IN THE CASE OF:	

		BOARD DATE:	    7 August 2014

		DOCKET NUMBER:  AR20130019076 


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 reversal of his reduction to the rank/grade of sergeant (SGT)/E-5 by an Administrative Reduction Board.

2.  The applicant states that his chain of command failed to document the alleged inefficiency through any counseling statements and made no attempts to rehabilitate the alleged inefficiency or even notify him of his perceived inefficiencies as required by Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-6.

3.  The applicant provides:

* Administrative Record Board Notification, dated 5 June 2013 with allied documents
* DA Form 2823 (Sworn Statement), dated 24 August 2013
* three DA Forms 4856 (Developmental Counseling Form)
* four DA Forms 2166-8 (Noncommissioned Officer Evaluation Reports (NCOER)) for the period 1 May 2008 through 26 February 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Regular Army and assigned to Joint Base Lewis-McChord, WA.

2.  He enlisted in the Regular Army on 2 February 1995.  He was promoted to staff sergeant (SSG) on 1 August 2008.

3.  His DA Form 2166-8-1 (NCOER Counseling and Support Form) shows that while assigned to 125th Forward Support Company, 1st Battalion (High Mobility Artillery Rocket System (HIMARS)), 94th Field Artillery Regiment he received his initial performance counseling on 28 September 2012.  On 14 December 2012, his performance summary listed the following entries in the areas of Army Values, Competence, Leadership, Training, and Responsibility & Accountability:

* had to be consistently reminded of daily tasks
* continually failed to brief his Soldiers daily
* lacks confidence in front of Soldiers
* failed to brief the Combined Federal Campaign (CFC) to Soldiers as ordered
* did not meet the equipment requirements; missing two water buffalos for the NCO academy detail
* performance is that of a lesser grade
* was relieved of all duties as the NCOIC of the Warrior Leader Course (WLC) Academy detail, replaced on the 29th day of a 30-day detail
* did not enforce commander’s policy on smoking in the training area during the C-IED lane training
* integrity was questioned by the unit commander for incidents that occurred in the training area
* was not responsible for the success of the CFC program

4.  His record contains several DA Forms 2166-8 between the period 
26 February 2009 through 26 February 2013 which reflect the following negative bullet comments:

* disrespected his platoon sergeant
* capable Soldier but fails to use his abilities to the fullest
* demonstrated a serious lack of duty and poor judgment without consideration of results
* failed to perform proper pre-combat checks on his Soldiers’ personal equipment which led to them being unprepared for deployment training events
* did not distribute information put out in meetings to his subordinates causing them to fall behind while preparing for training events
* has not demonstrated a can-do attitude above and beyond his peers
* do not promote; continue to develop at current grade
* send to Senior Leader's Course; could improve performance
* performance at current grade doesn't correspond with peers
* does not currently possess the potential to handle positions or assignments of increased responsibility
* failed to use time wisely, consistently failed to complete duty requirements
* relieved of duties as the NCO Academy detail NCOIC during the I Corps red cycle tasking for inefficiency
* did not provide purpose, direction and motivation to Soldiers under his charge during STX lane training, resulting in his team receiving multiple reprimands in the field
* promote behind peers
* NCO needs more grooming before he can assume responsibilities at the SSG level
* NCO should not attend anymore developmental courses until he performs to standard

5.  The applicant completed the Transportation Deploy/Distribution Senior Leaders Course at Fort Lee, VA on 14 December 2012.  His Academic Evaluation Report states that he received a Superior rating in Leadership skills based on his participation in the class flag detail.  Further, he spent countless hours coaching and mentoring his classmates ensuring they were focused and prepared for all examinations.  He was a self-motivated NCO with unmatched potential who should be challenged with assignments of greater responsibility.

6.  His Administrative Reduction Board packet was not available in his Official Military Personnel File (OMPF).  The following information was taken from the evidence submitted by the applicant.

	a.  A memorandum dated 5 June 2013, issued by 1st Battalion (HIMARS), 94th Field Artillery Regiment, Joint Base Lewis-McChord, WA notified the applicant to appear before a board of officers scheduled to convene on 9 July 2012 to determine whether he should be reduced in rank/grade for inefficiency.  The signature block shows the entry, "Soldier refused to sign."  This memorandum informed the applicant:

* if he failed to appear before the board due to being absent without leave, he could be reduced in rank/grade by the appointing authority without personal appearance before the board
* the hearing would be based on documentation provided indicating a lack of compliance
* the recorder upon written request would endeavor to arrange for the presence of any available and necessary witnesses desired
* his counsel should request all desired witnesses to ensure their presence at the board
	b.  On 30 June 2013, the applicant's counsel requested a delay in the hearing until 15 August 2013 to allow sufficient time to prepare his defense.

	c.  On 8 July 2013, the convening authority appointed members to serve on the applicant's Administrative Reduction Board. 

	d.  On 10 July 2013, a second memorandum of notification was sent to the applicant informing him of the recommendation for his reduction in grade and informed him of his rights.  The entry, "Soldier refused to sign," is shown in the signature block of this memorandum.  The applicant submitted one character reference from a fellow Soldier, dated 14 August 2013.  The character reference stated that he had served with the applicant for four years and had personal knowledge of his duty performance.  He found it hard to believe that the applicant's duty performance was determined to be inefficient after completing 
18 years of honorable service, attending the Senior Leader's Course, and being advanced to SSG.  The Soldier further contended that the applicant was a target of biased leadership.  The current leadership accepted the negative feedback from the outgoing leadership without question and had no written record of counseling or retraining to support their assessment.  This individual provided a sworn statement, dated 24 August 2013, stating the same.

