PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            6 February 2001                  
	DOCKET NUMBER:   AR2000042564

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that a 6 March 1995 memorandum of reprimand be removed from his official military personnel file (OMPF), that he be promoted to Sergeant First Class (SFC), pay grade E-7, effective 1 April 1996, and receive all due pay and allowances in that pay grade from that date, and that he be considered for promotion to Master Sergeant (MSG), pay grade E-8, on the date he otherwise would have been eligible, but for his removal from the SFC promotion list. 

3.  On behalf of the applicant, counsel states:

•	The applicant served honorably in the Army for more than 13 years.  His OMPF reflects significant accomplishments and performance of duty.  He was selected for Sergeant First Class after just 71/2 years of service.  His NCO evaluation reports (NCOER) are outstanding.  He has received numerous awards and certifications of course completions and certificates of achievement.  
•	The applicant was confronted with the allegation that he was engaged in a sexual relationship with a subordinate soldier by his battalion commander.  He initially denied the allegation; however, recanted his denial and stated that he had a one time sexual encounter with a soldier, which occurred in approximately August 1993, more than 6 months before she came under his supervision.  Consequently, the applicant was administratively reprimanded by his battalion commander, who determined that the reprimand should be placed in his local military personnel records jacket (MPRJ), and not his OMPF.  The applicant proceeded to a scheduled Advanced NCO Course (ANCOC), but was involuntarily recalled from that course prior to completion.  Unknown to the applicant, his group commander had directed an investigation under the provisions of Army Regulation 15-6.  The applicant was never interviewed by the investigating officer, nor provided a copy of the investigation for his comment.  
•	On 6 March 1995 he received a memorandum of reprimand from his group commander.  He provided a response in which he denied the asserted basis for the reprimand; however, the commander indicated that he would recommend removal of the applicant from the standing list for promotion to SFC.  The applicant applied to the DA Suitability Evaluation Board (DASEB) for the removal of the memorandum of reprimand from his OMPF.  That board denied his request, but directed that it be placed in the restricted portion of his OMPF.
•	Based on a recommendation by DA standby board, the applicant’s name was removed from the promotion list to SFC.  Although eligible for consideration and selection to SFC by the two following promotion boards, he was not considered.  He appealed the removal action on two occasions, and his appeals were denied (returned without action).
•	Counsel states that the letter of reprimand should be removed on procedural grounds because the applicant was not advised on his rights under Article 31, UCMJ.  Counsel also contends that the provisions of Army Regulation 15-6 and Army Regulation 600-37 were not complied with prior to initiating the memorandum of reprimand.
•	Counsel states that the memorandum of reprimand was based on a false allegation, that the applicant engaged in a sexual relationship with a soldier during the summer of 1994, while he supervised that soldier.  On                   29 July 1997 the applicant obtained a written statement from that soldier, in which she stated that she only had a one time encounter with the applicant in August 1993, prior to coming under the supervision of the applicant.  Additionally, on 30 June 1998 the applicant took an Army CID polygraph, in which he denied having sexual contact with the soldier while he supervised her.  The polygraph examiner opined that the applicant was not being deceptive.  Counsel states that the DASEB recognized the factual inaccuracy of the memorandum of reprimand by placing it in the restricted portion of the applicant’s OMPF.
•	Counsel states that the Total Army Personnel Command (PERSCOM) failed to follow the regulations when returning his appeal of the action removing him from the SFC promotion list.  Counsel states that the group commander failed to fully document the request for removal, and that he also failed to consider the applicant’s conduct before and after the alleged misconduct.  He also did not ensure that all other appropriate actions were taken before recommending the removal action.  The failure to comply with the mandatory provisions of the regulation denied the applicant the minimal provisions of due process.  The removal of the applicant’s name from the promotion list was inappropriate.  Counsel states that the General Officer exercising General Court Martial Convening Authority did not comply with the regulation in that he did not forward his recommendation to the applicant so that he might respond to the removal action. 
•	Counsel contends that the removal recommendation and the removal itself was based on the factual accuracy of the allegations set forth in the memorandum of reprimand.  The applicant has since compiled additional irrefutable direct evidence corroborating his statement and proving false the allegation that formed the basis for the memorandum of reprimand.  Consequently, counsel states that the applicant should be granted the relief requested.

