2.  The applicant requests that a General Officer Memorandum of Reprimand (GOMOR), issued to him some 5 months after he departed the command, be removed from his Official Military Personnel File (OMPF).

3.  The applicant related that a noncommissioned officer (NCO) whom he had senior rated requested an inquiry into a substandard evaluation report (NCOER).  An investigating officer (IO) was appointed under the authority of Army Regulation 623-205, NCO Reporting System, to determine whether the report was completed in accordance with Army regulations and represented a valid appraisal of the rated NCO.  During the investigation, two individuals told the IO that the applicant used racial slurs when speaking of the rated NCO, who was black.  These two statements formed the sole basis for the contested GOMOR.

4.  The applicant argued that, after the racial allegation was raised during the NCOER inquiry, the command did not conduct a formal investigation into the allegation, nor was he afforded the opportunity to confront any of his accusers. He adds that the Staff Judge Advocate (SJA), without ever visiting the unit or speaking directly with a single individual involved in the matter, substituted his judgment for that of the IO and single-handedly determined that the applicant was guilty of using racial slurs.

5.  The applicant is a Command Sergeant Major (CSM) in the Army Reserve (USAR) serving on active duty in an Active Guard/Reserve (AGR) assignment.  He initially entered active duty on 20 July 1967 and served as an infantryman until his discharge on 7 April 1969.  He then served in the USAR from 7 February 1976 to 31 October 1982.  On 1 November 1982, he entered the AGR program where he has remained ever since.  He now has more than 16 years of active Federal service and has been awarded the Silver Star Medal, Bronze Star Medal with V Device (2), Purple Heart Medal, Meritorious Service Medal (2), Army Commendation Medal, Army Achievement Medal (4), Good Conduct Medal (4), and Combat Infantryman Badge.  He was promoted to CSM on 1 January 1989.

6.  From June 1991 through October 1993, the applicant served as Commandant of the 5th Army NCO Academy (NCOA), located at Fort Chaffee, Arkansas.  As such, he was involved in the rating chain of many NCOA personnel. Following his senior rating of the NCOA motor sergeant, the rated NCO requested a commander’s inquiry into the NCOER.  An IO was appointed by the 5th Army SJA at Fort Sam Houston, Texas, to determine whether the report was a valid appraisal of the rated NCO’s abilities.  The IO, a 5th Army staff officer with the rank of lieutenant colonel, conducted his investigation by long distance telephone from Fort Sam Houston.  He spoke to a total of 9 individuals, including the rater, senior rater [the applicant], and the rated NCO. Two of the individuals with whom he spoke--a first sergeant and a civilian employee of the motor pool--stated that the applicant and the rater were prejudiced and that the applicant had used racial slurs like “fuzzhead” and “nigger” in referring to the rated NCO, who was black.  Although he raised the race issue, the IO concluded his investigation by saying that he found “no substantive evidence of racial prejudice on the part of. . . [the applicant]” and that the NCOER was a fair and valid appraisal of the rated NCO’s performance and future potential.  He added a gratuitous comment that the NCOA leadership was deficient.

7.  A one page report of investigation was rendered on 11 March 1994 and reviewed by a staff officer in the 5th Army SJA Office on 29 March 1994.  The reviewer opined that the findings and recommendations of the IO were not supported by the facts.  He added that the NCOER, aside from being administratively incorrect, was patently unjust because the rater and senior rater were not qualified to rate the rated NCO by virtue of their poor leadership and racial prejudice.  The SJA reviewer accepted at face value the two unsworn, unsigned, telephonic statements that the applicant used racial slurs and branded him a racist.  He dismissed statements to the contrary as well as the findings of the investigating officer, saying “The report is permeated with racial overtones.”

8.  Based upon the 29 March 1994 SJA review of the NCOER investigation, the Commanding General (CG), 5th Army, issued the applicant a GOMOR on 15 April 1994.  The CG reprimanded him for referring to two black soldiers in racially derogatory terms.  The CG stated that he was considering placing the GOMOR in the applicant’s OMPF and offered him the opportunity to rebut the allegations contained in the GOMOR.

