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ARMY | BCMR | CY1997 | 199705383
Original file (199705383.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 November 1998
         DOCKET NUMBER: AC97-05383

         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. Loren G. Harrell Director
Mr. Kenneth Aucock Analyst


The following members, a quorum, were present:

Mr. George D. Paxson Chairperson
Ms. Celia L. Adolphi Member
Mr. Robert W. Garrett 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: Reinstatement as a Command Sergeant Major (CSM) and reassignment to Hawaii, or a cash sum of $150,000.00.

APPLICANT STATES: That the order assigning him to Hawaii was erroneously revoked, without legal justification, and not in accordance with Army regulations. There was no supporting documents for this action. Had he gone to Hawaii he would have subsequently been reassigned to a major command with a three star general, which meant five more years of service for an additional income of $250,000.00. The mistake would be a $150,000.00 loss, including retirement pay.

He states that his removal from the CSM program was not conducted in accordance with Army Regulation 614-200. He was appointed as a CSM of a unit at Fort Leonard, Missouri in September 1992, serving nearly two years in that position. In May 1994 he was on orders to become a CSM of a 25th Infantry Division infantry battalion in Hawaii with a reporting date of 9 October 1994.

Prior to that, he was involved in an altercation with a female civilian in June of 1994. An investigation ensued, resulting in no evidence to support the two charges against him. However, he received a letter of reprimand. That letter, however, has not received an endorsement from either his brigade commander, or the commanding general of Fort Leonard, Wood.

Upon his return from leave on 22 September he was informed by the chief of Sergeant Major (SGM) assignments at the Total Army Personnel Command (PERSCOM) that he was being removed from the CSM assignment in Hawaii; that he should submit a request (DA Form 4187) to voluntarily withdraw from the CSM program, or barring that, he would remain at Fort Leonard Wood in order to appear before an administrative board, which process would take months.

The following day he requested that he be withdrawn from the CSM program; however, after he talked with his battalion commander, he changed his mind. However, he was told by the chief of SGM assignments that it was too late, that his (the chief of SGM assignments) boss had endorsed the request.

He states that the military police and the CID did everything they could to fault him for the incident with the female civilian, that the CID and the JAG pressured the commanding general to press charges and to take administrative action, which was never done.


He states that after he signed the DA Form 4187 withdrawing from the CSM program, a statement was added: “I understand that this withdrawal will disqualify me from future consideration for entry into the CSM Program.” He says that he did not author that statement.

He was eventually assigned as the senior enlisted advisor with the 41st Enhanced Infantry Brigade in Portland, Oregon. He encloses a copy of his microfiche, which he states does not include a letter of reprimand or an endorsement of a letter of reprimand. He provides three letters of recommendation, one from his former battalion commander who issued him the letter of reprimand. He states that his current position in Oregon has been eliminated, and requests reassignment to a valid position.

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

The applicant was inducted into the Army in 1967. A review of his evaluation reports during his years of service, shows that he served with distinction in numerous assignments throughout his career.

The applicant was promoted to Sergeant Major on 1 November 1989. The applicant was assigned as a Command Sergeant Major with the 2nd Battalion, 10th Infantry Regiment, 3d Training Brigade, at Fort Leonard Wood.

On 31 July 1994 an investigating officer found that a female civilian had entered the applicant’s room, without permission, while he was absent, drank a quantity of gin and became intoxicated, and was in the applicant’s bed when he returned to the room. She was angry because the applicant owed her money, had spent the evening with another woman, and in her mind broken a promise to marry her. An altercation ensued with the applicant resorting to physically handling her to get her off him. He called the military police who took a knife from the woman and applied first aid to her. The investigating officer found that the applicant demonstrated poor judgement in placing himself in a compromising position of developing a close relationship with the woman, while he was separated, yet still married. He also found that the applicant had a financial link to the woman by co-signing for an automobile, establishing a joint account/credit card and receiving personal loans. He recommended that charges of unlawful entry be considered against the female; and that the applicant be counseled about his off duty conduct and his poor judgement with regard to establishing finance links with a woman other than his wife while he was still married, and not keeping up with the payments. The appointing authority directed that the applicant receive a letter of reprimand.

On 9 August 1994 the applicant received a letter of reprimand from his battalion commander at Fort Leonard Wood because of his relationship with a female civilian that resulted in several accusations of violence, financial irresponsibility and other behavior. The applicant, in his response to this letter, stated that he regretted the events of 26 June 1994, and although he was guilty of a gross lack of judgement, he had not committed any crimes. He stated that he had done his best to acquit himself of the female civilian, and she was the one who provoked the attack. He requested that the letter be filed in his local military personnel records jacket.

Both his battalion and his brigade commander recommended that the letter of reprimand be placed in his official military personnel file (OMPF). The commanding general of Fort Leonard Wood directed that the letter be permanently placed in the performance fiche of his OMPF.

