RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            20 APRIL 2006
      DOCKET NUMBER:   AR20060004219


      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:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Mr. Jeffrey Redmann               |     |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 noncommissioned officer
evaluation report (NCOER) covering the period from January 2004 through
September 2004 from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the NCOER does not accurately
reflect his performance and potential during the period in question, but is
based on a single event that occurred during the rating period.  He goes on
to state that he made numerous accomplishments during the rating period and
based on his performance, his rater gave him a biased rating.  In addition,
his rater violated Army Regulation 623-205, paragraph 1-16, by openly
discussing the contents of his evaluation report with his subordinates.  He
continues by stating that the contested report is substandard and not
commensurate with his ratings before and after the contested report and
that his consistently superior performance merits that he receive the
opportunity to compete for promotion to the rank of sergeant major.

3.  The applicant provides a letter of explanation with his application
that contains a listing of 19 enclosures for review by the Board.

CONSIDERATION OF EVIDENCE:

1.  He enlisted on 28 February 1985 and has remained on active duty through
a series of continuous reenlistments.  He was promoted to the pay grade of
E-8 on 1 August 2003 and in January 2004, he was reassigned to Fort Gordon,
Georgia, where he was assigned to a military intelligence company for duty
as a first sergeant (1SG).

2.  On 30 June 2004, the applicant’s commander performed his quarterly
counseling and counseled the applicant on the excellent job he was doing as
a 1SG.

3.  On 6 August 2004, the applicant’s brigade commander notified the
applicant that he was suspended from his duties as a 1SG pending an
investigation into potential improprieties, improper conduct and
wrongdoings by the applicant.  He informed the applicant that the
suspension was temporary pending the outcome of an investigation conducted
under the provisions of Army Regulation 15-6, based on a 5 August 2004
conversation the applicant had with his commander in which he informed the
commander that he was going to request a reassignment to a different
brigade because he had fallen in love with a subordinate (E-5) in his
company.  It appears that this conversation occurred the day after some of
the applicant’s Soldiers went to the applicant’s home and discovered the
relationship.

4.  An informal investigation was conducted and completed on 17 August
2004.  The investigating officer found that the public knowledge of the
inappropriate relationship between the applicant and his subordinate had
left soldiers confused and looking to the company commander for answers.
Their behavior clearly affected the morale of the unit because the Soldiers
held their 1SG in high esteem.  He was well respected, trusted and his word
valued.  He allowed his personal feelings to take priority over his
commitment to his responsibilities as 1SG.  He went on to state that both
Soldiers had received the appropriate training regarding inappropriate
relationships and both were responsible for maintaining a professional
relationship and both should be held accountable.  He recommended that both
Soldiers receive official reprimands and be reassigned at the earliest
opportunity.  The appointing authority directed that the applicant be
relieved for cause.

5.  The applicant was relieved for cause from his duties as a 1SG in
September 2004 and received an NCOER covering the period from January to
September 2004.  The evaluation was not completed until 3 November 2004.

6.  In addition, the applicant received an Administrative Memorandum of
Reprimand (MOR) from his brigade commander that reprimanded him for
engaging in an inappropriate relationship with an E-5 subordinate in his
company.  The applicant was advised of his rights in the matter and was
informed that the MOR would be forwarded to a general officer with a
recommendation that it be filed in his OMPF.

7.  The applicant responded with a memorandum to the commander in which he
indicated that he fully accepted the responsibility for his actions and the
resulting punishment.  He went on to state that he was aware of his actions
and understood the clearly predictable impact on discipline within the
unit.  He further stated that what he had done was wrong and he apologized
to the chain of command and his Soldiers for violating their trust.  He
went on to state that he wanted to be the best 1SG he could be and possibly
one day be a Command Sergeant Major; however, he realized that he may have
ruined his chances for further advancement in the Army.  He continued by
stating that he let one of his personal needs outweigh his decision making
process and let himself become involved with one of his subordinates.
While he did not plan for it to happen, but in doing so, he found a woman
he loved more than anything in the world and he intended to marry her as
soon as he could resume the relationship.  He went on to explain his
accomplishments in the Army and then requested that he be granted leniency
and that the MOR be placed in his Military Personnel Records Jacket (MPRJ).
 He also stated that he understood that he was going to receive a “Relief
for Cause” NCOER and felt that it was justified for his actions.  He
explained that while he may be able to overcome the “Relief for Cause”
NCOER, he did not feel he could overcome both the NCOER and the MOR being
in his OMPF, regardless of his performance.  He asked the commander to
place the MOR in his MPRJ and allow him to show what he was capable of.

