IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100027147 


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 correction of his military records to restore his rank to sergeant first class (SFC)/pay grade E-7 and to pay him all back pay due as a result of the correction.

2.  The applicant states, in effect, that his informal administrative reduction board was erroneously conducted resulting in his erroneous reduction from SFC/E-7 to staff sergeant (SSG)/pay grade E-6.  His rights and the provisions of Army Regulation 600-8-19 (Enlisted Promotions and Reductions) were violated.

3.  The applicant provides copies of:

* Administrative Reduction Board Findings and Recommendations
* Order 240-01, 10th Combat Aviation Brigade, dated 27 August 2008
* memorandum, Headquarters, Fort Drum, dated 14 November 2008
* letter, Office of the Inspector General, 10th Mountain Division (Light Infantry) and Fort Drum, dated 26 January 2009, with enclosures [approximately 84 pages]
* memorandum for the Office of the Judge Advocate General (OTJAG), Rosslyn, VA, dated 14 March 2009
* addendum to memorandum for OTJAG, dated 14 March 2009
* letter from the Office of the Staff Judge Advocate, Headquarters, U.S. Army Forces Command, Fort McPherson, dated 27 April 2009



CONSIDERATION OF EVIDENCE:

1.  At the time of his application the applicant was serving as an SSG/E-6 in the Regular Army.  Two days later on 1 November 2010, he retired due to sufficient service for retirement.  He completed 20 years, 5 months, and 26 days of creditable active duty service.

2.  Records show the applicant was promoted to SFC/E-7 with a date of rank of 22 March 2007.

3.  His DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 26 March 2007 to 15 February 2008 shows:

	a.  He served as the NCO in charge of the S-4 (Logistics/Supply Section), 3rd General Support Aviation Battalion, 10th Combat Aviation Brigade, 10th Mountain Division, Fort Drum, NY.

	b.  He was responsible for advising the S-4 (battalion logistics officer) and commanders; training and welfare of one NCO and one private; maintenance of one vehicle, two generators, and one trailer; processing financial liability investigations of property loss; barracks reports; assisting with unit status reports; and liaison between the S-4 and the company supply representative.

	c.  He was counseled on 3 August and 30 November 2007.

	d.  Part IVa (Army Values/Attributes/Skills/Actions) reported that he did not meet the values for loyalty and respect/equal opportunity(EO)/equal employment opportunity(EEO) in that he displayed disrespect to senior personnel on several occasions resulting in actions taken under the provisions of the Uniform Code of Military Justice (UCMJ).

	e.  Part IVc (Physical Fitness and Military Bearing) reported that he needed much improvement in that he displayed disrespect and insubordination to senior personnel in the battalion on more than one occasion.

	f.  Part IVd (Leadership) reported that he needed some improvement in that he demonstrated difficulty in understanding his duties as a staff NCO and a senior NCO in the headquarters company on several occasions.

	g.  Part IVe (Training) reported that he needed some improvement in that he demonstrated difficulty with prioritizing duties to meet weekly suspenses and accomplishing multi-task missions.

	h.  Part V (Overall Performance and Potential) reported that his potential was marginal and he should not be sent to the battle staff course or be promoted.  The senior rater rated his performance as fair and his potential as poor.

4.  A DA Form 2627 (Record of Proceedings under Article 15, UCMJ) initiated on 18 December 2007 indicates the applicant was offered nonjudicial punishment (NJP) for the following offenses:

	a.  on or about 16 November 2007, for behaving with disrespect toward a commissioned officer;

	b.  on or about 28 August 2007, for willfully disobeying a lawful order from a senior NCO;

	c.  on or about 19 November 2007, for willfully disobeying a lawful order from a senior NCO (two specifications); and

	d.  on or about 19 November 2007, for being disrespectful in language toward a senior NCO (two specifications).

5.  On 16 January 2008, the applicant accepted the NJP.  He did not demand trial by court-martial, but he did request a closed hearing and attached a memorandum stating he would not waste the commander's time by trying to explain what happened.  He apologized and accepted full responsibility for his actions.

