MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 March 2001
         DOCKET NUMBER: AR2001052677

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Roger W. Able		Chairperson
Mr. Allen L. Raub		Member
Ms. Gail J. Wire		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)

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APPLICANT REQUESTS: In effect, that his removal from the Command Sergeant Major (CSM) Program be voided.

APPLICANT STATES: That he was removed from the CSM Program based upon relief for cause but his chain of command failed to follow procedures outlined in XVIII Airborne Corps Master Policy #94. He believes he did not receive justice throughout the matter. The actions taken against him were based on an alleged violation of regulations. Under Master Policy #94, a relief-for-cause noncommissioned officer evaluation report (NCOER) is mandatory, for it serves as the basis for the relief and removal from the CSM Program. As of this date he has received no relief-for-cause NCOER. Paragraph 7b(2) of Master Policy #94 states that the relief authority or his or her designee will inform the officer or NCO concerned, in writing, of the general nature of the suspension. On 22 June 2000, his battalion commander conducted an informal investigation. Paragraph 7c states that if the relief is based upon an informal investigation, the relief-for-cause will not take place until after referral procedures are completed. On 10 July 2000, his battalion commander prepared a memorandum for record as a report of alleged misconduct and on the same date his brigade commander issued him a notice of intent to relieve. The presumption of one individual was the basis for the relief. There was no attempt to fully ascertain the facts, take statements or acquire more information from any parties involved. The matters in the case are not a violation of Article 134 (adultery).

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

He enlisted in the Regular Army on 11 May 1977. He was promoted to Sergeant Major, E-9 on 1 April 1998 and on an unknown date was appointed a CSM. On or about June 1999, he was assigned as the battalion CSM, 530^th Service and Supply Battalion (Airborne), Fort Bragg, NC.

On 22 June 2000, the battalion commander, Lieutenant Colonel (LTC) W___ returned a call from a civilian who was calling on behalf of Ms. M___. LTC W___ was informed that Ms. M___ delivered a baby girl the day prior and that the applicant was the father. LTC W___ later spoke to Ms. M___ herself, who confirmed that the applicant was the father of her child, that he had asked her to have an abortion and, when she refused, he became very angry and she was afraid he might physically harm her. She believed the applicant might be tampering with her house. Based on this information, LTC W___ called the applicant in, read him his rights and asked him if he wanted to waive his rights and answer the commander’s questions. The applicant waived his rights. One of the questions asked if the applicant had a relationship with Ms M___. The applicant responded “yes.” Another question asked if the applicant was the father of the child. The applicant responded “he did not know.” The applicant was suspended from his duties on this date. LTC W___ wrote up this information in a memorandum for record dated 10 July 2000.
On 10 July 2000, the applicant’s brigade-level commander, Colonel (COL) R___, notified him that he intended to request authority from the 1^st Corps Support Command commander to relieve him of his duties as the battalion CSM for misconduct. The basis for the request was LTC W___’s 10 July 2000 memorandum for record detailing the applicant’s admission of his misconduct.

On 17 July 2000, the applicant’s counsel rebutted the 10 July 2000 intent to relieve memorandum. He stated that the applicant’s relationship with an unmarried civilian was a purely private matter which had no military connection whatsoever. His conduct had no effect, direct or indirect, on his military duties or his ability to serve as the battalion CSM. His responses to the battalion commander were an example of his honesty, integrity, and willingness to accept personal responsibility. Very clearly the authority of a commander over his subordinates must have legitimate limitations when it comes to private matters which bear no relation to military duties and military performance. Adultery, under Article 134, requires that the action and conduct of the soldier be under circumstances that were to the prejudice of good order and discipline or was of a nature to bring discredit upon the Armed Forces. It is confined to cases in which the prejudice is reasonably direct and palpable. The matter for which the applicant was questioned is not in this category.

On 17 July 2000, COL R___ requested authority from the Commander, 1^st Corps Support Command, Brigadier General (BG) D___, to relieve the applicant of his duties as battalion CSM for misconduct. BG D___ was provided a copy of the 10 July 2000 notification of intent to relieve, a copy of the battalion commander’s 10 July 2000 memorandum, and the applicant’s rebuttal.

