IN THE CASE OF:	  

		BOARD DATE:	  7 August 2008

		DOCKET NUMBER:  AR20080007587 


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 his rank be restored to sergeant major (SGM/E-9).

2.  The applicant states, in effect, he was denied due process during the administrative reduction board process.  He states that a Soldier is authorized 
15 days to consult with his counsel prior to appearing before an administrative reduction board; however, he was only given 3 hours.  He also states that a Soldier being administered an Article 15 is not considered guilty until the Article 15 process or court martial action is complete; however, he was issued a relief for cause noncommissioned officer evaluation report (NCOER) prior to the finality of his Article 15 proceedings.

3.  The applicant provides the following documents in support of his application:  Memorandum, dated 17 September 2002, Subject:  Notification to Appear Before an Administrative Reduction Board; Report of Proceedings By Investigating Officer/Board of Officers (DA Form 1574), dated 10 October 2002; Memorandum, dated 5 November 2002, Subject:  Appeal of Administrative Board; Office of the Inspector General Letter, dated 14 January 2003; DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ)); NCOER ending January 2002; Recommendation for Award (DA Form 638); Character Reference Statements; Army Regulation 600-8-19 (Pages 65 and 66); Army Regulation 623-205 (Page 21); and Internet Documents.


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military record show he enlisted in the Regular Army and entered active duty on 10 June 1980.  He was trained in and awarded military occupational specialty (MOS) 91L (Occupational Therapy Specialist).

3.  On 8 February 2002, the applicant received a “Relief for Cause” NCOER that covered the period June 2001 through January 2002, which evaluated him as the Chief, Enlisted Instructor of the Combat Medical Training Program at Fort Sam Houston, Texas.  Rater comments in Part IV (Values/NCO Responsibilities) address the applicant's use of illegal drugs and his testing positive for cocaine during a unit urinalysis.  In Part V (Overall Performance and Potential) the senior rater, a colonel, indicated that the applicant was relieved as a result of his testing positive for cocaine on a urinalysis.  

4.  On 4 March 2002, while serving as a SGM at Fort Sam Houston, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ for the wrongful use of cocaine between 4 through 10 December 2001.  The resultant punishment for this offense was forfeiture of $1972.00.00 a month for one month.  The brigade commander directed the DA Form 2627 be filed in the performance portion of the applicant’s OMPF.  The applicant elected not to appeal the punishment and signed the DA Form 2627 confirming this election.

5.  On 17 September 2002, a Center Brigade, United States Army Medical Center and School and Fort Sam Houston Memorandum, Subject:  Notification to Appear Before an Administrative Reduction Board, was issued to notify the applicant that an administrative reduction board would hold a hearing on 
10 October 2002, to determine if the applicant should be reduced for inefficiency based on his use of cocaine and falsification of information on his security clearance and reenlistment application.  
6.  On 19 September 2002, the applicant's Senior Defense Counsel acknowledged receipt of the administrative reduction board notification, and on 
1 October 2002, the applicant acknowledged the same.  

7.  On 3 October 2002, the applicant requested a change to the date of the administrative reduction board based on his late receipt of the notification 
(1 October 2002).  He indicated that he had not spoken to his counsel since 
17 September 2002, and his counsel would be on leave until 7 October 2002.  The record is void of any information regarding the processing of this request.

8.  On 10 October 2002, the administrative reduction board, having considered the evidence before it, determined that the allegation of inefficiency was supported by a preponderance of the evidence and recommended the applicant be reduced to the rank of master sergeant (MSG/E-8).  On 21 October 2002, the appointing approval authority approved that recommendation.

9.  On 5 November 2002, the applicant appealed the administrative reduction board findings to the Commander, Army Medical Department (AMEDD) Center and School, Fort Sam Houston.  The applicant's brigade commander added comments to the appeal; however, the record is void of any indication of further processing or a final decision on the appeal.

10.  On 14 January 2003, the Fort Sam Houston Inspector General (IG) responded to the applicant's complaint that he did not receive 15 days notification of the administrative reduction board.  The IG stated that the documentation clearly showed that the applicant's defense counsel had signed for the notification on 19 September 2002.  He further indicated that given the regulatory stated purpose of the 15 day notice is to allow a Soldier or his/her counsel to have sufficient time to prepare the case, and his counsel was given in excess of the 15 days of notice, there was no violation of due process by the chain of command.  The IG advised the applicant to apply to this Board if he still believed his rights were violated.  

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides the Army's enlisted promotion and reduction policy.  Chapter 10 provides guidance on reductions in grade.  Section III provides guidance on reductions for inefficiency.  It states, in pertinent part, 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 as bearing on inefficiency. 


12.  Section III of the promotions and reductions regulation further states that a Soldier who is to appear before the board will be given at least 15 duty days written notice before the date of the hearing in order for the Soldier or his or her counsel to have time to prepare the case. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was denied due process during the administrative reduction board process and that as a result his reduction should be reversed was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record does not include the entire administrative reduction packet containing all the facts and circumstances surrounding this process.  Further, the applicant has only provided partial information outlining his views of the process and the appellate review.  However, the record does confirm the administrative reduction board notification memorandum was published by the command well in excess of 15 days prior to the hearing date, and that the applicant's appointed counsel accepted the notification on 19 September 2002, more than 3 weeks prior to the hearing date.  

3.  Although the applicant did not acknowledge receipt until 1 October 2002, 
10 days prior to the hearing, it appears he and his counsel was aware that an administrative reduction board would be held well in advance of the notification being published and of the actual date of the hearing.  As a result, they had more than sufficient time to prepare their case and there was no fatal violation of the applicant's due process rights that would warrant reversal of the decision of the administrative board.

4.  The evidence of record further confirms that while serving as an SGM in a position of immense responsibility as a Chief Instructor, the applicant tested positive for cocaine during a unit urinalysis.  It also shows that he did not appeal the NJP he accepted for this offense and there is no record that he ever contested this charge.  By violating the Army's policy not to possess or use illegal drugs, the applicant compromised the special trust and confidence placed in him as a senior NCO and leader of Soldiers.   As a result, his reduction in rank was justified and should not be reversed.  




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.
In order

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)                                         AR20080007587



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007587



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1