MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 October 2000                  
	DOCKET NUMBER:   AR2000040981

	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. Raymond V. O’Connor		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Linda D. Simmons		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 negative comments contained in his August 1996 through July 1997 NCO Evaluation Report (NCOER) be expunged.

APPLICANT STATES:  That his rater had a “personal vendetta because [he] got married and didn’t ask his permission.”  He notes that his rater and the ex-spouse of his wife “were very close friends and the ex-husband wanted everything.”  In support of his request he submits a copy of his NCOER appeal and a copy of his appeal to a Department of the Army Bar to Reenlistment under the Qualitative Management Program.

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

He has been a member of the United States Army Reserve (USAR) since 1968 and is currently on active duty as a member of the Active Guard/Reserve (AGR) Program.  He was promoted to pay grade E-7 in 1977.

In October 1997 the applicant received a less than favorable annual performance appraisal covering the period August 1996 through July 1997.  The report noted that the applicant “continued an affair and publicly lived with a fellow NCO’s spouse” that his “conduct was prejudice to good order and discipline” and that his “actions broke confidence and caused dissension within the local NCO ranks.”  His senior rater noted that the applicant’s “off duty actions were unbecoming of an NCO” and rated his overall performance in the third block and his overall potential in the second block.  The senior rater also noted in the evaluation that the rater had “failed to fully comply with counseling requirements shown by only one counseling date.”

A commander’s inquiry concluded that the applicant’s “behavior during the period 
1 August 1996 [through] 15 October 1996 was not that of what we expect from both Officers and NCOs in the U.S. Army” and that his “actions were detrimental to the good order and morale of the unit and caused an increased stress level within the battalion headquarters.”  The inquiry did note, however, that the applicant “did not receive period counseling from his rater.”

In March 2000 the applicant initiated an appeal of the evaluation report.  In his appeal he denied that his actions were improper but did state that he “had a fellow NCO’s wife living with [him] during her divorce process [but] did not have any sexual relationships at this time.”  He indicated that once the woman was divorced they were married and subsequently remarried “in the Catholic Church.” His appeal was returned without relief.

Although not available to the Board the applicant was apparently identified for a Department of the Army bar to reenlistment under the Qualitative Management Program as he submitted an appeal to have the bar lifted in April 2000.  In his appeal he again denies any wrongdoing on his part which resulted in the less than favorable evaluation report.  He notes that the evaluation report “forms the sole basis of this QMP action.”  He stated in the appeal that he was not having an affair with the spouse of a fellow soldier but was merely allowing her to live with him while she was pursuing divorce action.  He also cites the lack of counseling as a basis to conclude that the evaluation report was improper and should not have been entered into his Official Military Personnel File.

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, have been prepared by the proper rating officials, and 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 appropriate 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.  Paragraph 4-2 of that regulation states specifically that appeals based solely on the lack of full compliance with performance counseling requirements will not normally serve as a basis to invalidate an evaluation report unless accompanied by additional evidence of 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 NCOER was administered in accordance with applicable regulations and there is no evidence of any substantive violation of the applicant's rights.  The Board notes that the commander’s inquiry also concluded that the applicant’s actions were inappropriate and detrimental to the good order and morale of the unit.

2.  The Board notes that the applicant’s evaluation report does not mention that he “got married and didn’t ask his [rater’s] permission.”  Additionally, the Board notes that the applicant has provided no evidence that clearly establishes or confirms that his rater had a “personal vendetta” against him.  The Board contends that the applicant’s admission that he allowed the spouse of another soldier in his unit to reside with him while she was still married was justifiably the basis for the less than favorable comments on his evaluation report and he has offered no evidence that would serve to invalidate those comments.

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 that 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

__bje___  ___lds__  ___rvo__  DENY APPLICATION

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

INDEX

CASE ID	AR2000040981	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001017	
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.	111.02	
2.		
3.		
4.		
5.		
6.