MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            23 January 2001                  
	DOCKET NUMBER:   AR2000039658

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful 		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Walter T. Morrison		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 a 1997 General Officer Memorandum of Reprimand (GOMOR), a February 1999 Article 15, and an NCO Evaluation Report (NCOER) for the period February 1998 through January 1999 be expunged from his Official Military Personnel File (OMPF).  He also asks that a relief for cause NCOER for the period April 1996 through September 1996 be altered to delete statements relating to his striking another soldier and that the report be annotated to indicate he struck the soldier in self defense.  He notes that once these corrections have been made his reenlistment eligibility (RE) Code should be changed to RE-1 and that he should be reinstated to active duty with appropriate back pay and allowances or allowed full retirement.  

APPLICANT STATES:  In effect, that he was identified under the Qualitative Management Program (QMP) for a DA imposed bar to reenlistment based solely on the 1997 reprimand and the 1996 relief for cause evaluation report.  He notes that the reprimand was removed from his performance fiche by the DA Suitability Board on 1 February 1999 because the “replacement center at Fort Bragg did not follow their regulations.”  He states that once the reprimand was removed only the relief for cause evaluation report was left and according to Army Regulations “a single report should not, by itself, determine an NCO’s career.”  He states that in spite of the fact that the reprimand was removed from his record it was still considered by his chain of command when making recommendations regarding his QMP appeal.  He states that when his appeal was considered by the “Standby Advisory Board” only the relief for cause NCOER should have been considered.  He states that the “board’s decision was unfair and manipulated by [his] first sergeant….”

The applicant states that the relief for cause evaluation report was biased.  He notes that a military police investigation concluded that he struck the other soldier in self-defense.  However the commander’s inquiry, which was not nearly as thorough as the MP investigation, was based on “a preconceived theory on what happened” and written to “support his [the investigator’s] theory and not on the facts.”  He states that his commander used “an unfair Commander’s inquiry to accuse [him] of acts without allowing [him] a fair opportunity to refute them.”  He contends that the comments “relieved from duty for striking a soldier” and “demonstrated unacceptable conduct by striking a subordinate” should be deleted from the report and that “there should be an annotation reflect[ing] that it was in self-defense.”

The applicant states that he was not given an opportunity to present witnesses or statements in his defense at the time he received the 1999 Article 15 under the Uniform Code of Military Justice (UCMJ).  He notes that he was innocent of the 

charges and that his “innocence would have been substantiated had the commander given [him] a fair chance to prove [his] innocence.”  As such the applicant contends that the UCMJ action should be expunged from his records.

The applicant states that the February 1998 through January 1999 NCOER “is a direct reflection of the Article 15.”  He states that letters of support and letters of recommendations from his rater, senior rater, reviewer and members of his chain of command, which he submitted in support of his application to this Board and which were part of his QMP appeal, show “that [his] performance was outstanding.”

The applicant concludes that he dedicated more than 17 years of his life to the military and “should not have been discharged under the QMP program.”  He contends that he has been treated unfairly and that had his unit first sergeant not interfered, his entire chain of command would have supported his appeal of the QMP action and his “appeal would have taken its proper course.”

In support of his request the applicant submits a copy of his QMP appeal, the appeal which resulted in the removal of the GOMOR from his performance fiche, a copy of his UCMJ action appeal, and numerous letters of support and recommendation which were used as part of the applicant’s various appeal actions.

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

He entered active duty on 9 November 1981 and was promoted to pay grade E-6 on 1 February 1995.

In June 1983 the applicant was punished under Article 15 of the UCMJ for being absent without leave for three days between 10 and 13 June.  His punishment included reduction to pay grade E-2 and 14 days of extra duty.  The UCMJ action was filed in the performance portion of the applicant’s OMPF.

In July 1985, while serving in pay grade E-4, the applicant successfully completed the Primary Leadership Course by achieving the course standards.  His academic evaluation report, however, noted that the applicant “has a problem in his leadership skills” and recommended that he be given the opportunity to serve in a leadership position in order to improve his basic leadership skills.

