IN THE CASE OF:	

		BOARD DATE:	  10 July 2014

		DOCKET NUMBER:  AR20140001729 


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 on the Fiscal Year (FY) 2014 Command Sergeant Major (CSM) Command Selection List (CSL).  He also requests a personal appearance before the Board.

2.  The applicant states:

	a.  His status on the FY14 CSM CSL needs to be reinstated because he was removed due to inaccurate and false information.  He was removed from the list due to a Standby Advisory Board (STAB) decision based on incomplete and inaccurate information.  Neither he nor the STAB had a complete copy of the U.S. Army Criminal Investigation Command (CID) official report, only the summary report which was inaccurate and opinion based.  The summary report did not validate or match the CID report and was opinionated or summarized, not factually written.

	b.  This is a case best heard in an appearance type-setting so the full scope of the person can be seen and viewed so he requests to be seen in person.

	c.  He believes if the completed CID report had been available and submitted, the STAB would have been able to review all of the facts and would not have removed him from the FY14 CSM CSL.  The STAB voted to remove him; however, he believes the current information, if it had been available, would not have required this decision.  The original summary that was submitted states, "I stated I worked as a contractor, that I admitted taking kick backs, and that I had taken a bucket of optics."  Now that the official report with all supporting statements is available, his sworn statement and interview show he never stated any of these comments.  These statements in the original summary were assumptions made by the special agent and derogatory and false in nature which impacted the board's decision and also defamed his character and professionalism.

	d.  Without the completed CID report, he had no proof until now that these statements were both inaccurate and false.  He asks the Board to look at this under the "whole Soldier concept" and "big picture" as to how these situations occurred.  He did nothing intentionally wrong and did not attempt to rob, steal, or make a profit off Army property or materials.  It was supporting circumstances that led to his actions and these actions were a mistake based on facts in front of him at the time, and not knowing the depth or proper procedures at the time.  These were learning lessons, not illegal or malicious in intent.  He was wrongfully painted in the CID summary that did not reflect his name or character.

3.  The applicant provides 31 enclosures as outlined on page 4 of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 July 1994.  He has remained on active duty through continuous reenlistments.

2.  In May 2000 while serving in the rank of staff sergeant, nonjudicial punishment was imposed against him for:

* failing to obey four lawful general regulations (manhandling and harassing privates)
* making a false statement

3.  Records show that while serving in the rank of master sergeant, he received a reprimand on 26 September 2012 for wrongful disposition of government property.  One of the exhibits (exhibit 13) in the CID investigation appears to be from a contractor, who stated he gave the applicant sights for testing and then allowed him to keep the sights.  The applicant was not promised anything nor was anything expected of him other than feedback.

4.  In December 2012, he was selected for appointment to CSM by the FY14 CSM CSL.

5.  On 3 June 2013, a STAB recommended removal of his name from the FY14 CSM CSL and the Director of Military Personnel Management approved the recommendation.
6.  He was promoted to sergeant major (SGM) effective 1 February 2014.

7.  He provided numerous character reference letters from senior officers and noncommissioned officers recommending his reinstatement on the FY14 CSM CSL.

8.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Enlisted Career Systems Division, Department of the Army Office of the Deputy Chief of Staff, G-1, dated 25 April 2014.  The advisory official recommends disapproval of the applicant's request.  The opinion states:

	a.  In accordance with the Office of the Deputy Chief of Staff, G-1, memorandum, dated 4 February 2008, subject:  Personnel Suitability Enlisted Review Board, CSM's selected for appointment to CSM are subject to a background suitability screening prior to appointment to CSM.  The suitability screening reviews derogatory information pertaining to individual Soldiers amassed throughout their careers which is collected and maintained in/at the U.S. Army Crime Records Center, the Department of the Army Inspector General's Office, and the Soldier's official military personnel file.

	b.  Because of the serious nature of some derogatory information and potential negative career impacts on the Soldier if removed from a selection list, the Army uses a two-board system to ensure that Soldiers in receipt of derogatory information are treated fairly and are afforded "due process."  The U.S. Army Senior Enlisted Review Board (USASERB), which convenes in the Army G-1, is the first board through which the Soldier's derogatory information is viewed.  This board reviews individual instances of derogatory information and determines in their estimation if the information is relevant to the Soldier's ability to serve at the next higher grade or level of appointment.  The USASERB is a recommending board only and can either clear the Soldier's file of further review or refer the Soldier to a STAB because of the seriousness of an offense.

	c.  The STAB is the authority to retain or remove the Soldier from the centralized selection list.  A Soldier whose derogatory information is referred to a STAB is notified by the U.S. Army Human Resources Command.  Soldiers are provided a copy of all derogatory information referred to the STAB and are afforded an avenue to refute or rebut the information to the STAB by memorandum.  The STAB, which is a separate board conducted during a regularly-scheduled Department of the Army centralized promotion board, is made up of both officers and noncommissioned officers who operate under a specific memorandum of instruction.  In the case of consideration for removal from a selection list, the board is to review the entire case and determine if the reported incident causes the Soldier to no longer be competitive.
	d.  The applicant was selected for appointment to CSM by the FY14 CSM CSL Board that convened in December 2012.  Consistent with Army policy, his file was reviewed by a USASERB conducted on 26 March 2013 and he was identified for referral to a STAB based on multiple instances of derogatory information as a result of that review.  The STAB convened on 10 June 2013 in conjunction with the conduct of the FY13 SGM Training and Selection Board.  His file (complete with correspondence he may have submitted on his behalf) was considered in his selection, along with all information authorized for consideration.  As a result of this review, the STAB recommended removing him from the CSM CSL.  The STAB recommendations were approved by the Director for Military Personnel Management on 26 June 2013 and duly executed.