4.  The applicant’s military records show:

•	The applicant entered the Army in 1986, trained as a supply specialist, and has remained on continuous active duty.  He did receive nonjudicial punishment under Article 15, UCMJ, on 24 November 1986 for striking a fellow soldier, and again on 1 January 1987 for five counts of larceny.  His NCO Evaluation Reports since his promotion to Sergeant in 1990 have been for the most part outstanding, with the notable exception of the report for the period February 1994 through January 1995 when he received a poor report because of the incident that he had with a female soldier.  Among his awards, he has received the Army Commendation Medal, five awards of the Army Achievement Medal, four awards of the Army Good Conduct Medal, and the Parachute Badge.  The military schools and courses he has completed are too numerous to list, comprising almost two pages of his personnel qualification record.  He has completed the basic NCO course, numerous courses in his specialty and in other specialties, the Army nonresident pre- commissioned course, and the battle staff NCO course, among many others.  The applicant was promoted to Staff Sergeant, pay grade E-6, on                   1 May 1991.  The performance portion of his OMPF shows that he attended ANCOC from 10 January 1995 through 22 February 1995, that he was rated superior in written and oral communications, and in leadership, and satisfactory in group work and research, on his academic evaluation report (DA Form 1059).  That report also shows that he was administratively relieved from the course because he was recalled by his unit. 
•	In a 14 February 1995 report of investigation (Tab 2), the investigating officer indicated that the incident had been investigated by the applicant’s battalion and company commanders, and that the battalion commander, having elicited an admission from the applicant that he did have sex with a female soldier, stated that he verbally counseled the applicant and read him a proposed letter of reprimand.  The battalion commander stated that he had yet to sign the letter of reprimand, but that it was his intention to ensure that the letter of reprimand and the appropriate NCO evaluation report was prepared (when required) and placed in the applicant’s military personnel records jacket.
•	The investigating officer found that the applicant did conduct an improper relationship with a female soldier, but could not be successfully prosecuted under the UCMJ for his actions.  He also found that the improper personal relationship could not be considered to be acts which constituted sexual harassment.
•	The investigating officer found that the battalion commander conducted a timely investigation but might have delayed in taking final action, although the applicant was aware of his intent to take such action.  
•	The investigating officer recommended that the battalion commander be advised that his delay in taking final administrative action (letter of reprimand) might appear as failure to take appropriate remedial action.
•	On 6 March 1995 the applicant’s group commander issued a memorandum of reprimand to the applicant for having an improper sexual relationship with a subordinate that he supervised in the supply section during the summer of 1994.  The group commander stated that, “This misconduct is outlined in the attached investigation UP AR 15-6.”  He informed the applicant that he intended to forward the memorandum to the Commanding General for permanent filing in his OMPF.  He stated that he was referring the reprimand to the applicant for comment (Tab 3).
•	In a 7 April 1995 response to the memorandum of reprimand (Tab 4), the      applicant stated that he initially denied having an improper relationship with a female soldier, but when confronted a second time, admitted that he had sex with the soldier, a single encounter that occurred in 1993, not 1994, during which time he was not her supervisor.  He was not her supervisor until January or February 1994 when he was reassigned to Headquarters and Headquarters Company supply room.  He did not repeat the encounter with the soldier, nor did that encounter influence his dealings with the soldier.  He stated that he provided memorandums from three soldiers who worked directly with him and the female soldier who attest to that fact.
•	In a 25 April 1995 endorsement to the Commander of the Civil Affairs and Psychological Operations Command (also at Tab 4), the group commander recommended that the action be forwarded to DA and that the applicant be removed from the standing list for promotion to Sergeant First Class.  The group commander stated that he was convinced by a preponderance of evidence that the applicant’s relationship continued with the female soldier during 1994 when he was her supervisor.  
•	On 4 August 1995 the Total Army Personnel Command (PERSCOM) informed the applicant’s command that the Enlisted Standby Advisory Board which adjourned on 16 June 1995 recommended removal of the applicant’s name from the promotion list of SFC, and that recommendation was approved on 12 July 1995.  The applicant was to be so informed (Tab 7).
•	In a 29 July 1997 statement, the female soldier who had a relationship with the applicant, stated that she had an improper relationship with the applicant in 1993, it did not recur, and that the applicant’s conduct towards her before and after was totally professional.  She was assigned under his supervision in January 1994.  She stated that the group commander’s assumption that the improper relationship happened during 1994 or 1995 was incorrect (Tab 11).
•	On 1 August 1997 the applicant submitted a rebuttal to the removal action from the SFC promotion list, providing much of the same information as he did in his response to the memorandum of reprimand.  Additionally, he stated that information on his NCO evaluation report for the period February 1994 through January 1995 was unfairly altered, that he was unjustly overlooked for subsequent promotions because of incorrect data in a computer information system, that he was never approached to make a statement (give his side of the story), that his conduct before and after the administrative action was not considered, and that he was unfairly removed solely because of an isolated act of misconduct.  His request was returned without action  stating in effect that he could appeal the removal action when the underlying action that formed the basis of the removal was subsequently determined to be erroneous based on facts that were not available or reasonably discoverable at the time of the original action, or for other compelling reasons. He was further informed that his appeal should be referred through command channels.
•	On 20 August 1998 the applicant appealed to the DA Suitability Evaluation Board (DASEB), requesting that the memorandum of reprimand be removed from his OMPF, or alternately that it be placed in the restricted portion of his OMPF (Tab 5).  He stated that the memorandum of reprimand was untrue, as evidenced by a CID polygraph examination, and that the memorandum had served its intended purpose.  His name was removed from the SFC promotion list, and he has been prevented from applying for warrant officer school because of the memorandum.  The applicant submitted a copy of a      1 July 1998 polygraph examination report conducted by a member of the      3d Military Police Group (CID) at Fort Bragg, North Carolina.  That report indicates that an analysis of the polygrams collected determined that the applicant was not being deceptive when answering the relevant questions, e.g., when he answered “No”  to the questions if he had sexual contact with a female soldier while he has her direct supervisor.  The applicant also submits letters of support and character references from 22 soldiers, officers, warrant officers, NCO’s (to include command sergeants major).  Those include a letter from his former commanding officer (who was his commander during the incident), and his former command sergeant major (who was his command sergeant major during the incident).  The latter individual stated that the battalion commander read the letter of reprimand to the applicant [the one that he failed to sign], that the commander did not flag the applicant, nor prevent him from attending ANCOC, and he (the command sergeant major) and the battalion commander were amazed when they learned that the applicant was being removed from ANCOC.  He stated that the applicant was treated unjustly by the higher command (group).
•	On 7 October 1998 the applicant was informed that the DASEB approved the transfer of the General Officer Memorandum of Reprimand (GOMOR) from the performance portion of his OMPF to the restricted portion (Tab 6).  He was informed that the transfer was not to be considered retroactive and did not constitute grounds for referral to a special selection board for reconsideration for a promotion nonselection. 
•	On 9 February 1999 the applicant appealed the NCOER he received for the period February 1994 through January 1995, citing substantive inaccuracy.  He stated that the evaluation alleged that he had engaged in an improper relationship with a junior enlisted soldier during the rating period, which was untrue.  He stated that his rater had withdrawn his original evaluation, contrary to his honest assessment of his performance and conduct, as a result of undue influence from the chain of command.  He stated that the rater’s comments on his original NCOER contained no negative comments and incorporated several positive comments not included in the final version.  He stated that the polygraph examination of 30 June 1998 clearly exonerated him of any misconduct during the rating period.  His former command sergeant major, his former rater, and his former senior rater supported him in his appeal, all stating that he did not have an improper relationship with a subordinate during the rating period.    