On 19 July 2000, BG D___ approved the request to relieve the applicant from his duties as battalion CSM. On this date, the applicant acknowledged that he was informed of the reason for his relief-for-cause.

On 8 August 2000, the applicant was notified of COL R___’s intent to recommend to the Commander, XVIII Airborne Corps, Lieutenant General (LTG) M___, that the applicant be involuntarily removed from the CSM Program. He acknowledged receipt of the referred information. On 11 August 2000, he rebutted the intention to remove him from the CSM Program. He stated that he did not believe that he received due process when the unsubstantiated allegations which led to his subsequent removal from his position were brought against him. He believed his track record throughout 23 years of service showed he demonstrated only the utmost professionalism in executing his duties.

On 22 August 2000, COL R___ endorsed the recommendation for the applicant’s involuntary removal from the CSM Program and the applicant’s rebuttal through channels to LTG M___, stating he adhered to his original recommendation. BG D___ adhered to her original recommendation. On 22 September 2000, LTG M___ directed the applicant’s involuntary removal from the CSM Program, informed the applicant, and informed the U. S. Total Army Personnel Command (PERSCOM). On 3 October 2000, PERSCOM administratively removed the applicant from the Program, laterally appointed him to Sergeant Major and reclassified him out of military occupational specialty 00Z (Command Sergeant Major).

On 20 October 2000, the applicant appealed to the Board for correction of his records to void his removal from the CSM Program and to remove the relief-for-cause NCOER as the NCOER did not cover the correct rating period. The applicant was informed that he had not exhausted his administrative remedies as he had not appealed the NCOER. An incomplete relief-for-cause NCOER (not signed by the senior rater or reviewer) is filed with the applicant’s Board action on his restricted fiche. It is not filed on performance fiche as of run date 26 January 2001.

Army Regulation 614-200 governs the selection and assignment of enlisted personnel. Chapter 7, section II governs CSM management. It states that when the immediate commander considers that a CSM failed to maintain performance standards of the CSM Program, the commander will prepare an appropriate recommendation. The recommendation, with supporting documentation, will be presented to the CSM who will be given an opportunity to submit in writing matters in rebuttal. If, on review of any matters submitted by the CSM, the immediate commander determines the CSM should be removed from the program, the entire case will be forwarded through command channels to the commander, major general and above, having GCM authority. Each commander will review the case and make a recommendation. The commander exercising GCM authority will take final action on the recommendation. The individual will be informed of the final determination. A copy of all approved removals will be forwarded to PERSCOM for reclassification authority.

Army Regulation 635-205 sets the policies and procedures governing the NCO Evaluation Reporting System and gives instructions for preparing, processing and submitting the NCOER. It states that a relief-for-cause report is required if an NCO is relieved for cause. It defines relief-for-cause as the removal of an NCO from a rateable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain that the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the Army.

Master Policy #94, dated 13 August 1999, XVIII Airborne Corps, Fort Bragg, NC concerns the relief-for-cause of officers and NCOs. Paragraph 5e states that for NCOs in the grade or position of CSM, Sergeant Major, Master Sergeant, and
First Sergeant the relief authority is the first colonel in the chain of command provided he or she concurs in the relief. The approval authority is the first general officer in the chain of command. Paragraph 6 states that any approval authority or relief authority may temporarily suspend a subordinate from a duty position pending relief determination. Paragraph 7b states that when suspending an officer or NCO from duty, the relief authority will inform the officer or NCO concerned, in writing, of the general nature of the suspension. If, upon completion of the investigation, the relief authority determines that relief is warranted, the case will be referred to the approval authority. If misconduct is substantiated, the chain of command is required to report it to the general court-martial convening authority. If the relief is based upon an informal investigation, the relief-for-cause will not take place until after the referral procedures of Army Regulations 15-6 or 600-37 are complete. This approval authority is responsible for ensuring the soldier has had an opportunity to submit rebuttal matters prior to the relief-for-cause. Paragraph 9a states that a relief-for-cause NCOER is mandatory.

