IN THE CASE OF:	  

	BOARD DATE:	 

	DOCKET NUMBER:  AR20080006449 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be reinstated from staff sergeant (SSG/E-6) to sergeant first class (SFC/E-7).
 
2.  The applicant states, in effect, that a review of the Multi-National Division North (MND-North) Commander's decision to administratively reduce him from SFC to SSG should be conducted.  An administrative reduction board was held on 15 November 2007, rebuttal matters were submitted, and he subsequently appealed the MND-North Commander's decision to the Commander, Multi-National Corps Iraq (MNCI).  His appeal was denied.  He exhausted all of his remedies and was left with seeking redress to this Board.  He felt that this action fell within the purview of this Board and was properly reviewable for error or equity.  He elaborated in detail on the reasons why the Board should return him to the rank of SFC.  He also provided ample reasoning why the Board should return him as equity requires and allows under Army Regulation 600-8-19, which allows for restoration on equitable grounds.

3.  He stated that Army Regulation 600-8-9 defined inefficiency as the demonstration of characteristics that the person cannot perform duties and responsibilities of the grade and MOS (military occupational specialty) which could be shown by an act or misconduct.  He also elaborated on what the Government should produce showing inefficiency.


4.  The applicant provides copies of several memoranda/letters of support, a copy of his ERB (Enlisted Record Brief), and copies of several documents from his OMPF (Official Military Personnel File) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently on active duty and serving in the rank and pay grade of SSG/E-6.  He was promoted to SFC/E-7 with an effective date and date of rank (DOR) of 1 August 2004 and was subsequently reduced to his current rank and pay grade.

2.  On 24 August 2007, the applicant was advised that non-judicial punishment under the provisions of Article 15 of the UCMJ (Uniform Code of Military Justice) was being contemplated against him for communicating certain indecent language in the written form to a female Soldier of a lesser rank on 18 July 2006; for orally communicating certain indecent language to a junior grade female Soldier during the period 1 August 2006 to on or about 31 October 2006; for calling a subordinate Soldier by her first name and by her nicknames after she had repeatedly complained to him about such unprofessional familiarity and then notified her chain of command about the incidents, such conduct being prejudicial to good order and discipline in the Armed Forces during the period of on or about 14 September 2006 to on or about 15 February 2007; for maltreatment against a subordinate Soldier, a person subject to his orders on 18 July 2006; and for maltreatment against a subordinate Soldier, a person subject to his order, on 31 October 2006.

3.  On 28 August 2007, the applicant provided matters to consider in extenuation and mitigation prior to his Article 15 with five letters of support that attest to his character and job performance during and after the investigation.

4.  On 4 September 2007, the applicant received an Article 15, under UCMJ (Uniform Code of Military Justice), for indecent language [both orally and in the written form] toward female enlisted Soldiers on diverse occasions, for maltreatment on diverse occasions of female enlisted Soldiers, and for conduct being prejudicial to good order and discipline during the period the period 18 July 2006 to 15 February 2007.  His punishment consisted of a forfeiture of $1,735 per month for 2 months.

5.  On 30 October 2007, the applicant was notified that he would appear before an administrative reduction board.



6.  On 15 November 2007, the applicant appeared before an administrative reduction board with counsel.  The board found that he committed misconduct and could not perform his duties and responsibilities as an SFC in the MOS 11B. He did act or conduct himself in a manner that clearly showed he lacked those abilities and qualities normally required and expected of an SFC with his experience.  The board recommended that he be reduced in rank to SSG.

7.  On 21 November 2007, the applicant's counsel submitted a rebuttal to the Commander, MND-North, a Major General (MG), regarding the administrative reduction board results.  Counsel requested that the commander disapprove the findings of the administrative reduction board held against him on 15 November 2007, or in the alternative suspend the reduction for a period of time to allow him to continue to show that he could perform under the stress of this hanging over him. Counsel stated that the recommendation should be disapproved for various reasons that could be broken down in three separate categories.  The first category was procedural errors that substantially prejudiced him; the second was the evidentiary standard was not met; and the last category was fundamental unfairness of this proceeding in light of all the attendant circumstances.  Counsel elaborated in detail about each category.

8.  On 26 November 2007, the Administrative Law Attorney, Office of the Staff Judge Advocate, Headquarters, MND-North reviewed the administrative reduction board results.  The administrative law attorney found the proceedings to be legally sufficient.  He indicated that the convening authority has the authority to make the following actions:  approve both of the board's recommendation; approve one of the board's recommendations, but disapprove the other recommendation; approve the board's recommendation, but suspended all or part of the recommendations; or disapprove the board's recommendations.

9.  On 30 November, 2007, the Commander, a Major General (MG), MND-North approved the recommendations of the administrative reduction board pertaining to the applicant.  In his memorandum, the convening authority stated that the reduction board proceedings were held on 15 November 2007, with the board’s finding that the applicant could not perform his duties and responsibilities as an SFC in his MOS of 11B.  The board also found that he acted or conducted himself in a manner that clearly shows he lacked those abilities and qualities normally required and expected of an SFC with his experience.  The board recommended that he be reduced in grade to E-6 and the convening authority approved the board results. 