9.  The applicant, who was then assigned to the USAR NCOA, Fort McCoy, Wisconsin, received the GOMOR and, on 6 June 1994, submitted a rebuttal in which he categorically denied ever using racial slurs of any kind to anyone.  Criticizing the SJA review of the NCOER investigation, he wondered how anyone could believe allegations from two unsworn, unsigned (by the person making the statement), and uncorroborated written records of telephone conversations, but not believe the signed statements of numerous other soldiers who stated that the applicant was not prejudiced and did not use racial slurs.  He also provided numerous letters from soldiers at Fort Chaffee who were knowledgeable of the command climate and racial atmosphere at the NCOA and who supported the applicant.  Some of these letters were from key NCO’s at the NCOA [e.g., the NCOA personnel NCO, administrative NCO, and training NCO] and indicated that many of the applicant’s accusers and detractors had personal reasons for maligning him.  For example, the applicant was instrumental in initiating the process which eventually led to the first sergeant’s removal from active duty; the civilian motor pool technician was formally identified by the applicant for not maintaining equipment in a manner to support the NCOA; and other individuals were the subjects of adverse administrative actions for various inefficiencies.

10.  The GOMOR and the applicant’s rebuttal were reviewed by the 5th Army SJA, a colonel.  The SJA found the evidence against the applicant to be two, one-page conversation records (DA Form 751) made by the IO concerning his long distance telephone conversations with the first sergeant and the civilian motor pool employee at Fort Chaffee.  The SJA found these two accusers to be “intelligent and sincere” and completely believable.  He found the statement of a CSM from the Office of the Chief of Army Reserves (OCAR), Atlanta, Georgia, to be of “ only marginal value” when the CSM stated that he had visited the NCOA, spoken to the motor sergeant and 15 other soldiers, and found no evidence of racial tension.  He found the NCOA equal opportunity (EO) NCO to be “reasonably intelligent and sincere”, but opined that she might have said there was no racial prejudice at the NCOA because it would have reflected poorly upon her if she had said otherwise.  He felt the EO NCO’s statement was of “some value” in deciding whether the applicant used racial slurs. Finally, the SJA combined all of the numerous statements of support submitted by the applicant in his rebuttal and opined that these individuals “seemed intelligent and sincere”, but that their statements were only of limited value in deciding the issue.  He concluded that the two statements by the first sergeant and the civilian employee were “convincing evidence” that the applicant used racially offensive terms in reference to soldiers.

11.  The CG, after reviewing the SJA’s opinion of the applicant’s rebuttal, allowed the GOMOR to remain in effect and filed it in the applicant’s OMPF.  The applicant was subsequently selected for release from active duty by the Department of the Army (DA) qualitative management program (QMP) and given a DA bar to reenlistment.

12.  The applicant appealed the DA bar to the DA Suitability Board.  In his appeal, he submitted several new letters of support, including one from the general officer who gave him the GOMOR.  In this letter, the general expressed concern that he “did not require a more deliberate and formal investigation of the subject matter of the reprimand” and stated that “fairness may not have been served . . . .”  The DA Suitability Board approved the applicant’s appeal and removed the DA bar to reenlistment on 22 April 1996.

CONCLUSIONS:

1.  The contested GOMOR was based upon two DA Forms 751, Telephone or Verbal Conversation Record, recounting long distance telephone conversations between an IO at Fort Sam Houston, Texas, and two NCOA personnel at Fort Chaffee, Arkansas.  The allegation that the applicant used racial slurs in speaking of black soldiers was reported, but never investigated.

2.  The SJA’s review of the IO’s report of investigation concerning the contested NCOER completely ignored the evidence that the rated NCO did not perform in a satisfactory manner. Instead, the SJA focused on the two unverified statements that the applicant used racial slurs and branded him a racist.  This resulted in the CG issuing the GOMOR more than 5 months after the applicant left the command.

3.  The applicant rebutted the GOMOR.  In his review of the rebuttal, the SJA, after simply reading the telephone conversation records, found the two accusers “intelligent and sincere.”  At the same time, the SJA, after reviewing their statements, determined the applicant’s supporters seemed to be only “reasonably intelligent and sincere” and discounted the value of the their letters of support.

4.  The applicant properly complained that he had been sanctioned because of unsubstantiated rumors.  He added that the allegations were never investigated, nor was he ever allowed to confront his accusers.  The general officer who issued the sanction stated, after the fact, that he did not conduct an adequate inquiry into the allegations against the applicant and feared that the applicant did not receive due process.

5.  The DA Suitability Board, using the same information submitted to this Board, removed the DA bar to reenlistment imposed by the QMP.

6. In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant’s records as indicated below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by expunging the contested GOMOR, dated 15 April 1993, and all related documents from the records of the individual concerned.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON