IN THE CASE OF: BOARD DATE: 19 July 2011 DOCKET NUMBER: AR20100023170 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests: * restoration of her rank/grade from staff sergeant (SSG)/E-6 to master sergeant (MSG)/E-8 * removal of a general officer memorandum of reprimand (GOMOR) from her official military personnel file (OMPF) * reinstatement into the U.S. Army Sergeants Major Academy (USASMA) * restoration of all back pay and allowances 2. The applicant states: * she acknowledges the inappropriate relationship with a junior enlisted Soldier * the investigation was one-sided and inconsistent and the investigating officer (IO) was not impartial * the IO's line of questioning and/or his temperament were not appropriate * she was not afforded the opportunity to speak against the charges * her estranged husband furnished incriminating letters which he obtained from a member of the Rhode Island Army National Guard (RIARNG) * the persons interviewed were coached into saying the IO's words, not their own * one person's telephonic testimony was omitted because it did not help the IO's findings * she was reduced for inefficiency based on a single act * on the same day she received the GOMOR, she was counseled by her commander regarding the reduction and USASMA disenrollment * during the reduction board, her attorney requested the findings be revised to what the preponderance of evidence showed; the request was denied * she was reduced two grades to SSG/E-6 and removed from the existing 2008 promotion list * she was re-boarded in 2009 and placed number 1 on the list but she was removed * she has been repeatedly wronged, singled out, and punished harshly by the RIARNG chain of command 3. The applicant provides: * a GOMOR, dated 14 November 2008, and allied documents * a memorandum of reduction, dated 18 November 2008 * a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) * a police report * a letter from the applicant's spouse * photographs * multiple sworn statements * a Board Findings and Recommendations Worksheet * a Notification of Removal from Promotion List memorandum * the 2009 Enlisted Promotion List * various DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Reports * a DA Form 4187 (Personnel Action) advancing a junior enlisted Soldier to private first class (PFC)/E-3 CONSIDERATION OF EVIDENCE: 1. With respect to the removal of the GOMOR, Army Regulation 15-185, paragraph 2-5, section II, the regulation under which this Board operates, states that the Board will not consider any application if it determines that an applicant has not exhausted all administrative remedies available to him or her. There is no evidence that the applicant has requested removal of the GOMOR through the Department of the Army Suitability Evaluation Board (DASEB) and she was denied relief. Therefore, this portion of the applicant's request will not be discussed further in these Proceedings. 2. Having had prior service in the ARNG, the applicant enlisted in the ARNG on 11 August 1986 and she held military occupational specialty (MOS) 42A (Human Resources Specialist). She was promoted to SSG/E-6 on 14 July 1989. 3. She was promoted to sergeant first class (SFC)/E-7 on 19 December 1995 and she was transferred to the RIARNG on 15 September 1998. She served through multiple extensions or reenlistments in a variety of assignments and on 10 June 2004, she received her Notification of Eligibility for Retired Pay at Age 60 (20-year letter). She was promoted to MSG/E-8 on 1 June 2005. 4. On 22 August 2007, she was ordered to full-time National Guard Duty (FTNGD) in an Active Guard Reserve (AGR) status and she was assigned to the Joint Forces Headquarters, Command Readiness Center (CRC), Cranston, RI, as a senior personnel sergeant. 5. In July 2008, a member of the RIARNG received a package from the applicant's spouse. It contained incriminating letters regarding an alleged affair between the applicant and then private (PVT) RW. As a result, on 22 July 2008, an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation was initiated. The IO considered and evaluated all the evidence, including sworn statements from Soldiers, the command sergeant major, and the chief of staff; and the graphic and sexual-in-nature letters. The applicant invoked her right to have an attorney. The IO found the applicant: * had a sexual affair with a lower enlisted Soldier whom she had previously adopted as her son * abused her power and position * improperly used her position for personal gain to obtain an Active Duty for Special Work (ADSW) position for her son * used her position to get her son advanced to PFC/E-3 6. On 14 November 2008, the applicant was reprimanded by the Assistant Adjutant General (Assistant AG)/Deputy Commanding General (DCG), RIARNG, for engaging in an inappropriate