In September 1985 the applicant was punished under Article 15 of the UCMJ for disrespect towards a senior officer.  His punishment included forfeiture, 

restriction, extra duty and a suspended reduction to pay grade E-3.  The suspended reduction and forfeiture were remitted on 15 October 1995 by the officer who imposed the punishment.  Both the UCMJ action and the remission document are filed on the applicant’s restricted fiche.

In October 1985 the applicant requested a waiver of his AWOL time to reenlist.  The request noted both the 1983 and 1985 UCMJ actions.  Between June 1989 and March 1996 the applicant received 10 performance evaluation reports.  His performance was consistently rated as “fully capable” with only three reports indicating that he was “among the best.”  His senior raters consistently rated his overall performance and potential in the second block, although on two occasions his overall potential was rated in the top block and on one occasion his overall performance was rated in the top block.  On an evaluation report rendered in March 1993 his overall performance was rated as fair and his overall potential was rated in the third block.

In September 1996 the applicant was relieved of duties as a drill sergeant “for striking a soldier.”  His performance evaluation report noted that he failed to maintain high standards of personal conduct on and off duty, that he “exercised poor judgement by getting involved in a personal confrontation with a trainee” and that he “demonstrated unacceptable conduct by striking a subordinate.”  His senior rater indicated his overall performance and potential for promotion was “fair.”

There is no indication the applicant appealed the evaluation report when it was initially rendered.  However, in July 1998, this Board denied his petition to expunge the report.  The Board concluded that the “contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question” and that “had the applicant exhibited the leadership and professionalism of an NCO before the altercation occurred a successful solution not involving physical contact might have been achieved.”

Included with the applicant’s current petition to this Board is an April 1999 letter, which was not seen by the July 1998 Board, from the applicant’s rater on the relief for cause report.  That individual indicated that he was not aware of the MP report which indicated that “as [the trainee] struck the Drill Sergeant [the applicant], in one motion [the applicant] struck the soldier.”  He notes that he was in a temporary duty status at the time the incident occurred and rendered his rating based on information contained in the Commander’s Inquiry.  He notes that the applicant “did make some wrong decisions, and used poor judgement, 

but they were not criminal in nature.”  He states that had he been aware of the MP report he would not have made comments regarding the applicant “striking a soldier in part IVb” of the report and would not have given him a “no” in part IVa (maintains high standards of personal conduct on and off duty).

On 30 October 1997 the applicant received a GOMOR after refusing “to participate in airborne operations” which was contrary “to the commitment [he] accepted by volunteering for airborne service.”  The applicant appealed the reprimand citing his attempt to decline assignment to an airborne position prior to arriving at Fort Bragg but was told he was not being assigned to an airborne position.  His appeal included copies of his assignment orders to Fort Bragg and extracts from an Army Regulation and DA Pamphlet.  His appeal was considered and the imposing general officer directed that the reprimand be filed in the applicant’s OMPF.

In September 1998, after receiving notification that he had been identified by the QMP for a DA imposed bar to reenlistment, the applicant appealed to the DA Suitability Evaluation Board (DASEB) requesting that the GOMOR be expunged from his OMPF.  Included with this appeal was an undated statement from a sergeant who indicated that he was the individual who interviewed the applicant for his assignment to Fort Bragg and that when he “came upon a question that stated “AIRBORNE ASSIGNMENT” [the applicant] declined that option.”  He stated that “when we were finished with the levy packet, I took the completed packet over to the Levy Section.”  The applicant also included copies of February 1997 documents associated with mental health evaluations concerning his desire to terminate his airborne status in which he indicated that he had been suffering from panic attacks which began nearly 18 months ago while undergoing drill sergeant training and that he was “preoccupied with death” since a helicopter crashed.  He was assigned to Fort Bragg in January 1997.

