RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            15 JUNE 2006
      DOCKET NUMBER:   AR20050011121


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. Jeffrey Parsons               |     |Member               |
|     |Mr. Jeanette McPherson            |     |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 the removal of a relief for cause
noncommissioned officer evaluation report (NCOER) and a general officer
memorandum of reprimand (GOMOR) from his Official Military Personnel File
(OMPF) and that he be given an appropriate retirement award.

2.  The applicant states that the NCOER contains unproven derogatory
information, in violation of Army Regulation (AR) 623-205 and that
inspector general (IG) records were improperly released and used to
administer the GOMOR, which is a violation of AR 20-1.  He goes on to state
that his rater was the IG and that he blatantly used his position and rank
to discredit him and he lied about doing an investigation.  He also states
that he (the applicant) requested that an investigation be conducted and
the investigation confirmed his allegations that his rater had violated
procedures and regulations.  He continues by stating that he was forced to
retire and end his 24 year career and that he did not receive any
recognition for his service at his retirement.  Accordingly, he should
receive the appropriate retirement award that is commensurate with his
rank, years of service, responsibilities and positions held.

3.  The applicant provides a copy of an IG Action Request and the results,
a copy of the NCOER in question, a sworn statement from the applicant dated
8 February 2006, and a copy of his report of separation (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  He enlisted in Richmond, Virginia, on 12 February 1981 for training as
an administrative specialist.  He successfully completed his training and
remained on active duty through a series of continuous reenlistments.  He
was promoted to the pay grade of E-9 (SGM) on 1 November 1999.

2.  On 13 October 2003, the applicant received a relief for cause NCOER
evaluating him as the IG sergeant major of a Corps in Germany.  In Part
IVa, under Army Values, he received “No” ratings under “Honor” and
“Integrity”.  The supporting comments indicate that he allowed an improper
relationship with a fellow Soldier to mar his reputation as an IG and that
his integrity was questioned by failing to repay a $2,088.00 debt to a
fellow Soldier.

3.  In part IVd and f, under “Leadership” and “Responsibility” he received
“Needs Improvement” ratings.  The supporting comments indicate that he was
relieved of his duties for bringing discredit to the NCO Corps by carrying
on a long-term, improper relationship with a fellow Soldier and rather than
being either forthright or silent when being questioned about his conduct,
he obfuscated the truth to protect his reputation.  Additionally, he used a
government cell phone for personal use.  His rater gave him a “Marginal”
rating in Part Va, under overall potential for promotion and or positions
of greater responsibility.  The rater also stated that further service was
not recommended.

4.  The applicant’s senior rater (SR), a lieutenant general, rated his
overall performance and potential as “Fair” and commented that his
discrediting conduct requires removal from the position of IG SGM and that
he should not be selected for command sergeant major (CSM).

5.  The applicant refused to sign the NCOER and the available records fail
to show that he appealed the NCOER to the Enlisted Special Review Board
(ESRB).

6.  On 17 November 2003, the applicant filed a complaint with the United
States Army Europe and Seventh Army IG, which was forwarded to the
Department of the Army IG (DAIG) for appropriate action.  On 3 May 2005,
the DAIG responded to the applicant’s complaints and informed him that his
allegation that the IG had improperly failed to conduct a thorough
investigation into allegations against him had been substantiated, that his
allegation that the IG had improperly recommended adverse action against
him as a result of an IG inquiry was substantiated and that the IG had
improperly provided IG records for use by the command for adverse action
against him was also substantiated.

7.  Meanwhile, the applicant was honorably released from active duty in
Heidelberg, Germany on 29 February 2004 and was transferred to the Retired
List effective 1 March 2004.  He had served 23 years and 19 days of total
active service.

8.  There is no evidence of a GOMOR being filed in the applicant’s OMPF and
there is no evidence that he received an award when he retired.

9.  The sworn statement provided by the applicant with his application
indicates that he was accused of having a long-term relationship with a
female SGM.  The applicant indicates that she made advances towards him and
he never submitted to her.  He states that she asked him what it would take
for him to sleep with her and he told her that if she had bigger breasts
that he would.  However, after she went and had breast implants done and
wanted him to make good on his word, he told her it would never happen.
She became angry and then went to his boss with her story.