•	On 1 March 1999 the applicant resubmitted his appeal to the removal action from the SFC list.  He included a copy of the CID polygraph report, a copy of a letter of support from his former company commander, who stated that he wrote a letter of reprimand based on the instructions of the battalion commander, and filed it locally.  He also stated that the single encounter with the female soldier occurred outside of the applicant’s rating period, he and the applicant completed their portions of the NCOER and submitted it through the chain of command.  Although not instructed to change the NCOER, after discussion with the battalion commander, he (the company commander) did change it.  He felt compelled to follow what he believed were the intentions of his chain of command.  He stated that he supported the applicant’s appeal of his NCOER, total removal of the report from his record, and reinstatement of the applicant on the September 1994 promotion list.  The applicant also included a letter of support from his former battalion commander, who supported the applicant’s appeal of his NCOER, and stated that he believed that the applicant was truthful with him when he stated that there was no inappropriate contact with his subordinate.  He stated that the applicant’s case should be forwarded to a special selection board for reconsideration for previous non-selection for promotion.  The applicant also included letters of support from his former command sergeant major, from two other command sergeants major, and from two commissioned officers (Tab 9).
•	On 21 June 1999 his request was again returned without action with the reason given that the documents that he submitted did not reverse the underlying action that formed the basis for removal (Tab 10).
•	On 14 July 2000 the DCSPER Special Reviews Board directed that the applicant’s NCOER be amended to change the “No” to “Yes” in block 5 (Maintains high standards of personal conduct on and off duty), of Part IV – Values/NCO Responsibilities, of his NCOER for the period February 1994 through January 1995, and to delete the comment, “Displayed conduct unbecoming of an NCO by engaging in improper relationship with junior enlisted soldier.”  That board also directed that the rating in Part IVd (Leadership) be changed to “Success,” and that the comment, “Displayed poor leadership by engaging in improper relationship with junior enlisted soldier,” be removed from the NCOER.  It directed that Part Va (Overall potential for promotion and/or service in positions of greater responsibility) be marked “Fully Capable,” and that the “Fair” ratings be removed in Parts Vc and Vd (Senior rater comments on overall potential for promotion and/or service in positions of greater responsibility).
•	In a 2 January 2001 the applicant’s counsel provided a copy of a memorandum of that same date from the applicant’s former group commander (the colonel who issued the letter of reprimand to the applicant).  In that letter that officer stated that based on the review of the new evidence, e.g., the CID polygraph and that statement from his former battalion commander, the letter of reprimand should be removed from the applicant’s OMPF.  He stated that he supported the applicant in his NCOER appeal, that the applicant should be sent to the next ANCOC class and considered for promotion to Sergeant First Class.  He also stated that had he been provided with that evidence, he would not have issued the letter of reprimand. 
•	Information obtained from the Total Army Personnel Command (PERSCOM) on 11 January 2001 revealed that the applicant’s sequence number on the SFC promotion list was 339, and had he not been removed from the promotion list he would have been promoted to SFC on 1 July 1996.  The PERSCOM official also stated that had the applicant been promoted on that date, he would have been in the secondary zone for consideration for  promotion to Master Sergeant by the selection board that met on                    2 June 1999.  That official also stated that the applicant would have been considered by the selection board which convened on 31 May 2000, had he not been selected for promotion by the 1999 board.
•	The applicant’s restricted portion of his OMPF shows, among other documents, the applicant’s memorandum of reprimand, his appeal and supporting statements supporting his appeal, and the memorandum from the DASEB directing the transfer of the GOMOR to the restricted portion of his OMPF.  Documents also show his NCOER for the period February 1994 through January 1995, his appeal of that report, statements supporting the applicant in his appeal, the memorandum directing that his NCOER be amended, and the notification to the applicant thereof.        

