MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            23 January 2001   
	DOCKET NUMBER:   AR2000045426

	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. Luther L. Santiful		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Walter T. Morrison		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 NCO Evaluation Report (NCOER) for the period 9802 through 9809 be expunged from his Official Military Personnel File (OMPF) and that he be allowed to remain in the Army.

APPLICANT STATES:  In effect, that he received no initial counseling, that favorable actions were suspended after he was attached to another unit and that there were allegations made against several other soldiers.  He notes that he was “accused of giving answers to a written examination, however not found guilty.”  In support of his request he submits a copy of the memorandum denying his appeal of the NCOER, copies of “flow charts” from the Criminal Investigation Division (CID) files indicating subjects and victims of bribery and sexual misconduct and an “AD Hoc Query Report” from the CID.  He also submits an undated DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) indicating that as a result of “conspiracy; graft; larceny of government property” administrative action in the form of a Relief for Cause NCOER was taken.

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

He entered active duty on 25 July 1989 and was promoted to pay grade E-6 in August 1996.  In 1998 he was serving as an instructor with the Primary Leadership Development Course (PLDC) at the III Corp NCO Academy, Fort Hood, Texas.

According to information contained in the applicant’s initial appeal of the NCOER in question to the Enlisted Special Review Board (ESRB), on 11 May 1998 the applicant was “accused…of selling answers to written examinations….”  Although not addressed in his petition to this Board, the applicant noted in his original NCOER appeal that there were several discrepancies in the processing of his NCOER, that it was changed several times before the final version was submitted, that his rater was coerced into changing her evaluation from the “hand written” copy she showed him and the final typed version, and that the report was based on allegations that were never “proven to be true.”

That appeal was denied in July 2000 by the ESRB which determined “the evidence does not justify withdrawing the report.”  The ESRB did, however, correct the ending date of the report from July to September 1998 and added a “non-rated” code of Q indicating “lack of rater qualification.”

On 27 July 1998 the applicant was attached to Headquarters and Headquarters Company, U.S. Army Garrison at Fort Hood, Texas although he remained assigned to the NCO Academy.  A report to suspend favorable personnel actions (Flag) was initiated on 19 August 1998 by the commandant (CSM) of the NCO Academy.
A 14 September 1998 “CID Report of Investigation – Final” established “probable cause to believe” the applicant “committed the offense of Bribery/Graft” when he received money from two other soldiers who were students at the NCO Academy and that he was paid the money for answers to a written examination administered by the academy.  The report also found “probable cause to believe” the applicant committed the offenses of conspiracy and larceny of government property when he stole the answers to the written examination and then provided the answers to another soldier who passed them on to a third soldier “as he was directed by” the applicant.

Other documents contained in the applicant’s OMPF indicate that he was counseled on 24 March 1999 by the Command Sergeant Major that he was “going to receive a Relief-for-Cause NCOER.”  The Command Sergeant Major noted that a CID investigation “established probable cause to believe you committed the offense of bribery/graft” and that because of the “believed professional misconduct” he could not be trusted.  He was also notified that because of a pending Army Regulation 15-6 investigation and legal review it was not possible to complete the NCOER at the time.  The applicant refused to acknowledge the counseling statement.

On 31 March 1999 the applicant initiated a “commander’s inquiry” outlining essentially the same arguments he put forth in his initial NCOER appeal to the ESRB.  The commander’s inquiry noted, among other things, that they concurred with the applicant that the bullet comments in part IV (values/NCO responsibilities) should be clarified but found that his rater did not feel coerced into changing her portion of the evaluation report.

The evaluation report in question was finally completed in April 1999.  It indicated the applicant had been counseled in January and April 1998.  The report noted that the applicant accepted money from students for personal gain, cannot be relied on to enforce proper military standards, discipline or regulations, and compromised his integrity as an NCO by selling examination answers.  The applicant’s rater rated his overall potential for promotion as marginal and his senior rater rated is overall performance and potential in as fair.

On 27 April 1999 the “flag” was removed.

In August 1999 the applicant was notified that he had been identified under the Army’s Qualitative Management Program (QMP) for a DA imposed bar to reenlistment.  The QMP action cited the 1998 relief for cause evaluation report as the document “which contributed most to the board’s decision to bar [him] from reenlistment….”  The applicant appealed the bar but on 7 April 2000 his appeal was denied.

Army Regulation 623-205, which establishes the policies and provision for the implementation of the Enlisted Evaluation System notes that a relief-for-cause evaluation report is rendered when the removal of an NCO from a ratable assignment is based on a decision by a member of the person’s chain of command or supervisory chain that his or her personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the U.S. Army.

That regulation also notes 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 evidence in available records indicates that the applicant was an instructor at the NCO Academy at Fort Hood, Texas.  Following an accusation that he received money for, stole, and then passed on answers to a course examination, he was removed from his instructor position and attached to another organization for duty.  Ultimately a CID investigation found there was probable cause to believe that he committed those actions and he was relieved for cause.

2.  The applicant’s contention that the report should be expunged because he wasn’t counseled or that allegations were made against other soldiers is without foundation.  The applicant was well aware of the basis for his relief-for-cause evaluation report and the implication that other soldiers were equally at fault is not a basis to conclude that his report was invalid.

3.  The applicant was appropriately removed from his instructor position and attached to another unit for duty.  The fact that his “assigned” unit initiated the “flagging” action was merely an administrative measure and there is no evidence that it created an error or injustice in the processing of the applicant’s relief for cause action.

4.  Contrary to the applicant’s contention that he was not found guilty of “giving answers to a written examination” the evidence in available records indicates that the CID command found “probable cause” to believe otherwise.

5.  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.
6.  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

___lls__  ___teo__  ___wtm__  DENY APPLICATION

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

INDEX

CASE ID	AR2000045426	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010123	
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.