10.  The evidence also shows that the female SGM was making credit card
payments for the applicant while he was deployed down range and the
applicant admitted that he owed her the money, but would not pay her until
she returned some of his DVDs.  Additionally, the evidence of record also
shows that the applicant and the female SGM attended the same SGM Academy
class in 1999.

11.  Army Regulation 623-205, Noncommissioned Officer Evaluation Reporting
System provides, in paragraph 3-17 that no reference will be made to an
incomplete investigation (formal or informal) concerning a noncommissioned
officer.  However, any verified derogatory information (information that is
already proven factual by a preponderance of the evidence) may be entered
on the NCOER.  This is true whether the NCO is under investigation,
flagged, or awaiting trial.

12.  AR 600-8-22, Military Awards, provides, in pertinent part, that a
medal will not be awarded or presented to any individual whose entire
service subsequent to the time of the distinguished act, achievement, or
service has not been honorable.  The determination of honorable service
will be based on such honest and faithful service according to the
standards of conduct, courage, and duty required by law and customs of the
service of a member of the grade to whom the standard is applied.  Each
individual approaching retirement may be considered for an appropriate
decoration based on his or her grade, years of service, degree of
responsibility, and manner of responsibility.  No individual is entitled to
an award upon departure from an assignment.  The decision to award an
individual a decoration and the decision as to which award is appropriate
are both subjective decisions made by the commander having award approval
authority.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has provided evidence to show that the DAIG has
determined that three of the applicant’s complaints were substantiated, and
that the command IG failed to conduct a thorough investigation, that the
command IG improperly recommended adverse action be taken against him, and
that the IG improperly released IG records to the command to be used in
taking adverse action against him, it is also noted that the circumstances
were unusual in themselves.

2.  The fact that the applicant was an IG SGM at the time complicated the
issues and should not have served as a means of special protection or
immunity from punishment for the applicant, simply because he was an IG and
the IG was the investigating agency.  While there were flaws in the
process, it appears that the IG was attempting to show that the IG office
or its personnel were not immune from punishment or that such conduct was
acceptable.

3.  While all of the facts and circumstances are not present in the
available records, the statement from the applicant and the available
evidence do show that the applicant’s conduct at the time was
inappropriate.

4.  The applicant was a married Soldier who has admitted that he told the
other female SGM that he would sleep with her if she had bigger breasts.
The fact that he had admitted that element of the issue at hand is
sufficient to determine that his conduct was inappropriate and serves to
question the applicant’s honor and integrity.

5.  Additionally, the applicant also admitted that the female SGM paid his
credit card bills while he was down range and yet when he returned, he
would not pay, or was reluctant to pay the debt he had knowingly incurred,
which is also conduct that serves to question his honesty and integrity.

6.  Accordingly, the fact that he was serving in an IG SGM position at the
time and given the two elements he has admitted, there was sufficient basis
for the command to take the action taken against him at the time, even
without an investigation being conducted.

7.  The applicant’s contention that he was forced to retire has been noted.
 However, the applicant has failed to show through the evidence submitted
or the evidence of record that such was the case.

8.  The applicant’s contention that he should be awarded an appropriate
retirement award for his service has been noted.  While retirement awards
are normally given in most cases, there is no automatic entitlement to such
awards and they are not always given.  The decision to make such awards is
made by the appropriate commander at the time and it must be presumed that
the commander at the time was satisfied that the applicant’s conduct did
not warrant recognition.

9.  The applicant’s contention that the GOMOR should be removed from his
OMPF has also been noted.  However, the GOMOR is not currently filed in his
OMPF and he has not provided a copy of that document.  Therefore, the Board
cannot render a decision to remove a document it has not been afforded an
opportunity to review.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JM __  ____JP__  ____JM__  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.





                                  ______John Meixell_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011121                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060615                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |20040229                                |
|DISCHARGE AUTHORITY     |AR .635-200. CH 12                      |
|DISCHARGE REASON        |RETIREMENT                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |221/void ncoer                          |
|1.111.0100              |                                        |
|2.134.0400              |1020/rem gomor                          |
|3.107.0000              |46/dec                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]