IN THE CASE OF:

		BOARD DATE:  12 December 2013

		DOCKET NUMBER:  AR20130019369 


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 reinstatement of his rank of sergeant (SGT)/E-5 and payment of back pay as appropriate.

2.  The applicant states:

	a.  On 6 March 2013 he received notice of an Administrative Reduction Board pursuant to Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions).  The board was held on 8 May 2013, at which time he was reduced from SGT to specialist (SPC)/E-4.  He appealed the decision on 31 May 2013 and the appeal was denied.  All administrative remedies have been exhausted at this point.  He contends the board was not conducted in accordance with (IAW) AR 600-8-19, resulting in error and injustice.

	b.  AR 600-8-19, paragraph 10-7a, requires the board members to be appointed in writing.  

		(1)  The 11 March 2013, Headquarters, 2d Squadron, 3d Cavalry Regiment, memorandum, Subject:  March 2013 Administrative Reduction Board, announces the administrative reduction board and lists the appointed board members.

		(2)  The 8 May 2013, Headquarters, 2d Squadron, 3d Cavalry Regiment memorandum Subject:  Administrative Reduction Board Proceedings announces the results of the board and provides the names of the board members.  The members are not the same as those listed on the 11 March 2013 memorandum.
	c.  Since he first learned of the actual composition of the board when he arrived at the board, he did not have the opportunity to investigate whether these members had acted in a capacity that may have been grounds for challenge.

	d.  The board notification he received has the subject "Reduction Board for Misconduct."  AR 600-8-19, Section II, allows reduction for misconduct.  However, this section required that the misconduct result in conviction from a civil court.  Since he has never been convicted by a civil court, AR 600-8-19, Section II, was improperly used in his case.  The board notification memorandum goes on to say, "the following misconduct and inefficiency will be reviewed, and lists 
six grounds for reduction.  Inefficiency is a proper grounds reduction and AR 600-8-19, paragraph 10-5, states that "CDRs may consider misconduct …as bearing in inefficiency."  However, in the following paragraph, this general principle is limited in that "(r)eduction for inefficiency will not be used…(i)n lieu of UCMJ Art 15."  Of the six grounds that were listed, items d, e, and f are clearly matters for which AR 600-8-19 was used in lieu of an Article 15.  A fourth item, b, is neither misconduct nor inefficiency.  It merely states he was investigated for misconduct, and not that he actually committed any misconduct.  Accordingly, of the six grounds listed, only two are proper grounds for reduction for inefficiency.  Thus, two-thirds of the allegations before the board should never have been considered.  This resulted in an unjust proceeding wherein the board's judgment was erroneously tainted by information that should not have been before them.

	e.  He received an Article 15 in August 2013, which dealt with several of the allegations included in the notification memorandum.  He had made repeated efforts to obtain a copy from his unit, but he has not been provided with a copy.  Thus, he has been punished twice, which is unjust. 

3.  The applicant provides copies of:

	a.  6 March 2013, Headquarters, 2d Squadron, 3d Cavalry Regiment, memorandum, Subject:  Written Notification to K____, D____ Administrative Reduction Board for Misconduct.

	b.  11 March 2013, Headquarters, 2d Squadron, 3d Cavalry Regiment, memorandum, Subject:  March 2013 Administrative Reduction Board, (first page only).

	c.  8 May 2013, Headquarters, 2d Squadron, 3d Cavalry Regiment, memorandum, Subject:  Administrative Reduction Board Proceedings.

	d.  His 31 May 2013 appeal of the administrative reduction board findings.
	e.  11 June 2013, Headquarters, 3rd Cavalry Regiment memorandum, announcing the applicant's appeal was denied.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army SPC.  He holds military occupational specialty 68W (Health Care Specialist).

2.  His records contain DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Reports) (NCOER) for the periods:

	a.  1 April 2012 through 8 February 2013.  This is a Change of Rater NCOER and shows the rater checked several "NO" blocks in Part IV(Army Values/Attributes/Skills/Actions).  The Rater entered in Part IV the bullet comments, in part:

* "failed to fulfill obligations of duty, loyalty, honor and integrity, lied to a Commissioned Officer"
* constantly placed selfless-service last by placing self before subordinates"

The "Needs Improvement” blocks are checked for "Competence," "Leadership," and "Responsibility and Accountability" in Part IV (Values/NOC Responsibilities).  The "Marginal" block is checked in Part V (Overall Performance and Potential).  The Senior Rater checked the "Poor" blocks for Overall Performance and Overall Potential.     

	b.   8 February through 8 May 2013.  This is a Relief for Cause NCOER.  The rating officials are different from the previous report but the ratings are similar.  The Rater entered in Part IV the bullet comments:

* "failed to complete assigned responsibilities as the Charge of Quarters, received UCMJ action"
* "made a false report during accountability formation, incorrectly reported one Soldier present for duty when absent from the formation"

3.  In support of his request he provides copies of several memoranda relating to an administrative reduction board.  He was reduced to SPC by that board.  The only documents pertaining to that board are those provided by the applicant.

4.  The complete facts and circumstances of his administrative reduction in grade/rank are not available. 


5.  AR 600-8-19, Section IV provides policy guidance for reduction boards.  Paragraph 10-7c(4), Failure to object states, Except for errors of jurisdiction, no error is substantial within the meaning of this paragraph as to a named individual before a reduction board if there has been a failure to object or otherwise bring the error to the attention of the president of the board.  Accordingly, errors described in the "substantial errors" above to which an individual or his or her counsel or other representative fails to being to the attention of the president of the board may be treated as a harmless error.

6.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record; it is not an investigative body.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was reduced to SPC by an administrative reduction board.  His appeal was denied.

2.  He contends his SGT rank should be restored with back pay as appropriate based upon several errors and injustice.

3.  There is no evidence showing the applicant made any objections or brought any of the alleged errors to the attention of the president of the board.
 
4.  The specific facts and circumstances surrounding his reduction in grade/rank are not available.  

5.  The regulations governing the Board’s operation begins with the presumption of administrative regularity and that his reduction action was conducted in accordance with applicable laws and regulations unless the applicant can provide evidence to overcome that presumption.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant’s 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 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)                                         AR20110010831



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ABCMR Record of Proceedings (cont)                                         AR20130019369



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