MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 December 1998
         DOCKET NUMBER: AC97-11784

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Edward Williamson		Member
Mr. Roger W. Able		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)

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APPLICANT REQUESTS: The removal of a General Officer Memorandum of Reprimand (GOMOR), a relief for cause Noncommissioned Officer Evaluation Report (NCOER), all documents associated with his removal from the Drill Sergeant Program, and reinstatement of his Drill Sergeant Qualification Badge and Special Qualification Identifier (SQI).

APPLICANT STATES: In effect, that the GOMOR is based on unjust and unsubstantiated errors on the part of the chain of command and the military police investigators in the case. He goes on to state that he has consistently denied the allegations that he engaged in sexual relations with a trainee and has sought all possible means of redress to correct the administrative actions taken against him as a result of the allegations. He further states that prior to the allegations he had served 15 months of honorable drill sergeant time without a hint of these type of allegations and he believes that the then-burgeoning Aberdeen Drill Sergeant Scandal had an effect on the actions taken by his chain of command. Additionally, the alleged victims could not identify parts of his anatomy, which questions their credibility. He also states that he received an unjust relief for cause NCOER even though his chain of command did not believe the allegations against him and contends that he was not rated by his properly designated rater. Furthermore, the NCOER was based on unsubstantiated and unverified derogatory information as was his relief from drill sergeant duty. He continues by stating that he demanded trial by court-martial, which was denied and he agreed to take a polygraph test to show his innocence. However, the results of the test proved inconclusive. He further contends that a review of his records both prior to and subsequent to the allegations will show that he has always rendered a superior performance and that he was a victim that was unfairly snagged in an Army net cast too wide in the wake of the Aberdeen scandal.

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

The applicant enlisted on 6 June 1984 for a period of 3 years. He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 1 October 1996, while stationed at Fort Jackson, South Carolina as a drill sergeant.

On 23 September 1996 the applicant’s company commander reprimanded him for using inappropriate language around trainees.

On 20 December 1996 the applicant received a GOMOR reprimanding him for engaging in improper personal relationships with trainees that involved sexual intercourse, kissing and touching, and improper sexual advances. The imposing officer advised the applicant that he was considering placing the GOMOR in his Official Military Personnel File (OMPF). The applicant acknowledged receipt of the GOMOR and elected to submit matters in his own behalf.

On 6 February 1997 the applicant’s commander notified him that he was initiating action to remove him from the drill sergeant program. The applicant acknowledged receipt of the notification and requested an audience with the commanding general (CG) under his open door policy. The applicant was granted a meeting with the CG on 21 February 1997.

The CG approved the recommendation for removal from the drill sergeant program on 24 March 1997 and directed that his drill sergeant identification badge and SQI be withdrawn.

On 25 April 1997 a local bar to reenlistment was imposed against the applicant.

The applicant received a relief for cause NCOER on 6 May 1997 covering the period from July 1996 to March 1997 evaluating him as a senior drill sergeant.

In part IVa, under Values/NCO Responsibilities, the rater (a first sergeant) gave the applicant “No” ratings under “Places dedication and commitment to the goals and missions of the Army and nation above personal welfare”, “Is disciplined and obedient to the spirit and letter of a lawful order”, and “Maintains high standards of personal conduct on and off duty.” He gave him “Yes” ratings in the remaining four areas. In the supporting comments he indicated that the applicant compromised his personal integrity through the abuse of his power as a drill sergeant.

In parts IVb through IVf he gave the applicant “Needs Improvement” ratings under “Leadership” and Responsibility and Accountability.” The supporting comments indicate that he failed to set an example for subordinates to follow when dealing with soldiers in training and that he violated Army Regulation 600-20 through improper association. He rated the applicant’s overall potential for promotion and/or service in positions of greater responsibility as “Marginal”.

In Part V, under overall performance and potential, the senior rater (SR), a lieutenant colonel, rated the applicant’s overall performance and potential for promotion as “Poor”. The supporting comments indicate that has a dubious moral character which serves as a poor model for company members on how to perform as accountable professionals, that he has shown a lack of good judgement on a number of occasions when in charge of soldiers in training, that his personal qualities and moral character degraded the unit, that his potential was very limited, that he should not be considered for promotion, and that he should be selected under the Qualitative Management Program (QMP).

The applicant requested that a commander’s inquiry be conducted to ascertain the validity of what he considered unproven derogatory information contained in the report. The investigating officer (a colonel) determined that the NCOER was valid.

