RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 AUGUST 2004
      DOCKET NUMBER:   AR2003098164


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Margaret Thompson             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his reduction from sergeant
first class to staff sergeant be voided and that he be considered for
promotion to pay grade
E-8.

2.  The applicant states that his October 1998 reduction was “completed
illegally” based on several issues including:

      a.  The NCOERs (noncommissioned officer reports) on which the
reduction was based were completed with an illegal rating scheme and not
corrected during the ensuing commander’s inquiry.

      b.  Failure to consider the involuntary nature of “inefficiency” when
presented with medical evidence.

      c.  Failure to follow proper procedure and refer to MEB/PEB following
a motor vehicle collision in May 1996, as required by Army regulations.

      d.  Procedural failures at the Reduction Board itself, including loss
of effective right to counsel, failure to inform me of Article 31 rights,
and loss of effective right to appeal.

      e.  Prohibited personnel actions and reprisals by command personnel.

3.  The applicant, in his self-authored statement, indicated that his
rating chain was merely verbal and never officially published, and that as
such he was “set up for failure…”  He maintains that because of the
animosity he encountered throughout his tenure in the command, resulting
from his attempts to correct numerous regulatory violations, he requested a
commander’s inquiry.

4.  The applicant argues that medical issues contributed to his falling
asleep while on escort duty and that members of his chain of command chose
to ignore that issue and rather, cited him for malingering.  He also
maintains that his command failed to refer him for disability processing
following a motor vehicle accident in 1996 from which he had lasting
injuries.

5.  The applicant states that during his reduction board, his counsel
“failed to adequately protect [his] rights, and ultimately, conspired and
assisted in the government’s violation of [his] rights at the reduction
board.”  He states that his legal counsel was limited by the fact that his
rater was the spouse of the rater for the office who “prosecuted the
reduction board.”
6.  The applicant states that the “government” has “failed to acknowledge
its failures regarding its non-compliance with numerous statues and
regulation” and “continuing refusal to acknowledge these failures compounds
the original egregious maltreatment [he] received upon arrival” in the
overseas command.  He states that “after becoming aware of the violations
regarding the medical regulations, the reduction board regulations, command
policy, federal statute and the conduct of the attorneys and members of the
board only one conclusion becomes available – this miscarriage of justice,
this unlawful and repugnant reduction, this cover-up for command reprisal
and misconduct must be corrected.”

7.  In addition to the self-authored statement, the applicant indicated in
his original application to the Board that he was providing copies of
various medical profiles, extracts from his OMPF (Official Military
Personnel File), extracts from various military regulations, documents
associated with his 1996 motor vehicle accident, and copies of performance
evaluation reports.  Although some of the documents submitted with his
original application to the Board could be extracted from his OMPF, the
medical documents were no longer available to the Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant originally submitted his appeal to this Board to have his
reduction in grade overturned in October 2001.  An advisory opinion from
the United States Total Army Personnel Command in January 2002 noted that
the applicant’s reduction in grade was based on evaluation reports that the
applicant contended were not prepared in accordance with applicable
regulations.  However, it was noted in that advisory opinion that the
applicant had not appealed the evaluation reports and recommended that he
do so prior to proceeding with his ABCMR (Army Board for Correction of
Military Records) action.  In March 2002 the applicant was advised that he
had failed to exhaust his administrative remedies prior to submitting his
appeal to this Board.

2.  The applicant apparently attempted to appeal the evaluation reports,
and in April 2002 was notified that his appeal of three performance
evaluation reports did not meet the criteria outlined in the Army
Regulation 623-205.  One of the documents missing from his appeal package,
among many others that were also cited, was the need for a “certified copy
of the published rating scheme for the entire period of the reports in
question, or a statement from the Commander or an authorized official from
the Personnel Service Battalion (PSB) who can verify the correct rating
officials and their period of rating.”

3.  It appear that the applicant attempted to submit a second request to
this Board but was told again that he needed to exhaust his administrative
remedies by appealing the NCOERs via appropriate avenues prior to
submitting a request to the ABCMR.

