MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           13 March 2001                  
	DOCKET NUMBER:   AR2000049156

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

	Mr. Carl W. S. Chun		                        Director	
	Mr. Walter Avery, Jr.		                        Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Donald P. Hupman		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS: That his records be corrected by the removal of the noncommissioned officer evaluation report (NCOER) for the period January 1999 through June 1999.

APPLICANT STATES: That he received a relief-for-cause NCOER that was inaccurate, unjust and not supported by any competent documentation.  The contested NCOER was based on suspicion, rumor and a faulty sensing session.  In support of his application he submits copies of an AR 15-6 investigation, his appeal of the NCOER, and letters of support.

EVIDENCE OF RECORD: The applicant's military records show:

He last entered active duty on 27 December 1978, achieved the rank of master sergeant, and served until his voluntary retirement on 31 January 2001. 

On 20 June 1999 the results of an AR 15-6 investigation were reported regarding an improper relationship between the applicant and a female junior enlisted soldier.  The investigating officer (IO) found that without exception, almost all soldiers viewed the relationship between the applicant, who was the unit’s first sergeant (1SG) and SPC H. (his female driver) as unprofessional.  They often departed the site daily, often for a majority of the day, during field training exercises, to go back to garrison.  They both regularly took showers during these regular runs.  The soldiers perceived that SPC H. was exempt from details such as filling sandbags, pulling kitchen police and guard duty, while in the field, because she had a personal relationship with the 1SG, not because her duties took her elsewhere.  In those instances where she did pull duty she would be called back to support a mission for the 1SG (the IO pointed out that drivers are normally exempt due to the nature of their jobs.  Not being regularly assigned details strengthened the perception that favoritism was involved).  The applicant and SPC H. were often seen together in the personal vehicle of one or the other, both on and off duty, during lunch as well as other times, on and off post.  

The applicant explained many of these instances as “innocent”.  He did not confess, or remember ever being in a vehicle with SPC H. off-post.  SPC H. is extremely emotional and gets visibly upset when having arguments or executing certain directives given by the applicant, to the point of crying.  To many soldiers this type of emotional display indicates that there is a deeper relationship involved than just professional.  

On occasion, the applicant visited female rooms in the barracks and spent an inordinate amount of time talking to the occupants about things other than military related issues.  These visits made the soldiers feel awkward and uncomfortable. The applicant admits going to soldiers’ rooms to inspect and talk about solider issues and other items of interest and to get to know the soldiers that he leads.  He claims that he did not know that it made them uncomfortable.
The IO presented four findings.  Finding 1.  The applicant was involved in an unprofessional relationship with SPC H.  Finding 2: The applicant was not involved in the maltreatment of his subordinates.  Finding 3: The applicant’s and SPC H.’s behavior in dealing with each other was unprofessional.  Finding 4: The relationship existed since August 1998 when SPC H. arrived in the unit.  The company commander conducted an internal investigation in December 1998 and did not understand how the perception of the relationship between the applicant and SPC H. was affecting the unit.  He made a questionable decision when, although he did not uncover evidence that the two were in a romantic relationship, he decided to keep SPC H. as his orderly room clerk and leave her as the applicant’s driver.

Among the IO’s recommendations was the recommendation that the applicant receive a letter of reprimand and a relief for cause NCOER.

The NCOER for the period January 1999 through June 1999 shows the reason for submission as Relief for Cause.  The comments to support the relief-for-cause NCOER are “personal conduct was questionable at times”; “displayed poor judgement by maintaining an inappropriate relationship with a subordinate”; should not be considered for further schooling”; and “relieved due to improper superior/subordinate relationship.”  The applicant also received ratings of excellence in the areas of Physical Fitness & Military Bearing and Training.  The NCOER is signed by the applicant and the battery, battalion and brigade commanders.

In his NCOER appeal to the ESRB the applicant contended that the adverse statements reflected on his NCOER are not the results of any counseling statements, letter of reprimand or substantive evidence of any kind.  The relief for cause NCOER was based solely on suspicion, rumors and a faulty sensing session.  He offers that if there was a perception that his conduct was improper he should have been counseled immediately and given an opportunity to alter the perception.  In his summary of events, the applicant recalled that his driver SPC H. was assigned to him in September 1998.  In December 1998 in response to rumors the company commander conducted a commander’s inquiry of the applicant’s relationship with his driver.  The commander found the rumors to be without substance.  By June of 1999 the same soldiers restarted the rumors.  This time the brigade commander and sergeant major directed that a sensing session be done.  A sensing session had been held at least once a month prior to this brigade directed session with no accusations or even a hint of an improper relationship.  Shortly after the brigade directed sensing session the applicant was relieved of his duties by the battery commander.  

The applicant’s appeal contained excerpts from supporting letters, which suggested that he did nor have an improper relationship with a subordinate.  These letters state:
“My impression of the 1SG and SPC H.’s relationship is similar to the relationship between me and my driver or me and any of the orderly room clerks or drivers.”

