MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 April 1999                   
	DOCKET NUMBER:   AC92-07225B
				   AR1999014751

	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. Loren G. Harrell		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Thomas A. Pagan		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:  In response to the Board’s Reconsideration Project, reconsideration of his previous applications to correct his records by expunging the records of two 1986 nonjudicial punishments (NJPs) under Article 15 UCMJ from his restricted portion of his Official Military Personnel File (OMPF), by expunging an Enlisted Efficiency Report (EER) for the period May 1985 to April 1686 from his performance fiche and by reconsidering him for promotion to pay grade E-7.  

Additionally he requests that an NCOER for the period August 1993 to March 1994 be expunged.  He also requests that he be considered for promotion under the 1991 guidelines and subsequently considered for promotion to pay grade E-8.  He provides a page of handwritten notes about his selection board history to substantiate this request.  

APPLICANT STATES:   Finally, he claims that the Board deprived him of due process by mistakenly considering the first of his three NJPs. He also faults the Board’s decision because his rater was the OIC for medical supply rather than the company supply officer and because the Board improperly identified the officer imposing the third NJP.  He also contends that the Board erred by not being convinced by the evidence on racial discrimination he presented.  He notes that this evidence had already led to the setting aside of the two most recent NJPs.
Finally, he contends that the Board erred in concluding that the NJPs had been properly conducted.   

He submits a 19 October 1992 memorandum of support from the colonel who set aside the second/third NJP.  He previously submitted a transcript of a television news magazine piece about a racial prejudice case at Fort Richardson, Alaska. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memoranda prepared to reflect the Board's previous considerations of his case on 13 July 1983 and 16 August 1989                              (COPY ATTACHED)

The following documents are contained in the applicant’s restricted fiche and are apparently associated with his efforts to get the NJPs set aside:

The applicant’s 13 March 1986 complaint to the Equal Opportunity Office (EEO), Fort Richardson, Alaska reports that he was having difficulties with his OIC because that lieutenant  expected him to lie to a telephone caller and to instruct the clerks to do the same.  He related the lieutenant said that he had formerly had a Black Sergeant working for him who looked out for him and that he expected no less from the applicant.  The applicant relates that he was prompted to file the complaint because of a pending NJP.

In January 1989, following the applicant’s PCS transfer to The Academy of Health Sciences, Fort Sam Houston, Texas, the company commander identified by name in the applicant’s 13 March 1986 EEO complaint wrote, apparently in support of the applicant’s appeal of the second NJP, that the “acrimony” between the applicant and the lieutenant was personal rather than professional.  He stated that after he left the company, in February 1986, he became the battalion S-1 and that there were reports of racial turmoil in the company.  He could not speak to their validity.  He concluded that the applicant should have been transferred rather than reduced and that the NJP should be set aside and the applicant restored to pay grade E-6.

A December 1988 letter from a specialist who had worked for applicant reported on the animosity the lieutenant seemed to bear the applicant.  He also stated that he felt Black soldiers were discriminated against by the lieutenant, the company first sergeant and the company commander.

A July 1986 handwritten letter by a specialist reports that he respected the applicant as an effective NCO, that the applicant did not get the recognition he deserved during “Golden Grace 85” and that the he was sorry that the applicant was leaving the section but felt it was probably best for his career.

A 19 September 1986 EEO report prepared in response to “a complaint of alleged discrimination by a family member of a soldier assigned to C Company.”  That complaint was received on 6 August 1986.  The EEO report identified the four problems and possible solutions.  (a) The company commander had made a public reference to a soldier “being on the top of his shit list” leading to rumors that there was a “hit” of soldiers to be reduced or eliminated.  They recommended the commander refrain from such terminology.  (b) It appeared that a sergeant had given out private telephone numbers in contravention to policy.  Remedial action was recommended.  (c) The company commander and the first sergeant were overheard discussing the applicant’s upcoming NJP and were heard to say they would recommend reduction.  (d) The EEO recommended the chain of command discuss company business in guaranteed privacy.  It was also reported that NCOs were assigned barracks rooms to clean.  The investigation revealed that NCO were responsible to insure their assigned soldiers kept assigned areas clean.  No action was recommended.  The investigation looked into the numbers of NJP and awards in C company during the previous 6 months.   Black soldiers had received more NJPs than White soldiers however the “amount” [rate ?] was equal to “or less than the division’s rate.”  No significant awards had been given.
  
