PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           8 August 2000                  
	DOCKET NUMBER:  AR2000042865

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be corrected by the removal of a relief for cause Noncommissioned Officer Evaluation Report (NCOER) from his Official Military Personnel File (OMPF).

3.  The applicant states that he was improperly given the relief for cause NCOER.  His primary arguments are that he did not commit the offenses cited; his platoon leader, who signed as both rater and senior rater did not write the report (the applicant’s rater was also relieved which, necessitated that the senior rater also complete the rater’s portion).  He further stated that his request for a commander’s inquiry was ignored, and the report falsely indicates that he refused to sign the report.  He appealed the NCOER to the U.S. Army Enlisted Records and Evaluation Center (EREC).  He was initially notified by EREC that the NCOER would be removed, but was later notified that they had erroneously adjudicated his appeal.  He appealed to the U.S. Army Enlisted Special Review Board (ESRB), but was denied.

4.  In support of his appeal the applicant has provided sworn statements from the rater/ senior rater and reviewer, an extract of the 25th Infantry Division, Standing Operating Procedures (SOP), supporting memorandums from the applicant’s rater/senior rater, battalion and brigade commanders, brigade command sergeant major, and company executive officer. 

5.  The applicant’s military records show that he enlisted into the Regular Army on 4 December 1984, was trained as an infantryman and is currently assigned as an air assault instructor, 25th Infantry Division.  He rose to his current rank of Sergeant First Class on 1 December 1998.  At the time of the relief action he was a staff sergeant /squad leader assigned to Company C, 1st Battalion, 27th Infantry, 25th Infantry Division, Light.

6.  It was alleged that while training at the Joint Readiness Training Center the applicant was accused of physical and verbal abuse of soldiers.  When the unit returned from the Joint Readiness Training Center the applicant was relieved from his position as squad leader, given a letter of reprimand, a relief for cause NCOER was prepared, and then an informal and AR 15-6 investigation was conducted.  Once the AR 15-6 investigation was conducted it was found the applicant did not abuse soldiers, but did touch a single soldier on his helmet.  Both the governing NCOER regulation and the 25th Infantry Division SOP provide that a relief for cause should not take place except for the most serious offenses. Once the facts were known the battalion commander expunged the letter of reprimand and began supporting the applicant’s attempt to have the NCOER removed from his OMPF. The applicant’s brigade commander also stated that once he reviewed all of the relevant information he would have 

withdrawn the relief for cause action.  The brigade commander also noted that the NCOER was prepared prior to a commander’s inquiry being conducted.  The AR 15-6 investigation recommended that the rater/senior rater receive a letter of admonishment and prepare and present classes on rater and senior rater responsibilities and that the reviewer receive a letter of reprimand for their handling of the applicant’s NCOER.

7.  Facts relating to the applicant’s contention that the contested NCOER should be removed from the records are contained in the opinion and case summary of the ESRB.  The ESRB opined that the applicant had failed to submit clear and convincing evidence that would warrant deletion of the contested NCOER.  The ESRB in adjudicating the applicant’s appeal addressed the applicant’s contention that he did not physically abuse soldiers.  The ESRB citing the results of an AR 15-6 investigation noted that the applicant admitted he never intentionally “struck out of spite or to punish” a soldier.  The AR 15-6 investigation listed a single incident of physical contact between the applicant and a soldier.  The investigation included numerous statements from soldiers that verified there was no inappropriate physical or verbal abuse demonstrated by the applicant.  However, the applicant acknowledged receiving a letter of reprimand that was locally filed and later expunged from his records.  The applicant submitted a request for a Commander’s Inquiry, but none was conducted.  The ESRB found that the entry “NCO refuses to sign” was false” as neither rating official presented the report to the applicant for signature.  The ESRB noted the sworn statement from the rater/senior rater stating that he did not write the report; however, the ESRB opined that by signing the NCOER he took ownership of the comments and ratings.  The ESRB acknowledged the support from the applicant’s subordinates, peers, rating chain, and superiors, but opined that the applicant had not overcome the burden of proof that the NCOER was invalid.

8.  Army Regulation 623-205 (Noncommissioned Officers Evaluation Reporting System) provides, in pertinent part, that an NCOER 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 states that the burden of proof in an NCOER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCOER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct apparent material error or inaccuracy is warranted.

9.  The same regulation provides, in pertinent part, that rating officials must prepare complete, accurate, and fully considered evaluation reports.  This responsibility is vital to the long-range success of the Army's missions.  With due regard to the NCO's current grade, experience, and military schooling, evaluations will not normally be based on isolated minor incidents. 

CONCLUSIONS:

1.  The battalion commander believed that the applicant had abused soldiers and directed his relief for cause.  Unfortunately, once all of the facts were known it was learned that the submission of the relief for cause NCOER had been premature.  The applicant had an outstanding record within the command and only one minor incident was substantiated that did not meet either the regulatory or 25th Infantry Division SOP standard for a relief for cause report.  A relief for cause NCOER is a career ending administrative action and should not be taken for a single minor incident.  The applicant’s rater/senior rater was a second lieutenant and may have had little experience in his roles as rater and senior rater.  In a sworn statement, he acknowledged that he did not write the report and once he signed the report it was taken away from him.  The Board finds that the rater/senior rater and reviewer did not properly carry out their rating official duties.  Based on these actions the relief for cause NCOER should be removed from the record.

2.  The burden of proof falls to the rated soldier to have an NCOER removed from his OMPF.  The Board notes in the sworn statements and supporting statements from the rater/senior rater and reviewer that they acknowledge they were basically carrying out the instructions of the battalion commander.  The rater/senior rater stated “It has been my opinion throughout that there was no basis for a relief for cause action.”  The battalion commander in his supporting statement writes that he is convinced that the NCOER should be immediately removed from the applicant’s OMPF and outlines the reasons for that conclusion. In addition to the support from the rating chain, the applicant has also submitted supporting statements from others who had first hand knowledge of the events leading to the relief for cause action.  The Board finds that the applicant has met the burden of proof required for the removal of the contested NCOER.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

	a.  removing the NCOER for the period November 1997 – September 1998 from the applicant’s OMPF; and 

	b.  by declaring the period November 1997 – September 1998 as non-rated time and placing a non-prejudicial statement in his records to explain the non-rated period of service. 

BOARD VOTE:  

__sk____  ___jea__  ___reb___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_________Stanley Kelley_____________
		        CHAIRPERSON

INDEX

CASE ID	AR2000042865	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000808	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.