MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 October 2001
	DOCKET NUMBER:   AR2001062896

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Harry B. Oberg		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 Noncommissioned Officer Evaluation Report (NCOER-DA Form 2166-7) covering the period November 1988 through May 1989 and two records of nonjudicial punishment (NJP-Records of Proceedings under Article 15, UCMJ (DA Forms 2627), dated 3 April 1989 and 
6 May 1995 respectively, be removed from his Official Military Personnel File (OMPF); that his records be placed before a Special Selection Board (SSB) for promotion reconsideration; and if he is selected for promotion by the SSB, that he receive all back pay and allowances due as a result.

APPLICANT STATES:  In effect, that his case is presented in the enclosed statement from counsel.

COUNSEL CONTENDS:  In effect, that the applicant has been an excellent soldier for 18 ½ years and that during his active duty tenure he has served as a ranger, instructor, and airborne solider in enlisted leadership positions that include squad, platoon, and team leader.  This outstanding service also includes combat service in the Gulf War.  Further, over the course of his service he has received numerous awards that include the Meritorious Service Medal, 2 Army Commendation Medals, 4 Army Achievement Medals, 6 Good Conduct Medals, the Overseas Service Ribbon, the Army Service Ribbon, the National Defense Service Medal; and numerous other less formal commendations and citations.  

However, counsel alleges that all the accolades received by the applicant and his overall outstanding performance of duty as evidenced by his evaluation and performance record have been offset by only 3 minor glitches in his record.  These problems include a poor NCOER and an NJP action he received in 1989 as a result of a documented personality conflict he had with his rater; a Letter of Reprimand (LOR) he received for a driving under the influence (DUI) violation in 1992; and finally an improper NJP action that was erroneously filed in his OMPF based on a specious claim of drunk on duty.  Counsel also claims that the applicant has made several attempts to get his record corrected so that he would have some promotion opportunity and has vigorously contested the 1995 NJP without success. 

Counsel claims that in 1989, the applicant received a sub-standard NCOER from his rater as a result of the manipulation of the rater by the applicant’s wife.  The rater accepted the word of the applicant’s wife in all situations and was finally influenced by the applicant’s wife sufficiently to retaliate against the applicant in the form of a sub-standard NCOER and NJP action.  Counsel contends that the applicant’s commander at the time now realizes he was misled and offers the enclosed statement in support of correcting the applicant’s record.  In addition, two other soldiers provided the enclosed supporting statements that, according to counsel, adequately explain this personality conflict problem between the rater and the applicant.  Counsel also claims that this personality conflict was also the reason that NJP was imposed on 3 April 1989.  
Counsel states that subsequent to these negative events the applicant continued to perform in an excellent manner and to receive excellent evaluations as supported by several supporting remarks contained in his NCOERs.  The next minor problem occurred when the applicant received a LOR based on a civilian DUI offense in 1992.  The final negative action that is hindering the applicant’s career took place while the applicant was assigned to Cuba in 1995.  On 
26 March 1995, he was falsely accused of being drunk on duty, and after being misled by being told that he would receive a desk drawer NJP, the DA Form 2627 showed up in his OMPF 1 ½ years later.  Counsel claims that it is important to note that the punishment indicated in the record of NJP was never imposed by the commander, who also struck out the words “see continuation sheet” from the first page of the NJP record.  These actions by the commander are consistent with the explanation of events provided by the applicant and in the enclosed third party statement from a Noncommissioned Officer (NCO).  

Counsel contends that given these circumstances and the actions taken in connection with this NJP action, obtaining a conviction in a court-martial would have been impossible.  He sums up by opining that this NJP was improperly entered in the applicant’s OMPF and has been a continuing block for promotion and the financial and moral recognition of this high performing soldier.  Finally, counsel concludes that is should be removed, his record ordered corrected, and his file sent before the SSB for appropriate promotion reconsideration.  

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

He has continuously served on active duty since 2 February 1983 and was promoted to the rank of staff sergeant/E-6 (SSG/E-6) on 19 August 1987.  He holds military occupational specialty (MOS) 11B3V (Infantry-Ranger) and is currently serving as an instructor/squad leader for the 6th Ranger Training Battalion, Eglin Air Force Base, Florida.

