MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 August 2000
	DOCKET NUMBER:   AR2000042543

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. John Saputo		Member	
	Ms. Karen A. Heinz		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 his date of rank (DOR) for promotion to the pay grade of E-7 be corrected to reflect an effective date of 3 November 1989, that his effective date of promotion to the pay grade of E-8 be changed to 1 May 1996, that his leave be restored, that his report of separation (DD Form 214) be corrected to reflect awards of the Expert Marksmanship Badges for the M16 Rifle and .45 caliber pistol and attendance at the Advanced Noncommissioned Officers Course (ANCOC) for 4 weeks, that he be reimbursed for health and dental expenses, and that he be reclassified and assigned to a position in Army operations, Equal Opportunity, or the Inspector General Staff within commuting distance of his home of record (HOR), that he be awarded the Army Good Conduct Medal (AGCMDL) for the period of 10 August 1996 to 9 August 1999, that the period of August 1993 to March 1997 be declared non-rated time, that the narrative reason for his separation from the Active/Guard Reserve (AGR) Program be deleted from his DD Form 214, and that he be paid Special Duty Assignment Pay (SDAP) at the rate of $275.00 per month for the period of November 1994 to March 1996.

APPLICANT STATES:  In effect and without explanation, that his effective date for promotion to the pay grade of E-7 should be changed to 3 November 1989, that the effective date for his promotion to the pay grade of E-8 should be changed to 1 May 1996, that his leave should be restored, that his DD Form 214 should be corrected to reflect awards of the Expert Marksmanship Badges for the M16 Rifle and the .45 caliber pistol, attendance at the ANCOC for 4 weeks, and deletion of the reason and authority for separation.  He also states that he should be awarded the AGCMDL for the period of 10 August 1996 to 9 August 1999, that the period of August 1993 to March 1997 should be declared non-rated time because the reports were not prepared in accordance with applicable regulations, that he should have been paid SDAP at the rate of $275.00 per month for the period of November 1994 to March 1996, that he should be reimbursed for health and dental expenses, and that he should be reinstated to the AGR Program, reclassified and assigned to a position in Army operations, Equal Opportunity, or Inspector General (IG) Staff within commuting distance of his HOR.  In support of his application he submits excerpts from various regulations, copies of leave and earning statements (LES) for the period of 1 August 1993 to 3 Mar 1997, a response to an IG inquiry, some newspaper articles, some DA Form 4187’s, a copy of his personnel qualification record, a promotion points worksheet, a promotion standing list, and dental bills.

EVIDENCE OF RECORD:  The applicant's military records, though incomplete, show:

He enlisted in the United States Army Reserve (USAR) on 1 April 1977 and served on active duty from 9 August 1977 until 8 August 1980 when he was transferred to the USAR Control Group (Reinforcement).  He subsequently enlisted in the Oklahoma Army National Guard and served on active duty in the AGR program from 10 August 1993 until he was released from active duty (REFRAD) on 3 March 1997 due to being involuntarily released from the AGR Program. 

On 25 April 1997 he enlisted in the USAR in the pay grade of E-6 for a period of 3 years.  Although the original order is not present in the available records, there is an amendment dated 28 July 1998 indicating that he was promoted to the pay grade of E-7 with a DOR of 3 November 1989.  The available records also show that he was promoted to the pay grade of E-8 on 1 November 1998.

A review of the available records also fails to reveal any evaluation reports prior to April 1997.  However, the applicant has submitted documents relating to an IG inquiry in which the IG informed the applicant that no assistance could be provided in regards to his evaluation report until he had submitted an appeal in accordance with the applicable regulation.

The applicant has also submitted a memorandum for record from his USAR Detachment Commander indicating that the National Guard had not forwarded any evaluation reports pertaining to the applicant and that the period covering August 1993 to April 1997 was declared non-rated time.

The LES’s provided by the applicant show that he began receiving SDAP at the rate of $220.00 per month on 28 April 1994 and continued at that rate until orders were published which changed the SDAP rate to $375.00 per month effective 1 April 1996.  He continued to receive SDAP until he was transferred from recruiter duties to administrative duties and his SDAP was terminated on 5 December 1996.

A review of the available records fails to show that the applicant was recommended for award of the AGCMDL.

On 28 July 1997 the applicant was informed by the OKARNG that as a result of a commander’s inquiry, it was determined that a noncommissioned officer evaluation report (NCOER) for the period of September 1994 to July 1995 had not been prepared and that the period had been declared a non-rated period because the rating officials had retired.

A review of the applicant’s Official Military Personnel File (OMPF) failed to reveal if the applicant appealed any of the NCOER’s for the period in question to the Enlisted Special Review Board (ESRB).

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 represent the considered opinion and objective judgment of rating officials at the time of preparation.  Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he 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.

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 the aforementioned requirement.

2.  Inasmuch as the applicant has not advanced any basis for his requests and since much of the information needed for the Board to determine with any degree of certainty what occurred in the applicant’s case was not provided by the applicant nor was it contained in the available records, the Board must presume that what the Army did in his case was correct.

3.  The evidence of record shows that he was properly released from the AGR Program in accordance with applicable regulations, that his SDAP was properly terminated and he has failed to show that he was entitled to receive additional SDAP.  The Board also notes that he has not exhausted his administrative remedies by appealing his evaluation reports to the ESRB nor has he provided evidence with his application that would warrant any more reports than have already been declared non-rated time being included.

4.  The Board finds that based on the applicant’s failure to provided evidence with his application as well as the lack of evidence of record to support his contentions that there is no basis to make the corrections he is requesting.

5.  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

__mdm__  ___js____  ___kah__  DENY APPLICATION

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

INDEX

CASE ID	AR2000042543	
SUFFIX		
RECON		
DATE BOARDED	2000/08/10	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000/CORR 214	
2.  193	111.0000/VOID NCOERS	
3.  283	128.0000/SDAP	
4.		
5.		
6.