RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            25 August 2005
      DOCKET NUMBER:   AR20040010273


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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 that his promotion to Master Sergeant (MSG), E-8
be reinstated.

2.  The applicant states he has served with honor for more than 20 years.
He served in a Special Mission Unit (SMU) from February 1996 through
September 2003, always in an E-8 position.  His selection for MSG is a
testament to the fact he performed to the highest standards in a multitude
of demanding and challenging operational environments.  He received an
Article 15 and was rightly punished.  He was totally honest and forthcoming
during the Article 15 proceedings and the commander stated he had no
intentions of reducing his rank or taking any further adverse actions.  He
feels his termination from an SMU was severe enough punishment for the
infraction.

3.  The applicant states his losing command ensured he would be assigned to
a Special Forces Group where he could serve as a Special Forces Team
Sergeant and continue to fulfill his career aspirations.  He has missed two
other opportunities to be promoted to MSG as his records were not reviewed
for promotion during the 2003 and 2004 promotion boards.  He has been
soldiering his way through this extremely trying time.  He will deploy to
Afghanistan from November 2004 through June 2005.  He continues to prove he
has the required potential and leadership abilities to be a Special Forces
Master Sergeant.

4.  The applicant provides the Article 15 with official reprimand and his
appeal to the removal-from-the-promotion-list action with 11 letters of
support.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 4 June 1984.  He
completed several Special Forces Qualification courses and around 1993 was
awarded military occupational specialty 18E (Special Forces Communication
Sergeant).  Around February 1996, he was assigned to the U. S. Army Office
of Military Support and served in an SMU (his noncommissioned officer
evaluation reports from June 1996 through September 2003 are classified
"secret").  He had been recommended for promotion to MSG by the February
2002 MSG promotion board.

2.  On 30 September 2002, the applicant accepted nonjudicial punishment
under Article 15, Uniform Code of Military Justice.  The Article 15 stated
he, who should have known of his duties while deployed overseas, between on
or about              5 January 2002 and 1 May 2002 was derelict in the
performance of those duties in that he willfully failed to report a
continuing personal association of affection with a foreign national by a
Soldier placed under his supervision as it was his duty to do.  Also he,
who should have known of his duties while deployed overseas, between on or
about  5 January 2002 to 1 May 2002, was derelict in the performance of
those duties in that he willfully failed to report his continuing personal
association of affection with a foreign national, as it was his duty to do.
 His punishment was a forfeiture of $1,487.00 pay for two months and a
written reprimand.

3.  On 30 September 2002, the applicant received an official reprimand.  He
was reprimanded for dereliction of duty.  Specifically, on about 27 January
2002 he began a close, affectionate relationship with a foreign national
while he was deployed overseas.  Despite the requirements of Department of
Defense regulations, he failed to report that contact to his chain of
command.  Additionally, during that time he was aware that a fellow Soldier
placed under his supervision was having an adulterous affair with a foreign
national.  Despite his knowledge of the Soldier's contact with that foreign
national, he took no action to report the Soldier's adulterous misconduct
or the Soldier's failure to report the foreign contact.

4.  The applicant's security clearance was apparently suspended at this
time and not reinstated until on or about 15 July 2003.

5.  U. S. Total Army Personnel Command (PERSCOM) Orders Number 16-5 dated
16 January 2003 promoted the applicant to MSG effective 1 February 2003.

6.  PERSCOM Orders Number 203-2 dated 22 July 2003 also promoted the
applicant to MSG effective 1 February 2003.

7.  Apparently around July 2003, the applicant's security clearance was
reinstated.

8.  PERSCOM Orders Number 254-3 dated 11 September 2003 revoked their
Orders Number 203-2 dated 22 July 2003.  He was granted de facto status for
the period 1 February through 10 September 2003.  Due to an administrative
oversight, PERSCOM did not revoke their Orders Number 16-5 dated 16 January
2003 until 23 August 2005.

9.  The applicant appealed his removal from the E-8 promotion list.  He
stated he had deployed with the other Soldier from 27 November 2001 to 24
May 2002.  While deployed, he had knowledge the Soldier may have been
having a relationship.  He counseled the Soldier not to continue that
behavior.  He admitted he also had a relationship with a foreign national
who was now his wife. The applicant stated he deployed to another country
and, on 27 July 2002, he was called about the situation [about the other
Soldier].  He admitted to MSG P___ he knew about the other Soldier's a
relationship while they were deployed and then admitted that he himself had
a relationship.  MSG P___ informed him his relationship was no big deal
because he (the applicant) was single.  Sergeant Major B___ stated he knew
it was very difficult to turn in a friend.  Sergeant Major B___ also stated
they were ready to deploy a Counterintelligence team to try and figure out
what occurred and the applicant had saved them from a major investigation.
On 30 July 2002, however, the applicant was told to return to his home
station and later told he had been caught up in that situation at the worse
time possible.  He went on to give a timeline of events leading to his
removal from the promotion list.

10.  The commander who issued the Article 15 provided a letter of support
for the applicant with his appeal.  The commander stated that, due to a
single indiscretion during the applicant's otherwise remarkable performance
in a high-risk, high-optempo unit, he harshly punished the applicant.  The
commander stated that, following the applicant's punishment, he came to
respect the applicant even more.

