PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 January 2002                   
	DOCKET NUMBER:   AR2001065390

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Donald P. Hupman, Jr.		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 his rank of Staff Sergeant (SSG), E-6 be restored and he be paid all due back pay and allowances.  He also requests that he not be involuntarily separated.

3.  The applicant states the Senior Defense Counsel at the Trial Defense Service (TDS) noted that several errors occurred regarding the notice of the reduction for inefficiency hearing and at the hearing itself.  At the hearing, a summarized Article 15 that should have been destroyed in March 1999 was placed in evidence.  Prior to November 1999, his actions did not warrant his being accused of inefficiency.  On his July 1999 noncommissioned officer evaluation report (NCOER) he was rated as “promote with peers,” “send to ANCOC,” and “with deletion of his MOS, soldier would serve best in a technical MOS (98J).”  Following the reduction, the prejudice against him continued.  He was initially transferred to Headquarters Company as a Financial Management Office NCO but in March was transferred right back to Company D even though he was assigned as “surplus/excess personnel.”  Following his refusal to accept an Article 15, he was presented with an NCOER that was so blatantly inaccurate and prejudicial that he refused to sign it.  At no time during the rating period covered by this NCOER did he work for either the rater, the senior rater, or the reviewer.  He has letters of input from the people he actually worked for.  These account for every single day of the rating period.  After his exoneration by the court-martial on the charges for which he refused the Article 15, he was transferred to the 297th Military Intelligence (MI) Company.  His former First Sergeant from Company D approached his new supervisor and lied to his supervisor about him.  

4.  The applicant’s military records show that after having had 4 years of prior active service, he reenlisted in the Regular Army on 5 August 1988.  He was promoted to SSG in military occupational specialty (MOS) 97G (Counter-Signals Intelligence Specialist) on 1 July 1995.  He last reenlisted on 12 February 1996 for 6 years.  

5.  The applicant was assigned to Company A, 202d MI Battalion, 513th MI Brigade Fort Gordon, GA around July 1996 as a Senior Counterintelligence Analyst, 97G30.  

6.  On 13 March 1997, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (a summarized Article 15) for failing to go to his appointed place of duty.

7.  On the applicant’s NCOER for the period ending July 1997, in Part IVd, Leadership, he was rated as needing some improvement with the comments “counseled on two occasions for failure to be at appointed place at appointed time” and “counseled on three occasions for failure to be in the proper uniform for battalion and company formations.”  On his NCOER for the period ending July 1998, for which his principal duty title was Squad Leader, 97G30, in Part IVd, Leadership, he was rated as needing much improvement with the comments “placed personal welfare above his soldiers’ welfare” and “failed to take care of his soldiers before providing for his own comfort;” he was rated as needing some improvement in Part IVf, Responsibilities and Accountability, with comments including “did not take responsibility for his actions” and “did not keep superiors informed of his whereabouts.”  In Part Va, his potential for promotion and/or service was rated as being marginal with comments including “assign to a position that does not focus on leadership skills.”

8.  Apparently the applicant referred himself to the Community Counseling Center in July 1997 due to an addiction to Sominex, an over-the-counter sleeping aid, and was declared a rehabilitation success in September 1998.

9.  The applicant was reassigned to Company D, 202d MI Battalion, Fort Gordon, GA around July 1998.  His NCOER for the period ending June 1999, for which his principal duty title was Squad Leader, 97G30, he was rated as a success in all categories of NCO responsibilities with comments as stated by the applicant in paragraph 3 above.

10.  Conversation with the Chief, Office of Military Intelligence, Fort Huachuca, AZ revealed that MOS 97G was submitted for deletion in August 1997 (effective April 1998).  Soldiers who held that MOS apparently were directed to reclassify into an appropriate shortage MOS.  The applicant apparently requested, and was conditionally approved for, reclassification into MOS 98J on 24 July 1998 pending his successful completion of the mandatory formal training for MOS 98J. The applicant was scheduled to attend the course beginning 12 July 1999.

