MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 March 2000                   
	DOCKET NUMBER:   AR1999034646

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. Christopher J. Prosser		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:  That the non-commissioned officer evaluation report (NCO-ER) for the period December 1995 through September 1996 be removed from his records.

APPLICANT STATES:  That he did not review the report and was not aware of the derogatory comments and ratings until February 1997.  He was the one who requested reassignment due to the problems between the First Sergeant and himself.  He never received an Article 15.  He was never questioned by the investigating officer during the Commander’s Inquiry.  He was never counseled on 6 September 1996 because he was on leave that date.  He questions the integrity of his rating officials.  Supporting evidence is as listed on the enclosure to the DD Form 149.

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

He was promoted to Staff Sergeant, E-6 on 1 August 1992.  He was assigned to Headquarters and Headquarters Company, 5th Special Forces Group (A), Fort Campbell, KY around April 1994 as the company supply sergeant.  He received an Army Commendation Medal for achievement for receiving a commendable rating during the Command Inspection Program during the period 3 through        6 November 1995.

The contested NCO-ER is a 10-month change of rater report for the period December 1995 through September 1996.  Part IVa, Values/NCO Responsibilities, includes three “no” check marks (places dedication and commitment to the goals and missions of the army and nation above personal welfare, is honest and truthful in work and deed, and maintains high standards of personal conduct on and off duty) and three related negative comments.  In part IVb-f, five categories of Values/NCO responsibilities with possible ratings of “excellence,” “success,” “needs some improvement” and “needs much improvement,” he received four “needs some improvement” ratings and one “excellence” (in physical fitness and military bearing category) rating with related negative comments.  In part Va, the rater’s evaluation of the soldier’s overall potential for promotion with possible ratings of “among the best,’ “fully capable” and “marginal,” he received a “marginal rating.”  In part Vc, the senior rater’s evaluation of the soldier’s overall performance with possible ratings from a high of 1 to a low of 5, he received a rating of 5.  In part Vd, the senior rater’s evaluation of the soldier’s overall potential for promotion with possible ratings from a high of 1 to a low of 5, he received a rating of 4.  The senior rater included three negative comments.  Part IIIf shows that the applicant was counseled on     6 September 1996.  (A DA Form 31, Request and Authority for Leave, shows the applicant was on emergency leave from 1 – 10 September 1996.)

From 22 September 1996 through 6 November 1996, the applicant attended the Battle Staff NCO Course and upon his return to Fort Campbell was assigned to Company C, 3d Battalion, 5th Special Forces Group (A).

The applicant requested a commander’s inquiry into his NCO-ER.  The commander’s inquiry is not available.  It had been forwarded to the U. S. Total Army Personnel Command (PERSCOM), which informed the Commander, 5th Special Forces Group (Airborne) that the commander’s inquiry did not indicate any improprieties or violations of the regulation which were serious enough for the Commander, PERSCOM to take further action.

The applicant appealed his NCO-ER (SEE ATTACHED).  He had provided several statements of support, including one from the Company Sergeant Major who interacted with the applicant on a daily basis, spoke of his competence and overall performance and potential and stated he trusted the applicant’s judgment, word and integrity.  The Enlisted Special Review Board (ESRB) contacted the rating officials.  The rater stated he disagreed with the applicant’s Command Inspection Program achievement and award because he personally knew the supply room was in a chaotic state and it was he, not the applicant, who organized the supply room and worked with the subordinate to pass the inspection.  The rater stated a relief (for cause) had been previously requested by him and the senior rater but the Group Command Sergeant Major recommended the applicant be reassigned to another unit versus a chapter action or relief.  The rater stated that the applicant had personal problems that caused him to be constantly involved in negative actions, such as two separate hit-and-run accidents for which he received a summarized Article 15 and borrowing money from civilian females and failing to repay his debts for which he received a company grade Article 15.  The senior rater backed up the rater’s statements.  He stated all comments on the report were supported by various counseling statements from him and the rater and those counseling statements had been presented to the commander’s inquiry investigating officer.  The ESRB noted that the third party statements provided by the applicant were highly supportive of him and his contentions.  However, those parties were not knowledgeable of the demands or expectations placed on the applicant by his supervisors.  The ESRB determined that the applicant partially met the regulatory requirement to provide clear, convincing and compelling evidence that the   NCO-E was inaccurate or unjust and directed that the bullet comment “failed to properly account for unit property” in part IVf be deleted.  The rest of the report was to remain unchanged and determined that the change did not warrant reconsideration for promotion by a special board.  

