IN THE CASE OF:	  

		BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20130016851 


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 his earlier request for restoration of his rank/grade of sergeant first class (SFC)/E-7 with back pay and allowances. 

2.  The applicant states:

	a.  The outcome of his administrative reduction board could and/or would have been different had there not been prosecutorial interference by the legal advisor and/or recorder in a role similar to conduct in a formal Army Regulation (AR) 15-6 (Procedures of Investigating Officers and Board of Officers) board and/or an Article 32 hearing.  This wasn't called for and unfairly prejudiced and adversely impacted his individual rights.  Having the command's legal advisor prosecute the administrative reduction board also created an impermissible air of unlawful command influence.  In light of the information that has been provided and/or the allegations that have surfaced, it is highly unlikely that the administrative reduction board was conducted in a fair and impartial manner, or that it was reviewed in an objective manner.  Based on the facts and circumstances of this particular case, full restoration of grade is in the best interest of the Army and the Soldier. 

	b.  Also, there were several points/issues that were not specifically addressed at all in the previous findings and/or decision:

		(1)  No known precedent for undoing rights violations exists.  If it does, this would need to be specifically addressed.  This is a substantial error that cannot be corrected otherwise.  Therefore, as a result of the substantial legal rights violations resulting from the alleged prosecutorial misconduct, the administrative reduction board proceeding (findings and recommendations) would most likely have to be set aside and/or be rendered null and void.  This was not specifically addressed at all in the previous findings and/or decision.

		(2)  AR 15-6 does not apply when it pertains to the conduct of an informal administrative reduction board; yet, the conduct of the board mirrored that of a formal AR 15-6 proceeding.  AR 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-8(h)(5)(i) clearly states that AR 15-6 procedures don't apply for an informal administrative reduction board.  This was not specifically addressed at all in the previous findings and/or board decision.

		(3)  The Office of the Judge Advocate General (OTJAG) investigation closure letter does indicate that allegations of professional misconduct were investigated and resolved in accordance with AR 27-1 (Military Justice).  Also, this was not specifically addressed at all in the previous findings and/or board decision. However, no indication and/or mention was made of how the investigation was resolved with regard to:

			(a)  His rights being violated and how this will be undone.

			(b)  The erroneous reduction of the rank SFC/E-7 and how this will be undone.  Why this will be undone and/or not undone? This was not specifically addressed at all in the previous findings and/or board decision.

			(c)  His defense counsel being ignored at every turn when objections were made during and after the administrative reduction board proceedings as to the legality in accordance with AR 600-8-19, paragraph 10-8(h)(5)(i).  Why is AR 15-6 not applicable for an administrative reduction board?  Why is it mentioned in the rules if it would have an adverse impact his individual rights? 

			(d)  His rights were violated at the very instant that proceedings mirrored that of an AR 15-6 proceeding, which was used in conducting the informal administrative reduction board in a prejudicial way.  This was not specifically addressed at all in the previous findings and/or board decision.

			(e  Why and/or why not was this a substantial error that would need to be corrected?  

			(f)  Why and/or why not were the actual results of the OTJAG investigation closure letter that was resolved in accordance with AR 27-1 discussed and/or specifically mentioned?  Also, this was not specifically addressed at all in the previous findings and/or board decision.
3.  The applicant provides a new argument. 

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100027147, on 23 June 2011.

2.  The applicant provides a new argument that was not previously considered.  This new argument constitutes new evidence and warrants consideration by the Board. 

3.  Having had prior enlisted service in the Regular Army (RA), the applicant enlisted in the U.S. Army Reserve (USAR) on 25 February 1997.  He was promoted to staff sergeant (SSG)/E-6 on 22 February 1999.

4.  He was promoted to SFC/E-7 in the USAR on 1 September 2002.  He entered active duty on 27 January 2003 and he was honorably released from active duty on 9 January 2004.  

