RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 November 2006
      DOCKET NUMBER:  AR20060003637


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Ms. Ernestine I. Fields           |     |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:

The applicant, in effect, defers to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be restored to his former rank of
master sergeant (MSG), pay grade E8, in the Arkansas Army National Guard
(ARARNG) and that he be authorized back pay from, 15 June 2002, the date of
his reduction.

2.  Counsel states, in effect, that there was no evidence of an improper
relationship between the applicant and a subordinate.  The Commander’s
Inquiry under the provisions of Army Regulation 15-6 never occurred.  The
applicant was denied a board hearing for either reduction in rank and
administrative separation and he was coerced into accepting the reduction
in rank.

3.  Counsel provides copies of the applicant’s 7 June 2002 memorandum for
the Adjutant General accepting administrative reduction to pay grade E7,
the reduction order citing paragraph 11-56b of National Guard Regulation
(NGR) 600-200, an extract of paragraphs 11-54 through 11-58 of NGR 600-200,
and  numerous documents relating to the incident and 52 pages of service
record documents including noncommissioned officer evaluation reports
(NCOER’s).

CONSIDERATION OF EVIDENCE:

1.  The applicant was a MSG with approximately 22 years of service in the
Army and the ARARNG.  He was on active duty in the Active Guard Reserve
(AGR) program when he was administratively reduced in rank to sergeant
first class (SFC) on 15 June 2002.

2.  The process of reduction begun on 19 September 2001 when questions
arose concerning the applicant’s actions in securing a BOQ (bachelor
officer quarters) room for SGT A____, a female subordinate under his direct
supervision, for the inactive duty training [drill] weekend of 15-16
September 2001.

3.  The battalion commander requested that Captain (CPT) W____, the
battalion logistics officer, undertake a commander’s inquiry and indicated
that an official notification would be forthcoming.

4.  CPT W____’s 19 September 2001 report to the battalion commander stated
that he had established the following indications of favoritism and
impropriety by the applicant:

      a.  A signed statement by the assistant housing manager states that
the applicant made a BOQ reservation in SGM T____’s name and tried to pick
up the key for that room.  SGT A____ admitted to him that she spent the
night in the room reserved for the applicant;


      b.  The record of Reserve training for HHC 1st Battalion 114th
Aviation shows SGT A____ present.  The applicant reported that SGT A____
was sick and at the medical clinic, but there was no record of her having
been there and no sick slip filed with the battalion;


      c.  SGT A____ was not present at drill but she was paid; and


      d.  SGM T____ stated that a BOQ room reservation had been made in his
name for 4-5 August and 15 September 2001.

5.  On 30 September 2001, the battalion commander noted that CPT W____ had
not been present at the subject drill weekend because of other military
training.  He forwarded CPT W____’s  report and supporting documents and
recommended that the Commander, Troop Command conduct an investigation
under the provisions of Army Regulation 15-6 (Procedure for Investigating
Officers and Boards of Officers).
6.  The battalion commander, in a 19 October 2001 memorandum to the
Commander, 87th Troop Command, recommended that the applicant be reduced in
rank, receive a reprimand from a field grade officer, and remain in his
present assignment with stipulations for completing remedial leadership
training and bi-monthly evaluation and counseling for 1 year.  The
battalion commander considered that there was sufficient evidence to
establish that the applicant had:
      a.  improperly tried to reduce a staff sergeant for failing the Army
Physical Fitness Test while ignoring similar results of another Soldier and
initiated correspondence that resulted in a substantiated equal opportunity
complaint;
      b.  continued an improper relationship with SGT A____ despite
counseling and recommendations by more senior noncommissioned officers and
officers.  (It was noted that if the above mentioned staff sergeant had
been reduced, SGT A____would have been eligible for immediate promotion
into his position); and
      c.  SGT A____ recorded as present for drill on 16 September 2001 and
had her paid.
7.  The battalion commander continued by stating that, although the charges
and the evidence against the applicant were significant, he was remorseful
and regretted his actions.  The battalion commander believed the applicant
could be productive and that removal was not appropriate.
8.  The battalion commander sent the applicant a 4 November 2001 email
commending him on his performance and attitude during the recent field
training exercise.
9.  In a 6 November 2001 memorandum to the battalion commander, the
battalion administrative officer (AO) supported the applicant’s reduction
and retention.  He also indicated that he had previously counseled the
applicant about the perception among the applicant’s subordinates and peers
of an improper relationship with SGT A____.  He acknowledged the statements
in support of the applicant but still considered the applicant fully
responsible for the situation at the BOQ and with the muster and pay
factors.  Nevertheless, the AO seemed to feel the applicant was not really
culpable in the incident with the staff sergeant’s APFT.
10.  A 6 January 2002 memorandum to applicant from the Commander, 87th
Troop Command cited the, “commander’s inquiry directed by [the battalion
commander] and recommended: reduction to pay grade E7; reassignment within
the 87th Troop Command but outside of 1st Battalion, 114 Aviation; 12
months probation, quarterly reviews and a reprimand placed in his “official
personnel file.” The Commander, 87th Troop Command stated that, should the
applicant not accept those conditions, his case would be referred to the,
“Deputy Chief of Staff-Personnel (DCSPER) for a board and appropriate
hearing.”
11.  A 15 January 2002, memorandum from the Administrative Officer, Office
of the Adjutant General states “I am proposing the following actions and I
am providing you with a last chance to operate in an acceptable fashion in
your Arkansas National Guard AGR position.”  The applicant was to initiate
a request to be administratively reduced; he would be reassigned within the
87th Troop Command but outside of 1st Battalion, 114th Aviation; and he
would be on probation for 12 months; receive quarterly reviews and have a
reprimand placed in his Official Military Personnel File.  Should the
applicant elect to not, “honor the terms of this agreement” his case would
be referred to the DCSPER for a board and an appropriate hearing.  He was
to indicate acceptance or non-acceptance and sign and date the attached
“Acknowledgement…Last Chance Agreement.”
12.  In a 26 March 2002, memorandum to the Commander, 87th Troop Command
the applicant requested to appear before a Reduction Board.  He contended
that he had not been advised of his rights to a board, cited the support in
favor of retaining him in his present position, complained about the length
of time that the process had taken and claimed to have, “tried every avenue
to resolve the issue within this command.”
13.  The AO, 87th Troop Command, in a 5 April 2002 memorandum, informed the
applicant that he was recommending the applicant be removed from his AGR
position.  The AO indicated that he was providing the applicant a copy of
all pertinent documents.  He noted that the applicant was regarded as
knowledgeable and a good performer but also indicated that, in searching
for a reassignment he found no commander or officer-in charge who wanted
the applicant in his unit.  He noted that the proposed elimination was for
an inappropriate professional and personal conduct, moral or professional
dereliction and substandard duty performance.  He identified the
applicant’s assigned military counsel, but cautioned that any
correspondence should be addressed to the Adjutant General.  He indicated
that he would entertain no direct communication from the applicant or his
counsel.
14.  The applicant wrote a 22 April 2002 Memorandum for the Record and a
24 April 2002 letter to the Adjutant General reviewing the case as he saw
it.  He contended that the elimination action was improperly initiated and
that the procedure was improper.  He also contended that the intervention
of the 87th Troop Command was improper.  He acknowledged that he had,
“acted inappropriately and entirely inconsistent with an NCO of my grade.”
He reviewed the battalion commander’s recommendations for reduction in pay,
a field grade reprimand remedial leadership training and bi-monthly
evaluation and found them, “strict but appropriate.”  He asked the Adjutant
General to discontinue the elimination action and to support the
recommendations of the battalion commander.
15.  On 7 June 2002, the applicant authenticated a memorandum addressed to
the Adjutant General accepting the administrative reduction from pay grade
     E-8 to pay grade E7.  Orders, dated 16 June 2002, announced the
applicant’s administrative reduction and cited the governing authority as
NGR 600-200, paragraph 11-56b.
16.  In a 23 October 2002 complaint to the National Guard Bureau Inspector
General, the applicant contended that he had accepted the reduction in rank
under duress and without being allowed to talk to anyone.  He cited two
examples of other Soldiers’ misconduct that had not resulted in reduction
in rank and claimed he had been treated unfairly.
17.  NGR 600-200, paragraph 11-56b pertains to the reduction in rank of
National Guard Soldiers who fail to complete officer or warrant officer
training programs or to accept appointment after completing such programs.
Paragraph 11-55 applies to voluntary reductions.