11.  On 10 February 1999, the applicant received a local bar to reenlistment.  The bar is not available.  On 1 August 1999, the applicant’s commander, Captain S___, requested removal of the bar to reenlistment, noting the applicant had improved his substandard performance and met the standards of the NCO Corps in the 180 days the bar had been in effect.  On 7 September 1999, the applicant’s commander (as indicated on the request but possibly the company executive officer acting as the commander), First Lieutenant D___, requested an exception to policy for an extended period of review on the local bar to reenlistment, noting the additional 90-day review would permit him to fully evaluate the applicant for complete rehabilitation due to the nature of his MOS and security clearance.  By first endorsement erroneously dated 1 August 1999, the battalion commander recommended approval for the exception to policy to extend the period of review.  By second endorsement erroneously dated           19 February 1999, the brigade commander recommended approval for the exception to policy for further review.  The final action is not available but the request apparently was approved as the bar remained in effect.

12.  The applicant apparently took an intentional overdose of Sominex in October 1999.  

13.  On 16 November 1999, the applicant’s commander, Captain S___, informed the applicant that he (the commander) had requested the preparation of a reduction for inefficiency packet.  On 17 November 1999, the applicant acknowledged that he was notified of the proposed reduction for inefficiency board and understood that the board would convene sometime in December 1999.

14.  On 29 November 1999, the applicant was informed that the reduction board would convene on 10 December 1999.  On 1 December 1999, the applicant acknowledged his intent to appear before the next authorized reduction board.  He also stated that he understood the regulation to provide that the reduction board could lawfully convene on or after 20 December 1999 (the regulation requiring a member to be given 15 days notification).  He requested additional time to work with TDS in the preparation of his defense.  He also indicated that TDS would not have counsel available to represent him until after the Christmas holiday season and requested the board convene no earlier than 10 January 2000.  The 29 November 1999 notification was then annotated, on an unknown date and by an unknown person, to read that the board would convene on        21 December 1999.  There is no indication, such as the applicant’s dated initials, that the applicant was provided a copy of this pen-and-ink-corrected notification.

15.  By memorandum dated 9 December 1999, the applicant and the members  of the reduction board were informed that the board would convene on              21 December 1999.  There is no written acknowledgement from the applicant indicating when he received this notification.  In the applicant’s appeal of this board action, the TDS Senior Defense Counsel indicated that the applicant was on leave 9 December 1999 and returned to duty 20 December 1999.  (The Defense Finance and Accounting Service – Indianapolis Center stated that their records show the applicant was on leave from 6 – 16 December 1999.)

16.  On 21 December 1999, the applicant appeared before a reduction board.  Only a summarized copy of the transcript is available.  The transcript indicated the summarized Article 15 dated 13 March 1997 was introduced as evidence.  Apparently the board recommended the applicant be reduced to Sergeant (SGT), E-5 for inefficiency.  The recommendation was approved on 4 January 2000.  

17.  The applicant appealed his reduction.  The Senior Defense Counsel, TDS, Fort Gordon Field Office supported his appeal.  Counsel indicated that the applicant did not receive the required 15-day written notice of the date of the 

reduction board.  When he finally received notice the board would convene on  21 December 1999, defense counsel was unavailable to consult with him because of leave schedules and previously scheduled matters.  Therefore, the applicant did not receive advice of counsel for the hearing.  No determination had been made whether military counsel was reasonably available to assist the applicant in preparing or presenting his case.  Due to scheduling conflicts, including temporary duty and leave, no counsel was available to assist the applicant in preparing for a hearing prior to the start of the new year.  No board member was thoroughly familiar with the applicant’s field of specialization.  Earlier the Senior Defense Counsel had indicated that the prejudice to the applicant in these errors extended to his inability to have witnesses available for the hearing.  The action on the appeal is not available.

