MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 April 2003
	DOCKET NUMBER:   AR2003085663

	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:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Ms. Terry L. Placek		Member	
	Mr. Robert Duecaster		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 26 January 1995, reflecting his failure of the Basic Noncommissioned Officer Course (BNCOC) be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that his OMPF reflects that he attended the BNCOC twice.  However, in reality he only attended the course once.  He states that the 26 January 1995 AER (AER #1) shows that he failed to achieve course standards.  However, the 23 August 1995 AER (AER #2) on file confirms that he achieved course standards and successfully completed BNCOC class 5-95.  He further states that AER #1 adversely impacts his chances to develop his full potential and places him at a disadvantage when competing with his peers for promotion and schooling.  In support of his application, he submits a copy of the contested AER #1 and AER #2.

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

The applicant’s military records show that he is currently serving on active duty as a staff sergeant (SSG) at Fort Benning, Georgia.

AER #1 shows that the applicant attended BNCOC class 2-95 from 4 January to 22 February 1995.  Item 13d (Performance Summary) indicates that the applicant “Failed To Achieved Course Standards”.  Item 14 (Demonstrated Abilities) shows that the applicant received satisfactory ratings in the following areas:  Oral Communication; Leadership Skills; and Contribution To Group Work; however, he was not evaluated in the areas of Written Communication and Research Ability.  Item 15 (Academic Potential for Selection to Higher Level Schooling/Training) contained a “NO” response.  Item 16 (Comments) contained comments from the evaluation preparing official.  In effect, it stated that the applicant had been released from the course for academic reasons because he had twice received “No Go” ratings in the land navigation area.  

AER #2 shows that the applicant attended the BNCOC class 5-95 from 3 July to 23 August 1995.  This report confirms that he passed the course by achieving course standards, and receiving satisfactory ratings in all evaluated areas.  

Army Regulation 623-1, in effect at the time, established the policies and procedures for preparing AERs.  These reports are prepared for soldiers 
who take part in resident and nonresident training at service schools, noncommissioned officer (NCO) academies, and civilian educational institutions.

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 noncommissioned officer 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 or she must produce evidence that established 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, and it is concluded:

1.  The Board notes the applicant’s contention that his OMPF should only reflect the AER #2, dated 23 August 1995, which shows that he successfully completed BNCOC class 5-95, and AER # 1, dated 29 January 1995, which shows that he failed to achieve course standards for BNCOC class 2-95 should be removed from his OMPF.  However, the Board finds an insufficient evidentiary basis to support this request.  

2.  By regulation, the burden of proof for a successful AER appeal rests with the applicant, who must produce evidence that clearly and convincingly establishes that removal of a contested report 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.  

3.  The evidence of record shows that AER #1 was completed and submitted for inclusion in the applicant’s OMPF in accordance with the governing regulation. Therefore, the Board concludes there was no error related to the filing of this report in the OMPF.  Lacking any evidence that suggests that the filing of 
AER #1 was improper or inequitable, the Board concludes that the applicant has failed to meet the regulatory burden of proof necessary to support removing this contested report from his record.

4.  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.

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

___tlp___  ___rld___  __rvo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003085663	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/04/24	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.  193	111.0000	
2.		
3.		
4.		
5.		
6.