RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 20 MAY 2004
         DOCKET NUMBER: AR2003094977


         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. John Slone		Chairperson
Mr. Fred Eichorn		Member
Mr. Robert Osborn		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).


1. The applicant requests that a relief for cause NCO (noncommissioned officer) evaluation report (NCOER) and a memorandum of reprimand be expunged from his records and that a drill sergeant badge be reinstated to him. He also requests that his records be submitted before a standby advisory board for consideration for promotion to sergeant first class.2. The applicant states that he received a memorandum of reprimand and a relief for cause NCOER based on allegations of inappropriate association with a trainee. He was selected for elimination under the Qualitative Management Program (QMP), based on those two documents; however, his QMP appeal was approved based on the evidence submitted. As the basis for his selection for elimination was those two documents [reprimand and NCOER], and he subsequently won his appeal based on the evidence, he requests that the documents be removed from his records.3. The applicant provides a copy of the relief for cause NCOER, the memorandum of reprimand, his rebuttal to the reprimand, and documents related to the appeal of his bar to reenlistment under the QMP, to include the approval of his appeal.
CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the Army for three years on 25 November 1986 and has remained on continuous active duty. Initially trained as an infantryman, in late 1989 he attended the chaplain school at Fort Monmouth, New Jersey, and upon completion became a chaplain assistant. The applicant has completed numerous military courses to include airborne, air assault, Australian parachute training, instructor training, the master fitness trainer course, a Marine Corps NCO basic nonresident course, the basic NCO course, and the drill sergeant course. He has served in Germany, Saudi Arabia, Fort Bragg, North Carolina, Fort Benning, Georgia, and Fort Jackson, South Carolina. He was promoted to staff sergeant in 1994. The applicant has received multiple awards of the Army Achievement Medal, the Army Commendation Medal, and the Army Good Conduct Medal. He has been awarded the Meritorious Service Medal. 2. The applicant was rated on six occasions prior to his relief for cause NCOER. His rating officials considered him an outstanding Soldier. He received top marks on the eight reports that he received subsequent to the adverse NCOER. Those rating officials considered him an outstanding Soldier, who should immediately be promoted and sent to the Advanced NCO course.3. In July 1996 the applicant was assigned as a drill sergeant with the chaplain school at Fort Jackson. On 16 January 1997 he received a memorandum of reprimand from the commanding general of the training center at Fort Jackson. The reprimand indicated that during the month of November 1996 the applicant made inappropriate sexual comments, engaged in personal conversations with, and improperly touched a female trainee in his unit. It indicated that he told the trainee that he was attracted to other students in the past, that he was attracted to her, and wanted to keep in contact with her after she left the school. It indicated that he hugged, kissed, and gave a personal pager number to the trainee so that he could meet her over the Thanksgiving weekend. It went on to state that when he was engaged in the improper activities with the trainee, his wife was also assigned as a drill sergeant in his unit. The commanding general at Fort Jackson informed the applicant that he intended that the reprimand be filed in the applicant's OMPF; however, would withhold his decision pending submission of the applicant's rebuttal. 4. In his 24 January 1997 rebuttal to the reprimand, the applicant denied the allegations, stating that there were absolutely no witnesses other than the trainee, and that all the witness statements supporting the reprimand were statements by persons to whom the trainee made comments. None of these witnesses had any knowledge of any of the allegations other than what the trainee said about them. He stated that the trainee could not produce the note which she stated that he [the applicant] provided her showing his beeper number. He stated that the trainee was lying. He stated that the trainee stated that he was engaged in improper conduct with another Soldier; however, that Soldier denied this under oath. He stated the affidavit from his wife gave insight into the trainee's manipulative, vindictive, and dishonest behavior. He stated that the trainee had a motive to lie, believing that he had denied her a weekend pass. She raised the allegations only after she was denied the pass. He stated that the allegations by the trainee had no basis in fact and were untrue. 5. There is no evidence of the decision made by the Fort Jackson commanding general of Fort Jackson concerning the filing of the reprimand. The applicant's OMPF does not contain a copy of the reprimand. 6. The applicant's NCOER for the period September 1996 through March 1997 was a relief for cause report. The applicant's rater indicated that he was relieved of his duties as a drill sergeant for inappropriate association with a trainee and that his personal conduct had limited his effectiveness and had brought discredit upon himself and the NCO corps. He stated that his overall potential for promotion and/or service in positions of greater responsibility was marginal. His senior rater stated that his overall performance was poor as was his overall potential for promotion.