On 3 April 1989, the applicant accepted NJP for failing to go to his prescribed place of duty.  His punishment for this offense included a suspended reduction to sergeant/E-5 (SGT/E-5) and a forfeiture of $500.00 per month for two months.  The applicant did not demand a trial by court-martial and elected not to appeal the punishment.  The appropriate authority directed the NJP record of proceedings be filed in the restricted portion (R-fiche) of the applicant’s OMPF.  

On 2 November 1991, the applicant was cited by the California Highway Patrol for driving a motor vehicle with a blood alcohol content in excess of that allowed by Department of the Army policy and as a result he received a general officer LOR.  After considering the input of the applicant and his chain of command, the appropriate authority directed that the LOR be filed in the performance portion (P-fiche) of the applicant’s OMPF.

On 28 September 1992, the applicant submitted an appeal of the LOR to the Department of the Army Suitability Evaluation Board (DASEB), requesting that the LOR be filed in the R-fiche rather than the P-fiche portion of his OMPF.  On 
6 January 1993, the DASEB denied this appeal. 

On 7 January 1994, the applicant was notified that the 1993 Sergeant First Class/Advanced Noncommissioned Officer Course Promotion/Selection Board determined he should be barred from reenlistment under the provisions of the Qualitative Management Program (QMP) based on the presence of the contested NCOER and LOR in his OMPF.  On 25 January 1994, the applicant submitted an appeal of the QMP action and the appeal was approved on 11 July 1994.

On 14 August 1994, the applicant petitioned the DASEB requesting that the contested NCOER and LOR be transferred from the P-fiche to the R-fiche portion of his OMPF.  On 21 February 1995, the DASEB voted to transfer the LOR to the R-fiche based on its intent having been served.  However, this action was not considered to be retroactive and did not constitute grounds for promotion reconsideration by a SSB.  However, the DASEB advised the applicant that it was not within its purview to act on his request in regard to the contested NCOER.  

The applicant was further informed by the DASEB that the proper method to deal with the contested NCOER was to submit an appeal of the contested NCOER to the United States Army Enlisted Records and Evaluation Center (EREC) in accordance with the applicable regulation governing NCOER appeals.  There is no evidence of record that suggests that the applicant ever exhausted administrative remedies in regard to the contested NCOER by submitting an appeal of this NCOER through the EREC to the DA Enlisted Special Review Board (ESRB), as is required by the applicable regulation. 

On 6 May 1995, while he was assigned to Guantanamo Bay Cuba, the applicant accepted NJP for being drunk on duty.  The NJP record of proceedings contains his signature in block 3 attesting to the fact that after having been afforded the opportunity to consult with counsel, he elected not to demand a trial by 
court-martial.  

The punishment imposed by the 6 May 1995 NJP included a suspended reduction to SGT/E-5, forfeiture of $500.00 per month for 2 months, and 60 days of restriction.  The appropriate authority directed the NJP record of proceedings be filed in the R-fiche portion of the applicant’s OMPF.  Subsequent to that filing determination, the applicant signed block 7 which contained his election not to appeal the NJP action imposed. 

In accordance with applicable regulations, given there was a record of NJP already filed in the R-fiche portion of the applicant’s OMPF that he had received as a SSG/E-6 in 1989, EREC officials changed the filing location of the 6 May 1995 NJP record of proceedings to the P-fiche portion of his OMPF and annotated the record accordingly.

On 26 October 1997, the applicant submitted an application to this Board requesting that the 6 May 1995 NJP be removed from his records.  He based this request on the fact that when the 6 May 1995 NJP was imposed he was lead to believe that the record of proceedings would remain filed locally in his Military Personnel Records Jacket (MPRJ) and be removed from his record after 
1 ½ years.  He claimed that had he known it would end up in the P-fiche of his OMPF he would have demanded trial by court-martial.  

On 11 February 1998, in the enclosed decisional document identified as docket number AC97-11174, this Board denied the applicant’s request to remove the 
6 May 1995 NJP from his OMPF.  This denial was based on the fact that the applicant had signed the DA Form 2627 after the filing determination had been made.  This filing determination clearly established that the NJP record of proceedings would be filed in his OMPF and not locally in the MPRJ.  

