IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100010575 


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 reconsideration of an earlier appeal for the removal of a DA Form 2166-8 (Noncommissioned (NCO) Officer Evaluation Report (NCOER)) and Army Special Review Board (ASRB) Record of Proceedings that are filed in her official military personnel file (OMPF) in the interactive Personnel Electronic Records Management System (IPERMS).

2.  The applicant states that her NCOER was rendered under faulty judgment and coercion.  The applicant further states her previous appeal was denied by the Army Board for Correction of Military Records (ABCMR) for lack of convincing evidence that her NCOER was untrue or unjust.  She has new evidence to convince the Board that the NCOER was untrue and unjust.

3.  The applicant states that her rater for the contested NCOER, her former company commander, revised his statement of support to address several key issues including why he would render a relief-for-cause report that did not accurately reflect her performance or Army Values, as well as why he failed to discuss his concerns with the battalion commander.

4.  The applicant further states, "The board also found that there was no requirement to refer the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) [investigation] findings or recommendations to me for review to prepare a rebuttal due to Army Regulation 623-3 (Evaluation Reporting System) prescribing its own procedural safeguards.  Upon further research I discovered that Army Regulation 623-3 refers back to the procedural safeguards contained in Army Regulation 15-6 which require that the respondent be given a copy of the findings from an informal Army Regulation 15-6 [investigation] in order to prepare a relevant rebuttal."

5.  The applicant provides a letter of support from her former company commander, dated 10 February 2010.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090020452 on 28 January 2010.

2.  The applicant presents new arguments and new evidence which will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 19 September 1990.  On 1 September 2003, she was promoted to the rank of master sergeant/E-8 and laterally appointed as the First Sergeant (1SG), 4th Chemical Company, 1st Brigade Special Troops Battalion (BSTB), Camp Hovey, Korea.

4.  On 17 August 2006, the commander of the 1st BSTB appointed an Investigating Officer (IO) pursuant to Army Regulation 15-6 to conduct an informal investigation into allegations of fraternization and an inappropriate relationship between the applicant and her supply sergeant.

5.  On 17 August 2006, the applicant was temporarily suspended from her duties as 1SG, 4th Chemical Company, 1st BSTB, while pending an informal Army Regulation 15-6 investigation.  She was ordered not to communicate with anyone assigned to the 4th Chemical Company and was reassigned pending the outcome of the investigation.

6.  On 7 September 2006, the IO completed an informal Army Regulation 15-6 investigation.  In his executive summary of findings the IO stated:

On 15 August 2006 allegations were made to the Commander, 1st BSTB, of an inappropriate senior-subordinate relationship between 1SG H____ and Staff Sergeant (SSG) M____ during a period of the last few months, but in particular involving incidents from 13-15 August.  On 13 August 2006 Chaplain (CH) (Captain) B____ observed 1SG H____ and SSG M____ walking holding hands in Yongsan and on [15 August 2006 at 1030] Specialist R____ sought CH B____ out, seeking guidance and alleging that there was an inappropriate relationship occurring between these Soldiers and that it was already proving to be prejudicial to good order and discipline within the unit.  This would constitute serious misconduct, in that SSG M____ works for 1SG H____ as the supply sergeant.  Through interviews and sworn statements, it was determined that credible witnesses within the battalion and company have witnessed inappropriate behavior involving 1SG H____ and SSG M____.  [In accordance with] Army Regulation 600-20 (Army Command Policy), paragraph 4-14, an improper relationship between Soldiers of different rank occurred in this case because 4-14b, relationships between Soldiers of different rank are prohibited if they –

	(1)  compromise, or appear to compromise, the integrity of supervisory authority or the chain of command;

	(2)  cause actual or perceived partiality or unfairness; or

	(3)  create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission.

7.  The IO found that 1SG H____ and SSG M____ were in violation of all three elements of Army Regulation 600-20, paragraph 4-14.