8.  On 12 October 2004, after reviewing all of the evidence of the
applicant’s case and his rebuttal, the commanding general directed that the
MOR be filed in the applicant’s OMPF.

9.  On 3 November 2004, the applicant’s “Relief for Cause” NCOER was
provided to him.  In Part IVa, under Army Values, the applicant received
“No” ratings under Duty, Selfless Service, Honor, and Integrity.  The
bullet comments indicate that the applicant engaged in an inappropriate
relationship with a junior enlisted Soldier assigned to his company.  In
Part IVd, he received a “Needs Improvement rating under “Leadership.”  The
supporting bullet comment indicates that he placed a personal relationship
and desires before the welfare of the company.  In Part IVf, he received a
“Needs Improvement” rating under “Responsibility and Accountability.”  The
supporting comments indicate that he failed to conduct himself in a
responsible manner as 1SG and senior enlisted member of the unit, that his
unprofessional actions set the wrong example for Soldiers to emulate and
that he had been notified of the reason for the relief.  The rater rated
his overall potential for promotion or service in positions of greater
responsibility as being “Marginal.”

10.  The senior rater (SR) rated the applicant’s overall performance as
“Poor” and his overall potential as “Fair”.  The SR’s supporting comments
indicate that the applicant’s poor judgment in a personal relationship
threatened good order and discipline in the company and opined that he
would likely succeed as a staff noncommissioned officer.

11.  The applicant also received one “Excellence” and two “Success” ratings
from his rater and some of the accomplishments noted were his achievement
of a 2/2+ on the Russian Defense Language Proficiency Test, that he scored
300 on his Army Physical Fitness Test (APFT), that he developed an
outstanding physical training program which resulted in achieving a 260
APFT average, the highest in the battalion, that he displayed exceptional
military appearance and bearing, that he led the company competition
boards, resulting in one brigade soldier of the quarter (SOQ) winner, two
battalion SOQ winners and one Post soldier of the year nominee.  In
addition, he was devoted to training Soldiers, that the entire company was
consistently over 90% qualified on M16A2, CTT and NBC requirements, that he
implemented the company’s first noncommissioned officer development program
designed to enhance junior noncommissioned officers (NCO) ability to
develop lesson plans and properly instruct training, and that he developed
and conducted a challenging land navigation course for the Brigade Soldier
of the Year board.

12.  The applicant appealed the NCOER to the Enlisted Special Review Board
(ESRB) on 28 December 2004, contending that the NCOER contained both
administrative and substantive errors.  He asserted rater impropriety and
contended that the SR did not properly evaluate his overall performance and
potential.  He also contended that the report was prepared before the
investigation was completed.

13.  In the processing of his appeal the members of the ESRB contacted the
applicant’s rater and SR.  The rater stated that he had been directed to
initiate the relief for cause after the 15-6 investigation was completed
and although he gave the applicant credit for his accomplishments, the
applicant contended that the rating was biased, despite the fact that he
(the applicant) agreed that the relief for cause report was justified.

14. The SR indicated that he directed that the rater initiate the relief
for cause after the 15-6 was completed and contended, in effect, that the
applicant received the rating he deserved under the circumstances.

15.  The ESRB determined that the contested report should have
administrative corrections to change the number of rated months from “9” to
“7” and to change his duty military occupational specialty (DMOS) to
reflect his duties as a 1SG.  However, the ESRB opined that no further
changes were warranted and that the report was an accurate reflection of
his performance and potential during the period in question.

