RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            15 JANUARY 2004                  
	DOCKET NUMBER:   AR2003091303

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. William D. Powers		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that a memorandum initiated by his former commanding officer be expunged from his OMPF (Official Military Personnel File). 

2.  The applicant states that a Physical Evaluation Board (PEB) found him to be medically fit for continued service.  His previous commander's comments were not supported by facts.  He did not work for him and he did not have a first hand knowledge of his performance.  The fact that the PEB found him medically fit shows that his comments carried no weight in the PEB process; however, his (former commanding officer) comments reflect negatively on him and are inconsistent with the information contained on his evaluation reports.

CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted in the Army on 8 January 1986 and has remained on continuous active duty.  

2.  In 1987 while stationed in Germany he injured himself when he fell off a truck. He did not realize the extent of his injury until 1989 when he learned [or was made aware] that his anterior cruciate ligament (ACL) was torn.

3.  The applicant completed the basic noncommissioned officer course in 1992 and was promoted to staff sergeant on 1 August 1993.  The applicant's NCO evaluation reports (NCOERs) prior to the November 1996 PEB show that his rating officials considered him to be an excellent soldier, worthy of promotion and selection for the advanced NCO course.

4.  On 1 November 1996 a MEB (Medical Evaluation Board) determined that he should be referred to a PEB because of his right ACL deficiency.

5.  In a 23 October 1996 memorandum to the President of the PEB, the applicant's commanding officer, Captain L, in providing his evaluation to the PEB, stated:  "SSG [the applicant] superiors observe him to be an average NCO, requiring periodic supervision from his chain of command concerning the execution of his duties."… "SSG [the applicant] superiors notice him using his medical condition to be excuse from work."… "[The applicant] continues to work in the battalion S-1, performing in an mediocre routine."… "His career is in doubt because of his injury and unconcerned performance.  It would be in the best interest of the Army to discharge [the applicant]."

6.  On 18 November 1996 a PEB found the applicant physically fit and directed that he be returned to duty as fit.  The applicant did not concur and requested a formal hearing; however, on 9 December 1996 he waived his right to a formal hearing, and stated that he concurred with the PEB's finding.  On 16 December 1996 the findings of the PEB were approved.  

7.  The applicant's NCOER for the period April 1996 through November 1996 shows that his rater considered him a fully capable NCO, whose profile did not hinder his duty performance.  The applicant's senior rater rated him in the second from the top block in duty performance and in the third from the top block in overall potential, and stated, "fully capable and technically competent to perform better than he normally does," … "potential to assume greater responsibility is limited by his desire to take care of personal interests before mission interests."
The applicant's rater was the battalion adjutant, Captain N, and his senior rater was the battalion executive officer.

8.  The applicant's NCOERs subsequent to the above-mentioned report have been consistently excellent.  He was promoted to sergeant first class on              1 November 1998.  He completed the Advanced NCO Course in April 1999.

9.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determine whether a soldier is unfit because of physical disability to reasonably perform his duties.  As part of the physical disability evaluation processing, and prior to a PEB, the medical treatment facility commander will notify the unit commander of the planned referral of a Soldier to a PEB and obtain a written statement from the commander describing the Soldier's current duty performance, any special limitation of duty due to the Soldier's physical condition, the Soldier's ability to adequately perform the duties normally expected of an individual of the Soldier's office, grade, rank, or ranting, and the Soldier's current duty assignment, anticipated future assignments, branch, age, and career specialties.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's commanding officer stated his opinion of the applicant's duty performance and his ability to perform his duties in his 23 October 1996 memorandum to the President of the PEB.  This is in accordance with the provisions of the above-mentioned regulation.  There is no evidence and the applicant has not provided any, to show that the information provided to the PEB was anything other than the honest judgment of that official based on his knowledge and the information available to him.  The applicant's NCOER for the seven-month period ending in November 1996 indicates that he was less than the stellar NCO as he claimed to be at that time, and as indicated on his previous and subsequent reports.  Consequently, notwithstanding the applicant's contention, it appears that the information contained in the 23 October 1996 memorandum is not inconsistent, at least with that particular NCOER.        
2.  Nonetheless, the memorandum has served its purpose.  The applicant was returned to duty.  Seven years has elapsed since then.  His performance as indicated by his evaluation reports and by his promotion to sergeant first class has been excellent.         

3.  Therefore, in the interest of justice, it would be appropriate to delete the memorandum from the applicant's OMPF, as he requests.   

BOARD VOTE:

__MKP __  __ALR __  __WDP__  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the             23 October 1996 memorandum from the Commanding Officer, Headquarters and Headquarters Company, 2nd Battalion, 35th Infantry, to the President of the PEB at Fort Lewis, be expunged from the applicant's OMPF.

		__Margaret K. Patterson __
		        CHAIRPERSON

INDEX

CASE ID	AR2003091303	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040115	
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.	134.02	
2.		
3.		
4.		
5.		
6.