18.  On 2 March 2000, the applicant was reassigned to Company D, 202d MI Battalion in a surplus/excess position.

19.  On 15 March 2000, the brigade commander denied the applicant’s request to set aside the findings and recommendation of the reduction board.

20.  On 10 July 2000, the applicant was offered nonjudicial punishment under Article 15, Uniform Code of Military Justice for two specifications of failing to go to his appointed place of duty, one specification of disobeying a lawful order, two specifications of failing to obey a lawful order, and one specification of being disrespectful in language towards a superior NCO.  The applicant refused to accept the Article 15 and demanded trial by court-martial.  

21.  The applicant’s NCOER for the period March through July 2000, for which his principal duty title was Assistant Barracks Supervisor, 98J20, shows he received six out of seven “no” ratings in Part IVa, NCO Values, with two negative comments.  In Part IV, he received three “needs some improvement” and two “needs much improvement” ratings with mostly negative comments.  His potential for promotion and/or service was rated as “marginal” in Part V.  His senior rater rated his overall performance and potential as poor with three negative comments.  

22.  The applicant’s rater had apparently been provided three letters of input for the NCOER for the period ending July 2000.  One indicated that his performance as a member of the Post Color Guard team (through 21 March 2000) was outstanding.  A second indicated his performance as assistant to the Financial Management Office (22 – 31 March 2000) was outstanding.  The third indicated that his duties as Assistant Barracks Supervisor (during the remainder of the rating period) were conducted very professionally.

23.  On 9 March 2001, the applicant was found not guilty of one specification of disobeying a lawful order, one specification of being disrespectful in language toward a superior NCO, and one specification of failing to obey a lawful order.  One specification of failing to go to his appointed place of duty and one specification of failing to obey a lawful order were dismissed.  Apparently he was never charged with the other specification of failing to go to his appointed place of duty.

24.  The applicant was reassigned to the 297th MI Battalion, 513th MI Brigade, Fort Gordon, GA on or about 19 March 2001.  His new supervisor provided a memorandum indicating the applicant’s former First Sergeant from Company D, 202d MI Battalion told him (the new supervisor) that the applicant beat his wife on more than one occasion and frequently disobeyed orders.  Another former First Sergeant of the applicant’s from Company D, 202d MI Battalion told him the applicant aimed a loaded weapon at his fellow soldiers on at least two occasions. 

25.  On 11 July 2001, the applicant’s commander recommended his bar to reenlistment be removed.  The bar was approved for removal on 14 September 2001.

26.  Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  It states that the reduction authority for reduction of E-5 and E-6 personnel is the field grade commander of any organizations authorized a Lieutenant Colonel or higher-grade commander.  It defines inefficiency as a demonstration of characteristics that shows that the person cannot perform duties and responsibilities of the grade and MOS.  Inefficiency may also include any act of conduct that clearly shows that the soldier lacks those abilities and qualities normally required and expected of an individual of that grade and experience.  When required, a reduction board will be convened within 30 days after written notification is given the individual in writing. An extension may be granted for good cause.  The board members will be appointed in writing.  The convening authority will ensure that, among other requirements, at least one board member will be thoroughly familiar with the soldier’s field of specialization (inefficiency cases only) and the board is composed of unbiased members.  If unbiased members are not available, such members are provided by the next higher commander.  

27.  Army Regulation 600-8-19 states that, generally, procedural errors or irregularities in a board will not invalidate the proceeding or any action of the convening authority.  Substantial errors are those that had a material adverse effect on an individual’s substantial rights, such as failure to meet requirements 

as to the composition of the board, denial of an individual’s right to counsel, and so forth.  A soldier who is to appear before a reduction board will be given at least 15 duty days written notice before the date of the hearing.  The soldier or his or her counsel must have time to prepare the case.  If the soldier requests counsel, the convening authority will determine if either of the following is appropriate:  (1) military counsel is reasonably available or (2) if a judge 
advocate is available, forward the request to the local TDS official for necessary action.  Determinations as to the availability of judge advocates will be accomplished by the requested individual’s TDS supervisory official.  Determinations as to the availability of judge advocates or named counsel are final.  Notification of a board hearing date will be made only after counsel is available as requested by the soldier.  The recorder will, on request of the individual or his or her counsel, arrange for the presence of any reasonably available witness or witnesses he or she desires to call on their behalf.  

