MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  19 September 2000
	DOCKET NUMBER:  AR2000037130

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Hubert O. Fry		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. John P. Infante		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, removal of his Enlisted Evaluation Report (EER) while he was assigned to the Transportation Movement Office (TMO) in Germany in 1983.

APPLICANT STATES:  That because of hate, prejudice, unfair ratings, and the application of the rating system it should be removed.  Due to the passage of time he has lost his supporting documentation.  He submits a copy of his retirement order and his retirement award of the Army Commendation Medal in support of his application.

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

At the time of the contested report the applicant was serving as the operations NCO, 3rd Movements Region, in Germany.  This was an annual report with eight rated months for the period April 1983 through March 1984.

The rater, in Part III. A. and B., rated him all 4s in Professional Competence except for “Displays sound judgment” where he was given a 3.  The indorser rated him all 4s in this part except for “Demonstrates initiative” and “Demonstrates technical skills” where he was given a 5.  For Professional Standards the rater gave the applicant all 4s except for a 3 in “loyalty” and a 3 in “Earns respect”.  The indorser gave him all 4s in this section except for 3s in “Self discipline” and Military appearance and a 5 for “Supports EO/EEO.”

In Part II. C. it was noted that he had a physical profile that prevented his having a passing score for the physical fitness test.  In the rater’s narrative evaluation it was noted that the applicant performed his duties in an adequate manner and displays marginal leadership traits.  He continually challenges instructions and has received letters of indebtedness.  He has not attempted to improve himself by participating in civilian or military educational activities.

The indorser’s narrative evaluation for this part was mostly positive.  However, he also noted that the applicant frequently bypassed the NCO support structure to solve operational problems that caused alienation among his fellow NCO’s.  Both the rater and the indorser recommended he be promoted with his peers.  The rater noted that he should be assigned a non-supervisory position and the indorser recommended future utilization within the limits of his physical profile.

On 24 July 1984 the applicant appealed the EER to the Department of the Army based on administrative error and substantive inaccuracies.  He claimed that the rater and indorser made false statements because of a personality conflict.  The Enlisted Special Review Board (ESRB), on 18 April 1985, opined that the applicant had failed to submit clear and convincing evidence that would warrant alteration or deletion of the contested EER.  The ESRB documentation includes an acknowledgement that the applicant was not selected for promotion to pay grade E-7 by the last five promotion boards and that only the last promotion board viewed the contested report.

Effective 31 December 1987 the applicant was separated from active duty and transferred to the Retired Reserve on 1 January 1988.  He had 20 years and 20 days active Federal Service and was retired in pay grade E-6.  Effective 10 February 1988 the applicant was awarded the Army Commendation Medal for service from 10 December 1967 and 31 December 1987.

Army Regulation 623-205, in effect at the time, established the policies and procedures for the enlisted evaluation system.  It provided that an EER, accepted by Headquarters, Department of the Army, and included in the official record of the soldier, 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 states that the burden of proof in an appeal of an EER rests with the applicant.  Accordingly, to justify deletion or amendment of an EER 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 applicant has submitted no documentation in support of his contention that the contested EER did not properly represent the collective judgment of the rater and indorser at the time the report was prepared more than 15 years ago.

2.  The applicant has not shown to the satisfaction of the Board that hate or prejudice motivated the rating officials, or that it was an unfair rating.  This is partially supported by the denial of his appeal from the ESRB.

3.  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 this requirement.

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

__hf___  ___rs___  ___ji___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037130	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000919	
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.		
2.		
3.		
4.		
5.		
6.