8.  The IO recommended that the applicant be relieved from the duties and responsibilities of 1SG and receive a relief-for-cause NCOER.  He further recommended that a letter of reprimand be filed against her.  The IO noted that in keeping with Army Regulation 600-20, in any relationship between Soldiers of different grade or rank, the senior member is generally in the best position to terminate or limit the extent of the relationship.  The IO further recommended that a training program should be implemented in the company to educate what constitutes an inappropriate relationship.  There may be an integrity issue in this organization and possibly other misconduct, and a more formal investigation, possibly to include the U.S. Army Criminal Investigation Command (USACIDC, also known as CID), may be warranted.

9.  By memorandum on 19 September 2006, the Commander, 1st BSTB, informed the applicant that he was relieving her of duties as 1SG for violating Army Regulation 600-20, paragraph 4-14.  The commander stated, "The evidence in the commander's inquiry that was conducted in accordance with Army Regulation 15-6 substantiated that you and SSG M____ violated the prohibition against relationships between Soldiers of different ranks as set forth in Army Regulation 600-20, paragraph 4-14."

10.  The commander further stated, "I am relieving you as the 1SG of the 4th Chemical Company, 1st BSTB, effective immediately.  I will consider any matters you wish to submit in a rebuttal before directing the initiation of the relief-for-cause NCOER in accordance with Army Regulation 623-3, paragraph 3-59.  You have 7 days from receipt of this memorandum to submit to me a written rebuttal."  The applicant acknowledged receipt of the memorandum and elected to submit matters on her behalf within 7 days of receipt.

11.  On 25 September 2006, the applicant verbally appealed her pending relief-for-cause NCOER to the commander of the 1st BSTB.  Evidence in the applicant's records shows she rebutted her relief-for-cause NCOER in writing.

12.  By memorandum on 28 September 2006, the commander of the 1st BSTB notified the applicant that he considered all matters pertaining to the applicant's appeal to the relief-for-cause NCOER.  He informed the applicant that she would receive a relief-for-cause NCOER for violating prohibitions against inappropriate relationships between Soldiers of different ranks.

13.  On 29 September 2006, the applicant received a relief-for-cause NCOER for the period 1 July 2006 through 28 September 2006.  She authenticated the administrative data on the report with her electronic signature and date.

14.  On 20 August 2009, the ASRB denied the applicant's appeal to remove the contested NCOER from her IPERMS record based on administrative and substantive errors.  The ASRB concluded the applicant did not provide clear and compelling evidence which showed the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered.  Additionally, the ASRB stated that there is no evidence in the available records and she had not provided evidence showing the contested report was inaccurate, unjust, or otherwise flawed.  Accordingly, the ASRB determined the overall merits of the applicant's case did not warrant removal of the NCOER.  However, minor corrections were made to the administrative portion of the NCOER.

15.  The ASRB memorandum denying the appeal and directing administrative correction of the NCOER was filed in the performance portion of the applicant's IPERMS record.

16.  The NCOER with the administrative corrections was filed in the performance portion of the applicant's IPERMS record.

17.  The ASRB Record of Proceedings, along with the applicant's NCOER appeal and enclosures, was filed in the restricted portion of the applicant's IPERMS record.

18.  On 28 January 2010, the ABCMR denied the applicant's request for removal of the contested NCOER and the ASRB Record of Proceedings Docket Number AR20090003902.

19.  The ABCMR determined that:

	a.  the statement from the applicant's former company commander provided insufficient evidence to refute an NCO's sworn statement;

	b.  the command sergeant major's contention that "he believes the battalion chaplain had ulterior motives as well as questionable character and tainted morals" was not supported by any evidence or argument he provided;

	c.  the informal Army Regulation 15-6 investigation was conducted in accordance with Army regulatory guidance and the instructions provided by the battalion commander, and that sworn statements were invalid;

	d.  the IO's findings and recommendations were supported by 17 sworn statements and the facts gathered in the investigation.  In addition, the applicant provided insufficient evidence to support her contention that the witnesses have a history of dishonesty that was directed at her and/or that other senior members of the unit did not see any conduct which they believed to be improper.  Furthermore, the battalion commander had the opportunity to consider all 17 of the sworn statements and determined that there was sufficient evidence to support a relief-for-cause action;

	e.  there was no requirement to refer the informal Army Regulation 15-6 investigation conducted against the applicant prior to giving her an adverse NCOER based upon the investigation because the regulation governing NCOER's provided the necessary procedural safeguards;

	f.  the corrected NCOER for the period 1 July 2006 through 28 September 2006 was correctly filed in the performance portion of the applicant's IPERMS record;

	g.  the ASRB memorandum, dated 24 September 2009, was correctly filed in the performance portion of the applicant's IPERMS record; and

	h.  the ASRB Record of Proceedings, dated 20  August 2006, along with the applicant's NCOER appeal and the enclosures, were correctly filed in the restricted portion of the applicant's IPERMS record.