	e.  His referral to the STAB was predicated on a pattern of misconduct; specifically, a field-grade Article 15 for physical and verbal abuse of trainees while serving as a drill sergeant on 3 May 2000 while serving in the rank of staff sergeant and for the more recent reprimand for wrongful disposition of government property on 26 September 2012.

	f.  There is no evidence a material error exists in this case.  It is the opinion of the Office of the Deputy Chief of Staff, G-1, that the applicant was afforded due process in accordance with all applicable policies concerning the STAB's recommendation to remove him from the FY14 CSM CSL and all applicable policies and processes were followed.

9.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 7 May 2014, he responded and stated:

	a.  He requests reinstatement on the FY14 CSM CSL.  He maintains that he was not afforded due process when his records were reviewed, both when the USASERB made a finding of a pattern of misconduct and when his case was referred to the STAB.

	b.  He questions whether the two incidents, separated by 8 years over a 
21-year career, constitute a pattern of misconduct.  These two isolated and unrelated incidents, separated by almost a decade, are errors in judgment and are not evidence of a coordinated plan or pattern of misconduct.  He was never afforded an opportunity to rebut the premise of a pattern of misconduct with the USASERB and thus his case was forwarded to the STAB.

	c.  He did receive an Article 15 that was placed in his restricted folder in 2000.  He was never given the opportunity with the USASERB to offer context for the circumstances behind the Article 15 he received.  It is imperative that the board consider the time and environment in the Army in the late 1990's and early 2000's.  This leadership style was based upon a direct, no-nonsense approach to training.  Looking back on the situation now, he obviously took the wrong approach.  However, he still believes he displayed a great deal of control, even at that level.

	d.  His first due-process issue/concern is that he was given little time to prepare a response in rebuttal to the STAB recommendation and he was not informed of the option to request additional time.  He was given 30 days to write a rebuttal.

	e.  His second due-process concern involves his difficulty in obtaining sound legal advice and assistance when submitting his response.  When he received the STAB notice, he was a student at the U.S. Army Sergeants Major Academy.  It was difficult to balance school work while trying to arrange for legal appointments.  When he drafted his rebuttal, he did not have access to a crucial piece of evidence, the CID report.

	f.  He requests consideration of the letters of recommendation provided by the senior officers and noncommissioned officers on his behalf when evaluating his character, integrity, trustworthiness, and reliability.

	g.  He contends that if the Army is going to use words or phrases like "patterns of misconduct," then he thinks it is only fair to look at "patterns of good conduct" as well.  During his 21 years of service in multiple units and various challenging duty positions, he has and continues to display a pattern of conduct that many can mirror or emulate.

	h.  He has given 21 years of dedicated service to the Army.  He has never asked for a break, an easy assignment, or dodged a challenge or deployment.  He has made a few mistakes along his path and he has learned from every single one of them.  He has grown as a solid, more-rounded leader because of these challenges.  These errors have taught him humility, modesty, and to be humble, and have given him "sympathy when needed" when dealing with Soldier issues as if they were his own.  Having learned from his own mistakes, he can now display to Soldiers the correct way to do business.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) governs operation of the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  It further states the Director or the ABCMR may grant a formal hearing whenever justice requires.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be reinstated on the FY14 CSM CSL because he was removed due to inaccurate and false information contained in a CID summary report.  However, the evidence shows his referral to the STAB was based on derogatory information detected during the standard CSM background suitability screening; specifically, a pattern of misconduct (Article 15 for physical and verbal abuse of trainees while serving as a drill sergeant in May 2000 and for a reprimand for wrongful disposition of government property in September 2012) 

2.  The evidence of record does not support his contention he was not afforded due process when his records were reviewed by the USASERB and the STAB.  The Army uses a two-board system (USASERB and STAB) to ensure that Soldiers in receipt of derogatory information are treated fairly and are afforded due process.  He admits he had 30 days to submit a rebuttal to the STAB's recommendation.  He has not provided sufficient evidence to show he was not afforded due process concerning the STAB's recommendation to remove him from the FY14 CSM CSL.

3.  The applicant was promoted to SGM.  Nevertheless, promotion to CSM requires a higher standard of integrity or perceived integrity.  He did receive an Article 15 in 2000 for misconduct committed while an NCO.  He contends he was never given the opportunity with the USASERB to offer context for the circumstances behind the Article 15 he received, but he was offered that opportunity when he accepted the Article 15.  

4.  He contends the CID summary report was inaccurate and opinion based.  However, at least one letter from a contractor acknowledged that he was given sights for testing and then allowed to keep the sights.  He was a contractor.  It is not credible that he would not know that keeping the sights would not have raised an issue with someone of an integrity issue on his part.  No matter if he did not have an integrity problem; there was a perception of an integrity problem.

5.  The letters of recommendation provided on his behalf were carefully considered.  However, since his military records contain derogatory information, there is no basis for granting his request for reinstatement on the FY14 CSM CSL.

6.  His request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision in his case.  Therefore, a personal appearance hearing is not warranted to serve the interest of equity and justice.

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)                                         AR20140001729



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ABCMR Record of Proceedings (cont)                                         AR20140001729



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