MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2002078675

         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. Vic Whitney		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Patrick H. McGann		Member
Ms. Kathleen A. Newman		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: That his records be corrected to: (a) Delete his relief for cause Noncommissioned Officer Evaluation Report (NCOER); (b) Delete the termination of his Command Sergeant Major (CSM) appointment; (c) Reinstate his CSM appointment; (d) Reimburse him for his out of packet attorney fees and legal expenses ($9,933.85), all lost Army Reserve (USAR) wages, and benefits; and (e) Assign him to a CSM position in Houston, Texas.

APPLICANT STATES: In effect, that Sergeant First Class (SFC) A-- forged his unit commander’s signature on his transfer request and he questions whether his transfer was legal and valid. The negative facts and bullets reflected on his relief for cause are false, malicious, and nothing more than acts of retaliation. The chain of command has refused to investigate the illegal activities regarding lieutenant colonel (LTC)) F—, his former commander. The illegal activities were: (a) In August 1997, LTC F— conspired with Major M-- to make false, malicious, and retaliatory statements against the applicant regarding the relief for cause NCOER; (b) While under investigation by the Office of the Inspector General, F— was illegally promoted from LTC to colonel (COL); (c) In his presence, LTC F— forged the signature of another Army officer on at least two official military documents; (d) LTC F— committed perjury during a court deposition on 13 August 1999; and, (e) LTC F— covered up SFC A--’s forging of at least two Army officers' signatures on numerous official military documents.

In support of his application, the applicant provides a narrative summary of events, the contested NCOER and reassignment orders, the denial of his NCOER appeal, the contested memorandum concerning his resignation as battalion CSM, excerpts of a recorded telephone conversation with his battalion commander, pages 82, 84-86, 124-127, and 129 through 132 of an oral deposition from August 1999 in a Federal District Court case involving the applicant versus the Department of the Army, and two cassette tapes which now appear to have been erased in the mail screening/security process. The applicant was informed about the tapes and asked to provide a written transcript in January 2003. There has been no response to date.

EVIDENCE OF RECORD: The applicant's military records for the period in question were not made available. Information herein was provided by the applicant.

The applicant received a relief for cause NCOER for the period November 1996 to March 1997. This report indicates, in pertinent part, that:





a. Part IV – Values/NCO Responsibilities indicates the applicant: (1) Did not show a sense of pride in the unit nor work as a member of the team; (2) Was not honest and truthful in word and deed; (3) Did not maintain a high standard of personal conduct on and off duty; and (4) Did not support EO/EEO. Bullet comments provided were that he did not develop and maintain a positive NCO command climate, caused a hostile environment through intimidation and bullying of other NCOs; used ethnic slurs and racial comments when dealing with senior level NCOs; and at times was disrespectful to company and battalion level officers. Under Leadership, it was indicated he needed improvement (much) and that he did not mentor or lead by example, his conduct and mannerisms did not sustain a positive command climate, and he did not practice what he preached in soldier caring and leading. Under Training, it was indicated he needed improvement (some) and that he knew the technical and management skills but did not mentor battalion NCO’s. Under Responsibility and Accountability, it was indicated he needed improvement (some) and that he did not create a climate for NCO’s to learn and grow. It was also stated that the applicant had been notified of the reason for the relief.

         b. V – Overall Performance and Potential blocks indicated his overall potential for promotion and/or service was marginal and that he was knowledgeable but not effective in applying knowledge, used poor judgment in dealing with officers and others, set a poor example, and his conduct as a senior NCO contributed to low morale among soldiers. The senior rater marked his overall performance in the last block (poor) and the overall potential for promotion and/or service in positions of greater responsibility in the last block (poor). It is also noted that the applicant's signature does not appear in the Rated NCO block but the block states that the applicant refused to sign the NCOER. The rater and senior rater signed the contested report on 23 August 1997.

The applicant provides four pages of a document titled Excerpts of Discussion, which is reported to be a legally recorded telephone conversation between the applicant and his battalion commander on 24 March 1997. The excerpt is incomplete and provided without context and permission from the second party and will not be further discussed.









Effective 30 January 1998 orders were issued to change the applicant's primary Military Occupational Specialty from CSM to sergeant major. Since the partial pages of an oral deposition from August 1999 in a Federal District Court case involving the applicant versus the Department of the Army are incomplete, and no context of this oral deposition is provided, it will not be further cited or used as evidence in this case. Additionally, the outcome of this civil action by the applicant against the Army in Federal District Court is not provided.

On 11 April 2000, the applicant appealed this NCOER to the Department of the Army Enlisted Special Review Board (ESRB) based on substantive inaccuracies. He requested deletion of the NCOER, reinstatement to the rank of CSM, that he be paid lost wages and benefits for all 1997 to present, all information about his relief for cause be permanently removed from his OMPF, and that he be assigned to a CSM position in Houston, Texas.

On 1 November 2001, the ESRB obtained additional information from the rater of the NCOER. The rater stated, in summary, that the applicant was brought in as the CSM based on his abilities and their prior working relationship. The rater talked with the applicant on numerous occasions concerning his CSM duties but did not prepare any written statements of counseling. When the applicant was observed verbally abusing and physically threatening the unit executive officer, it was determined he could not continue as the CSM. It was mutually agreed to allow the applicant 3 months to locate another unit assignment and a "change of rater" NCOER was prepared.

The higher headquarters questioned the change of rater report based on the incident and it was ultimately decided to prepare a "relief for cause NCOER."

On 21 November 2001, the ESRB determined the applicant’s appeal lacked merit and that the contested report was administratively correct. The ESRB also notes that the applicant contended that the NCOER was in direct retaliation for his whistle-blower activities. However, this was unfounded since his whistle-blower assistance request was dated almost 18 months after his appeal of the report. The report clearly explained the reason for relief in Part IV of the report. The rater stated in Part IVf of the report that the rated NCO had been notified of the reason for the relief. The rating chain met the minimum rating period (90 days). The date of relief determined the through date of the report. The report was prepared by the properly designated rating officials. The report represented the considered opinion and objective judgment of the rating officials at the time of preparation.





This Board operates under the standard of presumption of regularity in governmental affairs. The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper. There is nothing in the information or evidence submitted by the applicant that overcomes this presumption.

Army Regulation 15-185, the regulation under which this Board operates, states in paragraph 3-3 that the Army may not pay attorney's fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, applicable law, and regulations, it is concluded:

1. The contested evaluation report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during he period in question. Therefore, there is no basis for removing it from his Official Military Personnel File.

2. There is nothing in the available records to substantiate his allegation that his battalion commander and two other battalion personnel committed forgery of military documents.

3. The applicant has presented no evidence of substantive inaccuracy of the contested report from anyone in a vantage point equivalent to that of members of the rating chain.

4. The applicant has presented no evidence to support his charges of false, malicious, and retaliatory statements being made against him.

5. The applicant has not shown error or injustice to justifying deletion of his NCOER and subsequently he is not entitled to reinstatement of his CSM appointment; lost USAR wages and benefits; and assignment to a CSM position.

6. 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.







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

__ro___ ___pm__ ___kn__ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002078675
SUFFIX
RECON
DATE BOARDED	20030703
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111.02
2.
3.
4.
5.
6.