APPLICANT REQUESTS:  In effect, the applicant requests reinstatement to the Drill Sergeant Career Development Program, that the memorandum removing him from the program be expunged from his records, that his official records be corrected, and that the Drill Sergeant Identification Badge be restored to him.  

APPLICANT STATES:  That his removal from the program was based on unsubstantiated allegations.  His removal was based on “a pattern of behavior indicative of an unwillingness to conform to Army Regulations”.  He states that if a pattern did exist, he would have had numerous counseling statements, that there are none on record, and the attack on his conduct and professionalism was a facade.  

The applicant states that the only document on file was a memorandum of reprimand he received [which he disagrees with] for permitting a drill sergeant under his supervision to abuse a trainee.  The only other allegation made in the removal packet is a memorandum of record from his commanding officer which details allegations from a private that he used mass punishment against the private and his squad.  The applicant states that the actions against him were undeserved, and that even if the mass punishment was the exception instead of the rule, the punishment was too severe.

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

The applicant is a career soldier who first entered the Army in 1978 and advanced to the rank and pay grade of Sergeant First Class E-7.  He has numerous awards, including the Meritorious Service Medal, three awards of the Army Commendation Medal, two of the Army Achievement Medal, six awards of the Good Conduct Medal, plus numerous certificates of achievement.  He is a Master Parachutist and has completed several military courses and schools.  The applicant’s evaluation reports prior to 1995 have generally been excellent, even outstanding on two occasions, with the 
exception of a nonconcurrence by a reviewing official on a report ending in May 1990.  The applicant received an outstanding rating on his academic report for the drill sergeant course he completed in March 1994.  The applicant received nonjudicial punishment in May 1989 for breach of the peace.

Findings by an investigating officer indicates that a drill sergeant, under the aegis of the applicant who was a senior drill sergeant, assaulted a trainee on 10 April 1995 by poking the trainee in the throat with his fingers while attending training.  The investigating officer found that members of the chain of command were not aware of the incident until the installation’s inspector general conducted an inquiry.  The investigating officer found that the applicant received the initial complaint from the trainee but could not locate the trainee’s statement.  The investigating officer recommended that the applicant receive administrative action for dereliction of duty for failure to act upon the trainee’s initial complaint.  

In a 27 April 1995 sworn statement completed during the course of the investigation, the applicant stated that he did receive a complaint from the trainee, took his statement and told the trainee he would take care of it.  The applicant stated that he chastised the offending drill sergeant.

On 22 May 1995 the applicant received a memorandum of reprimand for dereliction of duty in that he failed to act and properly report an incident of misconduct/abuse committed by a drill sergeant on a trainee.  In a 
25 May 1995 response to the memorandum of reprimand the applicant stated that the report from the trainee was that he had been touched in the chest not the throat, that in his discussion with the trainee he believed that it was a minor infraction, not a case of abuse, that he counseled the drill sergeant, and believed the incident was not worth reporting to the chain of command.  He stated that he believed that part of his job was to screen complaints, and that given the facts available this [complaint] was not one to forward to the commander. 

An 8 November 1995 memorandum of record from the applicant’s commanding officer indicates that a trainee alleged unfair treatment by the applicant, that that official [applicant’s commanding officer] could not substantiate the allegation that the applicant had kicked the trainee in the head, but evidence existed that the applicant administered corrective exercises (mass punishment) to the trainee’s squad for a mistake only made by the trainee.  That official stated that he notified the battalion commander who instructed that the applicant be temporarily removed from a troop leading position.

The applicant denied abusing the trainee, but did say that he corrected the trainee’s behavior by requiring him to perform an exercise, and that he did discipline the squad in order to enforce team work.

On 14 November 1995 the applicant was notified that his special duty assignment pay (SDAP) was suspended under the provisions of Army Regulation 614-200, paragraph 8-20k, pending legal review of his actions involving trainee abuse. 

On 16 November 1995 the applicant’s commanding officer recommended that the applicant be removed from the Drill Sergeant Career Development Program under the provisions of Army Regulation 614-200, paragraph 8-20a(1), and also recommended that withdrawal of the Drill Sergeant Badge and the special qualification identifier (SQI) “X”, classifying him as a drill sergeant.  That official stated that the applicant failed to maintain high standards of conduct and professionalism and that he had demonstrated a pattern of failing to accept and abide by established guidelines on the treatment of soldiers. 