While the DASEB did conclude that officials at Fort Bragg may not have “followed their own regulation” they also noted that “the appellant having been assigned to Ft Bragg before, probably knew that most positions were airborne positions” and “having suffered mental complications from an airborne accident he should have made a decision much earlier with medical assistance and started the termination process of the ASI prior to his arrival at Ft Bragg.”  Termination of airborne status would have resulted in loss of his paratrooper additional skill identifier and revocation of his parachute badge.  The DASEB was “not convinced to remove the GOMOR” but was “persuaded to transfer it to the R-fiche due to the intent is served.”  The transfer did not constitute grounds for a referral to a Standby Advisory Board.

In August 1998 the applicant was identified under the QMP for a DA imposed bar to reenlistment.  The notification memorandum indicated that the “board considered your record of service, including performance and future potential for retention in the Army.”  It informed the applicant that a “list of those documents indicating areas of deficiency or weakness which contributed most to the board’s decision” were contained in a sealed envelope provided to the applicant.

On 1 October 1998 the applicant initiated an appeal of the QMP action.  He argued that he was appealing the GOMOR and that he felt “there is a reasonable chance that had this wrongly given letter of reprimand not existed on [his] file, [he] would never have been selected by the QMP board.”  He also cited his improved performance since the relief for cause evaluation, completion of numerous military schools, and award of several awards which showed his “commitment to quality service over and above the Army standards.”  He also submitted several letters of support from members associated with his current duty position, most of whom noted they had known the applicant less than a year.

His company, battalion, and brigade commanders supported his appeal.  The XVIII Airborne Corps and Fort Bragg Deputy Commanding General, however, “after careful consideration of the facts presented to me, the chain of command’s recommendations, and the soldier’s record of performance” recommended the applicant’s appeal be denied.

The appeal was denied on 31 March 1999 by a DA Standby Advisory Board which “judged that the past performance and estimated potential of [the applicant] are not in keeping with the standards expected of the Noncommissioned Officer Corps.”

On 21 January 1999, prior to receipt of the QMP denial and prior to the date of the Deputy Commanding General’s 1 February 1999 endorsement, the applicant was notified by his battalion commander that he was considering whether the applicant should be punished under Article 15 of the UCMJ for leaving his appointed place of duty prior to the end of that duty and for making a false statement.  On 1 February 1999 the applicant indicated by his initials that he did not demand trial by court-martial, that he requested a closed hearing, and that he was not requesting that a person speak on his behalf.  The applicant’s punishment included 14 days of extra duty.  Although the applicant indicated by his initials that he did not intend to appeal the action he apparently did appeal the UCMJ action on 19 April 1999 noting that he was not allowed “the opportunity to present witnesses in matters of defense” and as such “created an unwaived legal 

error which clearly injured [his] rights.”  On 17 May 1999 the applicant’s brigade commander “after consideration of all matters presented in appeal” dismissed the charge of making a false statement and reduced the applicant’s extra duty to seven days.

Included with the applicant’s QMP appeal was an undated statement from his rater who indicated she was in the commander’s office at the time the applicant was read the Article 15.  She stated that the applicant did say he had a witness but the commander stated “at this point you really don’t need them.”  She contends the commander made that statement because he was not going to reduce the applicant or impose a forfeiture.  She notes at that point the applicant said “ok sir” and did not state that he wanted his witnesses to be there on his behalf.

On 26 February 1999 the applicant received his final performance evaluation report.  The report noted that the applicant “is not governed by a high set of personal values” and that he “does not always follow regulations and guidelines.” His rater indicated he was “fully capable” of service in positions of greater responsibility and his senior rater placed him in the third block for overall performance and potential.

On 31 July 1999 the applicant was honorably discharged as a result of the DA imposed bar to reenlistment.  At the time of his separation he had 17 years, 
7 months and 31 days of active Federal service.

During his 17 years of military service he was awarded three Army Achievement Medals (1987, 1991 and May 1998), two Army Commendation Medals (1993, 1995), in addition to his Good Conduct Medals and several service awards.