4.  In November 2003 the applicant responded to the second notification
that he had not exhausted his administrative remedies.  In that letter he
stated that he had attempted to comply with the demands of appealing his
performance evaluation reports but was denied that avenue because he could
not provide published rating chains.  He states that his commander failed
to publish rating schemes.

5.  The Board notes that the April 2002 memorandum, which returned the
applicant’s appeal of his performance evaluation reports also noted, in
addition to the need for a published rating chain, that the applicant
should have also submitted a copy of his Enlisted Records Brief and a
certified copy of his Department of the Army Form 2-1, supporting documents
not filed in his OMPF, substantiating evidence and third party statements
that could add credence to his contentions and knowledge of his performance
during the rating periods in question, and results of investigations he may
have requested.  While clearly the applicant’s appeal of his NCOERs was
returned for several reasons, other than merely not providing a copy of the
published rating chain, the Board has elected to adjudicate his application
now rather than to continue delaying finalization of his ABCMR action by
arguing that he still has failed to exhaust his administrative remedies.
Additionally, the applicant is no longer on active duty, further
complicating any action to have him appropriately appeal the evaluation
reports.

6.  Records available to the Board indicate the applicant served an initial
tour of active duty with the United States Marine Corps between 1970 and
1974.  In February 1987 he entered active duty as a member of the United
States Army.  He was promoted to pay grade E-6 in May 1990.  His
performance evaluation reports, rendered while he was serving in pay grade
E-6, were generally successful and he was consistently rated as either
fully qualified or among the best by his rater in his overall potential for
promotion.  His senior raters placed him the first or second block for
overall performance and/or potential.

7.  In April 1996 the applicant was promoted to pay grade E-7.  A
performance evaluation report for the period ending in September 1996 rated
him as among the best for overall potential and his senior rater placed him
in the first block for both overall performance and potential.

8.  Following completion of the September 1996 evaluation report, the
applicant was assigned to Headquarters, United States Army Europe.  His
first performance evaluation report in his position as customer support
team leader (for the period 9610-9703) noted that the applicant passed a
physical fitness test in March 1997 and that while “medical problems limit
his participation as team member” in the area of physical fitness, he used
cycling and skiing for his physical training program.  The applicant’s
rater rated him successful in the five specific rating categories, and as
fully capable in overall potential.  His senior rater noted that he had
“potential at the current grade” and that “medical condition precludes
assignment of missions.”  The senior rater placed him in the third block
for overall performance and potential.  The applicant authenticated the
evaluation report on 22 July 1997, the same date as all of the other rating
officials.

9.  The applicant’s next performance evaluation report, for the period
April 1997 through September 1997, reflected a different rater, but the
senior rater and reviewer were involved in the applicant’s previous
evaluation report as the rater and senior rater.  The September 1997 report
noted that the applicant consistently failed to meet suspenses and
deadlines, did not pull weight on routine tasks, and had been counseled on
appropriate behavior toward coworkers of the opposite sex.  His rater
indicated that the applicant displayed poor judgment, failed to complete
assigned tasks, demonstrated competence on a system one day, and then on
another day, stated he was not trained to do the same task, lost control of
items on his hand receipt, disobeyed direct orders to complete special
projects and assigned tasks, and did not always return phone calls or pages
as directed even though position required him to be on call and carry a
pager.  The report indicated that he had passed the APFT (Army Physical
Fitness Test) in March 1997, but that while he was rated successful in the
area of physical fitness/military bearing, his “medical problems limit
participation as a team member.”  His senior rater, who had been his rater
on the March 1997 evaluation report, noted that the applicant consistently
used poor judgment with a negative impact to mission, did not follow
directives nor meet suspenses, completed only level one and two tasks with
direct supervision, and that his potential was that of a junior NCO
(noncommissioned officer).  The applicant authenticated the report on 22
October 1997.

10.  An undated memorandum, subject “Results of Commander’s Inquiry” noted
that “after due consideration of the findings, I can find no errors,
violations of



regulations, or wrongdoing on the part of the rating chain” associated with
the evaluation for the rating period April through September 1997.  The
memorandum noted that “all allegations brought to the attention of the
appointed officer have been investigated.”  The commander, Headquarters and
Headquarters Company, United States Army Europe and Seventh Army, signed
the memorandum.