relationship, while still married, with a junior enlisted Soldier whom she had adopted in December 2006. The GOMOR also stated the command received 60 letters between her and PFC RW detailing sexually explicit acts. Additionally, she ensured PFC RW received a full time ADSW position working for her in her section and she abused her rank in getting him advanced to PFC/E-3. Furthermore, she interrupted the Recruit Sustainment Program drill and ceremony training to scold SSG AP for singling out her son and ordering him to do push-ups. She was enraged and yelled at SSG AP that if he ever wanted to make it to the senior NCO level, he needed to get with the program because "she knew people." She then went to the sergeant major and demanded SSG AP's removal from his duties, resulting in his removal. 7. She acknowledged receipt of the GOMOR and submitted a rebuttal through her military attorney. He argued that although the relationship was improper, it happened while she was under stress and impaired judgment. He further commented on her achievements and requested the GOMOR not be filed in her OMPF. 8. Additionally, on 18 November 2008, after reviewing the Army Regulation 15-6 investigation, by memorandum, the applicant's immediate commander notified her of his intent to initiate action to reduce her for inefficiency. He recommended a reduction to SFC/E-7. He further advised her of her rights. 9. On 19 November 2008, the applicant's immediate commander counseled the applicant regarding his intent to: * initiate action to recommend her reduction for inefficiency * keep a suspension of favorable personnel actions against her until the final disposition of the adverse action against her * detail her to another assignment/duty position * disenroll her from the USASMA program 10. On 11 January 2009, an administrative board convened at the Joint Forces Headquarters, RIARNG, to consider allegations of inefficiency under Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 10, against the applicant. The board found the applicant had demonstrated characteristics that showed she could not perform the duties and responsibilities of her grade and MOS. The board found a reduction in rank was warranted and recommended; * her reduction to SSG/E-6 * her immediate removal from the J-1 section * formal training of personnel designated for future casualty assistance officer (CAO) duties 11. On 26 January 2009, after reviewing the GOMOR imposed against the applicant, her rebuttal statement, and the chain of command's recommendation, the Assistant AG/DCG directed the GOMOR be permanently filed in the performance section of the applicant's OMPF. 12. On 12 February 2009, the Joint Forces Headquarters, CRC, RIARNG published Orders 043-004 reducing her from MSG/E-8 to SSG/E-6 for inefficiency effective 15 February 2009 in accordance with Army Regulation 600-8-19, paragraph 10-5. 13. Additionally, on 12 February 2009, the Joint Forces Headquarters, CRC, RIARNG published Orders 043-005 reassigning her to the 243rd Regiment (RTI), Camp Varnum, RIARNG, effective 15 February 2009. 14. On 30 June 2009, by memorandum, the DCG, RIARNG, notified the applicant that action was initiated to remove her from the E-7, 42A, current promotion list, in accordance with Army Regulation 600-8-19, chapter 7 of as follows: * Paragraph 7-44c(3), having a GOMOR filed in her OMPF * Paragraph 7-44c(4), having adverse documentation in her OMPF (reduction orders for inefficiency) 15. She acknowledged receipt of this notification and submitted a rebuttal in her own behalf. She stated that the reduction board did not find her guilty of most of the issues mentioned in the GOMOR. The only issue that was determined to have merit was the inappropriate relationship. She had already been removed from the 2008 promotion list and felt the chain of command was targeting her promotion. 16. In the processing of this case, on 24 May 2011, an advisory opinion was obtained from the National Guard Bureau (NGB). The advisory official recommended disapproval of the applicant's request and stated: a. In July 2008, a member of the RIARNG received a package from the applicant's spouse. It contained incriminating letters regarding an alleged affair with a junior enlisted Soldier of the RIARNG. As a result, the Chief of Staff, RIARNG directed an informal Army Regulation 15-6 investigation, which was initiated on 22 July 2008. Several sworn statements were obtained during the investigation. An attempt was made to interview the Soldier concerning the allegations, as well as to advise her of her Article 31 rights. According to a DA Form 2823 (Sworn Statement), she invoked her rights and contacted a lawyer. The IO's completed findings and recommendation was submitted on 23 September 2008. b. The investigation resulted in the