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7. On 28 July 1997 the applicant was notified that he was barred from reenlisting under the Qualitative Management Program (QMP) because of the above-mentioned NCOER.
8. On behalf of the applicant, his attorney appealed the bar to reenlistment. Counsel stated that the applicant, in the absence of any objective or corroborating evidence, was relieved because of the word of one unreliable private. He stated that the trainee had accused the applicant of sexual harassment, and had also stated that the applicant had made advances to another female trainee within the unit; however, that trainee had sworn otherwise, and stated that the accuser had made her allegations, believing that the applicant might be standing in her way of her paperwork to go home. 9. Counsel stated that the applicant's wife, also a drill sergeant at Fort Jackson, described the trainee as a complaining and manipulative female Soldier, who was relieved of her duties as a squad leader because she could not pass the physical training test, and who thereafter developed problems with her feet, consistently going on sick call. Counsel stated that the applicant's wife indicated that the trainee had the ability to influence the attitudes of other Soldiers, and did so from time to time at the expense of unit morale.10. Counsel stated that the applicant indicated that the trainee had been exceptionally upset when she learned that she had been deleted from the pass roster, believing that it was the applicant who had removed her from the roster, when in fact, it was the applicant's wife. Counsel stated that the trainee thus made the accusation against the applicant.11. Counsel stated that the applicant's wife indicated that she and her husband had a very good marriage, had spent Thanksgiving together, and there was no opportunity for the applicant to have been "paged" since he was home with his wife the entire weekend. She stated that the applicant had the pager from time to time, but rarely wore it, and that on Thanksgiving weekend the pager was in the applicant's desk in his office, which was often open to anyone.12. Counsel stated that no other female Soldier made an accusation against the applicant, and no other witnesses were able to corroborate the trainee's claim. The applicant's reputation with female Soldiers was excellent. Counsel stated that despite the lack of objective evidence the applicant's chain of command pronounced him guilty; presumably fixated on Aberdeen, they ignored his pleas of innocence. The chain of command never backed up those unsupported accusations with punitive action under the Uniform Code of Military Justice, thereby denying the applicant's chance to confront his accuser. Counsel stated that the allegation against the applicant was untrue and unfair.