11.  In April 1998 the applicant received a relief for cause evaluation
report for the period October 1997 through February 1998.  The rater and
review on the relief for cause evaluation report were not previously
involved in any of the applicant’s prior performance evaluation reports.
The senior rater, however, had served as the senior rater on the report
ending in March 1997 and as the reviewer on the report ending in September
1997.  The report noted that the applicant caused disorder and unrest, was
inclined to stray from the truth, and placed himself ahead of duty, unit,
and the Army.  His rater indicated that his inefficiency disrupts
operations, that others had to perform tasks that he was assigned but
failed to complete, that he blamed others for his own shortcomings, could
not be trusted to accomplishment the mission, and that he lacked pride in
his work, among other unfavorable comments.  In the area of physical
fitness/military bearing the rater noted that the applicant had a profile,
but was within body fat standards, and that profile did not prohibit him
from performing his duties.

12.  It is unclear, because the documents are not dated, when the
applicant’s commander notified him (the applicant) that he (the commander)
was initiating action to reduce the applicant for inefficiency.  His
commander cited the “results of Commander’s inquiry and supporting
documents” but did not further identify the specifics in his memorandum.
The applicant acknowledged receipt of the proposed reduction action and
that he had “been provided a copy of all documents contained in the
elimination packet.”

13.  A September 1998 memorandum to the applicant, from the commander, 26th
Area Support Group in Germany, informed the applicant that he, the Area
Support Group commander, had decided to appoint a board to determine if the
applicant should be reduced in grade pursuant to Army Regulation 600-8-19.
The board was scheduled for 16 October 1998.  On 20 November 1998 the Group
commander approved the finding of the board to reduce the applicant to the
rank of staff sergeant (E-6) for inefficiency.  The Chief of Staff,
Headquarters, United States Army Europe and Seventh Army, a major general,
denied the applicant’s appeal of the reduction action in September 1999.

14.  The applicant was apparently reassigned to another organization within
the 26th Area Support Group, while his reduction action was ongoing.  His
performance evaluation report, for the period March 1998 through February
1999 was significantly better than his previous evaluation reports.  None
of the rating officials in the February 1999 report were involved in his
earlier evaluations.  His rater noted that the applicant showed superior
mental and physical toughness, he was mission focused, demonstrated
leadership and maturity, was trustworthy and honest, and that he displayed
a “can-do” attitude.

15.  In August 2000, the applicant was notified that he had been identified
under the QMP (Qualitative Management Program) for a Department of the Army
level bar to reenlistment.  His three performance evaluation reports (9610-
9703, 9704-9709, and 9710-9802) were cited as the primary basis for the bar
to reenlistment. The applicant appealed the bar to reenlistment but his
appeal was denied April 2001.

16.  On 1 January 2002 the applicant was released from active duty.

17.  Army Regulation 600-8-19 states that inefficiency is a demonstration
of characteristics that shows that a person cannot perform duties and
responsibilities of the grade and MOS (military occupational specialty).
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.  The regulation
states that a Soldier must have served in the same unit for a least 90 days
prior to being reduced one grade for inefficiency, and that the commander
reducing the Soldier will inform him or her in writing of the action
contemplated and the reasons.  A reduction board will be held unless waived
by the individual.  The Soldier may retain a civilian lawyer at no expense
to the Government or may request the appointment of a named judge advocate,
a detailed judge advocate, appointment of a named military counsel, or a
detailed military counsel.  The Soldier may challenge any board member for
cause, may request any reasonably available witness whose testimony is
believed to be pertinent to the case, and may question any witness
appearing before the board.  The applicant may also appeal the results of
the reduction board.

