BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120018718 


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, restoration of his rank/grade to sergeant first class (SFC)/E-7.

2.  He states, on 30 August 2011, an administrative reduction board recommended he be reduced from SFC/E-7 to specialist (SPC)/E-4 for inefficiency.  The brigade commander approved the recommendation, and he has been ordered to wear the insignia of SPC/E-4, receive pay, and undergo a permanent change of station to Korea in that rank/grade. 

3.  He states Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-2, provides that in order to be reduced for inefficiency, there must be a pattern of inefficiency.  If there is no pattern, an administrative reduction board cannot be used in lieu of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  He believes he has been treated unjustly, as other senior noncommissioned officers who have been cited for driving under the influence and other violations of the UCMJ have not received this type of punishment.  Until recently, he had a distinguished record during the first 15 years of his career.  There was no significant hard evidence against him, and he was not afforded the opportunity to defend himself properly as he could have if given an Article 15 of court-martial.  He believes the brigade went around regulations to benefit their own personal beliefs.

3.  He provides:

* correspondence from the Army Review Boards Agency, dated 6 June 2012
* memorandum, subject:  Report of the Investigating Officer (IO), dated 11 March 2011
* memorandum, subject:  Legal Review of [Army Regulation] 15-6 [Investigation] into the Actions of [Applicant], dated 14 March 2011
* memorandum, subject:  Informal [Army Regulation] 15-6 Investigation of Kneedraggers Motorcycle Club, dated 20 June 2011
* memorandum, subject:  Legal Review of [Army Regulation] 15-6 Investigation ("Knee Draggers" Motorcycle Club), dated 10 June 2011
* letter to his brigade commander, dated on or about 16 September 2011
* letter to an unidentified party, undated
* memorandum, subject:  Rebuttal-Memorandum [of] Reprimand (RE:  Applicant) (20APR11), dated 26 April 2011
* memorandum, subject:  Administrative Reduction Board Proceedings, dated 12 September 2011
* Sergeant Morales Club Certificate of Membership
* 11 statements of support from enlisted members and officers (six are undated and the remainder show dates in April and May 2010)

CONSIDERATION OF EVIDENCE:

1.  With prior service in the Oregon Army National Guard, on 22 August 1996, the applicant enlisted in the Regular Army (RA).  His record shows he has served in the RA since that date.

2.  His Noncommissioned Officer Evaluation Report (NCOER) for the period      10 December 2009 to 31 May 2010 shows the report was submitted for relief for cause and signed by the applicant on 5 August 2010.  His principal duty was entered as "platoon sergeant."

	a.  In Part IV (Army Values/Attributes/Skills/Actions (Rater)), his rater marked the boxes for "NO" for honor and integrity and entered, in part:

* compromised integrity by allowing and partaking in inappropriate behavior between Soldiers
* moral standards were not what is demanded of a leader in the United States Army
* relieved from platoon sergeant duties due to inappropriate conduct with his subordinates
* leadership style caused the demise of the platoon; pitted each Soldier against one another [sic] and hindered the [platoon's] ability to perform its daily mission
	b.  In Part V (Overall Performance), his rater indicated his overall potential for promotion and/or service in positions of greater responsibility was "marginal."  His senior rater indicated his overall performance and potential for promotion were "fair."  The senior rater entered:

* do not promote at this time
* do not send to next level of NCO Education System until he demonstrates better moral standards
* has the potential to lead well; must demonstrate that potential on and off duty and in all Soldier interactions

3.  Effective 10 August 2010, he was promoted to SFC/E-7.

4.  On 11 March 2011, an investigating officer (IO) reported the findings and recommendations of an informal investigation of the applicant conducted under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).  

	a.  The IO reported he had determined the applicant had an inappropriate relationship with a junior enlisted member but that there was not sufficient evidence to prove any adultery charges against the applicant.

	b.  The IO recommended taking action against the applicant under the UCMJ and issuance of a no-contact order between the applicant and the junior enlisted member.

5.  On 14 March 2011, a judge advocate stated she had reviewed the investigation and found it:

* complied with all applicable legal requirements
* adequately addressed the matters in question
* supported the findings of the IO

The judge advocate further found the IO's conclusions and recommendations to be consistent with the findings.