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13. The 525th Military Intelligence Brigade commander, the applicant's commander, supported the applicant's appeal, stating that the applicant's conduct and performance throughout his career had been excellent, the only blemish being the incident at Fort Jackson leading to his relief as a drill instructor. He stated that he would normally agree with the QMP bar and subsequent elimination; however, he had considerable doubt that the charge was or even could be substantiated. He stated that he questioned the conduct of the investigation and the findings, in that there was no informal or formal AR 15-6 investigation. He stated that the applicant was never titled nor offered nonjudicial punishment. He stated that the investigation was conducted by an investigator of the Fort Jackson military police investigations section, who was totally unaware that the applicant's wife had removed the trainee from the pass roster, providing a clear motive for retribution. 14. He stated that the investigator's central line of investigation was to track ownership of a pager to the applicant, thus substantiating the trainee's allegation that the applicant had provided her his pager number to facilitate a liaison. The investigator did trace the pager, but never searched for or discovered the pager had been in the applicant's desk in an open access area, and had been there over the Thanksgiving holiday. He stated that having previously assessed investigations, they are a useful means of gathering information and evidence, but in and of themselves, rarely reflect the intellectual rigor and judgment of an impartial officer asked to carefully assemble and judge the full circumstances of an incident. He stated that it was impossible to reconstruct the truth of the incident, but a carefully executed investigation should have led to either the clearing of the applicant or the imposition of appropriate punishment. He stated that in reviewing the package, the impact of the Aberdeen investigation seemed unmistakable. He stated that he could not categorically state if the applicant was guilty or innocent, but it appeared that there was not a credible job of investigating, and that it appeared that the responsible command took the easy step of administrative processing. 15. He stated that the characterization of the applicant did not match well-documented patterns of misbehavior, and that his behavior at Fort Jackson was not part of a continuing pattern of activity, but only a single complaint from an individual with a clear motive to retaliate. He stated that one of the individuals asked to corroborate the complaints actually supported the applicant. He stated that the applicant's actions prior to, during, and subsequent to the incident did not match the pattern of behavior.16. He stated that he could not credit the resulting NCOER with either accuracy or balanced judgment. He stated that the report was not simply substantiated by the facts that he was able to obtain through two telephonic interviews with the chief investigator, and that to impose a bar without proper cause undermined the Army's creditability and command discipline. The action represented a failure in leadership. He stated that he could not make a final judgment on the specific incident, but the applicant's conduct and performance should have afforded him the opportunity to confront the issue directly. 17. The Deputy Commanding General, XVIII Airborne Corps and Fort Bragg, in an endorsement to the Army Enlisted Records and Evaluation Center, recommended approval of the applicant's appeal of his bar to reenlistment.18. The Army Enlisted Records and Evaluation Center approved the applicant's appeal of his bar to reenlistment.19. In a 23 December 1997 memorandum to the Army Enlisted Records and Evaluation Center, an Army captain, a legal assistance attorney at Fort Bragg, stated that after a careful review of the applicant's NCOER, the QMP appeal packet, and the investigatory letter drafted by the applicant's brigade commander, that it was clear that the NCOER was unjustly tainted by the unproven accusation of the applicant's accuser, and was not based on the applicant's performance during the period. He stated that the investigation was inconclusive and provided no substantiation for the trainee's claims, and that the applicant had provided clear and convincing evidence that the NCOER was based on the unsubstantiated and unproven accusations of a disgruntled trainee. He recommended that the report be dismissed in its entirety. 20. On 20 July 1998 the applicant appealed the relief for cause NCOER, stating that his rater and senior rater improperly rated his performance based on unfounded information. He stated that this was evidenced by the successful QMP appeal. 21. He stated that the accusation that he inappropriately associated with a trainee was based entirely upon the fact that the trainee knew he owned a pager, and that the only evidence that she could muster was that she knew his pager number; and, consequently, when the chain of command was informed that he did own a pager, they simply assumed the trainee was telling the truth.22. He stated that an AR 15-6 investigation was never conducted, and that when initially confronted with the allegation, he chose not to make a statement until he had been allowed to speak with a judge advocate. At no other time was he asked to answer questions or make a statement. He was never charged with anything, nor was the staff judge advocate involved in the process. He stated that the mere utterance of a harassment allegation was the entire basis for the NCOER. He stated that he was never found guilty of any wrongdoing, and there was no wrong doing on his part; consequently, the adverse comments and the adverse ratings in the NCOER are erroneous. He requested that the entire

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NCOER be removed from his OMPF based upon the latent inaccuracies, lack of evidence, and the failure of the command to properly conduct an AR 15-6 investigation.23. In the review of the applicant's appeal, the Enlisted Special Review Board (ESRB) indicated the applicant was a three time non selection for promotion to sergeant first class. It indicated that it had reviewed the evidence submitted by the applicant, to include a 25-page memorandum from the commanding general of Fort Jackson, informing the Total Army Personnel Command (PERSCOM) that the applicant was removed from the drill sergeant program. The ESRB determined that his QMP packet was not pertinent to the period of the appealed report, the issues raised, or were otherwise not considered to be usable evidence, in that those items talked about his QMP board, not the NCOER. The ESRB indicated that it had contacted the applicant's senior rater, who stated that the relief for cause report was a true and honest report. 24. The ESRB stated that the applicant had to provide clear and convincing evidence to justify amendment or deletion of the NCOER. It stated that the applicant's appeal lacked merit. The ESRB indicated that a NCOER accepted by Headquarters, DA, and included in the official record of an NCO is presumed to be administratively correct, to have been prepared by the proper designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The ESRB stated that this is known as the presumption of regularity, and that the applicant must produce evidence that clearly and convincingly overcomes the presumption. The ESRB stated that the applicant's contentions that his rater and senior rater improperly rated his performance based on unfounded information was not so, and that based on the letter of reprimand, removal of a drill sergeant packet, and the senior rater comments, the ESRB opined not only was the applicant untruthful, but his contentions were unsubstantiated. 25. The ESRB stated that there was not sufficiently convincing evidence that the contested report was inaccurate or unjust, and that there was no basis to grant the applicant's request for appeal. It recommended that the applicant's appeal be denied. On 2 May 2000 the applicant was advised that the ESRB determined that the evidence did not justify altering or withdrawing the NCOER. 26. The applicant's personnel qualification record contains an entry that the applicant is "Not eligible for future DS [drill sergeant] duty…" That record also contains a notation that he was awarded the DS Identification Badge. The entry has been lined through.27. Army Regulation 600-8-104 sets forth the basic authority for filing of documents in the OMPF (official file) and provides, in pertinent part, that the NCOER will be filed in the performance fiche of the OMPF, and that administrative letters of reprimand or admonition of a nonpunitive nature would be filed on the performance fiche of the OMPF only if the provisions of Army Regulation 600-37 had been complied with.28. Army Regulation 600-37 sets forth the basic authority for the filing of unfavorable information in the OMPF. Paragraph 3-4 of that regulation provides, in pertinent part, that a nonpunitive letter of reprimand or admonition would be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction over the recipient.29. Army Regulation 623-205 states that the NCOER appeals system protects the Army's interest and ensures fairness to the NCO. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. An evaluation report accepted for inclusion in the official record of an NCO is presumed to be administratively correct, has been prepared by the proper rating officials, and represents the considered opinion and objective judgment of rating officials at the time of preparation. Appeals alleging bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the ESRB. The burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy or injustice. 30. Army Regulation 614-200 prescribes the policies and procedures for selection, assignment, and relief of soldiers from drill sergeant duties, and 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. 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 other appropriate documents. Soldiers removed are not eligible for reentry into the drill sergeant program.31. Army Regulation 600-8-22 provides for the award and the 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. Authority to revoke the badge is delegated to commanders of Army training centers and commandants of drill sergeant
schools.