16.  A review of the applicant’s records shows that the Soldier the
applicant was involved with was promoted to the pay grade of E-5 on 1
August 2004, that she had 3 years of service at the time and that she is
more than 16 years younger than the applicant.  She subsequently married
the applicant and changed her last name to coincide with her marriage to
the applicant.  Both she and the applicant were subsequently reassigned.
She was transferred to Fort Huachuca and the applicant was transferred to
Iraq.

17.  A review of the available records fails to indicate that the applicant
requested a commander’s inquiry be conducted regarding the contested NCOER.
18.  Army Regulation 623-205, Noncommissioned Officer Evaluation Reporting
System sets forth the policies and procedures for the Enlisted Evaluation
Reporting System  It provides, in pertinent part, that an evaluation report
accepted for inclusion in the official record of an NCO is presumed to
represent the considered opinion and objective judgment of rating officials
at the time of preparation.  Paragraph 4-7 of that regulation states, in
pertinent part, that when submitting an appeal, the burden of proof rests
with the applicant and that he or she must produce evidence that
establishes clearly and convincingly that action is warranted to correct a
material error, inaccuracy, or injustice.  Clear and convincing evidence
must be of a strong and compelling nature, not merely proof of the
possibility of administrative error or factual inaccuracy.

19.  Field Manual 22-100, Army Leadership, describes leadership as that
which affirms Army values of loyalty, duty, respect, selfless service,
honor, integrity, and personal courage.

20.  Army Regulation 600-20, Army Command Policy, provides the policies and
responsibilities of command, military discipline and conduct, precedence of
rank and the Military Equal Opportunity Program.  It provides, in pertinent
part, that relationships between Soldiers of different rank that involve,
or give the appearance of, partiality, preferential treatment, or the
improper use of rank or position for personal gain, are prejudicial to good
order, discipline, and high unit morale.  It is Army policy that such
relationships will be avoided.

DISCUSSION AND CONCLUSIONS:

1.  The contested report appears to represent a fair, objective and valid
appraisal of his demonstrated performance and potential during the period
in question.  The report also appears to have been prepared in accordance
with the applicable regulation and by the appropriate rating officials.
Therefore, there is no basis for removing the report, as altered by the
ESRB, from his OMPF.

2.  The applicant’s contention that the contested NCOER is biased, that it
is based on one incident and that it does not accurately reflect his
performance and potential during the period in question has been noted and
found to be without merit.  The contested report does reflect his
contribution during the period in question; however, it also reflects his
performance, which was tainted by his misconduct during the period in
question.

3.  The applicant’s assertion that his relationship with his subordinate
constituted one-incident appears to be misguided.  He admitted to having a
relationship with his subordinate and as such, it amounted to multiple and
repeated incidents over the course of the relationship.  The applicant also
admitted at the time that he knew what he was doing was wrong and that he
was willing to accept the consequences of his actions.

4.  While the applicant may now be having second thoughts, the fact remains
that he violated the trust placed in him as the senior NCO of his unit by
both his superiors and subordinates alike.  It is apparent that his rating
chain took the matter very seriously and believed that his conduct in the
matter was serious enough to diminish the quality and degree of his overall
performance and potential during the period in question.

5.  While the third party statements are complimentary of the applicant’s
performance, none of those statements serve to substantiate the applicant’s
allegation that his report was biased or that it did not accurately portray
his performance and potential during the rated period, as viewed by the
rating officials at the time, who were in the best position to judge such.


6.  The applicant, despite his positive contributions to his unit, was
placed in one of the most important leadership positions in the Army and
failed to uphold the Army’s values and demonstrate the proper ethics of his
position as a 1SG and senior NCO in the Army.

7.  Additionally, he has failed to provide clear and convincing evidence
sufficient to warrant voiding the report.

8.  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

____LS _  ___LF ___  ___JR __  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.





                                  ______Linda Simmons________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004219                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060420                                |
|TYPE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DATE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DISCHARGE AUTHORITY     |N/A AC Soldier on AD                    |
|DISCHARGE REASON        |N/A AC Soldier on AD                    |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |193/VOID NCOER                          |
|1.111.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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