On 26 June 1997 the applicant appeared before an administrative separation board in lieu of separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct. The administrative separation board determined that there was insufficient and unsubstantiated evidence to warrant separating the applicant from the service.

The applicant appealed the local bar to reenlistment and is was approved for removal by the new CG on 25 April 1997.

However, on 6 April 1998, a Department of the Army Calendar Year 1998 Master Sergeant Promotion Selection Board determined that the applicant should be barred from reenlistment under the QMP based on his relief for cause NCOER and the GOMOR. The applicant submitted an appeal of the bar to reenlistment with the support of his chain of command to the Department of the Army Standby Advisory Board at the Enlisted Records and Evaluation Center (EREC).

On 21 July 1998 the applicant was notified by the EREC that his bar to reenlistment under the QMP had been administratively removed based on the decision of the administrative separation board’s action to retain him on active duty.

The applicant did not exhaust his administrative remedies by applying to the Department of the Army Suitability Evaluation Board (DASEB) for transfer of the GOMOR to the restricted fiche of his OMPF; therefore, the Board referred his case to the DASEB for adjudication. The DASEB, after reviewing his case, determined that the evidence submitted by the applicant amounted to unsupported speculation by himself and others regarding the circumstances of the cited misconduct, the motives of his accusers, and his chain of command. The DASEB further opined that he had provided insufficient evidence to support his contentions that his accusers lied, that he was victimized by the hysteria following the Aberdeen scandal, or that his due process rights were substantially violated in the administration of the GOMOR. The DASEB denied his request.

The applicant also did not exhaust his administrative remedies by appealing the NCOER to the Enlisted Standby Review Board (ESRB). Accordingly, the DASEB forwarded his appeal of the NCOER to the ESRB in which he contended that the report contained substantive and administrative inaccuracies in that the rater was unqualified to rate him and because the report contained unverified derogatory information. The ESRB, after an extensive review of the applicant’s case, determined that the NCOER accurately reflected his demonstrated performance and potential during the rated period. In the processing of the case the ESRB contacted the SR of the contested report who explained that the applicant believed that he had been releived for cause based on the sexual harrassment charge, when in fact he had been relieved for having an improper association with a student in training. He further stated that the applicant had been counseled on numerous occasions about touching females unnecessarily on their shoulders and developing relationships between himself and students in training. The SR also stated that the applicant was counseled both verbally and in writing and that he (the SR) had given him a letter of concern indicating his displeasure with his behavior. The letter of concern had no effect on the applicant’s behavior and he continued to violate local policies regarding this matter. The ESRB denied his appeal.

Army Regulation 600-37 serves as the authority for filing unfavorable information in the OMPF. It states, in pertinent part, that a memorandum of reprimand may only be filed in the OMPF if it has been directed for such filing by the officer exercising general court-martial jurisdiction.

Army Regulation 623-205 sets forth the policies and procedures for the Enlisted Evaluation Reporting System. Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.

Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she 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.

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 GOMOR was properly imposed as an administrative measure and was filed in the applicant’s OMPF in accordance with the filing instructions of the imposing officer and applicable regulations.

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

3. Additionally, given the circumstances in this case, the Board finds that the actions taken to remove the applicant from the drill sergeant program were appropriate.

4. The Board has reviewed the statements submitted by the trainees who made the allegations of sexual misconduct against him as well as the supporting statements submitted by the applicant with his application. The Board finds that the supporting statements are speculative on the part of the individual authors and provide no documented evidence that the statements are false.

5. While the applicant has gone to great lengths to dispute the allegations against him, he has failed to submit clear and convincing evidence to show that he was falsely accused and that the actions taken against him were unwarranted. Inasmuch as the Board is not an investigative agency, it must be presumed, in the absence of evidence to the contrary, that the information contained in the investigations was sufficient to support the actions taken by the Department.

6. The Board also finds that the applicant’s contention that he had served for 15 months without any hints of wrongdoing of this nature to be without merit. The applicant received a reprimand from his company commander and a letter of concern from his battalion commander and was counseled on several occasions by his commanders regarding his conduct in these matters. It appears that he chose to ignore the warnings.

7. In order to justify correction of a military record the applicant must show to he 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.

8. 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

__rwa___ ___elw __ __js ____ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC97-11784
SUFFIX
RECON
DATE BOARDED	1998/12/03
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	NC
REVIEW AUTHORITY
ISSUES 1. 107.00
2. 111.02
3. 134.01
4. 134.02
5.
6.