6.  On 4 April 2011, the applicant's brigade commander, a colonel (COL)/O-6, recommended the applicant receive a general officer memorandum of reprimand (GOMOR) for his inappropriate relationship.  His brigade commander also requested delegation of authority to dispose of the issue with an administrative reduction board.

7.  His NCOER for the period 1 June 2010 through 14 March 2011 shows the report was submitted for relief for cause and signed by the applicant on 13 April 2011.  His principal duty was entered as "assistant operations sergeant."

	a.  In Part IV, his rater marked the boxes for "NO" for selfless service, honor, and integrity and entered:

* demonstrated a serious lack of integrity and poor judgment by engaging in an inappropriate relationship
* flawed character; failed to live up to the Army Values
* did not meet the standards in his duty performance as a senior NCO and leader

	b.  In Part V, his rater indicated his overall potential for promotion and/or service in positions of greater responsibility was "marginal."  His senior rater indicated his overall performance and potential for promotion were "fair."  The senior rater entered:

* do not promote
* do not send to [U.S. Army Sergeants Major Academy] until capable of correcting leadership flaws
* marginal performance as the Assistant S-3 [NCO in charge]
* has the potential to serve in positions of greater responsibility but needs further mentorship and training

8.  On 15 April 2011, Major General (MG) Q, Commander, U.S. Army Maneuver Support Center of Excellence, Fort Leonard Wood, MO, approved the brigade commander's request to release authority for disposition.

9.  The performance portion of his Army Military Human Resource Record (AMHRR) contains a GOMOR, dated 15 April 2011, signed by MG Q.  The GOMOR reprimanded the applicant for engaging in an inappropriate relationship with a junior enlisted Soldier who was a direct subordinate of the applicant's wife.  It shows the applicant:

* had contact of a personal nature with the junior enlisted Soldier that totaled 745 text messages and 19 telephone conversations
* interacted with the Soldier on a personal and physical level inappropriate for a senior NCO and a married man
* had previously been involved in an incident in which sexually explicit photographs were sent via cell phones to junior Soldiers
* had previously been involved in an adulterous relationship with a local civilian woman who was not his wife
10.  On 20 April 2011, he acknowledged he had read and understood the GOMOR, and he indicated his intent to submit written matters in defense, extenuation, or mitigation.

11.  In a memorandum, subject:  Rebuttal-Memorandum [of] Reprimand (RE:  Applicant) (20APR11), dated 26 April 2011, the applicant asked MG Q to remove the reprimand.  He stated he accepted responsibility for his actions and requested the GOMOR be removed due to an inconclusive investigation and false official statements made by witnesses.   

12.  His chain of command recommended the GOMOR be permanently filed in his AMHRR.  

	a.  His battalion commander stated, "The temporary nature of a 'local file' would not deter this NCO from further amoral behavior.  He has not shown to be repentant in any way."

	b.  His brigade commander stated, "This is a slimy NCO.  Cannot believe what he says."  

13.  On 12 May 2011, after careful consideration of the circumstances of the misconduct, matters submitted by the applicant in defense, extenuation or mitigation, and recommendations of subordinate commanders, MG Q directed the GOMOR be placed permanently in the applicant's AMHRR.  

14.  His AMHRR does not contain records of an administrative reduction board.  However, the Integrated Total Army Personnel Database (ITAPDB) shows he is currently serving as a SPC/E-4 with a date of rank of 12 September 2011.

15.  He provides, in part:

	a.  A memorandum, subject:  Informal [Army Regulation] 15-6 Investigation of Kneedraggers Motorcycle Club, dated 20 June 2011, showing an IO investigated several Soldiers' affiliation with and participation in the subject motorcycle club.  

		(1)  The IO found five members of the 4th Maneuver Enhancement Brigade were members of the club, and three of the five, including the applicant, were identified as having participated in careless and imprudent motorcycle operation.  

		(2)  The IO found the applicant was and continued to be negligent by promoting unsafe acts as the organization's local chapter founder and leader.  The IO found the applicant was further negligent by recruiting junior enlisted members within his battalion to become members of the organization.  He found the applicant and two others had violated Article 92, UCMJ, by violating command policy regarding motorcycle safety.  The applicant was also found to have violated Article 134, UCMJ, through conduct prejudicial to good order and discipline as the founder, leader, and coordinator for the organization.  