The Board did note that the initial filing determination made was to file the NJP record in the R-fiche portion of the applicant’s OMPF; however, this was not an appropriate option based on the regulatory guidance mandating that only 1 NJP record for an NCO may be filed in the R-fiche.  Therefore, the Board concluded, that regardless of the local filing determination, all subsequent NJPs must be filed in the P-fiche portion of the OMPF.  In addition, the Board noted that the applicable regulation does not provide for the local MPRJ filing in the applicant’s case based on his rank and years of service and that the applicant failed to inform the official making the filing determination that he already had an NJP record filed in the R-fiche portion of his OMPF that he had accepted as a 
SSG/E-6.  For these reasons the Board determined that relief was not warranted. 

The record confirms counsel’s assessment of the applicant’s evaluation record absent the contested NCOER which contained a rater evaluation of “Marginal” in Part Va (overall potential for promotion and/or service in positions of greater responsibility); and a senior rater evaluation consisting of a 4 (fair) score in Part Vc (overall performance) and a 3 (superior) score in Part Vd (overall potential).  It shows that between June 1988 and June 2001, the applicant received 15 other NCOERs (DA Forms 2166-7) that contained 3 “Fully Capable” and 12 “Among the Best” rater evaluations in Part Va.  The SRs on these reports gave him the following scores in Part Vc (overall performance) eleven “1” scores, three “2” scores; and one “3” score, which all were categorized as “Successful” ratings; and in Part Vd (overall potential):  thirteen “1” scores and two “2” scores, which were all categorized as “Superior”.  
In support of this application, a supporting statement, dated 14 September 1990, was provided by the reviewer on the contested NCOER.  In it, the former reviewer indicates that at the time he assumed command he was briefed on the applicant’s problems and based on those briefings he agreed with evaluations rendered by the rater and SR on the contested NCOER.  However, upon personal observation of the applicant, discussion with unit NCOs, and review of the inadequate supporting documentation for disciplinary initiated against the applicant he found credence to the possibility that a personality conflict existed between the applicant and his rater that resulted in the contested NCOER.

Two third party statements were also provided by NCO co-workers of the applicant at the time the contested report was submitted, which were dated 
25 January and 16 February 1994 respectively.  Both NCOs indicate that the chain of command and specifically his rater held the actions of the applicant’s estranged wife against him and that a personality conflict developed between the rater, who sided with the estranged wife in all cases, and the applicant.  These statements were made available to the Board during its consideration of the applicant’s request to remove the 6 May 1995 NJP from his records in 1998.

An additional third party statement, dated 11 February 1999, that had not been previously reviewed by the Board was also provided.  This statement was from an NCO who claims that he was present at the time the applicant was accused of being drunk on duty.  He claims that applicant had attended a party for a command sergeant major at which the entire chain of command was present.  Three hours after attending the party, the applicant was awakened and told to report for duty to cover for an NCO that was absent without leave.  

This statement further indicates that the applicant prepared himself and reported to the operations center to assume duty.  The third party that submitted this statement indicates that he went to the operations center with the applicant in order to get a ride back to his unit.  He claims that at the operations center he witnessed an exchange between the applicant and the shift officer in charge (OIC).  The OIC seemed very argumentative and would not give the applicant a chance to explain the situation before he called the troop medical clinic and requesting the applicant be given a breathalyzer test.  The third party concludes by indicating that the applicant did not appear to be drunk and did not give the chain of command any reason to handle this situation the way they did. 
Army Regulation 27-10 contains the policy and procedure for the proper filing of NJP actions.  It states, in pertinent part, that only record of proceedings of NJP may be filed in the R-fiche portion of the OMPF for individuals serving in the pay grade of E-5 and above.  In addition, it provides no local MPRJ filing provisions for NJP actions on NCOs.

Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) sets the policies and procedures governing the Noncommissioned Officer Evaluation Reporting System (NCOERS).  It gives instructions for preparing, processing, submitting DA Form 2166-7 (NCOER), and DA Form 2166-7-1 (NCO Counseling Checklist/Record).  It also gives guidance for appealing evaluation reports.  

Chapter 4 contains the policy and procedure for appealing NCOERS and paragraph 4-2 establishes that an NCOER that has been accepted for filing in the OMPF of a noncommissioned officer is presumed to be administratively correct, have been prepared by the proper rating officials, and to represent the considered opinion and best judgement of rating officials at the time of its preparation.  

Paragraph 4-7 states, in pertinent part, that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 4-2 should not apply to the report under consideration and that 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 administrative error or factual inaccuracy.  Appendix B provides guidance on the submission of appeals and indicates that active Army soldiers should address their appeals to the EREC.

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 contentions of the applicant and his counsel that, in effect, the NCOER ending in May 1989 and a 1989 NJP action were improper and were the result of a personality conflict between the applicant and his rater; and that a 1995 NJP action was the result of the applicant being falsely accused and was illegally filed in his OMPF.  However, it finds an insufficient evidentiary basis to support these claims.  

2.  The evidence provided by the applicant and his counsel, while painting a picture of impropriety in the rendering of the contested NCOER that resulted from a personality conflict between the applicant and his rater, is not sufficiently clear and convincing to overcome the regulatory burden of proof necessary to remove or amend the contested NCOER which was accepted for filing in the OMPF.

3.  However, the Board notes that the applicant has not yet exhausted his administrative remedies in regard to the contested NCOER by the submitting an appeal through EREC to the ESRB, an option he may still wish to pursue.  Regardless of the outcome of this appeal, a complete record of appeal from the ESRB following its review and investigation, which could include statements from the rater and SR on the contested NCOER, may provide additional support for future consideration by this Board.  

4.  The evidence of record shows that applicant accepted the 3 April 1989 NJP only after being afforded the opportunity to consult with counsel and electing not to demand a trial by court-martial, as evidenced by his signature in block 3 of the DA Form 2627.  It further shows that subsequent to the punishment being imposed he elected not to appeal this NJP action.  Thus, the Board finds no reason to conclude this NJP action was improper or inequitable. 

5.  Notwithstanding the claims of the applicant and his counsel, the evidence of record clearly shows that the applicant accepted the 6 May 1995 NJP only after being afforded the opportunity to consult counsel and electing not to demand a trial by court-martial, as evidenced by his signature in block 3 of the DA Form 2627.  Further, the filing determination made and annotated on the NJP record clearly establishes that the DA Form 2627 would be filed in his OMPF and not locally.  Subsequent to this determination, he elected not to appeal the NJP action and confirmed this decision with his signature in block 7 of the NJP record. 

6.  By regulation, only 1 record of proceedings of NJP may be filed in the R-fiche portion of the OMPF for individuals serving in the pay grade of E-5 and above and there are no provisions for filing an NCO NJP records locally in the MPRJ.

7.  Although the filing determination listed on the 6 May 1995 NJP record did erroneously designate the R-fiche as the OMPF filing location, given the well established regulatory rules for filing NCO NJP records and the applicant’s option to consult legal counsel in connection with the NJP processing prior to electing not to demand trial by court-martial, the Board finds this factor is not sufficiently compelling to warrant removing this NJP from the applicant’s record. 

8.  The Board notes and does not dispute the applicant’s outstanding record of service in difficult and demanding positions.  However, the evidence of record confirms that the actions contested by the applicant and his counsel were accomplished in accordance with applicable regulations.  The Board is satisfied that all requirements of law and regulation were met and the applicant was afforded all rights to which he was entitled in connection with the processing of these actions.  Therefore, the Board finds no error or injustice associated with the contested actions and therefore, notwithstanding the applicant’s otherwise excellent record of service, it concludes that the requested relief is not warranted.

9.  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

10.  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

__CLA__  __AAO__  __HBO __  DENY APPLICATION

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

INDEX

CASE ID	AR2001062896	
SUFFIX		
RECON		
DATE BOARDED	2001/10/30	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  267	123.0700	
2.  1034	126.0600	
3.		
4.		
5.		
6.