18.  Army Regulation 623-205, which establishes the policies and provisions
for the Noncommissioned Officer Evaluation Report System states that the
Soldier’s signature on the evaluation report verifies that he or she has
seen the completed



report, that the administrative data is correct, that the rating officials
are proper, the duty description is accurate and includes counseling dates,
that the APFT and height/weight entries are correct, and that the rated NCO
is aware of the appeals process.  It also states that an evaluation report
accepted for inclusion in the official record of an NCO is presumed to be
administratively correct, prepared by the proper rating officials, and
represent the considered opinion and objective judgment of rating officials
at the time of preparation.  Appeals based on alleged administrative errors
in those portions of a report authenticated by the rated NCO will be
accepted only under the most unusual and compelling circumstances.
Administrative errors include deviation from the established rating chain,
insufficient period of observation by the rating officials, errors in the
report period and errors in the height/weight.

19.  Army Regulation 635-40 states that disability compensation is not an
entitlement acquired by reason of service-incurred illness or injury;
rather, it is provided to soldiers whose service is interrupted and they
can no longer continue to reasonably perform because of a physical
disability incurred or aggravated in service.  Commanders of medical
treatment facilities who are treating Soldiers may initiate action to
evaluate the Soldier’s physical ability to perform the duties of his or her
office, grade, rank, or rating and refer such Soldiers for disability
process.  A Soldier’s commander may also refer the Soldier to the
responsible medical treatment facility for evaluation when he or she
believes the Soldier is unable to perform the duties of his or her office,
grade, rank, or rating because of physical disability.  The fact that a
Soldier may be in possession of a physical profile is not, in and of itself
a basis for referral for disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was reduced in grade following
the receipt of three less than favorable evaluation reports.  Other than
the commander’s inquiry, which concluded that there was no wrong doing in
one of the unfavorable evaluation reports, there is no indication that the
applicant ever attempted to appeal the reports until after he was
identified under the QMP and then only after advised to do so following his
October 2001 appeal to the ABCMR.  His contention that he could not file an
appeal because he was asked to submit a copy of a published rating chain is
without foundation.  While that was certainly one of the issues identified
as necessary for an appeal, there were numerous other documents, which
could have been utilized to initiate the appeal process.  Additionally, it
is noted that in authenticating the evaluation report the applicant was
acknowledging that the reports reflected the proper rating officials.

2.  The evidence indicates the applicant’s reduction for inefficiency was
conducted in compliance with applicable regulations with no indication of
procedural errors which would tend to jeopardize he rights.  His contention
that he was set up for failure is not supported by any evidence in
available records, or provided by the applicant.  The evidence shows that
he was afforded legal counsel, provided an opportunity to appear before a
reduction board during which he would have been permitted to call his own
witnesses and question other witnesses, challenge any board members, and
appeal the decision of the reduction board, all of which were avenues
created to ensure fairness in the reduction process.  The fact that the
applicant was ultimately reduced and that he did not agree with the outcome
is not evidence of any error or injustice.  The applicant has provided no
compelling evidence that there was any error or injustice in his reduction
for inefficiency.

3.  While the applicant maintains that his reduction and unfavorable
evaluation reports were the result of reprisals by members of his chain of
command because of objections to regulatory requirements he raised, there
is no evidence, other than his own contention that such was the case.  His
complaints were raised to the highest levels within the military, reviewed
by a multitude of individuals who had no stake in the process and not one
of the reviews concluded his reduction was improper.

4.  The applicant was reduced for inefficiency and yet has not provided a
single statement from any third party individuals that contradict the basis
for the reduction action.  The fact that he may have received favorable
evaluation reports prior to and after the three unfavorable reports is not
evidence that the three reports, which served as the basis for his
reduction, were wrong.

5.  The applicant’s contention that his command failed to refer him for
disability processing following his 1996 motor vehicle accident is also
without foundation.  There was no requirement for such a referral and the
applicant’s performance evaluation reports indicate that he consistently
received at least successful ratings in the area of physical fitness and
military bearing, in spite of the less than favorable ratings he was
receiving in other categories.  The statements by his rating chain that his
“medical problems limit his participation as team member” appear to relate
to the fact that while he was physically able to perform his duties he may
not have been able to participate in physical activities with his team,
i.e. team runs, physical training, etc.




6.  In order to justify correction of a military record the applicant must
show, or it must other wise satisfactorily appear, that the record is in
error or unjust.  The applicant ahs failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RW __  ___LE __  ___MT __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            ___ Raymond Wagner____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2003098164                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040826                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |111.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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