7.  The Summary of Reduction Board Proceedings for his Administrative Reduction Board are not available for review.

8.  On 12 September 2013, the applicant appealed the results of his Administrative Reduction Board held on 15 August 2013 which determined he should be reduced in rank.  He contended that the board failed to present any statement of counseling or documented attempts at rehabilitation by his chain of command or supervisors.  Specifically:

* there was no counseling or anything to show any attempts at rehabilitation
* only three counseling forms presented, two relating to his board notification and the third, dated 6 March 2013, listed a litany of alleged acts of inefficiency
* there was nothing listed under the plan of action on the third counseling statement
* a lack of a counseling plan shows that there was no attempt to rehabilitate or improve the applicant's performance
* of note is the fact that the applicant's previous NCOER from a different command, dated 2009, shows his Senior Rater rated his performance and potential as "1/1"
* poor NCOERs without guidance on how to correct those perceived deficiencies was shocking
9.  On 13 September 2013, the appropriate authority disapproved the applicant's request for appeal.

10.  On 25 September 2013, Orders 268-02, issued by Headquarters and Headquarters Battery, 17th Fires Brigade, Joint Base Lewis-McChord, WA reduced the applicant to sergeant (SGT/E-5) effective 15 August 2013.

11.  The applicant submitted three DA Forms 4856 as described in paragraph 
6 of these proceedings.

12.  In connection with the processing of this case, an advisory opinion was received from the Chief, Department of the Army Promotions, U.S. Army Human Resources Command, on 7 January 2013.  The official recommended disapproval of the applicant's request.  He stated the applicant had two NCOERs containing negative actions, dated 25 February 2010 and 24 February 2011.  He did not have the same rater, senior rater, or reviewer on any NCOER received after 2009.  Also, the applicant signed his support form which would indicate that he was in agreement of his negative actions during the counseling periods dated
28 September 2012 and 14 December 2012.  The applicant was counseled on
6 March 2013 by his first sergeant (1SG) and this document shows that the applicant was reassigned within the section but did not have any Soldiers under his supervision.

13.  On 15 January 2014, the advisory opinion was forwarded to the applicant for acknowledgement/rebuttal.  No response was received by 14 February 2014.

14.  Army Regulation 600-8-19, chapter 10, provides procedures for the reduction of enlisted personnel.  Paragraph 10-6 lists the following criteria:

	a.  A Soldier must have served in the same unit for at least 90 days prior to being reduced one grade for 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.



	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 Uniform Code of Military Justice, Article 15

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

	d.  The commander reducing the Soldier will inform him or her in writing of the action contemplated and the reasons.  The Soldier will acknowledge receipt of the memorandum by endorsement and may submit any pertinent matter in rebuttal.

	e.  Authorized appeals will be filed within 30 duty days of the date of reduction.  Final action on appeals will be taken by the next higher authority above the reduction authority for grades SSG and below.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reversal of his reduction to SGT by an Administrative Reduction Board.

2.  He contends that his chain of command failed to properly document his alleged inefficiencies; however, the record shows he received a comprehensive initial counseling on 28 September 2012 detailing his required tasks/actions.  On 14 December 2012, he received an interim performance counseling which showed negative feedback in the areas of Army Values, Competence, Leadership, Training, and Responsibility & Accountability.  Also, records show that numerous shortfalls within the applicant's competence and leadership abilities were clearly reported on his performance counseling and evaluations forms as early as 2009.

3.  The applicant further contends that there was no attempt at rehabilitation.  The record shows that his Senior Rater (Platoon Sergeant) for the NCOER ending 27 February 2012 recommended that the applicant attend the SLC in order to improve his performance and that the applicant subsequently completed this course in December 2012.  His attendance at the SLC was part of an action plan to improve the applicant's leadership skills and his academic report reflects that he obtained superior ratings in leadership and group work. 

4.  In promoting him to SSG, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a staff sergeant, he was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  Although the applicant excelled in training, his performance evaluations and counseling statements shows a pattern of inefficiency in his daily work environment to such a degree that he violated this special trust and confidence.

5.  Evidence shows that the applicant was properly and equitably reduced in grade in accordance with Army Regulation 600-8-19.  His reduction was appropriate considering the seriousness of his misconduct and all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

6.  In view of the foregoing, there is an insufficient basis to reverse his reduction as a result of the recommendation of the Administrative Reduction Board.  

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)                                         AR20130019076





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ABCMR Record of Proceedings (cont)                                         AR20130019076



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