5.  He enlisted in the RA in the rank/grade of SFC/E-7 on 22 March 2007.  He held military occupational specialty (MOS) 92Y (Unit Supply Specialist).  Following his enlistment, he was assigned to Headquarters and Headquarters Company, 10th Combat Aviation Brigade, Fort Drum, NY.  

6.  On 16 January 2008, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* disrespecting a superior commissioned officer on 16 November 2007
* willfully disobeying a lawful order from his first sergeant (1SG) on 28 August 2007
* willfully disobeying a lawful order from his command sergeant major on 19 November 2007
* willfully disobeying a lawful order from his first sergeant on 28 August 2007
* willfully disobeying a lawful order from his 1SG on 19 November 2007
* twice being disrespectful in language toward his 1SG on 19 November 2007

7.  The imposing officer, a brigadier general (BG), found the applicant guilty of all specifications and imposed a forfeiture of $1,000.00 pay per month for 2 months. The applicant did not appeal the punishment.
8.  During the month of February 2008, he received a change of rater Noncommissioned Officer Evaluation Report (NCOER) covering the rating period 26 March 2007 through 15 February 2008 for his duties as a Unit Supply Sergeant.

* His rater placed a "No" in the "Loyalty" and "Respect" blocks
* His rater rated his performance as "Needs (Much) Improvement" in the area of Physical Fitness and Military Bearing
* His rater rated his performance as "Needs (Some) Improvement" in the areas of Leadership and Training
* His rater rated his overall potential for promotion as "marginal"
* His senior rater rated his overall performance as "Fair" and his overall potential as "Poor"

9.  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.

10.  An administrative reduction board convened at Fort Drum, NY, and found the applicant was inefficient in his position under the provisions of AR 600-8-19, chapter 10, section III, by reason of his pattern of insubordination which clearly demonstrated he lacked the ability and qualities required and expected of an SFC/E-7 with 27 years of combined USAR and active duty time.  The board recommended that the applicant be reduced two pay grades to pay grade E-5.

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

12.  Accordingly, on 27 August 2008, Headquarters, 10th Combat Aviation Brigade, published Orders 240-01, reducing him to SSG/E-6 effective 22 August 2008, in accordance with AR 600-8-19.

13.  On 18 September 2008, the applicant submitted an appeal to his administrative reduction to SSG/E-6 through his trial defense counsel.  He made a lengthy argument in regard to multiple errors in the conduct of the administrative reduction, the inferiority of the NJP charges, and the fact that the  administrative reduction board used the same evidence that was used in his NJP proceedings.  In his appeal, he and/or his counsel argued: 

	a.  He was represented by counsel, but the board had two attorneys who cross-examined the witnesses and argued to the board as to why he should be reduced.
	b.  He 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 he was not reduced through NJP.  His challenge was denied.

	c.  His supervisor and previous supervisor testified to the board that he performed his MOS 92Y duties to standard and that he performed as they would expect someone in the grade of E-7 to perform.

	d.  The board was being held solely as a reduction board for misconduct which is not permitted by regulation.

	e.  The board considered an unsigned counseling form that was very inflammatory which he denied ever seeing.

	f.  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.

	g.  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.

14.  On 14 November 2008, by memorandum, the Acting Commander, Fort Drum, notified the applicant that he had reviewed his appeal of his reduction from SFC for inefficiency.   He also informed him that the case record shows the administrative reduction board proceedings were conducted in accordance with the requirements of AR 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.

15.  On 17 December 2008, the applicant filed a complaint with the Fort Drum Office of the Inspector General (IG) regarding illegal punishment rendered by his chain of command and improper judicial procedures.  He made an argument that was essentially similar to his appeal of the administrative reduction. 

16.  On 26 January 2009, by letter, an IG official notified him that his case was closed because it was not an appropriate complaint for investigation by the IG.  He was advised that he had the option of filing a grievance with this Board.

17.  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.