Army Regulation 15-6 establishes procedures for investigations not specifically authorized by other regulations. It states that regardless of the purpose of the investigation, even if it is to inquire into the conduct or performance of a particular individual, formal procedures are not mandatory unless required by other applicable regulations or directed by higher authority. Unless formal procedures are expressly required all cases to which this regulation applies will use informal procedures. Paragraph 1.8 states that if an investigation is conducted using the procedures of this regulation, the information obtained including findings and recommendations may be used in any administrative action against an individual. The individual concerned will be notified in writing of the proposed adverse action and provided a copy of that part of the findings and recommendations of the investigation and the supporting evidence on which the proposed adverse action is based. Paragraph 4.2 states that an informal investigation may use whatever method it finds most efficient and effective for acquiring information. Although witnesses may be called to provide formal testimony, information may be obtained by personal interview, correspondence, telephone inquiry, or other informal means.

Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely or inaccurate is not filed in an individual official personnel files; and ensure that the best interest of both the Army and the soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Paragraph 3.6 states that unfavorable information will be referred to the recipient for information and acknowledgement of his or her rebuttal opportunity.

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. 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.

2. The evidence of record shows that the applicant was afforded all the safeguards afforded by Army Regulations 15-6 and 600-37 and by Master Policy #94 except for his being notified, in writing, of the reason for his suspension from his duties as battalion CSM on 22 June 2000 (as required only by Master Policy #94).

3. On 22 June 2000, the applicant’s battalion commander conducted an informal investigation into a civilian’s complaint of misconduct on the part of the applicant. During this investigation, the applicant waived his right not to answer questions.
To the question did he have a relationship with Ms. M___ the applicant responded “yes.” To the question was the applicant the father of the child, the applicant responded “he did not know.” At this point the commander reasonably deducted that the applicant admitted to having had an improper sexual relationship with Ms. M___. (If he had not had an improper sexual relationship with Ms. M___, the applicant would have responded “no” to the question was he the father of the child.) The presumption of one individual was not the basis for the relief; the admission by the applicant was.

4. The applicant’s admission to having had an improper sexual relationship with Ms. M___ met the legal grounds for adultery. Once Ms. M___ made a complaint to his commander about his behavior his affair was no longer a private matter. His adulterous affair then had a very pertinent bearing on his military duties and his military performance as the battalion CSM, in which he was the top NCO in the battalion to whom all the enlisted soldiers were expected looked up to as a role model. His actions and conduct then fell into circumstances that were to the prejudice of good order and discipline and were of a nature to bring discredit upon the Armed Forces.

5. The informal investigation took place on 22 June 2000. On this date he was suspended from his duties, action authorized by paragraph 6 of Master Policy #94. The Board acknowledges that he was not notified, in writing, that he was suspended from duties. However, the Board concludes that this omission was immaterial as all other notification and rebuttal opportunity procedures were followed. He was notified of the intent to relieve him on 10 July 2000 and he was provided the opportunity to submit rebuttal matters prior to the actual relief, on 19 July 2000, as required by regulation and by Master Policy #94. He was notified that he was being recommended for involuntarily removal from the CSM Program on 8 August 2000 and he was provided the opportunity to submit rebuttal matters prior to his actual removal, on 22 September 2000, as required by regulation.

6. Although both Master Policy #94 and Army Regulation 635-205 make it mandatory to prepare a relief-for-cause NCOER, the relief-for-cause NCOER does not serve as the basis for the relief and removal from the CSM Program. The misconduct committed is the basis for the relief and removal from the CSM Program. There is evidence of record to show that a relief-for-cause NCOER was initiated. Whether or not it was actually completed, such a failure to complete the required NCOER is insufficient reason to negate the applicant’s relief and removal from the CSM Program.

7. 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

__rwa___ __alr___ __gjw___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001052677
SUFFIX
RECON
DATE BOARDED	20010327
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.00
2.
3.
4.
5.
6.