CONCLUSIONS:

1.  The evidence indicates that sometime in August 1994 the applicant admitted to a sexual incident with a female soldier; and consequently, his battalion commander intended to issue a memorandum of reprimand to the applicant.  That memorandum, when issued, was to be placed in the applicant’s local military personnel records jacket.  This is borne out by the statements made by the applicant’s former battalion commander, his former company commander, and his former command sergeant major, which are included in the                       14 February 1995 report of investigation directed by the group commander.
The applicant’s former command sergeant major also so stated in his                 23 July 1997 letter supporting the applicant’s appeal of the memorandum of reprimand issued by the group commander.  His former company commander stated likewise in his 14 January 1999 letter supporting the applicant’s appeal of his NCOER.  The applicant is now supported by his former group commander in his efforts to remove the memorandum of reprimand from his OMPF and his appeal of his NCOER. 

2.  The applicant was recalled from ANCOC, issued a memorandum of reprimand by the group commander, which he appealed.  The DASEB transferred that letter from the performance to the restricted portion of his OMPF. The applicant also appealed the decision to remove him from the SFC promotion list, to no avail. 

3.  The applicant received a poor NCOER for the period February 1994 through January 1995.  He appealed that report.  He was supported in this appeal by his rater (his former company commander), his senior rater (his former battalion commander), his former command sergeant major, and his former group commander.  Although not removed from his OMPF, the NCOER was substantially changed to delete or amend all the derogatory information contained therein.

4.  Notwithstanding the decision by the group commander to reprimand the applicant for an improper sexual relationship with a female subordinate in 1994, his former battalion commander, company commander, and command sergeant major, believed this was not so – that an encounter occurred in 1993 prior to the female soldier being under his supervision.  His former group commander now also believes that the applicant did not have a relationship with a female subordinate in 1994.  That female soldier has herself so indicated in her 29 July 1997 memorandum.  The applicant’s polygraph examination indicates that he was not being deceptive when he denied having a relationship with the female soldier in 1994.  Letters from fellow soldiers support him in this regard.  Both the DCSPER Special Reviews Board, in amending his NCOER, appear to believe that the information concerning a 1994 relationship with a female soldier was incorrect.  The DASEB, in transferring the memorandum of reprimand to the restricted portion of his OMPF, attached credibility to his appeal of that memorandum.  Indeed, the preponderance of evidence suggests that he did not have an affair with a female soldier under his supervision in 1994.  Consequently, the information in the memorandum of reprimand is erroneous, and the issuance of that memorandum is unjust.      

5.  Had the applicant’s battalion commander followed through in issuing the applicant a memorandum of reprimand – for file in the applicant’s local military personnel jacket, as he intended and as evidenced by the statements enclosed with this application, the action by the group commander would not have occurred.  The applicant would have completed ANCOC and would have been promoted to Sergeant First Class on 1 July 1996.  He would have therefore been considered for promotion in the secondary zone by the Master Sergeant selection board which convened on 2 June 1999, and also by the 31 May 2000 board if not selected for promotion by the 1999 board.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.
RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by: 

     a.  Removing from the restricted portion of the applicant’s OMPF, the              6 March 1995 memorandum of reprimand, and all documents related thereto, e.g., the applicant’s appeal, supporting statements, and the 7 October 1998 memorandum informing the applicant that the DASEB had directed that the memorandum of reprimand be transferred to the restricted portion of his OMPF; 

     b.  Removing the 22 February 1995 Academic Evaluation Report                 (DA Form 1059) from the applicant’s OMPF and granting him constructive credit for completion of ANCOC effective 14 March 1995, the date that he would have ordinarily completed that course;  

     c.  Promoting the applicant to Sergeant First Class, pay grade E-7, effective and with a date of rank of 1 July 1996, and paying him all due pay and allowance in pay grade E-7 effective from 1 July1996; and 

     d.  Submitting the applicant’s records for consideration for promotion to Master Sergeant under the criteria of the 1999 selection board, and under the criteria of the 2000 selection board if not selected for promotion under the criteria of the 1999 board.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___tl____  ___rvo___  __wtm__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000042564	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010206	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1.  329	128.00	
2.	131.00	
3.	134.01	
4.		
5.		
6.