18.  On 27 April 2009, by letter, a Staff Judge Advocate from Headquarters, U.S. Army Forces Command, notified the applicant 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.

19.  On 13 November 2009, the applicant submitted a request for voluntary retirement by reason of having completed 20 or more years of active service.  His request was approved. 

20.  He retired on 31 October 2010 and he was placed on the Retired List in his retired rank/grade of SSG/E-6.  He completed 20 years, 5 months, and 26 days of creditable active service. 

21.  On 29 October 2010, he petitioned the Army Board for Correction of Military Records (ABCMR) for restoration of his rank of SFC with entitlement to back pay and allowances.  On 23 June 2011, the Board unanimously denied his request. 

22.  AR 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  

23.  AR 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  Inefficiency is 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 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.  The regulation allows/states/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 was a senior NCO in the rank/grade of SFC/E-7 in a combat aviation brigade.  He demonstrated characteristics that led his chain of command to conclude he could not perform duties and responsibilities of the grade and MOS.  His acts of misconduct showed he lacked those abilities and qualities normally required and expected of a Soldier of his grade and experience.  Accordingly, his chain of command referred him to an administrative separation board.  

2.  The governing regulation is clear in 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.  His chain of command considered the misconduct as bearing on inefficiency. 

3.  The applicant's NJP clearly shows he had a problem following orders and respecting his superiors.  These are basic attributes required of all NCOs.  Additionally, his NCOER for the period 26 March 2007 to 15 February 2008 concluded his overall performance was fair and his potential was poor.  He was unable to live up to the values of loyalty and respect.  Likewise, he was unable to meet military bearing or understand his duties as a senior NCO.  

4.  An 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.  The available evidence shows his administrative reduction board was conducted in accordance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He appealed his reduction but his appeal was denied by the next higher commander. 

5.  Although he re-argues the same issues in his current application, he questions certain issues and contends these issues were not specifically addressed at all in the previous findings and/or decision: 

	a.  He contends that "No known precedent for undoing rights violations exists" and "if it does, this would need to be specifically addressed; this is a substantial error that cannot be corrected otherwise."  It is unclear what the applicant is contending.  Nevertheless, ABCMR decisions do not set or establish precedence.  Each case is considered on its own merit.   He does not state what the substantial error is. 

	b.  He contends AR 15-6 does not apply when it pertains to the conduct of an informal administrative reduction board; yet, the conduct of the board mirrored that of a formal AR 15-6 proceeding.  The applicant was considered by an administrative reduction board.  Any conclusive similarities between this reduction board and other processes within the Army system are not only coincidental and inadvertent but they also do not invalidate the outcome of the administrative reduction board.  

	c.  He contends the OTJAG investigation closure letter does indicate that allegations of professional misconduct were investigated and resolved in accordance with AR 27-1.  The OTJAG investigation is not available for review with this case.  The Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  Since the ABCMR is not an investigative agency in the absence of a showing of material error or injustice there is not a sufficiently compelling reason for a non-investigative agency - this Board – to investigate OTJAG investigations. 

	d.  He contends his rights were violated.  The evidence of record clearly shows he was notified of the administrative reduction board, acknowledged it, consulted with and was represented by counsel, participated in the board proceedings, and submitted an appeal.  It appears no rights were violated. 

	e.  He contends his reduction was erroneous and questions how it will be undone.  In its original findings, this Board neither suggested nor indicated that his reduction will be undone.  His reduction is a natural outcome of his inefficiency. 

	f.  He contends his defense counsel was ignored at every turn when objections were made during and after the administrative reduction board proceedings.  This issue which appears to be speculative at best should have been raised during the proceedings or in the appeal process.  This would have been the proper forum to bring up any contentions.  

6.  The applicant's administrative reduction board was conducted in accordance with law and regulations.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, he is not entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AR20100027147, dated 23 June 2011.



      _______ _   _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)                                         AR20130016851





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ABCMR Record of Proceedings (cont)                                         AR20130016851



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