In a 22 November 1995 memorandum the applicant disagreed with the recommendations, stating that the actions against him were based on two allegations, the memorandum of reprimand based on an investigation (the incident in which a drill sergeant had poked a trainee), and trainee abuse/mass punishment.  The applicant stated that the statement by the 
trainee and a witness to the first incident differed, and that he had counseled the drill sergeant.  He again stated that his actions in disciplining the squad was to promote team work, the action was not done as a reprisal, but as a teaching/motivational lesson, and was not mass punishment.

That recommendation to remove the applicant from the drill sergeant program was strongly supported by the applicant’s battalion commander who stated that the applicant’s leadership and judgment have failed repeatedly when faced with issues of discipline and treatment of trainees, and specifically, those issues involved trainee abuse and mass punishment.

On 22 December 1995 the Deputy Commanding General of Fort McClellan, Alabama approved the recommendation, and stated that a copy of that approval would be filed in the permanent portion of the applicant’s official records.

The applicant’s former first sergeant (1SG) provided a statement indicating that the battalion commander and the sergeant major both stated that they could not stand the applicant, and did not want him as a senior drill sergeant. He (1SG) was told that when the applicant’s NCO evaluation report was due, that he (the first sergeant) should change the rating because of an incident that happened earlier that year (1995), and if he did not, the battalion commander would do a letter of nonconcurrence.  The 1SG stated that he was the applicant’s supervisor, had seen his duty performance daily, and that the applicant deserved the rating he gave him.  The aforementioned NCO evaluation report (for the period December 1994 through September 1995) shows that the applicant’s former first sergeant gave the applicant an outstanding rating, and that the reviewing official (the applicant’s battalion commander) nonconcurred with this rating.  The reviewing official stated that she considered the applicant’s performance and responsibility to be a “needs some improvement” rating based on his dereliction of duty as a senior drill sergeant in not reporting an incident of physical abuse by another drill sergeant, in violation of a Training and Doctrine Command regulation, a Fort McClellan regulation, and the brigade Standard Operating Procedure (SOP). 
On 16 January 1996 the applicant’s first sergeant at that time stated that he was completely satisfied with the applicant’s performance, that the incident (mass punishment), taken by itself, should not have resulted in his removal from drill sergeant duties.  He stated that the applicant’s removal was directed by the battalion commander.
In March 1996 the applicant submitted a copy of the training battalion SOP, a portion of which states that corrective physical exercise action is an approved exercise used by a cadre supervisor for minor infractions of military behavior. It is used ... to an individual or specifically identified number of individuals warranting correction.  The drill sergeant will ensure the trainee is informed of the reason he was required to perform the exercise.  That SOP does state, however, that mass punishment is inappropriate and prohibited corrective action that punishes a unit or element for the errors of a minority of actual violators.

That SOP goes on to establish policy and procedures for the relief for cause of NCOs, and states in pertinent part, that a DA Form 4856 (General Counseling Form) will be prepared and maintained on NCOs who demonstrate trends of inefficiency or unacceptable duty performance.  The NCO will be provided a copy of DA Form 4856.  When initiating possible relief for cause action for repeated unsatisfactory performance of duty, i.e., failure to measure up to required standards of performance, the commander will officially advise the NCO, verbally and in writing, that his duty performance has been unacceptable and that 30 days will be given in which to take positive action to correct those deficiencies.  The counseling will be detailed and a DA Form 4856 will be provided to the NCO.    

The SOP states, however, that any NCO may be relieved for duty for misconduct, and that the battalion commander alone has the authority to relieve NCOs in the grade of First Sergeant or Sergeant First Class.


On 22 May 1996 the applicant received a relief for cause NCO evaluation report (NCOER) for the period October thru December 1995.

The applicant has forwarded additional information which showed pictures of his classroom and hallway where the incident between a trainee and a drill sergeant occurred.  The applicant points out the difference between the trainee’s version of the incident and that of the witness.  He also states that the relief for cause NCOER had been completed four times, and four times returned to the unit by DA for correction, implying that if the relief was legitimate, there should not be a problem completing the NCOER.  The applicant states that there were no counseling statements relative to substantiate undesirable performance as required by the battalion SOP, nor counseling statements required by regulations relative to his relief for cause and removal from the drill sergeant program.

In May 1996 the applicant forwarded a copy of a letter to the Fort McClellan inspector general in which he questioned the processing of his relief for cause NCOER, stating that he had signed four or five reports, that a warrant officer not in his chain of command had made suggestions to his former brigade commander on correcting the relief for cause report, which had been returned by the enlisted records center because of lack of specific reasons for the relief for cause. 

