RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20050017503


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann, Jr.        |     |Chairperson          |
|     |Mr. David R. Gallagher            |     |Member               |
|     |Mr. Roland S. Venable             |     |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, removal of the "S-5" code from the
Noncommissioned Officer Education System (NCOES) records so he may be
eligible to be reconsidered for promotion to sergeant major and attendance
to the Sergeants Major Academy.  The applicant also requests removal of the
"Relief for Cause" Noncommissioned Officer Evaluation Report (NCOER).

2.  The applicant states, in effect, that Army Regulation 600-20 (Army
Command Policy), in part, states that relationships are prohibited between
officers and enlisted personnel; however, this prohibition does not apply
to marriages.

3.  The applicant provides a self-authored statement, dated 23 November
2005; a copy of Headquarters, 1st Infantry Division, Office of the Staff
Judge Advocate memorandum, dated 15 January 2004; a U.S. Army Enlisted
Records and Evaluation Center memorandum, dated 20 October 2003; an excerpt
from Army Regulation 600-20 (Army Command Policy); and three DA Forms 2166-
8 (NCO Evaluation Report) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently assigned to Headquarters and Headquarters
Battery, 31st Air Defense Artillery Brigade [Fort Bliss, Texas] and serving
as the Battery First Sergeant.

2.  The applicant's service records contain an NCOER covering the period
July 2003 through September 2003.  Item g of Part I (Administrative Data)
of this form contains the entry "Relief for Cause."  In the Bullet comments
of Part IV (Army Values/Attributes/Skills/Actions [Rater]) contains the
entry "demonstrated a willingness to make deceptive statements under oath."

3.  Item f of Part IV of the NCOER contains an "X" in the "Some" of "Needs
Improvement" block and contains the following entries:

      a.  "demonstrated a disregard for the Army's fraternization policy";
and

      b.  "the rated NCO has been notified of the reason for the relief."




4.  Part V (Overall Performance and Potential) of the NCOER contains the
following entries:

      a.  item a (Rater – Overall potential for promotion and/or service in
positions of greater responsibility) contains an "X" in the "Marginal"
block;


      b.  item c (Senior Rater – Overall performance) contains an "X" in the
"Fair" block; and


      c.  item d (Senior Rater – Overall potential for promotion and/or
service in positions of greater responsibility) contains an "X" in the
"Poor" block.

5.  On 7 April 2004, the Chief, Command Sergeant Major/Sergeant Major
(CSM/SGM) Branch notified the Commander of the 6th Battalion, 52nd Air
Defense Artillery that the Department of the Army Enlisted Standby Advisory
Board which adjourned on 20 February 2004, recommended removal of the
applicant from the promotion list to sergeant major.  The Chief, CSM/SGM
Branch also stated that the Director of Military Personnel Policy, Army G-1
approved the Board's recommendation on 10 March 2004.

6.  The Chief, CSM/SGM Branch stated that based on the approved action to
remove the applicant from the promotion list to sergeant major, he was no
longer eligible for attendance to the Sergeants Major Course Class 55 and
was officially removed from the United States Army Sergeants Major Course
(USASMC) Selection List and placed in a "Declinee Status."  The Chief,
CSM/SGM Branch concludes that the NCOES Code had been changed in the
Enlisted Distribution & Assignment System (EDAS) to reflect MEL/MES Code
"S5" for "Sergeant Major Declinee."

7.  On 23 April 2004, the applicant submitted an evaluation report appeal
to the U.S. Army Enlisted Records and Evaluation Center for removal of the
NCOER covering the period July 2003 through September 2003.

8.  The applicant's service records contain an Office of the Deputy Chief
of Staff G-1, Special Review Boards [Alexandria, Virginia] memorandum,
dated 22 November 2004.  The President, Special Review Boards indicated
that the applicant's NCOER appeal for the "Relief for Cause" evaluation
report was returned without action.  The President, Special Review Boards
stated that the applicant did not provide sufficient evidence of a clear
and convincing nature for
the Board to consider at that time.  The President, Special Review Boards
continued that the supporting documents speak highly of the applicant's
performance; however, none of the individuals were in a position to fully
understand or appreciate the expectations of the rating officials for the
applicant.