“It was a constant struggle to keep the Brigade Command Sergeant Major (CSM) away from the applicant.  When the Brigade CSM would go into his area he only found negative things, never anything good.  My impression was he just didn’t like him (the applicant) and was always looking for a reason to get rid of him.”

“. . . During the investigation, the Commander found nothing but rumors.  This NCO should have been given the opportunity to correct this problem of perception on his own.”

“No one ever observed the applicant involved in an improper relationship with his driver or even maintaining a relationship with any subordinate in his unit on or off duty.  If so why did it take 6 months when we have sensing sessions monthly.”

“I personally observed the applicant on many occasions interacting with his soldiers in the unit, and his driver (SPC H.)  I never observed him involved doing anything improper.  This type of stuff is consistently going on in this battalion.  Soldiers around here start rumors all the time.  And in a lot of cases the chain of command responds to this stuff, questioning the unit leadership.”

“As a female 1SG, I was naturally the role model for the females in the battalion and in that capacity, I got to know his driver fairly well and at all times she denied this unfounded allegation.  I believe that I am a good judge of character, and I believe that she was telling me the truth.”

On 6 July 2000, the ESRB denied the applicant’s appeal of his relief-for-cause NCOER.

AR 623-205 (NCOER System) provides, in pertinent part, that a relief-for-cause is defined as the removal of a NCO from a ratable assignment based on a decision by a member of the NCO's chain of command or supervisory chain that the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the U.S. Army.

The same regulation provides that the minimum rater and senior rater qualification and the minimum rating period are 30 days.  The fundamental purpose of this restriction is to allow the rated NCO a sufficient period to react to performance counseling during each rating period.  Authority to waive this 30-day minimum period in clear-cut cases of misconduct is hereby granted to a general 
officer in the chain of command or an officer having general courts-martial jurisdiction over the relieved NCO.  The waiver approval will be in memorandum format and attached as an enclosure to the report.

The same regulation provides that when submitting an appeal, the burden of proof rests with the applicant and that they must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

A member of the staff of the Board contacted the applicant.  The applicant per the staff member’s request faxed a copy of the AR 15-6 investigation.  The applicant restated that neither during the commander’s inquiry or the sensing session were any of the rumors about him confirmed.  As an example, one of the lieutenants wrote that he discovered the applicant and the driver in a tent that was zippered up.  He offered that the tent was a sort of portable dayroom where soldiers could eat, relax or watch TV.  It was cold and at night.  The tent was closed to keep in the heat and to observe light and noise discipline.  When the lieutenant entered he and the driver were sitting there talking.  He stated that he had been a demanding 1SG on both soldiers and lieutenants.  He had experienced untrained soldiers in Southwest Asia and was determined that these soldiers would be trained.  The sensing session that led to this relief was conducted when the battery had been in the field for three days preparing for an upcoming deployment.  The soldiers had been driven constantly moving day and night, setting up equipment and then moving again.  When asked about their morale they responded negatively which led to the brigade directed sensing session, which led to his relief.  He explained that in retrospect the driver should have been moved.  However, at the time there was a shortage of soldiers and the move just never took place.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The contested report appears to represent a fair, objective and valid appraisal of the applicant’s demonstrated performance and potential during the period in question. Therefore, there is no basis for removing it from his records. 

2.  The applicant and his supporters point out that the NCOER was based on a misperception and that he was not counseled and given an opportunity to correct the perception on his own.  In fact, the December 1998 commander’s inquiry into his relationship with his driver should have provided all of the impetus the applicant needed to takes actions to correct the perceptions.  It appears from the AR 15-6 findings that not only did the applicant not heed the warning signs provided by the need for the commander’s inquiry, his conduct in other areas furthered the perception that he treated not just his driver but other females in his company differently.  After reviewing the evidence submitted by the applicant and the evidence of record, the Board is convinced that the applicant was counseled and was aware of the expectations of his rating chain, but failed to meet them.

3.  The applicant also contends that he was not counseled prior to receiving the relief-for-cause NCOER.  The governing regulation for NCOERs does not prohibit a relief for cause report based on the absence of performance counseling.  It does provide a safeguard for those in position less than 30 days.  Those in leadership positions, however, serve as long as their leaders have faith in them.  The battery, battalion and brigade commanders by their signature on the contested NCOER, indicated they no longer believed that it was in the best interest of the Army for him to serve as a 1SG.  The Board finds the contested NCOER meets all regulatory requirements, was properly reviewed by the ESRB and should not be removed.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jh  ____  ___jtm  __  ___dph__  DENY APPLICATION

						Carl W. S. Chun
					Director, Army Board for Correction
						Of Military Records

INDEX

CASE ID	AR2000049156	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010313	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.		
3.		
4.		
5.		
6.