20.  The applicant provides a letter of support from her former company commander, dated 10 February 2010.  The former company commander states that he believes the relief-for-cause NCOER was improper based on evidence that has since been discredited.  The former company commander states he was informed by the commander of the 1st BSTB that an informal Army Regulation 15-6 investigation would be initiated against the applicant.  He was not informed of the nature of the allegations or permitted to provide his observation to the command aside from statements made to the IO during the course of the investigation.  The former company commander further states that every time he attempted to learn the full nature of the allegations or provide advice to the command, he was told to wait until after the investigation.  Upon the completion of the investigation, he was not included in the decision to issue a relief-for-cause NCOER.

21.  The former company commander continues to state that during the course of the investigation an NCO assigned to the company provided a statement that he believes was false and self-serving.  The NCO was later found guilty of fraternization with an enlisted female assigned to his squad.  The former company commander states the applicant had shared concerns regarding the NCO's performance to the initiation of the investigation against her.  The former company commander states he believes the sworn statement provided by the NCO against the applicant in the investigation was untrue and fabricated to hide his misconduct and to degrade the credibility of the applicant.  The former company commander states that had this information been known and apparent at the time of the investigation and subsequent NCOER, it would have disproven the allegations against the applicant and negated any credibility given to the statements provided against the applicant.

22.  The former company commander concludes that he had no contact with the applicant from the initiation of the investigation until the relief-for-cause NCOER was issued.  He was not given the opportunity as the applicant's rater to appropriately counsel her on her performance during the rating period or the investigation and decision to issue a relief-for-cause NCOER.  The decision to render a relief-for-cause NCOER was inaccurate and improper.

23.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing IPERMS.  This regulation states that only those documents listed in table 2-1 (Composition of the IPERMS) and table 2-2 (Obsolete or no longer used documents) are authorized for filing in IPERMS.  Depending on the purpose, documents will be filed in IPERMS in one of the three portions:  performance, service, or restricted. 
Once placed in IPERMS, the document becomes a permanent part of that file.

24.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

25.  Army Regulation 600-37, chapter 7 (Appeals and Petitions), provides the policies and procedures for appeals and petitions for removal of unfavorable information from IPERMS.  Paragraph 7-2 of this regulation states that once an official document has been properly filed in IPERMS, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from IPERMS.

26.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  Paragraph 3-39 states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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.  The burden of proof rests with the appellant.

27.  Paragraph 3-59 of Army Regulation 623-3 states that an NCOER is required when an NCO is relieved for cause regardless of the rating period involved.  Relief for cause is defined as the removal of an NCO from a ratable assignment based on a decision by a member of the chain of command or supervisory chain. 
A relief for cause occurs when the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the vested interest of the U.S. Army.  The following are additional considerations for these reports:

	a.  If the relief does not occur on the date the NCO is removed from the duty position or responsibilities, the suspended period of time between the removal and the relief will be nonrated time included in the period of the relief report.

	b.  Cases where the rated NCO has been suspended from duties pending an investigation will be resolved by the chain of command as expeditiously as possible to reduce the amount of potential non-rated time involved.  If the rated NCO is suspended and subsequently relieved, the period of suspension is nonrated time.  If the rated NCO is suspended and subsequently restored to duty (not relieved), the period of suspension is recorded as evaluated time on the next NCOER.

	c.  If relief for cause is contemplated on the basis of an informal Army Regulation 15-6 investigation, the referral procedures contained in that regulation will be followed before the act of initiating or directing relief.  This does not preclude a temporary suspension from assigned duties pending application of the procedural safeguards contained in Army Regulation 15-6.  A relief for cause will be the final action after all investigations have been completed and a determination is made.

	d.  The rating official directing the relief will clearly explain the reason for the relief in his/her portion of the NCOER.  If the relief is directed by an official other than the rater or SR, the official directing the relief will describe the reasons for relief in an enclosure to the report.