Soldier being accused of four different improprieties – an affair with a lower ranking enlisted Soldier; abuse of power and/or position; improper use of her position for personal gain to obtain an ADSW job for her son; and using her position to get her son advanced in rank. The IO states in his findings, "I have considered and evaluated all of the evidence. I have determined that the evidence gathered and the letters received from the applicant's spouse have greater weight to support any other contrary conclusion that would lead me to believe that the contents of the letters were fabricated." The IO recommended, "the Soldier be charged under RICMJ (Rhode Island Code of Military Justice), section 30-13-92, violation of Army Regulation 600-20 (Army Command Policy) and RICMJ, section 301-3-120, Conduct Prejudicial to Good Order and Discipline; administratively reduced in rank at the absolute minimum of one grade; and barred from reenlistment for abuse of power/authority and misconduct.” c. Upon review of the IO’s report and based on the findings, the Assistant AG/DCG RIARNG issued a GOMOR on 14 November 2008. The Soldier was informed that this was an administrative reprimand imposed under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as a punishment under RICMJ, section 30-13-15. In accordance with the regulation, she was afforded the opportunity to acknowledge receipt of the memorandum and submit a rebuttal within 10 calendar days. The Assistant AG/DCG informed her, "prior to recommending or making any filing decision, I will consider any matters you present to me." She acknowledged receipt of the memorandum indicating she had read and understood the unfavorable information presented against her and she would submit a statement through her chain of command within 10 calendar days of receipt (date of receipt not indicated). d. On 18 November 2008, the applicant's commander generated a memorandum, subject: Reduction under Army Regulation 600-8-19, chapter 10. The memorandum initiated action to reduce her for inefficiency. The reason for the proposed action was based on the Army Regulation 15-6 investigation which concluded that she violated Army Regulation 600-20, paragraph 4-14, Relationships between Soldiers of Different Rank, by engaging in an inappropriate relationship, to include impaired judgment and abuse of her rank as relayed in the IO’s findings. The commander recommended a reduction to SFC/E-7. She was informed, "you must respond, in writing, within 7 duty days of notice stating your desire to appear, or not appear, before the reduction board." She acknowledged receipt and elected to accept military counsel. She also requested consideration of her case and personal appearance before an administrative reduction board. e. She was given a DA Form 4856 (Developmental Counseling) on 19 November 2008. It addressed the command's intent to initiate action to reduce her for inefficiency. Upon presenting the counseling to her, a memorandum of acknowledgement was generated, dated 19 November 2008. The memorandum states in part, "[Applicant] was counseled on 19 November 2008 at approximately 0815 in the office of the Judge Advocate General in reference to this matter. [Applicant] was offered an opportunity to seek counsel, appear before the board, and submit statements in her own behalf. Her acknowledgement and response is due to me NLT (no later than) 1500, 28 November 2008. She has been given copies of her counseling statement(s) and memorandum of acknowledgment." f. The senior defense counsel submitted a memorandum of rebuttal in behalf of the Soldier, dated 28 November 2008. g. The reduction board convened on 11 January 2009 to consider whether the applicant committed inefficiency in accordance with Army Regulation 600-8-19, chapter 10, in that she demonstrated characteristics that show that she cannot perform duties and responsibilities of her current grade and MOS. The board found that a reduction in rank was warranted and recommended her reduction to SSG/E-6 and immediate removal from the J1 Section. The board further recommended formal CAO training to RIARNG personnel designated for future CAO missions. Army Regulation 600-8-19, paragraph 10-8, states “The board may recommend reduction of one or more grades, retention of current grade, or reassignment in grade.” h. The Assistant AG/DCG generated a memorandum on 26 January 2009, regarding the GOMOR that was issued to the applicant. It indicates that consideration has been given to the circumstances surrounding her reprimand and rebuttal as well as the recommendations of his staff. The AAG/DCG directed this reprimand be filed permanently in the performance section of her OMPF. i. In a memorandum from the Assistant AG/DCG, subject: Administrative Reduction under the Provisions of Army