  9 September 1999
	DOCKET NUMBER:   AR1999027284

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Ms. Erin J. Olmes		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Christopher J. Prosser		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, that his bar to reenlistment be removed from his records. He also requests that his separation order be rescinded, that he be promoted to sergeant first class and that he be allowed to continue on active duty or as an alternative, that he be allowed to retire now as a staff sergeant.  

APPLICANT STATES:  In effect, that his NCO evaluation report (ER) for the rating period from November 1996 to September 1997 was flawed due to the inclusion of prohibitive derogatory information concerning an incident involving his civil apprehension for driving while under the influence (DUI) of alcohol that occurred during non-rated time and outside the purview of the rater; that his rater was compelled by his chain of command to include such derogatory information, unlawfully; and that the NCOER appeal was successful only in part and failed to remove the derogatory information that led to his bar to reenlistment.

In support of his request, the applicant submitted a copy of a letter from his military attorney, a statement from his rater, NCOER appeal documents, and his detailed personal statement.

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

He enlisted in the Regular Army and has served on active duty continuously since 16 December 1981, in the field artillery career management field, military occupation specialty, 92Y.  He was promoted to his present rank of staff sergeant on 1 October 1992 and is currently assigned at Fort Sill, Oklahoma. 

An undated general officer memorandum of reprimand (GOMOR) was imposed against him by his commanding general, a brigadier general, for being apprehended by civilian authorities in Lawton, Oklahoma on 9 November 1996 for DUI.  The GOMOR further stated, in effect, that his blood alcohol level was 0.038%; that he had demonstrated a total lack of responsibility and a flagrant disregard for both the law and the safety of his fellow soldiers and the general public; that his decision to drive while under the influence indicated poor judgement and constituted an absolute failure to discharge his duties as an enlisted soldier; and that such conduct would not be tolerated.  His commanding general directed that the GOMOR be filed in his official military personnel file (OMPF).

The NCOER for the rating period from November 1996 to September 1997 covering 11 rated months with non-rated code Q (lack of rater qualification), shows that the rater commented, in Part IVa under the category identified as values/NCO responsibilities, he received a DUI during this rating period; that he did not maintain high standards of conduct on and off duty; and in Part IVd, leadership, that he needed some improvement and set a poor example by being 

arrested by civil authorities.  The rater gave him a fully capable rating for overall potential for promotion and/or service in positions of greater responsibility.  

His senior rater gave him a successful rating of 3 for overall performance and a superior rating of 2 for overall potential for promotion and/or service in positions of greater responsibility.

In the rater’s statement, the rater stated, in effect and in pertinent part, that he was the applicant’s immediate rater during the rating period in which the DUI occurred even though his appointment as supply officer didn’t happen until 
2 months later; and that he reluctantly entered the DUI incident on his NCOER at the direction of his chain of command.

Review of his NCOER appeal documents show that he began his NCOER appeal on 26 May 1998 and filed 2 subsequent revisions on 24 July 1998 and 15 December 1998 due to deficiencies noted by the U.S. Army Enlisted Records and Evaluation Center (USAEREC) based on his noncompliance with the appeal procedures outlined in Army Regulation 623-205.  The genesis of his appeal concerned the 2-month period within his rating period that his rater was not assigned and therefore, was not qualified to comment on the DUI incident which occurred in the same 2-month period. 

On 10 August 1998, a bar to reenlistment was imposed against him by the Department of the Army (DA) under the Qualitative Management Program (QMP).  The basis for the bar to reenlistment concerned performance deficiencies as noted in his NCOER for the rating period from November 1996 to September 1997 and the GOMOR.

On 1 October 1998, DA denied his bar to reenlistment appeal and directed his separation from active duty not later than 30 September 1999 with an honorable characterization of service and entitlement to half separation pay.

On 17 February 1999, USAEREC determined that the evidence presented by him and review of his OMPF did not justify the withdrawal of this NCOER.  However, his report was modified to show a 9-month rating period vice 11-month rating period.

In his military lawyer’s statement, the lawyer stated, in effect, that while he was attending law school, two of his class mates received DUI convictions yet they eventually passed the Ohio state bar examination and went on to successful law careers; and that the applicant should not have to forfeit over 17 years of honorable service for similar circumstances. 

In his statement accompanying his application to this Board, he admitted to the DUI offense but argued, in effect and in pertinent part, that since it happened during non rated-time, it should not have been mentioned on his NCOER by his 
rater; and that since the DUI was not such an egregious act as outlined in Army Regulation (AR) 623-205, paragraph 6-4a, it was prohibited from inclusion on his NCOER.

AR 623-205 pertains to the noncommissioned officer reporting system.  Chapter 4 states, in effect and in pertinent part, that an appeal may be submitted for a claim of inaccuracy or injustice, however, such a claim must include substantive, competent and relevant evidence from third party sources, rating officials, or other documents from official sources and must be of a clear and compelling nature.  Third parties are persons other than the rated NCO or rating officials who have knowledge of the rated NCO’s duty performance during the rating period or persons who served in positions that afforded them the opportunity to observe the rated NCO’s duty performance, first hand, as well as the interactions with rating officials.

Paragraph 4-7 of the 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.

Parargraph 6-6 of the regulation states, in pertinent part, that no mention will be made of any punitive or administrative action taken (or planned) against a rated NCO.  However, this does not preclude mentioning the rated NCO’s underlying misconduct that served as the basis for the action.

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 Board concludes that there was nothing in the regulation preventing his rater from mentioning his act of misconduct, driving under the influence of alcohol, that occurred during the rating period.  However, the rater was prohibited from mentioning the type of punishment imposed by this misconduct, the general officer letter of reprimand, which he did not do.

2.  The Board further concludes that even if the rater or senior rater had failed to mention his DUI misconduct on his NCOER, the GOMOR alone was sufficient to cause a DA imposed bar to reenlistment.

3.  His contention that his bar to reenlistment, imposed against him because of a technical error, appears to ignore the very serious nature of the misconduct which caused the bar to reenlistment and the potential impact of such 
misconduct.  State and local laws as well as Army regulations and policies have little tolerance for such misconduct and the penalty for violation is severe.  Under the circumstances of this case, his bar to reenlistment should remain in effect and he should continue to comply with instructions associated with his separation already set for 30 September 1999. 

4.  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.

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

__EO___  ___IW___  ___CP___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999027284	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990909	
TYPE OF DISCHARGE	NA	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	NA  	
DISCHARGE REASON	NA	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.