In an August 1994 letter to the Board from a legal assistance office at Fort Sam Houston, Texas a JAGC captain identifies herself at the applicant’s attorney and contends that the applicant was deprived by due process by the NJPs and by this Board because the applicant has “produced all the evidence required to allow the ABCMR to reinstate the rights and now owing” and contends that the applicant ‘s date of rank should be adjusted and that back pay and allowances should be authorized.  She also contends that the applicant should have been considered as a Whistleblower.

In an 8 November 1994 letter to the Senior Enlisted Promotions Branch,  Total Army Personnel Command the applicant the applicant requested that his promotion to pay grade E-7 be backdated to 1987.  It was supported by a memorandum from the colonel who set aside the second 1996 NJP.

Army Regulation 27-10 (military justice) provides, in pertinent part, that vacation, mitigation remission and setting aside action may be taken by the commander imposing the punishment, a successor-in-command or the next superior authority.  The power to set aside an executed punishment and to mitigate a reduction in grade, absent unusual circumstances, will be exercised only within 4 months after the punishment has been exacted.  When a commander sets aside any portion of the punishment after 4 months a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside.

The Regulation also provides that an NJP that has been wholly set
aside is to be filed on the restricted fiche of the individual's OMPF.  

Army regulation 15-185 that governs the operation of this Board, provides that no application will be considered until the applicant has exhausted all available remedies:

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 only available indication that the NJPs were unfair is that that the former company commander says the applicant should have been transferred rather than reduced in grade.  That conclusion represents his analysis and judgement, but that has not been shown to be more judicious than that the company commander who prepared the charges, the battalion commander who imposed the punishment or the division support command commander who served as the original appeal authority.  The fact that two separate commanders,  years after the fact and based on partial evidence, took set aside action does not show that the NJPs were not conducted in accordance with law and regulation or that they were unjust.  The evidence they used is not available.  The evidence that is available is not convincing to the Board. 

2.  The former company commander wrote that there were reports of racial turmoil, but the EEO investigation revealed nothing that could be appropriately  characterized as “turmoil.”  Furthermore the report indicates that the investigation was not undertaken based upon the applicant’s complaint which tends to show that his NJP were not taken in retaliation. 

3.   Evidence that racial prejudice occurd is not evidence that it is a factor in this case .  Indications that superiors have behavioral problems themselves is not evidence that their judgement and actions in dealing with the applicant’s case were injudicious or improper.  Furthermore, the board notes that the applicant’s original appeals of both NJPs and the OER did not convince to cognizant decision makers and the Board is not convinced that command malfeasance at Fort Richardson was so pervasive that he could not have appealed effectively in less than 3 years.

4.  There is no new evidence to show that the May 1985 - April 1986 EER was flawed.  The pervious Board’s discussion of issue may contain minor discrepancies (i.e., identifying the applicant’s rater as the company supply officer rather than the OIC for medical supply for example).  However, that Board did not err simply because it did not agree with the applicant and his supporters.  

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, 

that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.  The applicant has not been deprived of due process because the Board did not concur with the applicant and his attorney.  

6.  There is no available evidence that the applicant is entitled to Whistleblower status.

7.   The applicant has not exhausted his administrative remedies relative to the August 1993 to March 1994 NCOER and his reconsideration for promotion.

8.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

9.  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

__INW__  ___EB__    ___TAG_   DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC87-07225B
AR1999014751	
SUFFIX		
RECON		
DATE BOARDED	19990422	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.04	
2.	111.02	
3.	131.00	
4.		
5.		
6.