6.  The imposing officer, a brigadier general, found the applicant guilty of all specifications and imposed a forfeiture of $1,000.00 pay per month for 2 months.

7.  The applicant did not appeal the punishment.

8.  On 25 June 2008, the applicant acknowledged notification to appear before a board of officers scheduled to convene on 21 July 2008.  The actual date of the board's convening was 18 August 2008.

9.  On 20 August 2008, the administrative reduction board found the applicant was inefficient in his position under the provisions of Army Regulation 600-8-19, chapter 10, section III, due to his pattern of insubordination, showing he lacked the ability and qualities required and expected of an SFC/E-7 with 27 years of combined U.S. Army Reserve and active duty time.  The board recommended that the applicant be reduced two pay grades to pay grade E-5.

10.  On 22 August 2008, the administrative reduction board findings and recommendations were approved with the substitution of a reduction to pay grade E-6.

11.  Orders 240-01, 10th Combat Aviation Brigade, dated 27 August 2008, reduced the applicant to SSG/E-6 effective 22 August 2008.

12.  On 18 September 2008, the applicant submitted an appeal to his administrative reduction to SSG/E-6 through his trial defense counsel.

	a.  The appeal was based on the contention that multiple errors had occurred in the conduct of the administrative reduction which entitled him to have his rank restored.

	b.  The applicant had previously received NJP as an SFC/E-7 under which he could not be reduced.  The charges were for minor misconduct of benign disrespect and failure to obey offenses that occurred in November 2007.

	c.  The administrative reduction board used the same evidence that was used in his NJP proceedings.

	d.  The applicant was represented by counsel, but the board had two attorneys who cross-examined the witnesses and argued to the board as to why the applicant should be reduced.

	e.  The applicant objected to the administrative reduction board at its inception, arguing that it was being held in lieu of misconduct proceedings.  He further contended that it was solely being held because the applicant was not reduced through NJP.  His challenge was denied.

	f.  The applicant's supervisor and previous supervisor testified to the board that he performed his military occupational specialty (MOS) 92Y (Unit Supply Specialist) duties to standard and that he performed as they would expect someone in the grade of E-7 to perform.

	g.  The applicant argued that the board was being held solely as a reduction board for misconduct which is not permitted by regulation.

	h.  The board considered an unsigned counseling form that was very inflammatory which the applicant denied ever seeing.

	i.  Counsel stated that when commanders become aware of misconduct, they have many options.  If charges against an E-7 are serious enough to warrant reduction, then court-martial charges could have been preferred or they could have requested a reduction through Headquarters, Department of the Army.  However, in this instance, the commander chose the easy way around the UCMJ and Army regulations by initiating NJP and following up with an administrative reduction board 6 months later.

	j.  Commanders should not be rewarded for this patently unfair action.  If they are not stopped from this conduct, commanders will have free reign to punish [senior noncommissioned officers] and higher for relatively minor misconduct and then attempt to reduce them by a board that is composed of hand-picked subordinates to the commander.

13.  On 14 November 2008, the Acting Commander, Fort Drum, concluded in response to the applicant's appeal of his reduction that the administrative reduction board proceedings were conducted in accordance with the requirements of Army Regulation 600-8-19 and that the board's findings that he had been inefficient as an SFC supported the decision to reduce him to SSG.  The applicant's appeal was denied.

14.  On 17 December 2008, the applicant filed a complaint with the Inspector General regarding illegal punishment rendered by his chain of command and improper judicial procedures.  On 26 January 2009, the applicant was informed that his case was closed because it was not an appropriate complaint for investigation by the Inspector General.  He was advised that he had the option of filing a grievance with this Board.

15.  On 14 March 2009, the applicant submitted a memorandum to OTJAG wherein he alleged that the actions of the Commander, Fort Drum, and the Commander, 10th Combat Aviation Brigade, had negatively and prejudicially impacted the appeal and review of his administrative reduction board.

