MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 September 2000                   
	DOCKET NUMBER:   AR2000042416

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Ms. Carol Jo Suiter		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 the rating of Staff Sergeant (SSG) H___, the senior rater on his noncommissioned officer evaluation report (NCOER) for the period March through September 1991, be deleted and that the entire NCOER be removed from his records.

APPLICANT STATES:  That SSG H___ was not his platoon sergeant during this rating period.  The only true statement on the NCOER is that he failed the Primary Leadership Development Course.  Nothing is mentioned about how he performed during the Gulf War.  He discovered this error when he received a Department of the Army Imposed Bar to Reenlistment under the Qualitative Management Program (QMP).  He provides the contested NCOER and the notification of the QMP bar to reenlistment (minus the two noted enclosures) as supporting evidence.

EVIDENCE OF RECORD:  The applicant's complete military records are not available.  The information contained herein was obtained from information on his service and performance fiche and from the QMP paperwork provided by the applicant.

After having had prior service in the U. S. Army Reserve, he enlisted in the Regular Army on 26 February 1986.  He was promoted to Sergeant, E-5 on        1 March 1991.

The contested NCOER is a 7-month change of rater report for the period March through September 1991.  In part IVa, his rater checked the “no” blocks for the NCO values areas of “places dedication and commitment to the goals and missions of the Army and nation above personal welfare” and “is committed to and shows a sense of pride in the unit – works as a member of the team” with one related negative comment.  In part IVb – IVf, his rater checked one “needs much improvement” block and one “needs some improvement” block with mostly negative comments.  In part V, his rater rated his overall potential as “marginal.”  His senior rater, SSG H___, rated his overall performance and overall potential as “poor” with related negative comments.

There is no evidence of record to show the applicant appealed this NCOER.

The applicant was promoted to Staff Sergeant, E-6 on 1 March 1993.

On 30 August 1999, the applicant was notified that he had been selected to receive a Department of the Army Imposed Bar to Reenlistment under the QMP. One of the enclosures to the QMP listed those documents which indicated areas of deficiency or weakness which contributed most to the decision to bar him from reenlistment but it is not available.

The applicant’s case was forwarded to the Enlisted Special Review Board (ESRB) for an advisory opinion.  However, the ESRB returned the case without action as the applicant had provided no evidence on which to base his appeal.

Army Regulation 623-205 establishes the policies and procedures for the      NCO-ER system.  Paragraph 4-2 states that an NCO-ER accepted for inclusion in an NCO’s OMPF 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.  Paragraph 4-7 of that regulation also states that the burden of proof in an NCO-ER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCO-ER 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.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  The Board may excuse any failure to timely file when it finds it would be in the interest of justice to do so.

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 has provided no evidence to show that SSG H___ was not in his rating chain and no evidence to show that the comments on his NCO-ER are inaccurate.  In the absence of evidence to the contrary, the Board presumes that the NCO-ER was prepared by the properly designated rating officials and represented the considered opinion and objective judgment of the rating officials at the time of preparation.

3.  In addition, the Board notes that the applicant should have discovered the contended errors in the contested NCO-ER in 1991, not in 1999.  The applicant provides no reason why the Board should excuse his failure to timely file. 

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

__cmf___  __fe____  __cjs___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042416	
SUFFIX		
RECON		
DATE BOARDED	20000912	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.02	
2.		
3.		
4.		
5.		
6.