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 career enlisted 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 DA promotion selection boards.  The appropriate selection boards evaluate past performance 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 600-37 (unfavorable information) provides in pertinent part, that administrative letters of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the soldier.  The letter must be referred to the recipient.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.  Letters of reprimand may be filed in a soldier's OMPF only upon the order of a general officer level authority and are to be filed in the performance fiche.  The direction for filing is to be contained in an endorsement or addendum to the letter.  Once filed the letter is presumed to have been administratively correct.

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that NJP is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders who the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  It also provides that the officer imposing NJP determines whether the report of NJP (DA Form 2627) is to be filed on the individual's restricted or performance fiche.  Additionally, absent compelling evidence to the contrary, a properly completed, facially valid DA Form 2627 will not be removed from a soldier’s record by this Board without clear evidence that an error or injustice occurred.

Army Regulation 623-205 states that the NCOER appeals system protects the Army's interest and ensures fairness to the NCO.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. An evaluation report accepted for inclusion in the official record of an NCO is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  Appeals alleging bias, prejudice, inaccurate or unjust ratings, incorrect APFT or height/weight data, or any matter other than administrative error are substantive in nature and will be adjudicated by the Enlisted Special Review Board.  The burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy or injustice. 

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 the applicant’s 1996 relief for cause evaluation report continues to represent a fair, objective and valid appraisal of the applicant’s performance during the period in question.  The Board notes that while the applicant’s rater now states he would not have made reference to the applicant striking the other solider that individual still believes the applicant “did make some wrong decisions, and used poor judgement.”  As such the conclusions of the original Board remain valid and there is no new evidence which would justify altering that report.

2.  The 1997 GOMOR was properly issued, the applicant was given an opportunity to appeal, and his appeal was denied.  There is no evidence of any error or injustice in the issuing of the GOMOR.  The Board notes that the applicant indicated that he began experiencing panic attacks well before his assignment to Fort Bragg and, as noted by the DASEB, should have taken steps long before February 1997 to terminate his airborne status, knowing full well that he would no longer be able to participate in airborne operations.  The applicant has not provided convincing evidence that the GOMOR was unjust or issued in error and as such there is no basis to expunge it from his OMPF.

3.  The 1999 UCMJ action indicates, by the applicant’s initials, that he was not requesting that a person speak on his behalf.  His initials and the statement submitted in support of his request to have the UCMJ action voided confirms  that, apparently, once the applicant was told by the imposing official “at this point you don’t need them” he did not ask that anyone be allowed to speak on his behalf which would have confirmed his innocence.  

4.  The applicant’s final performance evaluation report appears to accurately portray his performance during the period in question.  The fact that his chain of command may have supported his QMP appeal does not in any way invalidate the comments of his rater and senior rater on the 1999 NCOER.

5.  The applicant’s primary contention is that after the DASEB moved his GOMOR from his performance fiche the sole document which served as a basis for his QMP action was the relief for cause evaluation report.  However, the 
Board notes that the QMP cited those documents, not as the only reason for his DA imposed bar to reenlistment but rather were merely the ones which “contributed most to the board’s decision.”  Contrary to the applicant’s contention a single evaluation report “by itself” did not “determine [his] career.”  Rather the Board notes that the applicant’s record of performance throughout his 17 years of service was adequate at best.  During his career he received not one, but three UCMJ actions, a GOMOR, and three performance evaluation reports, which in and of themselves, may have justified a bar to reenlistment.

6.  The 1999 UCMJ action, 1997 GOMOR, the 1996 relief for cause evaluation and the 1999 NCOER were all administered in accordance with applicable regulations and were not disproportionate to the offenses involved.  There is no evidence of any substantive violation of the applicant's rights.

7.  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 that requirement.

8.  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

__lls___  ___teo__  ___wtm__  DENY APPLICATION

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

INDEX

CASE ID	AR2000039658	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010123	
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.	100.06	
2.		
3.		
4.		
5.		
6.