16.  In a letter from the Staff Judge Advocate, Headquarters, U.S. Army Forces Command, dated 27 April 2009, the applicant was informed that his allegations involving attorney misconduct and mismanagement had been thoroughly investigated and were resolved in accordance with regulatory procedures.  However, the Privacy Act prevented disclosure of those resolutions.  The applicant was further assured that the Army follows its procedures and takes appropriate action against any Army lawyer who violates professional ethical standards or engages in mismanagement.

17.  Army Regulation 600-8-19 provides:

	a.  for a reduction board for Soldiers in the rank of SFC/E-7 for inefficiency;

	b.  that the reduction authority for SFC be a commander in the rank of colonel or higher assigned to the next higher level organization;

	c.  that reduction for inefficiency requires a demonstration of characteristics that shows that the person cannot perform the duties and responsibilities of the grade and MOS.  Inefficiency may also include any act or conduct that clearly shows 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;

	d.  that a reduction board, when required, will be convened within 30 days after written notification is given to the individual and –

* the board members will be appointed in writing
* the board is composed of unbiased officers and enlisted personnel of mature judgment and senior in grade or DOR to the person being considered for reduction
* at least one board member will be thoroughly familiar with the Soldier's field of specialization (inefficiency cases only)
* the board will consist of at least three voting members and will have both officer and enlisted voting members
* the board has an officer or senior enlisted member (or both) of the same gender as the Soldier being considered for reduction
* if the Soldier being considered for reduction is a member of a minority group, the board will, on written request of the Soldier, include an officer or senior enlisted member who also is a minority group member if such a member is reasonably available
* when requested, the appointed board member normally will be of the same minority group as the Soldier being considered; however, nonavailability of a member of the same minority group will not preclude convening of the board – in the event of nonavailability, the reason will be stated in the record of proceedings
* the board has a recorder without vote
* no Soldier with direct knowledge of the case is appointed to the board

	e.  that procedural errors or irregularities in a board will not generally invalidate the proceeding or any action of the convening authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to restore his rank to SFC/E-7 and to pay him all back pay due as a result of such a correction.  He further contends that his informal administrative reduction board was erroneously conducted resulting in his erroneous reduction from SFC/E-7 to SSG/E-6.  His rights and the provisions of Army Regulation 600-8-19 were violated.

2.  The applicant argues that the same evidence used in his NJP proceedings was used at his administrative reduction board and that the only reason this board was held is that he could not be reduced via NJP.

3.  The regulatory guidance clearly states that Soldiers in the rank of SFC/E-7 may be considered by an administrative reduction board when the characteristics show the person cannot perform the duties and responsibilities of the grade and MOS.  Inefficiency may also include any act or conduct that clearly shows 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.

4.  The applicant's NJP clearly shows he had a problem following orders and respecting his superiors.  These are basic attributes required of all NCO's.

5.  The applicant's NCOER for the period 26 March 2007 to 15 February 2008 concluded he should not be promoted or sent to training.  It reported his inabilities/difficulties:

	a.  to meet the values for loyalty and respect/EO/EEO;

	b.  to meet military bearing by being disrespectful and insubordinate;

	c.  to understand his duties as a staff NCO and a senior NCO; and

	d.  to prioritize his duties to meet suspenses and accomplish multi-task missions.

6.  The administrative reduction board found the applicant was inefficient in his position and recommended that he be reduced two grades.  The approving authority elected to reduce him only one grade.

7.  The available evidence indicates the administrative reduction board was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

8.  The applicant's appeal of his reduction was denied.
 
9.  The evidence provided by the applicant, while voluminous, is not convincing and does not show that any of his rights were violated.  His contention that the members of the administrative reduction board were hand-picked and biased is not supported by the evidence.

10.  Considering the many options available to the commander, the applicant could have been considered by an administrative separation board due to his misconduct.  Such an action would most likely have resulted in the applicant's discharge from the Army in the rank of private/pay grade E-1 with a general under honorable conditions characterization of service or worse.

11.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20100027147



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ABCMR Record of Proceedings (cont)                                         AR20100027147



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