Regulation 600-8-19, chapter 10, dated 7 February 2009, it states, "I have reviewed the findings and recommendations of the board. The board’s findings and recommendations are approved. I direct that you be reduced in rank to SSG/E-6, effective 15 February 2009. Authorized appeals under Army Regulation 600-8-19, chapter 10-11, will be submitted in writing within 30 duty days of the date of reduction." Orders 043-004, issued by the RIARNG, dated 12 February 2009, reduced her from MSG/E-8 to SSG/E-6 for inefficiency, with an effective date of 15 February 2009. j. Her record was boarded/considered by the annual EPS (Enlisted Promotion System) but she was never selected for promotion. On 30 June 2009, in accordance with Army Regulation 600-8-19, paragraph 7-44, the Assistant AG/DCG initiated action to have her name removed from the E-7 promotion list; 42A current promotion list. She submitted a rebuttal on 28 July 2009. In a memorandum, dated 13 August 2009, the Assistant AG/DCG acknowledges reviewing her rebuttal. The Assistant AG/DCG approved the recommendation to remove her name from the promotion list. The regulation cited states, "commanders may recommend that a Soldier’s name be removed from an approved list at any time." k. In a letter, dated 9 September 2010, she cited several violations. After reviewing her case file and comments provided by the State, there is no indication the guidelines established in Army Regulation 600-8-19 or Army Regulation 15-6, concerning the findings and punishment implemented were violated. Even though the Command and the IO both recommended the Soldier be reduced by one grade to SFC/E-7, they supported the board’s recommendation to reduce her to SSG/E-6. l. If there is an area of concern, it would be related to the actions taken addressing her removal from the 2009 EPS. Her memorandum, dated 28 July 2009, states, “prior to being considered, I spoke with the EPM, the HRO, the AGR Manager, my commander, the State Command Sergeant Major, and the J1 to ensure that my past actions would not resurface in the event that my name appeared on the 2009 promotion list. I was assured by all that my punishment was complete and I was eligible for consideration." Army Regulation 600-8-19, paragraph 7-44(b) states, "when recommending a Soldier for removal, the following must be considered: (1) Punishment under UCMJ or criminal conviction or nonpunitive measures will not automatically be the sole basis to suggest that a Soldier’s name be removed from the list. (2) The Soldier’s conduct before and after the punishment or nonpunitive measures and the facts and circumstances leading to and surrounding the misconduct must be considered. (3) To remove a Soldier based solely on a minor or isolated incident of misconduct may be unfair to the Soldier. Removal from a promotion list has far-reaching, long-lasting effects on the Soldier. (4) Commanders will evaluate the circumstances to ensure that all other appropriate actions have been taken (training, supervision, and formal counseling have not helped) or the basis for considering removal is serious enough to warrant denying the individual’s promotion." Documentation has not been provided indicating the Soldier received training and/or formal counseling. 17. The applicant was provided with a copy of the advisory opinion; however, she did not initially respond due to being deployed. After being contacted by a staff member or the Board, the applicant submitted a memorandum, dated 15 June 2010, with various attachments. It is unclear if her memorandum is a response to the advisory opinion or a revised application. In any case, she stated: * Army Regulation 600-8-19 defines inefficiency as a demonstration of characteristics that shows a person cannot perform the duties and responsibilities of the grade or MOS * commanders may consider misconduct as a bearing on efficiency * she was never charged with any misconduct * her actions showed lack judgment but did not reach a level of inefficiency * she should not have been referred to a reduction board * aside from the sexually explicit letters, no proof exists that she had a physical relationship with a junior enlisted Soldier * prior to this incident, she received various NCO Evaluation Reports attesting to her proficiency and "among the best" rating * she has never received any negative counseling for inefficiency * she did not help the junior enlisted Soldier secure ADSW orders and she was not in a position to do so; she only recommended * she was not the approving authority for the Soldier's advancement to PFC/E-3 * the RIARNG command sergeant major and the chief of staff both stated they did not witness a display of favoritism between her and the junior enlisted Soldier * her lapse of judgment does not fall within the definition of inefficiency as outlined in the regulation she had 18. Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel. Chapter 10 covers reductions in grade. It states in: a. Paragraph 10-5, inefficiency is a demonstration of characteristics that shows that the person cannot perform duties and responsibilities of the grade and MOS. Inefficiency may also include any act or conduct that clearly shows that the Soldier lacks those abilities and qualities normally required and expected of an individual of that grade and experience. Commanders may consider misconduct, including conviction by civil court, as bearing on inefficiency. b. Paragraph 10-7, a reduction board, when required, will be convened within 30 days after written notification is given to the individual. The reduction authority may extend the 30 duty day limitation for good cause. A written justification must be included in the file if an extension is granted. c. Paragraph 10-11, appeals of reduction for inefficiency or for misconduct under table 10–2 (Rules for Reduction for Misconduct), other than rule 1, are authorized to correct an erroneous reduction on equitable grounds. This will be based on the facts and circumstances of the particular case that partial or full restoration of grade is in the best interest of the Army and the Soldier. Authorized appeals will be submitted in writing within 30 duty days (30 calendar days for TPU) of the date of reduction. DISCUSSION AND CONCLUSIONS: 1. An Army Regulation 15-6 investigation found the applicant knowingly engaged in a sexual affair with a lower enlisted Soldier whom she had previously adopted as her son, abused her power and position, improperly used her position for personal gain to obtain an ADSW position for her son, and used her position to get him advanced in rank. She was reprimanded by the Assistant AG/DCG for her actions. 2. At the time the investigation concluded, the applicant held the rank/grade of MSG/E-8 and she was enrolled in USASMA. In promoting the applicant to MSG/E-8, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant. In addition, she was assigned to a leadership and a special position of trust and responsibility and her daily actions had a direct impact on Soldiers and the community's view of the ARNG. The applicant violated this special trust and confidence. 3. Having failed to demonstrate characteristics that she could perform the duties and responsibilities of her grade and MOS and having displayed acts or conduct that clearly showed she lacked those abilities and qualities normally required and expected of her grade and experience, her commander recommended her reduction for inefficiency. 4. A reduction board convened and considered whether the applicant committed inefficiency or demonstrated characteristics that show she cannot perform duties and responsibilities of her current grade an MOS. The board found a reduction in rank was warranted and recommended her reduction to SSG/E-6, immediate removal from her position, and formal training. The convening authority reviewed and approved the findings and recommendation of the board and directed her reduction to SSG/E-6, effective 15 February 2009. She did not appeal. 5. Her record was boarded and considered by the annual EPS to SFC/E-7 but she was never promoted. The Assistant AG/DCG initiated action to have her name removed from the E-7 promotion list. After reviewing her rebuttal, the Assistant AG/DCG approved the recommendation to remove her name from the promotion list. 6. The applicant cited various violations but she did not submit any substantiating evidence to support the alleged violations. In fact, a review of her case file revealed no indication the regulatory guidelines concerning the findings and the punishment implemented were violated. Although her commander recommended a reduction to SFC/E-7, neither the reduction board nor the convening authority were bound by that recommendation. The board recommended a reduction to SSG/E-6 and the convening authority approved the findings and recommendation of that board. 7. The quality of service of a Soldier is affected by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline. As a Soldier, not only did she fail to conduct herself in a professional and responsible manner, she knew or should have known what she did was in violation of Army policy. Her conduct was inexcusable and her actions brought discredit to herself and the Army. 8. In view of the foregoing evidence, she is not entitled to the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X___ ___X____ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________X______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20100023170 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100023170 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1