9.  U.S. Army Enlisted Records and Evaluation Center [Indianapolis,
Indiana] memorandum, dated 6 December 2004, informed the applicant that his
evaluation report appeal for the period July 2003 through September 2003
was returned without action.  The Chief, Records Services Division stated
that the Department of the Army Enlisted Special Review Board (ESRB)
determined that the applicant failed to provide sufficient evidence of a
clear and convincing nature for the ESRB to consider at that time.  The
Chief, Records Services Division further stated that an appeal that alleges
a report is incorrect or inaccurate or unjust without usable supporting
evidence will not be considered.

10.  The applicant submitted a self-authored statement, dated 23 November
2005.  He stated that for over 18 years, he has served the Army and had
always tried to conduct himself with the highest level of professionalism
and the deepest dedication to the mission.  He contends that he never
violated Article 92 (Violation of a lawful general order) and denied ever
having an "inappropriate relationship with Captain [name omitted] prior to
their marriage on 23 December 2002."

11.  The applicant further stated that the marriage only took place because
Captain [name omitted]'s ex-husband had threatened to take her son by
showing she was an unfit mother.  He continued that on 3 January 2003,
Captain [name omitted] filed for divorce to terminate their marriage and
thought it would have been finalized around April 2003.  The applicant
further stated they were both deployed in support of Operation Iraqi
Freedom during that time and he assumed the divorce was final.

12.  The applicant contends that he only married Captain [name omitted] to
help her keep her son.  He continued that as a single parent himself, he
would do anything to keep his child, even marrying someone to show there
was stability in the home.  He stated that not in any way did he try to
circumvent the Army's fraternization policy and has taken full
responsibility for his actions and is ready to move forward in his Army
career.




13.  The applicant submitted a memorandum from Headquarters, 1st Infantry
Division, Office of the Staff Judge Advocate, dated 15 January 2004.  The
Attorney-Advisor stated that the applicant was accused of violating Article
92 of the Uniform Code of Military Justice (UCMJ) for having a marriage
with Captain [name omitted].  The Attorney-Advisor continued that paragraph
4-14 of Army Regulation 600-20 stated that "relationships are prohibited
between officer and enlisted personnel" and in paragraph 4-14(c)(2)(a)
specifically states "This prohibition does not apply to marriages."  The
Attorney-Advisor stated that a marriage between an officer and an enlisted
is not violation of the Army's fraternization policy; therefore, the
applicant did not violate or disregard the Army's fraternization policy.

14.  The Attorney-Advisor stated there is no evidence that the applicant's
marriage to the captain created an adverse impact on unit discipline and
morale and to the contrary, both their units were the most motivated in the
battalion.  The Attorney-Advisor continued that when the applicant was
asked if he was married to Captain [name omitted], he believed he was
divorced and stated "no."  The Attorney-Advisor concluded that there was no
evidence showing that the applicant submitted a false statement and that he
intended or attempted to deceive his superiors.

15.  The U.S. Army Human Resources Command [Alexandria, Virginia] provided
an advisory opinion, dated 25 February 2006.  The Chief, CSM/SGM Branch
stated the applicant was selected for promotion to the rank of sergeant
major as well as being selected for attendance to the USASMC Class 55
(August 2004).  The Chief, CSM/SGM Branch continued the applicant was
removed from the Calendar Year (CY) 2003 CSM/SGM Promotion List and the SMC
Select List based on the approved removal action by the Director of
Military Personnel Policy, Army G-1 on 10 March 2004.

16.  The Chief, CSM/SGM Branch concluded that due to the applicant's
removal from the SMC Select List, he is not eligible for re-entry into the
USASMC unless the removal action is overturned and the applicant is
reinstated for promotion to sergeant major.