No Article 15s from the period the applicant was assigned to Fort Campbell, KY are in his Official Military Personnel File.  There is no evidence in the applicant’s finance records, such as a record of a forfeiture of pay, from the period December 1995 through September 1996 that would indicate he had received an Article 15.  The 5th Special Forces Group Senior Legal NCO has provided an affidavit that he could find no record of non-judicial punishment pertaining to the applicant.

A Military Police Report shows the applicant was charged with driving while his state operator’s license was suspended and leaving the scene of an accident for an incident that occurred on 13 January 1996.  There is also evidence in the Report that he may have lied about leaving the scene of the accident.  There is no indication in the Report of what the unit disposition of this incident was.  

The applicant’s NCO-ERs prior to and subsequent to the contested report show:

Ending Date		Part IVb-f		Part Va	Part Vc	Part Vd

October 1992	5 “excellence”	“…best”	1		1
October 1993	4 “excellence”
			1 “success”		“…capable”	3		3
March 1994		2 “excellence”
			3 “success”		“…best”	2		2
March 1995		3 “excellence”
			2 “success”		“…best”	2		1
November 1995	3 “excellence”
			2 “success”		“…best”	not eligible to rate

Contested NCO-ER	(same senior rater as previous report)

September 1997	3 “excellence”
			2 “success”		“…best”	1		1
January 1998	3 “excellence”
			2 “success”		“…best”	1		1
January 1999	3 “excellence”
			2 “success”		“…best:	1		1

Army Regulation 623-205 establishes the policies and procedures for the      NCO-ER system.  Paragraph 4-2 states that an NCO-ER accepted for inclusion in an NCO’s OMPF is presumed to be administratively correct, to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4-7 of that regulation also states that the burden of proof in an NCO-ER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCO-ER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

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.  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 tat would satisfy the aforementioned requirement.

2.  The Board does not question the integrity of the applicant’s rating officials so much as their judgment.  The Board finds no reason to doubt the First Sergeant’s assertion that the applicant had personal problems that caused him to be constantly involved in negative actions.  The Military Police Report corroborates two of these problems.  The Board finds no reason to doubt the First Sergeant’s claim that the applicant received two Article 15s.  (The Senior Legal NCO’s affidavit notwithstanding, there could be a valid reason why these Article 15s could not be located in their records or logs.)  The Board does question why the commander administered relatively minor punishment (one summarized and one company grade Article 15) for relatively serious offenses, especially when committed by an NCO.  However, that was within the commander’s prerogative.  The Board also questions the Command Sergeant Major’s judgment in trusting the applicant’s judgment, word and integrity when the evidence corroborates such incidents.  However, too, that was his right.  

3.  The Board has considered the applicant’s otherwise very good NCO-ER record and his award for receiving a commendable rating during the Command Inspection Program just prior to the period of the NCO-ER.  However, the Board notes that that rating was just that – outside of the rating period of the contested NCO-ER, as were all his other reports.  As for the ratings and comments on the contested NCO-ER that reflect negatively on his professional competence, the Board agrees with the ESRB’s determination that he has not shown, and it does not appear to the Board, that the rating officials’ evaluations represented other than their objective judgment or considered opinion at the time. 

4.  The Board does note that part IIIf of the NCO-ER contains a record of counseling on 6 September 1996 that most likely did not occur and should be deleted.  However, this is a minor correction and does not warrant reconsideration for promotion by a special board.  

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.

NOTE:  The applicant’s NCO-ER for the period ending September 1996, part IIIf contains the date 6 September 1996 and the Board concludes a counseling session did not occur on this date.  Therefore, the U. S. Army Enlisted Records Center will be directed to administratively correct the applicant’s records by deleting the entry “960906” from part IIIf of this NCO-ER.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jlp___  __owt___  __cjp___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034646	
SUFFIX		
RECON		
DATE BOARDED	20000316	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.02	
2.		
3.		
4.		
5.		
6.