PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 7 August 2001
         DOCKET NUMBER: AR2001056256


         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. Margaret K. Patterson		Chairperson
Mr. Thomas B. Redfern, III		Member
Ms. Regan K. Smith		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.

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2. The applicant requests that his skill qualification identifier (SQI) of “X,” drill sergeant, (DS) be restored and that his letter of removal from the DS Program and the 15-6 investigation be removed from his records.

3. The applicant states that his chain of command acted prematurely in removing him from the DS Program based upon the results of the 15-6 investigation. He was found not guilty on all charges stemming from the investigation during his court-martial. Both his noncommissioned officer evaluation report (NCOER) appeal and his Qualitative Management Program (QMP) appeals were approved.

4. The applicant’s military records show that he enlisted in the Regular Army on 1 March 1984. He was promoted to Staff Sergeant, E-6 on 1 October 1993 in military occupational specialty (MOS) 94B (Food Service Specialist). He was selected for and completed DS training on 14 May 1997 and was assigned to Fort Sill, OK as an Assistant Platoon Sergeant/DS.

5. On 4 December 1998, an investigating officer (IO) investigated allegations of misconduct against the applicant. The IO made four findings – that on several occasions the applicant demonstrated unacceptable and improper behavior towards basic trainees that included inappropriate physical contact and the use of profanity; that he pulled a knife on a basic trainee and threatened to cut him; that he obtained a prostitute so a basic trainee could have sex with her; and that he engaged in improper behavior towards basic trainees in that he would pretend to hit them to see if they would flinch and he also discussed their private lives. The 38 exhibits mentioned in the findings are not filed on the applicant’s Official Military Personnel File (OMPF). The IO recommended that the applicant be given a relief-for-cause NCOER, removed from DS status, and that the commander take appropriate Uniform Code of Military Justice action. On 7 January 1999, the commander, Colonel W___, approved the findings and recommendation.

6. On 20 January 1999, the applicant’s battery commander, Captain M___, recommended the applicant be removed from the DS Program and that he not retain the DS Identification Badge. On 4 February 1999, the applicant’s battalion commander, Lieutenant Colonel B___, recommended approval of his removal from the DS Program. On 8 February 1999, Colonel W___ approved the applicant’s removal from the DS Program and directed termination of his special duty assignment pay (SDAP), withdrawal of his SQI “X,” and nonretention of his DS Identification Badge.

7. The applicant apparently received a relief-for-cause NCOER for the period December 1998 – February 1999 and was reassigned to a Training Assistant Supply Sergeant position. Due to a successful appeal, the NCOER was deleted from his OMPF and is not available.
8. The applicant apparently was offered nonjudicial punishment under Article 15, Uniform Code of Military Justice but requested trial by court-martial instead. On 21 July 1999, he was found not guilty by a special court-martial of pandering on or about 16 November 1998, assault with means likely to produce death or grievous bodily harm on or about 18 November 1998, and maltreatment of a subordinate on or about 18 November 1998.

9. On 30 August 1999, the applicant was notified that he had been selected for a Department of the Army imposed bar to reenlistment under the QMP. The documents cited as the basis for the bar were his NCOER for the period December 1998 – February 1999 and his letter of removal from DS duty.

10. In October 1999, the applicant appealed both his relief-for-cause NCOER and his QMP bar to reenlistment. Captain M___ provided a supporting statement in the applicant’s appeals. Captain M___ noted that he, along with his battery chain of command, regretted that the administrative actions were initiated prior to his trial. The applicant was never approached or interviewed by the IO and he exercised his right to be silent until his trial so they only had half the story. Captain M___ stated that he had since recommended the applicant for an Army Commendation Medal for his performance as platoon sergeant and DS. The applicant’s battalion executive officer during the period concerned provided a supporting statement. The applicant’s battalion Command Sergeant Major (CSM) during the period concerned provided a supporting statement. The CSM stated that the relief-for-cause NCOER was initiated because regulatory guidance stated that 90 days after a DS is removed from status a relief-for-cause NCOER is generated. The incident was reported and handled in accordance with the regulation but the applicant was later cleared of all wrongdoing. He had been done an injustice. Lieutenant Colonel B___ provided a supporting statement. Both appeals were approved.

Army Regulation 614-200 prescribes the reporting, selection, assignment, and utilization of enlisted personnel. Paragraph 3-13 states that an SQI will be withdrawn and deleted from the MOS awarded when the qualification skills are lost or when the soldier withdraws from a voluntary program (such as airborne or ranger duty). Paragraph 8-15 states that upon successful completion of DS school, soldiers will be awarded SQI “X,” be eligible for SDAP, and incur a 24-month obligation for DS duty. An Active Army DS will be stabilized for 24 months with an option to extend, on a one-time basis, for an additional 6 or 12 months. The DS tour will not exceed 36 months. Active Army soldiers will serve only one tour as a DS.

Army Regulation 600-8-22 prescribes Army policy and criteria concerning individual military awards. In pertinent part, it states that the Drill Sergeant Identification Badge is awarded for successful completion of the DS course and assignment as a DS to a training command. The badge may be revoked if the recipient is removed from the position of a DS for cause regardless of the amount of time the individual has served in the position in a satisfactory manner.

CONCLUSIONS:

1. The Board concludes that an injustice occurred in this case.

2. It appears the IO completed his investigation and made his findings and recommendations without interviewing the applicant. Based upon this at best incomplete investigation, the applicant’s brigade commander approved his removal from the DS Program, directed he be given a relief-for-cause NCOER, and presumably oversaw the proffered Article 15 action. Later, the applicant was selected for a QMP bar to reenlistment based upon his removal from the DS Program and his relief-for-cause NCOER.

3. The applicant refused the Article 15 and demanded trial by court-martial. He was charged with three of the four findings identified by the IO and on 21 July 1999 he was found not guilty of all three charges. Since he was not charged with the IO’s first finding -- that on several occasions the applicant demonstrated unacceptable and improper behavior towards basic trainees that included inappropriate physical contact and the use of profanity – the Board presumes that there was not enough evidence on which to try him for this finding.

4. After the applicant was found not guilty of the charges which formed the basis for his removal from the DS Program, he appealed his relief-for-cause NCOER and the QMP. He provided statements of support from his battery commander and battalion commander, (the Board notes that his brigade commander did not provide a letter of support), both of whom initially recommended his removal from the DS Program. The battery commander even stated that he was going to recommend the applicant for an Army Commendation Medal for his performance as a DS. The applicant’s appeals of his NCOER and QMP bar to reenlistment were successful.

5. In view of the applicant’s chain of command’s new support of his contentions that the administrative action taken was premature and an injustice, the Board concludes that it would be appropriate to show that he did successfully complete his DS tour, as an exception to policy, after completing 21 months of the normal 24-month tour.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a. awarding the applicant SQI “X” (unless he has since been awarded a higher priority SQI);

b. as an exception to policy, awarding the applicant the Drill Sergeant Identification Badge as a permanent award;

c. removing the letter of removal from the Drill Sergeant Program and all related documents from the applicant’s OMPF; and

d. removing the 15-6 investigation and all related documents from the applicant’s OMPF.

BOARD VOTE:

__mkp___ __tbr___ __rks___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Margaret K. Patterson
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001056256
SUFFIX
RECON
DATE BOARDED	20010807
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	134.00
2.	100.00
3.
4.
5.
6.