MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 December 2002
         DOCKET NUMBER: AR2002074335

         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Ted S. Kanamine		Member
Mr. Conrad V. Meyer		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 he be reinstated to the rank of
master sergeant (MSG) and be provided back pay and allowances due as a result.

APPLICANT STATES: In effect, that the Administrative Reduction Board (ARB) convened in his case committed errors and was unjust. He states that he is appealing to the Board’s common sense of justice and requesting that the findings and recommendations of the ARB that reduced him to the rank of sergeant first class (SFC) on 11 February 2002 be overturned, that he be reinstated to the rank of MSG, and be provided back pay due as a result. In support of his request, he submits the enclosed ARB appeal packet that he submitted to the Commanding General (CG) of the United States Army Recruiting Command (USAREC). He states that he included details of the unusual circumstances surrounding his case in this appeal packet, as well as the appropriate regulatory provisions on point. He also provided records detailing his excellent record of service, and the sacrifices he made for USAREC and the Army.

The applicant also claims that the contentions asserted by he and his counsel in his appeal to the CG, USAREC, fell on deaf ears, and resulted in no action. He states that this prior appeal serves as the basis for his appeal to this Board because it most clearly and cogently reflects the discrepancies he has with the decision of the reduction board. He also states that it meets the required showing of error and/or injustice needed to gain relief from the Board. He claims that essentially it was an error and injustice for the CG, USAREC, not to have acted upon his appeal when given the chance. Therefore, he now appeals to this Board for relief.

The applicant finally states that the Board members may or may not have heard that USAREC has a reputation for giving no grace to the recruiters who work so hard and so faithfully to fulfill its demanding mission requirements. He believes that his case illustrates this point and he sincerely hopes the Board will grant his requested relief. He concludes by stating that he appreciates the presence and functions of the Board, and trusts it will give due consideration to his case.

COUNSEL CONTENDS: In his appeal memorandum to the CG, USAREC on behalf of the applicant, counsel contended, in effect, that there are three main reasons why the findings and recommendation of the ARB did not meet the appellate standard requiring the “best interests of the Army and the soldier” outlined in the governing regulation.

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Counsel claimed that the applicant’s reduction lacked credibility and deserved immediate corrective action on equitable grounds, in the best interest of the Army and the soldier. He claimed that the personal crisis faced by the applicant that led to his stepping down from the first sergeant job were based on events that he warned the battalion commander about before he took the job. However, for convenience sake, the battalion commander ignored the plight of his subordinate when he cried out for a brief reprieve before taking the new position. Counsel further stated that the ARB lacked legal credibility because the findings were not based on facts. No facts presented at the hearing addressed the finding that the applicant could not perform the duties of a MSG in military occupational specialty (MOS) 63Z. Finally, counsel indicated that the inequity of the ARB was that it viewed a period of six months as carrying greater weight than 17 years in determining a “pattern” of inefficiency as required by the governing regulation.

Counsel concluded by requesting that the CG, USAREC, correct the injustice of the ARB by either disapproving its findings and recommendations entirely or in the alternative by at least modifying the recommendation to impose a suspended bust providing a period of rehabilitation.

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

He is currently serving as an SFC on active duty in Germany. The applicant entered active duty on 2 November 1984, and he was trained in MOS 63D
(Self Propelled Field Artillery Systems Mechanic). He was promoted to staff sergeant (SSG) and served in that MOS until 1991.

In 1991, the applicant was assigned to the USAREC to perform duties as a recruiter. On 1 June 1994, he was promoted to SFC in MOS 00R (Recruiter) and he continued to serve in various recruiting positions until being selected for promotion to MSG in MOS 79R (Recruiter). Upon his promotion to MSG, he assumed the position of battalion senior trainer. On 1 April 1999, he was promoted to MSG and in February 2001, he assumed a first sergeant position in a recruiting company.

In October 2001, the applicant received a Relief for Cause Noncommissioned Officer Evaluation Report (NCOER). This report covered the nine month period from February through October 2001. The rater on the contested report, a major, provided a “No” response to question 1 (Places dedication and commitment to the goals and missions of the Army and nation above personal welfare) and question 2 (Is committed to and shows a sense of pride in the unit-works as a member of the team) of the 7 questions contained in Part IV (Values/NCO Responsibilities) of the report.

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In Part IV b-f the rater gave the applicant two “Needs Improvement-Some” evaluations. The first in Part IVb (Competence) and the second in Part IVd (Leadership). The rater provided the following comments to support his evaluation in Part IVb: company has consistently failed to make mission, company market share declined under his tenure; consistently failed to counsel and monitor subordinates; and failed to follow training guidance of superiors. The following comments were provided by the rater to support his evaluation in
Part IVd: involved in domestic disturbance and cited by the local police department; company production decreased; sets bad example for soldiers, consistently conducted personal business on government time. The rater also placed the applicant in the third block (Marginal) in Part Va (Overall Performance and Potential-Rater). The senior rater placed the applicant in the 4 block (Fair) in Part Vc (Overall Performance) and in the 3 block (Superior) in Part Vd (Overall Potential). The supporting senior rater comments were that the applicant should not be considered for promotion without additional leadership training, and the applicant was unable to balance personal and professional behavior.

An ARB convened to consider the applicant’s reduction for inefficiency and it found that the applicant had demonstrated characteristics that showed that he could not perform the duties and responsibilities of a MSG in MOS 63Z, and it recommended that he be reduced to SFC. The record of the ARB proceedings containing all the testimony and evidence presented and considered was not on file in the applicant’s record and was not provided to the Board by the applicant.

