MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            17 August 2000    
	DOCKET NUMBER:   AR1999032885

	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:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons		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 a May 1993 Noncommissioned Officer Evaluation Report (NCOER) be expunged from his records and that his U.S. Army Recruiter Identification Badge and achievement stars be restored.

APPLICANT STATES:  That he “was not aware of these action until” he reviewed his official military personnel file (OMPF) in 1998 in preparation for promotion consideration to sergeant first class.  He notes that in March 1993, while performing duties as a recruiter, he was scheduled to attend the Basic Noncommissioned Officer Course (BNCOC) for his primary specialty 91D (operating room specialist).  However, he states his recruiting battalion commander and sergeant major attempted to coerce him into changing his specialty from 91D to 00R (recruiter) by “implying” that if he did not agree to the reclassification “an unfinished investigation…may not be found in [his] favor….”

He states that following his return from BNCOC he met with his station commander and unit commander and had a “conversation dealing with the investigation” reference above.  He states he was told that he was not “being relieved, but rather returning to the regular army because it would be in the best interest of the U.S. Army and myself.”  Subsequently, he noted that he gave a copy of the “investigation” to the recruiting command inspector general who told him he “should not be relieved of [his] duties as a recruiter….”  “Two days later” the applicant indicated that he was asked by the inspector general if he “would like to stay in recruiting or just go back to the regular army.”  The applicant said he did not wish to remain in recruiting and in June 1993 was reassigned to Fort Campbell, Kentucky.  He notes he departed without “an NCOER, notification documents, or a chance to rebut the investigation or these negative personnel actions.”

In support of his request he submits commendatory letters and memorandums regarding his performance as a recruiter and a copy of his initial NCOER as a recruiter.  He also submits an undated statement from his former station commander.

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

He entered active duty on 18 November 1982 and was promoted to pay grade 
E-5 in May 1987.  The applicant completed the Army Recruiter Course in April 1991.  An NCOER, completed in July 1992, indicated the applicant was a successful recruiter and his senior rater placed him in the top block for overall performance and in the second block for overall potential.

Between March 1992 and April 1993 the applicant was awarded several Recruiter Incentive Awards.  In May 1993 he returned from BNCOC and in June 1993 was reassigned to Fort Campbell in his primary specialty (91D).

According to the statement submitted by the applicant’s former station commander the “investigation” referred to by the applicant apparently revolved around an individual who was enlisted into the Army by the applicant.  The former station commander noted that “one of the young men that [the applicant] enlisted into the Army was said to have a charge before he enlisted and [the applicant] was relieved from recruiting duty.”  The author noted that “when [the applicant] was relieved, [he-the author] was under the impression that he would not be hurt on his NCOER….”

A 17 May 1993 memorandum signed by the commanding general, U.S. Army Recruiting Command (USAREC), notes that he (the commanding general) “reviewed the report of investigation concerning improper recruiting practices dated 28 October 1992 with addendum dated 2 March 1993, recommendations of the chain of command, and [the applicant’s] rebuttal thereto…[and ]… determined that the preponderance of the evidence establishes that [the applicant] committed a recruiting impropriety by intentionally concealing a felony drug charge of [a recruit].”  The commanding general directed that the applicant be relieved of his duties in accordance with Army Regulation 601-1, paragraph 5-6a and noted that the applicant “has been notified of the reason for his relief.”  The commanding general’s memorandum was included as part of the applicant’s relief for cause evaluation report and filed in his OMPF.

On 19 May 1993 the applicant’s Recruiter Incentive Awards were revoked in accordance with Army Regulation 601-1 and Army Regulation 672-5-1, paragraph 5-46.

His relief for cause evaluation report, covering the period July 1992 through May 1993 was authenticated in September 1993 and “forwarded to [the] NCO.”  The report noted, in part, that the applicant’s “hunger for success over shadowed good judgement” and that he “allowed an unqualified applicant to join the Army.”

An 18 June 1993 memorandum from the applicant’s unit commander to the commanding general, USAREC requested that the applicant be allowed to keep his Recruiter Incentive Awards.  The unit commander noted that “the investigation resulting in his relief was initiated in September 1992” and that an exception was warranted because the “relief for cause efficiency rating, relief from duty, termination of SDAP [Special Duty Assignment Pay], termination of duty assignment, embarrassment, degradation of pride and self esteem are punishment enough.”  The applicant’s records do not contain any indication that the request for exception was approved.

In October 1995 the applicant was promoted to pay grade E-6.

Army Regulation 601-1 states that the initial period of detail to recruiting duties in USAREC is 36 months.  At the completion of this period, a recruiter must either return to duties in his or her primary specialty or he or she must be reclassified to 00R and join the career recruiting force.  Normal reclassification to 00R will be accomplished after the 24th months on recruiting duty.  The recruiter must submit a request for reclassification, must not be pending investigation or any unfavorable action, and must have completed a minimum of 24 months on recruiting duty among other things.  A request for reclassification is voluntary on the part of the recruiter.

Army Regulation 601-1 also states that normally, recruiters released from recruiting duty will receive an NCOER that characterizes their duty performance during the rating period; however, those recruiters who are involuntarily released for cause, ineffective, or unsuitable (paragraph 5-5a or 5-6), and are formally relieved from recruiting duty will be evaluated under the provisions of Army Regulation 623-205, paragraph 2-10.

Army Regulation 623-205, paragraph 2-10 states that a relief-for-cause is defined as the removal of a noncommissioned officer (NCO) from a ratable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain that the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the Army.  

Army Regulation 672-5-1, then in effect, states that the commanding general, USAREC, is delegated authority to revoke award of the recruiter badges.

In September 1999 the applicant’s NCOER appeal was returned without action by the U.S. Army Enlisted Records and Evaluation Center noting that it did not meet the criteria outlined in Army Regulation 623-205 which noted that failure to submit an appeal within five years of the NCOER’s completion date may only be excused if the appellant provides exceptional justification to warrant an exemption.

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.  At the time the applicant completed the Army Recruiter Course and assumed duties as a recruiter in 1991 he was serving in pay grade E-5 and had nearly 10 years of active Federal service.  He had been receiving evaluation reports for several years.  The Board contends that an individual with as much experience as the applicant should have been aware that he would receive some sort of evaluation report upon his departure from recruiting duties in June 1993.  The fact that he was not available to authenticate the report is not an indication that he was unaware of the basis for the report.

2.  While the applicant maintains that he was not aware that he was relieved from his duties as a recruiter and never had the chance to “rebut the investigation or these negative personnel actions” evidence in available records indicates otherwise.  Statements contained in several of the documents provided by the applicant indicate that he was “relieved” of his duties.  The memorandum authored by the applicant’s unit commander in June 1993 requesting the applicant be allowed to retain his Recruiter Incentive Awards clearly states that the applicant was relieved.  That memorandum was provided by the applicant in support of his request and was not in his OMPF.  The May 1993 memorandum from the commanding general, USAREC notes that he (the commanding general) reviewed the applicant’s “rebuttal” to the October 1992 investigation.

3.  The revocation of the applicant’s Recruiter Incentive Awards was within the authority of the commanding general, USAREC and inspite of the fact that the applicant may have been a successful recruiter the basis for his relief justified revocation of the awards.

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 that requirement. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

5.  While it may be unfortunate that the applicant was not aware of the negative documents in his OMPF that is not sufficient justification to conclude that an error or injustice occurred and is not a basis to now remove those documents.

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

__svw___  ___mhm__  ___lds__  DENY APPLICATION

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

INDEX

CASE ID	AR1999032885	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000817	
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.