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DISCUSSION AND CONCLUSIONS:

1. Notwithstanding the applicant's contention, there is insufficient evidence to indicate that the relief for cause NCOER was unfair or unjust, and that the report represented other than an objective and valid appraisal by his rating officials during the period in question. Noted is the comments made by counsel in appealing the bar to reenlistment. The comments made by the 525th Military Intelligence Brigade commander have likewise been considered. That officer criticized the conduct and the findings of the investigation, in effect, stating that there was inconclusive evidence that the applicant engaged in misconduct; consequently, the bar to reenlistment and the relief for cause NCOER were both improper and unjust. The 525th commander, while supporting the applicant in his bar to reenlistment appeal and questioning the accuracy of the applicant's NCOER and the judgment of the applicant's rating officials in preparing the report, himself stated that it was impossible to reconstruct the truth of the incident, and that he could not categorically state if the applicant was guilty or innocent. The commanding general of the Fort Jackson training center, however, who was also privy to the report of investigation, had no doubt, believing that the applicant's misconduct warranted a reprimand. His rating officials determined that his misconduct was such that he should be relieved for cause.

2. The report of investigation, however, apparently available to 525th commander, in addition to the applicant and counsel, is not available to this Board. The 27 March 1997 memorandum removing the applicant from a drill sergeant status is not available to the Board.

3. The fact that the applicant successfully appealed his bar to reenlistment, an indication that officials felt that the Soldier, despite the adverse NCOER, deserved removal of the bar, is not a basis for removing the NCOER from his official file. The applicant has not provided sufficient evidence to refute the presumption of regularity. Consequently, his request to expunge the NCOER from his records is unwarranted.

4. Other than the notations on the applicant's personnel qualification record indicating that he was ineligible for future drill sergeant duty and the deletion of the entry awarding the Drill Sergeant Identification Badge, there is no evidence indicating that the award of that badge was revoked; however, based on those entries on his personnel qualification record and the applicant's own statement, it is presumed that the badge was indeed revoked. The document or correspondence directing that action, however, is not available to the Board; however, it is presumed that applicant was removed from drill status for cause, consequently, the award of that badge was properly revoked in accordance with regulatory provisions. The applicant has provided no evidence otherwise. Therefore, his request that the Drill Sergeant Identification Badge be reinstated is not warranted.
5. Neither the 16 January 1997 memorandum of reprimand nor the applicant's 24 January 1997 rebuttal to that reprimand is contained in the applicant's records; consequently, there is no need for the Board to act on his request to expunge the memorandum of reprimand from his record.

6. There is no basis to grant the applicant's request that his records be submitted before a standby advisory board for consideration for promotion to sergeant first class.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__JS____ __FE____ __RO___ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





                  _____Fred Eichorn________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003094977
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040520
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	134.00
3.
4.
5.
6.