		(3)  The IO recommended the applicant and two others lose on-post motorcycle privileges for a period of 1 year.  The IO further found the applicant should receive a nonjudicial field grade Article 15 followed by initiation of administrative separation for violation of Articles 92 and 134, UCMJ.

	b.  A memorandum, subject:  Administrative Reduction Board Proceedings, dated 12 September 2011, showing an administrative reduction board convened on 30 August 2011 in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 10.  The board recommended the applicant be reduced from SFC/E-7 to SPC/E-4 for inefficiency.  

	c.  A letter to the reduction authority in which he described his desire to continue to be a leader and NCO.  He asked the separation authority to consider that he had already received a GOMOR and a relief for cause NCOER.

	d.  A letter to an unknown party in which he stated a reduction board convened in August 2011 recommended he be reduced from E-7 to E-4.  He stated:

* the reduction authority apparently approved the recommendation
* he was ordered to wear the reduced rank
* it had been almost a year and he had yet to see reduction orders in his record
* he was still being paid as an E-7 and had been told he owed back over $19,000 in pay
* he petitioned this Board to restore his rank, but his request was returned without action due to the absence of record of a reduction board or orders showing he was reduced

	e.  Eleven statements of support from enlisted members and officers commending his performance as an NCO.

16.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  It states commanders of organizations authorized a commander in the grade of COL/O-6 or higher may reduce Soldiers from the rank/grade of SFC/E-7.  Chapter 10, Section III, provides for reductions for inefficiency.  
	a.  Inefficiency is a demonstration of characteristics that shows that the person cannot perform duties and responsibilities of the grade and military occupational specialty.  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.

	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 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.

		(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 Article 15, UCMJ.

		(3)  To reduce a Soldier for a single act of misconduct.

	d.  A reduction board, when required, will be convened within 30 days after written notification is given to the individual.  The convening authority will ensure that a reduction board consists of three voting members meeting qualifications listed in Section III.  

	e.  The convening authority may approve or disapprove any portion of the recommendation of the board.  The convening authority may not increase the severity of the board’s recommendation.  

	f.  Approved reduction recommendations are effective immediately without regard for appeal procedures unless suspended by the convening authority.  In the instance of reduction for inefficiency, the convening authority may direct suspension of the reduction for a period not to exceed 6 months.  If the suspension is not vacated during this period, reduction may be only accomplished by convening a new reduction board.

	g.  Authorized appeals will be filed within 30 duty days of the date of reduction.  Final action on appeals will be taken by the first general officer in the chain of command above the reduction authority for grades SFC through Command Sergeant Major.

	h.  Reduction is announced in orders, except for reduction imposed as NJP under Article 15, UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for restoration of his rank/grade to SFC/E-7.

2.  Army Regulation 600-8-19 states inefficiency may 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.  His record clearly shows a pattern of inefficiency.  He was relieved for cause twice, and he received a GOMOR for having an inappropriate relationship with a junior enlisted Soldier.  Further, an Army Regulation 15-6 investigation completed subsequent to the imposition of the GOMOR found he had also violated two UCMJ articles.  The record clearly shows a lack of the abilities and qualities required of an NCO, especially a senior NCO, warranting reduction to a junior enlisted grade.  

3.  Although his record does not include the orders reducing him to SPC/E-4, his record in the ITAPDB shows he is currently serving as a SPC/E-4 with a date of rank of 12 September 2011.  The rank and grade are what was recommended by the administrative reduction board, and the date of rank is the same as the date of the board.  He states the board recommendation was approved by a proper authority.  

4.  The absence of reduction orders in his record is not evidence that his reduction was improper or inequitable.  In the absence of evidence showing otherwise, it must be presumed he was properly reduced in accordance with the governing regulation.  If he now requires a copy of the orders reducing him, he may contact the headquarters responsible for his reduction.

5.  In view of the foregoing, there is no basis for granting the requested relief.


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)                                         AR20120018718





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ABCMR Record of Proceedings (cont)                                         AR20120018718



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