10.  The applicant was reduced to the pay grade of E-6/SSG with an effective date of 30 November 2007.  

11.  In the processing of this case, an advisory opinion was obtained from Army Human Resources Command (AHRC)-Alexandria, Deputy Chief, Promotions.  The opinion stated that their office had made a thorough review of all matters presented by the applicant.  After review of all documents, in their opinion, it was that neither full nor partial relief should be granted.  The applicant stated in his memorandum that the reduction proceedings did not follow proper procedural 
guidance established in Army Regulation 600-8-19, paragraph 10-6, on two accounts.  First, he claims that since two of the four criteria were met in Army Regulation 600-8-19, paragraph 10-6b that this made the proceedings improper. The regulation stated that a commander "may include…" and lists some examples. The regulation did not state that a commander "had to meet" the following four criteria.  A commander could show only counseling statements to show a pattern. Secondly, he claims that his receiving an Article 15 violated paragraph 10-6c.  Paragraph 10-6c states that a reduction board will not be used in lieu of UCMJ, Article 15.  Since the applicant received both his claim, "in lieu" of had no merit.  The Article 15 became an admissible document in accordance with paragraph 10-6b(2).  

12.  Army Regulation 600-8-19 governs the enlisted promotions and reductions function of the military personnel system.  Paragraph 10-1 states that a reduction board is required for Soldiers in the grade of SGT (Sergeant) through SGM (Sergeant Major) for any reduction for misconduct and inefficiency.  

13.  Paragraph 10-2 pertains to reduction authority.  It states that the Commanders of organizations may authorize a Commander in the grade of Colonel or higher to reduce Soldiers in the rank of SFC, MSG, and SGM.  For separate detachments or companies, the reduction authority will be the next higher headquarters within the chain of command.  The higher headquarters must be authorized a Commander in the grade of Colonel or higher.

14.  Section III, of the same regulation, governs reduction for inefficiency.  Paragraph 10-5 pertains to policy.  It states that inefficiency is a demonstration of characteristics that shows that the person cannot perform duties and responsibilities of the grade and MOS.  Inefficiency may also include any act or conduct that clearly shows that the Soldier lacks those abilities and qualities normally required and expected of an individual of that grade and experience.  Commanders may consider misconduct, including conviction by civil court, as bearing on inefficiency.


15.  Paragraph 10-6 pertains to criteria.  It states that:

       (a)  A Soldier must have served in the same unit for at least 90 days prior to being reduced one grade for inefficiency;

       (b)  The commander starting the reduction action will present documents showing the Soldier’s inefficiency to the reduction authority.  This may include: 

              (1) Statements of counseling and documented attempts at rehabilitation by the chain of command or supervisors;
              (2) Record of misconduct during the period concerned;

              (3) Correspondence from creditors, attempting to collect a debt from the Soldier; and

              (4) Adverse correspondence from civil authorities;

       (c) Documents will establish a pattern of inefficiency rather than identify a specific incident.  Reduction for inefficiency will not be used for the following:

              (1) To reduce Soldiers for actions for which they have been acquitted because of court-martial proceedings;

              (2) In lieu of UCMJ, Article 15; and (3) To reduce a Soldier for a single act of misconduct;

       (d) The Commander reducing the Soldier will inform him or her in writing of the action contemplated and the reasons.  The Soldier will acknowledge receipt of the memorandum by endorsement and may submit any pertinent matter in rebuttal.  

16.  Paragraph 10-11 pertains to appeals.  Subparagraph 10-11c states that appeals of reduction for inefficiency or for misconduct are authorized to correct an erroneous reduction on equitable grounds. This will be based on the facts and circumstances of the particular case that partial or full restoration of grade is in the best interest of the Army and the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that a review of the Commander, MND-North decision to administratively reduce him from SFC to SSG should be conducted.  

2.  The evidence shows that the applicant received an Article 15, under UCMJ, on 29 September 2007, for indecent language [both orally and in the written form] toward female enlisted Soldiers on divers occasions, for maltreatment on diverse occasions of female enlisted Soldiers, and for conduct being prejudicial to good order and discipline during the period 18 July 2006 to 15 February 2007.  His punishment consisted of a forfeiture of $1,735 per month for 2 months.

3.  The applicant appeared before an administrative reduction board with counsel.  The board found he committed misconduct and could not perform his duties and responsibilities as an SFC in the MOS 11B.  He did act or conduct 
himself in a manner that clearly showed he lacked those abilities and qualities normally required and expected of an SFC with his experience.  The board recommended that he be reduced in rank to SSG.  

4.  The applicant's counsel submitted a rebuttal to the board results.  Counsel recommended that the commander disapprove the findings or in the alternative suspend the reduction for a period of time to allow him to continue to show that he could perform under stress.  Counsel stated that the administrative reduction board's recommendation should be disapproved for various reasons.  The applicant's case was reviewed by the SJA who found the proceedings to be legally sufficient.   

5.  The Commander, MND-North, a MG, approved the recommendations of the administrative reduction board.  The convening authority had several options available to him at the time he was considering the reduction board’s recommendation.  He opted to reduce the applicant from SFC to SSG according to the regulatory authority vested in him as the convening authority and as Commander, MND-North.  The applicant was reduced to the pay grade of SSG/E-6 with an effective date of 30 November 2007.

6.  In the processing of the applicant's case, an advisory opinion was received from AHRC.  After review of all documents, they opined that neither full nor partial relief should be granted.  

7.  A review of the evidence in the applicant's case shows that he was inefficient in his duties.  As a senior NCO (noncommissioned officer) in the United States Army, he was aware that this type of conduct from a NCO toward junior enlisted Soldiers was not to be tolerated.  He acted in a manner that clearly showed he lacked those abilities and qualities normally required and expected of an SFC with his experience.  He now has to accept the consequences of his misconduct which reduced him in rank.  The administrative board was conducted in accordance with 

established regulatory procedures with no evidence of error that could deprive him of his rights.  He was punished according to regulation and he is not entitled to a restoration to his former rank and pay grade.  The applicant therefore is not entitled to be reinstated to the rank and pay grade of SFC/E-7.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ____x___  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.



      __________x_____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080006449



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ABCMR Record of Proceedings (cont)                                         AR20080006449



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