MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 August 2002
	DOCKET NUMBER:   AR2002072620

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Ms. Barbara J. Lutz		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 the Academic Evaluation Report (AER), dated 16 December 1998, reflecting his relief from the unit supply specialist Advanced Noncommissioned Officer Course (ANCOC), Class Number 1-99, be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that he was exonerated of the charge that resulted in his receiving the 16 December 1998 AER.  He claims that he is unable to compete for promotion to master sergeant/E-8 (MSG/E-8) with this AER on file in his OMPF.  In addition, he claims that no documents to establish that he was exonerated of the charge are on file in his OMPF, and without removal of the AER, his promotion to the next grade is impossible.  In support of his application, he submits a Report of Proceedings by Investigating Officer/Board of Officers (DA Form 1574). 

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

The applicant’s military records show that he is currently serving on active duty, in the rank and pay grade of sergeant first class/E-7 (SFC/E-7), at Fort Bliss, Texas.

The applicant attended the unit supply specialist ANCOC, Class Number 1-99, from 9 October 1998 to 16 December 1998.  He was administratively relieved from the course for disciplinary reasons (positive urinalysis).

On 16 December 1991, an AER covering his attendance and performance at the ANCOC was completed.  Item 13 (Performance Summary) contains the entry, “Failed to Achieved Course Standards”.  This evaluation was supported with a bullet comment by the rater that indicated that the applicant was administratively relieved from the course for disciplinary reasons (positive urinalysis).  

In Item 14 (Demonstrated Abilities) sections A-F, the rater gave the applicant four superior ratings and one unsatisfactory rating.  The unsatisfactory rating was in section 14c (Leadership Skills).  This rating was explained with a bullet comment from the rater that stated, in effect, that the applicant performed outstanding in the classroom; however, his behavior was unbecoming of a Noncommissioned Officer (NCO).  

In item 15 (Demonstrated Academic Potential for Selection to Higher Level Schooling/Training), the rater marked the “No” block.  The rater explained this evaluation with the bullet comment that stated, in effect, that the applicant should not be considered for higher level training until he has successfully completed the ANCOC.  

In addition to the bullet comments explaining the negative evaluations on the report, Item 16 (Comments) contains positive bullet comments from the rater in regard to the applicant’s classroom performance at the course.  These comments support the evaluations rendered in Item 14 (Demonstrated Abilities) sections A, B, D, E. 

On 23 April 1999, an administrative separation board was convened to determine if the applicant should be separated prior to his current expiration term of service, under the provisions of Army Regulation 625-200, section III, paragraph 14-12c(2), for abuse of illegal drugs.  This board found that the applicant did not knowingly use illegal drugs and recommended that he be retained on active duty. The rational for the board’s finding and recommendation was not included with the DA Form 1574 provided by the applicant and was not on file in the record.  

The applicant submitted an appeal of the contested AER to the Enlisted Special Review Board (ESRB).  The ESRB opined that an administrative board exercised its authority in accordance with regulatory guidance to disapprove the recommendation for separation, and elected to retain the applicant on active duty.  The ESRB further opined that this determination was based on the “total soldier concept” and not upon the applicant’s innocence. 

The ESRB also noted that the administrative separation board findings were that the applicant did not knowingly use illegal drugs; however, this finding did not negate the fact that the applicant was relieved from ANCOC based on a positive urinalysis.  The ESRB finally determined that the applicant did not provide and the ESRB found no probative evidence nor a persuasive argument to support removal of the contested AER.

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.  He or she must produce evidence that establishes clearly and convincingly that the 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.  The Board notes the applicant’s contention that the AER reflecting his relief from the ANCOC should be removed from his OMPF because he was exonerated of the charge that he used illegal drugs by an administrative separation board.  However, the Board finds insufficient evidence to support this claim. 

2.  The evidence of records confirms that the applicant had a hearing before an administrative separation board subsequent to the AER reflecting his relief from the ANCOC based on a positive urinalysis.  The administration separation board found that the applicant did not knowingly use illegal drugs, and it recommended that he be retained on active duty.  The purpose of this board was to determine if the applicant should be separated from or retained on active duty, not to determine his guilt or innocence.  This board was not governed by the rules of evidence, and the record is void of and the applicant has failed to provide information in regard to the basis for the board’s finding that he did not use illegal drugs.  

3.  By regulation, the burden of proof for a successful AER appeal rests with the applicant.  It requires that the applicant produce evidence that establishes clearly and convincingly that the 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.

4.  Notwithstanding the finding and recommendation of the administrative separation board, the Board finds no evidence nor has the applicant provided evidence that shows that the positive urinalysis test that resulted in his relief form the ANCOC was in error.  Thus, lacking clear and compelling evidence of the applicant’s innocence, the Board is compelled to concur with the ESRB that the regulatory burden of proof necessary for a successful appeal that would result in removing the contested report from the OMPF has not been met in this case. 

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

__JHL __  __ RVO  _  __BJL __  DENY APPLICATION

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

INDEX

CASE ID	AR2002072620	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/20	
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.	111.0200	
2.		
3.		
4.		
5.		
6.