In a 19 September 1994 letter the commanding general of the 25th Infantry Division in Hawaii requested that the applicant not be assigned to his command, based on information that he had concerning the applicant’s conduct, and information that the applicant had received a letter of reprimand from a general officer as a result of that conduct.

On 21 September 1994 the chief of SGM assignments at PERSCOM made note of a conversation between the commander at Fort Leonard Wood and the Chief of the Enlistment Personnel Management Directorate (EMPD) at PERSCOM in which the Fort Leonard Wood commander stated that had he known that the applicant could have been removed from the CSM program, he would have initiated the action. The EMPD director notified him that a memorandum of record of their conversation would be included with the removal action PERSCOM was initiating to remove the applicant from the CSM program.

On 22 September 1994, in a conversation with the applicant, the chief of SGM assignments notified him of the aforementioned conversation, and that PERSCOM was initiating action to involuntarily remove him from the CSM program, that the removal packet would be referred to him for rebuttal, which would be enclosed with the packet when submitted to the suitability board. He stated that he informed the applicant that he had the option to voluntarily withdraw from the program. He stated that the applicant subsequently informed him that he would prepare a DA From 4187 requesting to voluntarily withdraw from the program and requested assignment [as a SGM] to an offered position at Salem, Oregon.


A DA Form 4187 dated 23 September 1994 signed by the applicant states:
“1. Request voluntary removal from the Command Sergeant Major Program.” and “2. I understand that this withdrawal will disqualify me from future consideration for entry into the CSM Program.” Another DA Form 4187, included with the application to this Board, states: “1. Request voluntaryrremoval from the Command Sergeant Major Program.” (Note: The two requests are the same, except for the typographical error and the omission of a second paragraph in the second noted request). PERSCOM received a copy of the DA Form 4187 showing both paragraphs.

On 26 May 1994 an order was published assigning the applicant to Headquarters 6th Army with duty at Company B, 41st Infantry Battalion, Portland, Oregon, with a reporting date of 9 October 1994.

In a 21 May 1995 memorandum to the Sergeant Major of the Army the applicant requested reinstatement into the CSM program. He made this same exact request to the PERSCOM EPMD director on 24 May. The Sergeant Major of the Army informed him that his case had been appropriately handled and was in accordance with regulatory guidance. The EMPD director stated that PERSCOM had been prepared to initiate removal action against him from the CSM program; however, since he requested to voluntarily withdraw from the program and acknowledged that he understood that his action disqualified him from future consideration as CSM, removal action was not initiated. He also stated that once removed, voluntarily or involuntarily, there was no provision for reinstatement.

In response to his request for reinstatement to the Chief of Staff of the Army, the deputy director of EMPD informed the applicant on 27 June 1996 that his request was not favorably considered. That same official on 13 November 1996 in response to an inspector general request determined that the applicant’s case was handled in accordance with Army policy.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the PERSCOM. An official of that agency provided a synopsis of the actions which led to the applicant’s withdrawal from the CSM program. He stated that CSM branch at PERSCOM accepted his DA Form 4187 without a commander’s signature since he (the applicant) was never attached back to Fort Leonard Wood and would not be assigned back to that installation. He also stated that the DA Form 4187 faxed to the CSM branch on 26 September 1994 included the statement that the applicant understood the action disqualified him from future consideration for CSM. That official stated, in effect, that the applicant’s request should be denied.


Army Regulation 614-200, Chapter 5, establishes policies for assignment and utilization of Command Sergeants Major. Paragraph 5-11 provides for release from the CSM program, and states in pertinent part, that a CSM may voluntarily withdraw from the program, and that requests for withdrawal will be forwarded through the command channels to the commander (major general and above) having general courts-martial authority who may take final action on the request. All approved requests will be forwarded to HQDA for final determination. Each request must include the reason for withdrawal and a statement by the individual indicating that he understands that withdrawal disqualified him from future consideration for CSM.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The applicant voluntarily requested withdrawal from the CSM program, and based upon his request was assigned to a unit in Oregon. Although his request was not forwarded through command channels as required by the aforementioned regulation, and not endorsed by anyone in his chain of command, as the applicant so states in his request, it is the opinion of this Board that the acceptance and the approval of his request by PERSCOM was due to the applicant’s circumstances, i.e., he had been reassigned from his unit at Fort Leonard Wood to a unit in Hawaii and was pending departure from Fort Leonard Wood; and also the applicant’s implicit intention to submit his request directly to PERSCOM. The Board notes that his request for removal from the program was addressed directly to PERSCOM with no “THRU” address indicated on the DA Form 4187. The applicant could have remained and been attached at Fort Leonard Wood, pending action to remove him involuntarily from the CSM program. He instead chose to withdraw from the program and accept the Oregon assignment.

2. The applicant has not provided any probative evidence to show that he was wrongfully treated, consequently, and in spite of his record of outstanding service and the recommendations he has submitted with his application, there is no reason to reinstate him into the CSM program, nor to grant him the money he requests.

3. 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

_gdp____ ___cla__ ____rwg_ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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