28.  Paragraph 6-11d of Army Regulation 623-3 states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials, or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.

29.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.

	a.  Paragraph 1-9 provides that the regulation does not require that an investigation be conducted before adverse administrative action, such as relief for cause, can be taken against an individual.  However, if an investigation is conducted using the procedures of this regulation, the information obtained, including findings and recommendations, may be used in any administrative action against an individual, whether or not that individual was designated as a respondent, and whether formal or informal procedures were used, subject to the limitations of paragraphs 1-9b (pertaining to civilian personnel) and 1-9c.

30.  Army Regulation 15-6, paragraph 1-9c, states that except as provided in paragraph 1-9d, when adverse administrative action is contemplated against an individual, including an individual designated as a respondent, based upon information obtained as a result of an investigation or board conducted pursuant to this regulation, the appropriate military authority must observe the following minimum safeguards before taking final action against the individual:

	a.  Notify the person in writing of the proposed adverse action and provide a copy, if not previously provided, of that part of the findings and recommendations of the investigation or board and the supporting evidence on which the proposed adverse action is based.

	b.  Give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material.

	c.  Review and evaluate the person's response.

31.  Army Regulation 15-6, paragraph 1-9d, states that there is no requirement to refer the investigation to the individual if the adverse action contemplated is prescribed in regulations or other directives that provide procedural safeguards, such as notice to the individual and opportunity to respond.  For example, there is no requirement to refer an investigation conducted under this regulation to a Soldier prior to giving the Soldier an adverse evaluation report based upon the investigation because the regulations governing evaluation reports provide the necessary procedural safeguards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she was not given a copy of the informal Army Regulation 15-6 investigation in order to prepare a relevant rebuttal and her former commander's letter of support was carefully considered.  However, there is insufficient evidence to support her claim.

2.  The applicant argues that in accordance with Army Regulation 15-6, she was not given a copy of the informal Army Regulation 15-6 investigation in order to prepare a relevant rebuttal.  However, Army Regulation 15-6 further indicates in pertinent part, "There is no requirement to refer the investigation to the individual if the adverse action contemplated is prescribed in regulations or other directives that provide procedural safeguards, such as notice to the individual and opportunity to respond."  The evidence of record shows the commander of the 1st BSTB notified and informed the applicant by memorandum of the following:

	a.  on 17 August 2006, that he was administratively removing her from 1SG duties to conduct a commander's inquiry regarding an alleged and inappropriate relationship with a subordinate.

	b.  on 19 September 2006, that he relieved her from 1SG duties for having an inappropriate relationship with a subordinate.  The commander indicated he would consider any matters the applicant wished to submit in a rebuttal within 7 days before directing the initiation of a relief-for-cause NCOER.

	c.  on 28 September 2006, that he considered all matters to the relief-for-cause appeal the applicant verbally submitted on 25 September 2006.  The applicant was informed that she would receive a relief-for-cause NCOER for an inappropriate relationship between Soldiers of different ranks.

3.  Contrary to the applicant's assertions, the above memoranda show procedural safeguards were in place to protect her rights during her relief-for-cause process. 
She was notified and given the opportunity to appeal the NCOER prior to it being issued.  Had the commander of the 1st BSTB not notified or given the applicant the opportunity to respond to the relief-for-cause NCOER, she would have been entitled to receive a copy of the Army Regulation 15-6 investigation for rebuttal, but she was given the above memoranda.  As a result, there is insufficient mitigating evidence to support amendment of the original Board decision.

4.  The supporting statement from her former company commander was also carefully considered.  Comments contained in this statement indicate an NCO assigned to the company provided a statement that he believes was false and self-serving and had the information been known and apparent at the time of the investigation and subsequent NCOER, it would have disproven the allegations against the applicant and negated any credibility given to the statements provided against her.  This retrospective thinking is not sufficiently mitigating to support relief in this case.


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 to amend the decision of the ABCMR set forth in Docket Number AR20090020425, dated 28 January 2010.



      _____________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)                                         AR20100010575



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ABCMR Record of Proceedings (cont)                                         AR20100010575



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