18.  Among the documents submitted by counsel, but not mentioned above are
the following:

      a.  A 10 February 2002 memorandum from the battalion operations
officer to the effect that the applicant had performed his duties in a
competent manner, is a asset to the unit, his removal would hamper mission
accomplishment and he had a keen awareness of training requirements and
worked well with other to accomplish them;

      b.  The battalion command sergeant major wrote, in a 1 February 2002,
memorandum that transferring the applicant would leave an experience void
in the unit.  The applicant possessed training knowledge, “as good as or
better than most.”  He had worked hard to become a team player and his
ability to work with others seemed not to have been damaged by his personal
problems.  His expertise was needed for the forthcoming reorganization;

      c.  A chief warrant officer four wrote an unqualified endorsement of
the applicant’s knowledge, performance behavior, attitude, leadership and
expertise;

      d.   SGM T____ wrote that the applicant made a mistake, but he
apologized for, “using my name illegally.”  He praised the applicant’s
accomplishments both on and off duty and opined that the aviation community
would lose a valuable asset if the applicant were transferred; and

      e.  A 27 April 2005 memorandum from the ARARNG informed the applicant
that he had been extended in his AGR position until 31 December 2006.

19.  During the processing of this case an advisory opinion was obtained
from the NGB.  The Chief, Personnel Division noted that the applicant had
previously changed his mind about the reduction as evidenced by his
complaint to the Inspector General and the ABCMR.  The opinion noted that,
in the 24 April 2002 letter, the applicant had agreed with the sanctions
proposed, including voluntary reduction.  Pertinent documents that were not
submitted with the application,
including email messages about the case were forwarded.  The failure to
request reduction on the specified form and the citation of the wrong
authority were determined to be not significant.

20.  Counsel responded to the advisory opinion by essentially restating the
case and iterating the previous arguments that there was no substantial
evidence of a relationship and that the reduction was coerced.

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant and his counsel are noted.   However,
neither the evidence submitted with the application nor the evidence of
record support the request.  The reduction process was in accordance with
the applicable regulation.   The applicant may have felt pressured but he
clearly was not coerced.

2.  The applicant chose to request voluntary reduction rather than risk the
consequences of an elimination board.  Whether his various responses were
intended to simply prolong the process or bargaining efforts to mitigate
the effects is uncertain.  Nevertheless the delays in the case appear to be
as much the applicant’s doing as that of his superiors.

3.  The available documentation clearly shows the applicant understood his
right and options.  Furthermore, he indicated that he agreed with the
voluntary reduction in his 24 April 2002 letter to the Adjutant General.

4.  The foregoing is in consonance with the advisory opinion from the NGB.

5.  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.

6.  The authority cited for the applicant’s voluntary reduction is a minor
typographical error that can be administratively corrected by the ARARNG.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_MKP ___  __EF ___  _RR ____  DENY APPLICATIO

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                 |AR20060003637                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061109                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |. . . . .                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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