17.  On 6 February 2006, the applicant submitted a response to the advisory
opinion.  The applicant stated that he had nothing else to add to his
application and would only like to continue his military career.



18.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) governs
the enlisted promotions and reductions function of the military personnel
system. Paragraph 4-2d states that Soldiers who have been disenrolled from
the USASMC for any reason (other than compassionate or medical) are
permanently ineligible for promotion consideration to sergeant major.

19.  Paragraph 4-14c, Army Regulation 600-20 states that certain types of
personal relationships between officers and enlisted personnel are
prohibited.  Paragraph 4-14c(2)(a) provides the policy regarding marriages,
which states that when evidence of fraternization between an officer and
enlisted member prior to their marriage exists, their marriage does not
preclude appropriate command action based on the prior fraternization.

20.  Army Regulation 623-205 (Evaluation Reporting System) establishes the
policies and procedures for preparing, processing and using the NCOER.  It
states that an NCOER accepted for inclusion in the official record of an
enlisted is presumed to be administratively correct, to have been prepared
by the proper rating officials and to represent the considered opinion and
objective judgment of the rating officials at the time of preparation.  The
burden of proof in appealing an NCOER rests with the applicant.
Accordingly, to justify deletion or amendment of a report, the applicant
must produce evidence that clearly and convincingly nullifies the
presumption of regularity.  It states that statements from rating officials
often reflect retrospective thinking, or second thoughts, and appealing an
evaluation report on statements from rating officials claiming that they
did not intend to evaluate as they did will not, alone, serve as the basis
for altering or withdrawing an NCOER.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of the NCOES code of "S5" from his
Enlisted Distribution Assignment System (EDAS) records so he may have his
promotion to sergeant major reinstated and be eligible to attend the
Sergeants Major Course.

2.  Evidence shows the applicant was selected by the CY 2003 CSM/SGM/SMC
Selection Board for promotion to the grade of sergeant major on 13 November
2003.

3.  Evidence shows the applicant received a "Relief for Cause" NCOER for
the period June 2003 through September 2003 which shows he demonstrated a
disregard for the Army's fraternization policy and willingness to make
deceptive statements under oath.
4.  Regulation stated that when evidence of fraternization between an
officer and enlisted member existed prior to their marriage, the marriage
will not be precluded from appropriate command action based on the prior
fraternization.

5.  Evidence shows that the applicant was removed from the promotion list
for the grade of sergeant major on 10 March 2004.

6.  Evidence shows that based on the approved removal action, the applicant
became permanently ineligible to attend the Sergeants Major Course, was
officially removed from the USASMC Selection List, and placed in a
"Declinee Status" with the MEL/MES code of "S5."

7.  There is no evidence and the applicant did not provide sufficient
evidence that shows an injustice occurred.  Absent such evidence, there is
no basis to remove the MEL/MES code of "S5."  Furthermore, there is no
basis to grant the applicant's request to reinstate his promotion to
sergeant major or allowing him to attend the Sergeants Major Course as
requested.

8.  The applicant requests that the NCOER covering the period July 2003
through September 2003 be removed from his records.

9.  Evidence shows the applicant appealed to the ESRB to remove the NCOER
covering the period July 2003 through September 2003.  However, the ESRB
returned the appeal without action because he failed to provide sufficient
evidence of a clear and convincing nature for the ESRB to consider at that
time.

10.  There is no evidence and the applicant did not provide sufficient
evidence that shows the NCOER in question was inaccurate, unjust, or not
filed in compliance with applicable regulations.  Therefore, there is no
basis to grant the applicant's request.

11.  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.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__PHM___  _DRG___  _RSV___  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.




                                   _Patrick H. McGann, Jr.
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050017503                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  312  |131.0200.0000                           |
|2.  23                  |103.0000.0000                           |
|3.  193                 |111.0000.0000                           |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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