APPLICANT REQUESTS:  The applicant requests that a “relief for cause” evaluation report (9405-9407) be removed from his Official Military Personnel File (OMPF) and that he be retroactively promoted to pay grade E-7.

APPLICANT STATES:  That his rights were violated in several ways and notes that while his commander initially approved the findings of “an informal AR 15-6 investigation” he subsequently “withdrew hs previous approval...” but maintains the findings were still used as a basis for his relief action.  He states that the decision to relieve him was made “prior to [his] reporting to work in late July [1994] before [he] had any opportunity to make a statement or before any investigation was conducted.”  He states he was initially told he was only being temporarily relieved from his duties but never “informed why [he] was being relieved on a permanent basis” and that he was singled out for a relief.  The applicant states “when a soldier is relieved, he has a right to know the basis of that relief and to offer evidence in rebuttal.”  He believes “people simply wanted [him] out of the mess and did not care to wait for any investigation as to truth of the matter.”

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

He entered active duty on 15 September 1983 and was promoted to pay grade E-5 in August 1989 and E-6 in April 1991.  He has worked in the food preparation field throughout his career.

In December 1990, while assigned to the US Army Element in Belgium he received a performance evaluation report which noted that he “doesn’t always contribute to team effort” and that his “personal conduct both on & off duty does not reflect favorably on NCO Corps.”  His leadership skills were rated as needing improvement and his rater indicated that he “needs to set a better example for peers and subordinates.” The applicant was generally rated as fully capable on his performance evaluation reports and his senior raters, with two exceptions rated his over all performance and potential in the second and third blocks.
The applicant has been awarded four Army Achievement Medals, one Army Commendation Medal and several certificates of achievement.

He was assigned as a food service sergeant in the Office of the Secretary of Defense (OSD) Mess in June 1994.

On 29 July 1994 the applicant was questioned by his rater and intermediate rater regarding allegations of making racial slurs.  The applicant stated “only joking[ly] did [he] participate in racial jokes” and while he was not aware of making or using racial slurs “other individuals {he’d] been around have used....”

On 1 August 1994 the applicant was removed from his duties in the OSD mess and an AR 15-6 investigation was initiated on 24 August 1994.  Five individuals rendered statements indicating that although they were not aware that the applicant had specifically used the word “nigger” he was present while racial remarks or jokes were being made and several individual indicated they were offended by the applicant’s offers of ham hocks.

The applicant rendered a statement on 30 August 1994 again denying that he had ever used the word “nigger” but indicating that the other soldiers may have used the word but he “did not hear it.”  He stated that “beyond normal joking between the majority of [the] OSD mess, I cannot say that I’ve heard anything eyepopping or unusual said in regards to many subjects joked about...although I have heard them [the other soldiers accused of racial slurs] comment on occassion about the kitchen supervisor taking care of his own in regards to favoratism.”

The investigating officer concluded on 6 September 1994 that the applicant and two other members of the OSD mess had “made racial slurs against black service members...used the word “nigger” numerous times...” and that during June or July 1994 the applicant “offered a ham hock skin to three black mess members” which, according to the investigating officer “may or may not have been intended as racial” but “was offensive to some members....” 

The investigating officer recommended the three individuals, including the applicant, not be returned to duties in the OSD mess, receive EO refresher training and letters of reprimand, and that he AR 15-6 report be furnished to the individual’s raters for “consideration in preparing” pending evaluation reports.  The Garrison Commander approved the findings on 12 October 1994 but on 25 October 1994 withdrew his previous approval of that portion of the AR 15-6 investigation which related to furnishing the raters a copy of the investigation report for consideration in preparing pending evaluation reports.  The Garrison Commander noted that while he did “not condone their actions” he was “convinced that their intentions were not racially motivated.”  He concluded that his letter of reprimand and “administrative action” would serve the intended purpose.

On 10 November 1994 the applicant’s relief for cause evaluation report was finalized.  The report covered the period May 1994 through July 1994 and contained the comments “did not support Army’s policy of zero tolerance of racial discrimination, fail to lead by example, needs to seek out problems and fix them, needs to know the difference between right and wrong” and “lacks good judgement to be an effective NCO.”  The senior rater’s noted in his written comments (part V(e)) that the applicant “allowed racist conversasions to take place within the mess as determined by AR 15-6 investigation.”

A subsequent inspector general investigation noted the applicant’s allegation that an informal AR 15-6 was improperly used as justification for the relief-for-cause NCO Evaluation Report was substantiated.  He also noted that although rating officials never received a written copy of the completed report they “should not have used it as a basis for relief in Part V(e)” of the applicant’s evaluation report.

In 1995 the applicant’s request to have the report expunged from his records was denied by the Enlisted Special Review Board although they did agree that the rating period should be administratively changed from 3 months to 2, which was consistent with the applicant assignment to the OSD mess.

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CONCLUSIONS:

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by                 

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON