MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 September 2000
	DOCKET NUMBER:   AR2000041032

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Anderson		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 two DA Forms 2166-7 (NCO Evaluation Report, NCOER) be removed from his records.  The first report (NCOER #1) is for the period 9107-9203 and the second report (NCOER #2) is for the period 9204-9206.

APPLICANT STATES:  In effect, that the subject reports are substantively and administratively incorrect.  In NCOER #1, he contends that the rater was not assigned to the installation until December 1991.  In NCOER #2, he contends that he did not pass the Army Physical Fitness Test (APFT) because he was ill with gallstones.  In support of his application, he provides:  a 12 January 2000 letter to the Army Review Boards Agency-St. Louis; a 29 June 1999 letter to the US Army Enlisted Records and Evaluation Center (EREC) in which he seeks to have the subject reports corrected; a 5 February 1993 memorandum to EREC appealing the subject reports; a copy of the findings and recommendations page from a board of officers hearing to separate the applicant under the provisions of chapter 14, Army Regulation 635-200 for misconduct; a 30 October 1998 letter from the Department of Veterans Affairs (VA) certifying that the applicant is permanently and totally disabled due to service-connected disabilities; a copy of a 17 February 1999 VA rating decision rating the applicant as 70 percent disabled for major depression with psychotic features; a copy of NCOER #1; a copy of a 7 April 1993 general affidavit; a copy of a Standard Form 519-B, Radiologic Consultation Request/Report, dated 29 May 1992, indicating the presence of gallstones; and a copy of the applicant's DA Form 2A, Personnel Qualification Record, dated 5 February 1993.

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

He served on active duty for 20 years and 15 days and was honorably discharged on 31 July 1994.  He was placed on the retired list the following day in the rank of sergeant first class (E-7).

In May 1992, the applicant received NCOER #1.  The rater was a second lieutenant and the senior rater was a captain (company commander).  In Part IVa (Values), the rater indicated that the applicant did not maintain high standards of personal conduct on and off duty, and that he did not have the courage of his convictions.  The rater wrote, "When placed in moral dilemma, soldier chooses to sacrifice personal integrity" and "Personal conduct continuously interferes with Army and mission requirements."

In Part IVb (Responsibilities), the rater indicated that the applicant needed "some improvement" in competence, physical fitness and military bearing, and responsibility and accountability.  Bullet comments by the rater included the following:  "Performance not reflective of rank and time in grade in technical and tactical capacities - Soldier consistently displays mediocre standards and fails to fully accomplish tasks - Fails to take initiative when confronted with adversity - Failed all events of the APFT due to apathy; 15 push-ups, 25 sit-ups, and 22:40 for 2 mile run - Failed to sub-hand receipt section vehicles and BII resulting in equipment loss - Fails to take responsibility for personal actions - Gives poor advice to soldiers seeking senior leadership."  The rater rated the applicant's overall performance and potential as marginal.

The senior rater added the following bullet comments:  "Lost accountability of assigned property - Puts personal needs above Army mission - Lacking integrity." The senior rater rated the applicant's overall performance and potential as poor.

In July 1992, the applicant received NCOER #2.  The rater was a first sergeant and the senior rater was the same captain as in the first report.  In Part IVa (Values), the rater indicated that the applicant did not comply with any of the listed values, save supporting equal opportunity.  The rater wrote, "Does not know right from wrong or what is true" and "Questionable conduct with personal responsibilities and family matters."

In Part IVb (Responsibilities), the rater indicated that the applicant needed "much improvement" in every measurable area -- competence, physical fitness and military bearing, leadership, training, and responsibility and accountability.  Bullet comments by the rater included the following:  "Is not knowledgeable of MOS - Can not [sic] be depended on to complete tasks given to him - Has given up professional conduct after unfavorable actions occurred - Does not portray appearance expected of a senior NCO - Does not attend physical training - Unsure of himself as a leader - Sets extremely poor examples for subordinates to follow - Personal concerns takes [sic] priorities over subordinates and military duties - Unable to train subordinates due to limited knowledge - Contributes nothing to development of subordinates - Cannot account for personal equipment and hand receipted equipment - Consistently absence [sic] himself and neglects responsibilities."  The rater rated the applicant's overall performance and potential as marginal

The senior rater added the following bullet comments:  "Does not maintain property accountability - Does not exhibit leadership abilities."  The senior rater rated the applicant's overall performance and potential as poor.

Although the applicant allegedly appealed the subject reports in February 1993, there is no record of that action in his Official Military Personnel File.

Army Regulation 623-205 sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 4-2 states, in pertinent part, that 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.  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.

Army Regulation 623-205 also provides that the only time qualification for a rater is that the rater must be the immediate supervisor of the rated NCO and designated as the rater for a minimum period of 90 days.

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.  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.

2.  The applicant did not prove any substantive or administrative errors with either subject report.  Assuming arguendo that the rater for NCOER #1 was not assigned to the installation until some 5 months after the start of the rating period, there still was sufficient time for that person to qualify as the applicant's rater under the regulation.  Furthermore, the applicant's gallbladder condition in late May 1992 has not been shown to be the cause of his APFT failure in February 1992.

3.  It is apparent to the Board that the applicant had serious performance problems during the period covered by the two reports.  It was within the authority of the raters and senior rater to comment on these performance problems and to downgrade the applicant's NCOERs accordingly.

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

__jhl____  __clg____  __ena___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041032	
SUFFIX		
RECON		
DATE BOARDED	20000921	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	111.0005	
2.	111.0200	
3.	111.0200.0008	
4.		
5.		
6.