In May 1996 the applicant requested, under the freedom of information act (FOIA), that he be provided copies of documents that substantiate the fact the a trainee’s complaint to him was trainee abuse, and that he, the applicant, failed to act on the complaint.  He also requested he be provided copies of counseling statements that were required to substantiate the relief for cause action.  The applicant stated in his request that the investigation failed to support the findings that the applicant failed to act upon a trainee’s complaint. 


In response to the FOIA request, a 3 June 1996 memorandum indicates that there was no record of DA Forms 4856, that when the applicant was reassigned from one company to another in the battalion no written counseling statement accompanied him and he did not receive any negative counselings other than his relief for cause while assigned to his new company.

A 20 June 1996 memorandum from the applicant’s former company commander indicates that he based his recommendation to remove the applicant from drill sergeant duty based on the aforementioned two incidents, one of which occurred while assigned to another company, that although there were no counseling statements, he referenced the investigation and the ensuing letter of reprimand from the battalion commander on the first incident, and the information in the relief packet on the second incident (mass punishment).  That official stated that the incidents demonstrate a pattern of failing to accept and abide by established guidelines on the treatment of trainees.

On 28 January 1997 the Enlisted Records and Evaluation Center notified the applicant that his appeal of his evaluation report for the period December 1994 through September 1995 had been denied.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the legal advisor to Army Discharge Review Board Agency.  That official stated, in effect, that there was sufficient evidence to support the applicant’s relief for cause and removal from the drill sergeant career development program.
  
Army Regulation 614-200, Chapter 8, Section II, prescribes the policies and procedures for selection, assignment, and relief of soldiers from drill sergeant duties.  Paragraph 
8-20 states, in pertinent part, that installation and training center commanders may remove soldiers from the drill sergeant program for failure to maintain high standards of military appearance, military courtesy, bearing, conduct and/or professionalism, and for infractions of training policies or violations of the UCMJ.
That paragraph goes on to say that a removal packet will be forwarded to the Total Army Personnel Command, and will include a letter of intent to remove, any statement by the soldier rebutting the removal action, all chain of command correspondence, and appropriate documents such as formal counselings.  Soldiers removed are not eligible for reentry into the drill sergeant program and the SQI “X” will be removed.

That paragraph continues by saying that when a serious incident occurs that requires an investigation to clarify the issues, commanders will relieve the drill sergeant from assigned duties and temporarily suspend SDAP, pending completion of the investigation.  Mere occurrence of an incident or the conduct of an investigation is not intended to be a basis for relief from the program.  Decisions on relief must be based on the circumstances of the completed investigation.  When the decision has been made to remove a soldier from drill sergeant duties, commanders will remove the soldier from the unit, assign him to other duties at the installation and terminate SDAP. 

Army Regulation 600-8-2 prescribes Army policy, criteria, and administrative instructions concerning individual military awards.  Paragraph 8-39 provides the criteria for award and revocation of the Drill Sergeant Identification Badge, and states, in pertinent part, that the badge may be revoked if the recipient is removed from the position of a drill sergeant for cause, regardless of the amount of time the individual has served in the position in a satisfactory manner.

The maximum punishment authorized by the MCM for violation or failure to obey a general order or regulation is a dishonorable discharge, 2 years confinement, and forfeiture of all pay and allowances. 
 

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

1.  The applicant’s relief was proper.  The applicant’s conduct was in clear violation of the rules.  He himself admitted that he disciplined a squad of trainees (in his words, as a teaching tool to get the privates working as a team) because of mistakes of one of the trainees.  This is mass punishment as defined in the battalion SOP, provided by the applicant.  This conclusion is supported by the opinion from the Army Discharge Review Board Agency legal advisor.

2.  That same SOP states that only the battalion commander has the authority to relieve NCOs in the grade of Sergeant First Class.  Based on the recommendation of the applicant’s company commander, that official (battalion commander) determined that the applicant’s conduct was not only inappropriate, but unprofessional and discreditable, and that his relief should be immediate.  This Board agrees.

3.  The applicant was forewarned.  He was counseled.  He received a memorandum of reprimand some five months prior to the incident which caused his relief.  It is the opinion of this Board that this reprimand was a strong counseling statement and that the incident that caused his relief (mass punishment), was misconduct and required an immediate remedy.  The applicant’s removal from the training environment was appropriate.  

4.  The Board also notes that the applicant could have been arraigned and tried by a general court-martial for violation of a regulation, and if convicted, sentenced to a punitive discharge, in addition to confinement.     

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

6.  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.

7.  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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director