On 22 February 2002, convening authority reviewed the findings and recommendations of the ARB, as well as the exhibits considered by the ARB. He determined from the ARB findings and recommendations, and the evidence before him, that the applicant could not perform the duties of a MSG in MOS 63Z, and he directed that the applicant be reduced to SFC for inefficiency.

On 29 April 2002, after considering the appeal submitted by the applicant, the CG of the USAREC approved the findings and recommendations of the ARB, and denied the applicant’s appeal.

In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Promotions Branch, Total Army Personnel Command (PERSCOM), dated 16 September 2002. It stated that the applicant was reduced for inefficiency and his appeal was considered and denied in accordance with the applicable regulation. Therefore, this PERSCOM official opined that overturning this appellate decision would not be in the best interest of the Army, because consistent application of promotion policy is the only way to ensure a fair and equitable system for all soldiers. Therefore, it was recommended that the applicant’s request be denied.

The applicant was provided a copy of the PERSCOM advisory opinion in order to have the opportunity to respond to its contents. He replied by stating that he contested the PERSCOM position that it would not be in the Army’s best interest to restore his rank. He based this on his performance prior to being placed in a position he never should have held. He stated that he served as the battalion master trainer, which is an authorized E-8 position, and received outstanding evaluations and awards for his performance in that position. He also claimed that the ARB recommendation that he be reduced because he could not fulfill the duties and responsibilities required of a MSG in MOS 63Z was made without the ARB establishing or considering what those specific duties and responsibilities were. He claims that while serving at Fort Carson he filled a position authorized a 63Z in the absence of the battalion motor sergeant, as he does now in his current assignment.

The applicant also claimed that his current battalion command sergeant major (CSM) found the ARB recommendation lacking, and as a result contacted the applicant’s former battalion and company commanders to inquire into what the basis for the reduction action was. The CSM was advised that it was because the applicant chose to request to be replaced as a first sergeant in order to take care of his family. The applicant contended that this was in direct conflict with the allegations that he was inefficient. Instead his reduction was based on following the battalion commander’s stated priorities, which were God, family, and the Army, in that order.

The applicant concludes by stating that when he warned his battalion commander of his family problems prior to assuming the first sergeant position, he was told to suck it up because it was too late to stop the reassignment. He further stated that the battalion CSM that retired a month after he assumed the first sergeant position, and the CSM that replaced him, both advised the battalion commander that he should not be put in the position given his family situation. Finally, he claimed that PERSCOM promotion officials could not possibly have know these various factors that contributed to his reduction.

Army Regulation 600-8-19 provides the policy and procedures for enlisted promotions and reductions. Chapter 7, section III, contains guidance on reductions for inefficiency. It states that inefficiency is a demonstration of characteristics that show 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.

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Paragraph 7-6 provides the criteria for reduction for inefficiency. It states that a soldier must have served in the same unit for at least 90 days prior to being reduced one grade for inefficiency, and the commander starting the reduction action must present documents showing the soldier's inefficiency to the reduction authority. Documents should establish a pattern of inefficiency rather than identify a specific incident. Paragraph 7-7 contains the policy for reduction boards. It states, in effect, that the board will ensure that enough testimony is presented to enable the board members to fully and impartially evaluate each case, be objective in their deliberations, arrive at a proper recommendation, consider those abilities and qualities required and expected of a soldier of that grade and experience. In addition, it states that the board will determine what is in the best interests of the Army, and that consideration of prior years of faithful service while commendable, should not be overriding.

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 Board notes the applicant’s contention that he should be reinstated to the rank of MSG and provided any back pay due as a result, because the ARB on which his reduction was based was in error and unjust. However, the Board finds insufficient evidence to support this claim.

2. The ARB record of proceedings were not available to the Board. However, the evidence of record shows that the ARB was conducted in accordance with the applicable regulation. The findings and recommendations of the ARB were approved by the proper convening authority, and the applicant’s appeal was considered and denied by the appropriate appeal authority. Lacking evidence to the contrary, the Board presumes government regularity in the conduct of the ARB and in the entire reduction process.

3. By regulation, ARB consideration of prior years of faithful service is commendable, however, this is not overriding factor in determining if a reduction is warranted. Therefore, while the Board acknowledges the applicant’s outstanding performance of duty both prior to and during his assignment to the USAREC before he assumed the first sergeant position of a recruiting company, this is not the determinate factor in this case.

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4. It is clear the applicant was experiencing family problems when he assumed the first sergeant position, and that he raised these issues with the battalion commander to delay his assignment. However, the evidence does not establish that this was the only or even the primary factor for his poor duty performance and ultimate relief from the first sergeant position. The record contains a Relief for Cause NCOER covering a nine month period was a first sergeant. The rater on this report categorized his overall performance as marginal, and supported this evaluation with specific bullet comments. In the opinion of the Board, this satisfies the regulatory criteria that a reduction for inefficiency be based on a pattern, as opposed to an isolated incident.

5. The Board also considered the applicant’s assertion that the ARB did not have evidence to support its determination that he could not perform the duties required of a MSG in MOS 63Z. However, it finds that even if the ARB did not receive testimony on these specific duties and responsibilities, this does not call into question it findings and recommendations, which were based on the collective best judgment of the members of this duly constituted board.

6. In view of the facts of this case, the Board finds no material error or injustice related to the applicant’s reduction for inefficiency. Further, the Board concurs with the PERSCOM position that overturning the appellate decision in this case would not be in the best interest of the Army. Thus, it concludes that the requested relief is not warranted in this case.

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

__CLA__ __TSK___ __CVM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074335
SUFFIX
RECON
DATE BOARDED	2002/12/10
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 308	129.0600
2. 310	131.0000
3.
4.
5.
6.