28.  Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice.  In pertinent part it states that the proceedings of a summarized Article 15 will be legibly summarized on the Summarized Record of Proceedings Under Article 15, UCMJ, DA Form 2627-1.  These forms will be maintained locally in nonjudicial punishment files.  They will be destroyed at the end of 2 years from the date of punishment or on the soldier’s transfer from the unit, whichever occurs first.

29.  Army Regulation 201-280 prescribes criteria for the Total Army Retention Program.  It states that the retention control point for a Sergeant, E-5 is 15 years of active service.

CONCLUSIONS:

1.  The Board does not fully agree with the applicant’s argument that his actions prior to November 1999 did not warrant his being accused of inefficiency.  Although his NCOER for the period ending July 1999 may have rated him as a “success” in all areas, he had two prior NCOERs that indicated he had problems in leadership and responsibility.

2.  The Board does not fully agree with the Senior Defense Counsel’s argument, in the applicant’s appeal, that no member of his reduction board was thoroughly familiar with the applicant’s field of specialization.  The Board notes that the applicant’s MOS changed from 97G to 98J, a change in career management field.  However, the applicant’s reclassification was conditional upon his attending formal training in MOS 98J.  In addition, inefficiency may also include any act of 

conduct that clearly shows that the soldier lacks those abilities and qualities normally required and expected of an individual of that grade and experience.  It appears from the noted two prior NCOERs that it was the applicant’s overall abilities and qualities as an NCO that were being questioned rather than his proficiency as an NCO in any particular MOS.  Therefore, the Board concludes this error was not substantial.

3.  The offenses covered by the summarized Article 15 could have been discussed during the reduction board hearing; instead, the physical document that should have been destroyed 9 months earlier was introduced as evidence.  The Board concludes that the entering into physical evidence of the summarized Article 15 was prejudicial to the applicant.

4.  The Board concludes that the Senior Defense Counsel’s argument that there was substantial error in the notification of reduction board process is valid.  It appears that the applicant was never given the required 15-day written notice of the date of the reduction board.  It appears he was given notice on 20 December 1999 that the board would convene on 21 December 1999.  If a soldier requests military counsel, as the applicant requested on 1 December 1999, the convening authority will forward the request to the local TDS official for necessary action.  The Senior Defense Counsel stated that, contrary to regulatory requirements, no determination had been made whether military counsel was reasonably available to assist the applicant.  The Board concludes that the whole issue of timing (during the Christmas holiday season) in this case, which prevented the applicant from having defense counsel or from having witnesses available for the hearing and was not conducted in accordance with regulatory guidance, worked to the substantial prejudice of the applicant.

5.  The applicant is not requesting action on his NCOER for the period ending July 2000 and there is no indication that he has appealed this NCOER; therefore, the Board will make no determination regarding this NCOER.  

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 voiding the reduction action taken against the applicant by the       21 December 1999 reduction for inefficiency board and approved on 4 January 2000.

2.  That the applicant’s rank and date of rank to Staff Sergeant, E-6 be restored with all due back pay and allowances paid to him.

3.  That the applicant’s involuntary separation be rescinded if the only reason for that involuntary separation is his reaching the retention control point for a Sergeant, E-5.

BOARD VOTE:  

__inw___  __hof___  __dph___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001065390	
SUFFIX		
RECON		
DATE BOARDED	20020115	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	133.02	
2.		
3.		
4.		
5.		
6.