11.  The applicant provided a letter of support from Lieutenant Colonel
S___, the Commander, 4th Battalion (Airborne), 1st Special Warfare Training
Group (Airborne).  Lieutenant Colonel S___ stated he served with the
applicant for approximately six months in the high-threat post of Bogota,
Colombia where the applicant supported him on a sensitive mission.  He was
deeply impressed with the applicant's technical and tactical expertise,
commitment to mission, and teamwork.  Equally impressive was the
applicant's ability to grasp the larger operational picture and to motivate
those around him.

12.  In the processing of this case, an advisory opinion was obtained from
the Promotions Branch, U. S. Army Human Resources Command (USAHRC, formerly
PERSCOM).  That office noted the applicant had been conditionally promoted
to MSG effective 1 July 2003 (sic) on PERSCOM Orders Number   203-2.  Those
orders were revoked on 11 September 2003 because his records revealed he
had received an official reprimand and an Article 15 for misconduct.  In
accordance with the regulation, action was initiated to remove him from the
February 2002 MSG list.  The Department of the Army Standby Advisory Board
(STAB) which adjourned on 20 February 2004 recommended he be removed from
the MSG promotion list.  The Director of Military Personnel Policy, Army G-
1 approved the recommendation on 10 March 2004 and on 18 March 2004 his
name was removed from the list.

13.  Promotions Branch, USAHRC opined that to reinstate the applicant would
afford him an unfair advantage not given to other Soldiers and consistent
application of promotion policy is the only way to ensure a fair and
equitable system for all Soldiers.

14.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He strongly requested his promotion to MSG be
reinstated and requested a personal appearance before the Board.  He stated
he received the Article 15 in October 2002 for failing to report a
subordinate's affair and his own contact with a foreign national, now his
wife.  He held the rank of MSG from         1 February 2003 until 30
October 2003, when he was informed of PERSCOM's decision to have his
records reviewed by a STAB.  His promotion orders were revoked on 1
September 2003, over one year after the Article 15 punishment and over 9
months past his promotion date.  The advisory opinion stated he was
"conditionally" promoted effective 1 July 2003.  His promotion orders,
however, had an effective date of rank of 1 February 2003.  Those orders
did not state that his promotion was "conditional."

15.  The applicant further stated the intended purpose of the Article 15
has been served.  There is no risk of harm if he were to be reinstated.
Due to this ongoing problem with his promotion, he has missed two other
opportunities to be promoted to MSG.  His records were not reviewed for
promotion during the 2003 and 2004 promotion boards.  Accordingly, he
requests the Board reinstate his promotion to MSG and allow him to move on
and excel in the Army.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), section
V provides processing guidance for removal from a centralized promotion
list.  Paragraph 4-18 states Headquarters, Department of the Army will
continuously review promotion lists against all information available to
ensure no Soldier is promoted where there is cause to believe a Soldier is
mentally, physically, morally, or professionally unqualified to perform
duties of the higher grade.  In addition, a Soldier may be referred to a
STAB for a number of other reasons including having an Article 15 directed
for filing in the OMPF, having a memorandum of reprimand placed in the
OMPF, or having adverse documentation filed in the OMPF.

17.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph
  2-11 of this regulation states applicants do not have a right to a
hearing before the ABCMR.  The regulation provides that the Director of the
ABCMR or the ABCMR may grant a formal hearing before which the applicant,
counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions, his military service prior to and
subsequent to his receiving the Article 15, and all the supporting
statements he provided have been carefully considered.

2.  The supporting statement from the commander who gave the applicant the
Article 15 has especially been carefully considered.  That commander stated
he harshly punished the applicant due to a single indiscretion during his
otherwise remarkable performance in a high-risk, high-optempo unit.
However, according to the Article 15 the applicant had engaged in
misconduct during a 5-month period and had known about the same type of
misconduct of a Soldier under his supervision during the same period.

3.  The Board discounts, for the most part, the fact the other Soldier's
misconduct included adultery.  What the Board cannot discount is the fact
the applicant failed to report his and the other Soldier's contact with a
foreign national to his chain of command, contrary to requirements of
Department of Defense regulations and common sense, while they were in a
high-risk assignment.

4.  The Board does not know what the applicant's assignment was.  From
Lieutenant Colonel S___'s supporting letter, the Board presumes the
assignment may have had something to do with drug interdiction in South
America.  The Board also presumes the applicant was briefed prior to his
assignment on the drug cartels' propensities for killing anyone attempting
to interfere with their activities.

5.  It appears the applicant was lucky that the foreign nationals he and
the other Soldier had contact with only wanted an affair with an American
Soldier (and which in the applicant's case turned into a marriage).  Either
of the foreign nationals could just as well have been plants by the drug
cartels.  The foreign nationals could have used that 5-month period of
contact to have caused the applicant's death and the deaths of other
members of his unit.  It appears to be a reasonable presumption this was
one of the rationales for Department of Defense requiring the reporting of
contact with foreign nationals.

6.  Even if the applicant was in another country and on a different,
nondrug-related mission, the Board presumes Department of Defense's concern
about such contact with foreign nationals is the same as the Board noted
above.  Otherwise, it appears the applicant would not have been told "they
were ready to deploy a Counterintelligence team to try and figure out what
occurred and that the applicant had saved them from a major investigation."

7.  Again, the Board has considered the applicant's prior and subsequent
good military service; however, such a serious lapse of judgment by a
senior noncommissioned officer over a 5-month period does not warrant
granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __reb___  __lmb___  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.




            __Margaret K. Patterson
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010273                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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