RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 January 2006
      DOCKET NUMBER:   AR20050005982


      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. Edmund P. Mercanti            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Gerald J. Purcell             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, through counsel, that he be authorized a
Standby Advisory Board (STAB) for consideration for promotion to pay grade
E-8.  Upon his selection by the STAB, he requests that all records
pertaining to the two promotion boards which declined to select him for
promotion be deleted from his records.  He also requests that his effective
date of promotion be established as the date he would have been promoted if
he had been selected by the regular promotion board, and that he be given
the back pay such a correction would necessitate.

2.  The applicant states, through counsel, that he was suspended from drill
sergeant duties pending investigation of allegations of trainee abuse and a
suspension of favorable personnel actions (flag) was imposed on him.  The
investigation exonerated him and the flag was lifted, but he had difficulty
in obtaining a copy of the completed investigation.  He also learned that
the case had been referred to the Criminal Investigation Division (CID)
which declined to further investigate him due to lack of evidence of
wrongdoing.  The applicant contends that the investigation was abuse of his
commander’s discretion.

3.  Both the Calendar Year (CY) 2004 and Fiscal Year (FY) 2005 Master
Sergeant Promotion Board were comprised of seven individuals.  Four members
of the promotion board were assigned to the Ordnance Center and School,
which his brigade and battalion fell under.  The applicant contends that “
. . . all three voting members could have applied the bias associated with
these bogus allegations of misconduct to Applicant because all three could
have come from the Ordnance Center and School with knowledge of the
allegation.  There is no evidence that Applicant’s exoneration was
disseminated.”

4.  The applicant provides a packet of documents which he describes in his
application.  These documents consist of:

      a.  Noncommissioned Officer Evaluation Reports (NCOERs) and approved
awards, which show that the applicant was an excellent NCO.

      b.  correspondence which show the actions taken by the applicant to
obtain a copy of the investigation conducted on the allegation of trainee
abuse.

      c.  a copy of the CY 2004 Master Sergeant Selection Board member list
which is highlighted to show that a colonel, two Command Sergeants Major

(CSM), and a Sergeant Major (SGM) were assigned to units under the command
of the Ordnance Center and School.  Those members were assigned to Aberdeen
Proving Ground, Maryland (two); Redstone Arsenal, Alabama; and Fort Gordon,
Georgia.

      d.  a copy of the FY 2005 Master Sergeant Selection Board member list
which is highlighted to show that a lieutenant colonel, a CSM, and two SGM
were assigned to units under the command of the Ordnance Center and School.
 Those members were assigned to Aberdeen Proving Ground, Maryland; Redstone
Arsenal, Alabama; Edgewood Arsenal, Maryland; and Wiesbaden, Germany.

      e.  excerpts from Army Regulation 600-8-19 which state in pertinent
parts that the Deputy Chief of Staff, G-1, or designee “may approve cases
for referral to a STAB upon determining that a material error existed in a
Soldier’s OMPF [Official Military Personnel File] when the file was
reviewed by a promotion board.”

      f.  documents showing that the applicant was suspended from duties as
a drill sergeant pending the outcome of an investigation being conducted
into the possibility that he violated a Training and Doctrine Command
(TRADOC) regulation, and the flag which was imposed on him in conjunction
with that investigation.

CONSIDERATION OF EVIDENCE:

1.  On 19 September 2003, the applicant’s commander suspended him from his
duties as a drill sergeant pending the outcome of an investigation being
conducted into the possibility that he violated a TRADOC regulation.  In
that suspension the applicant’s commander stated “However, at this time a
determination of whether or not you are in violation of TRADOC Regulation
has not been determined.”  The commander initiated a flag on the applicant
on 19 September 2003.

2.  On 1 December 2003, the flag was removed from the applicant’s records
based on the case being closed favorably.

3.  The applicant’s NCOER for the period covering December 2002 through
November 2003 had no mention of any impropriety or investigation.  This
report was a perfect rating.  The applicant was rated as excellence in all
Values/NCO Responsibilities, and was ranked top block by his senior rater
in overall performance and overall potential for promotion.  His senior
rater’s comments included “promote immediately; select for First Sergeant
now; his ability to motivate and inspire is unsurpassed; faced challenges
head on, with courage, conviction and the highest sense of professional
pride.”

4.  The applicant’s NCOER for the period covering December 2003 through
November 2004 had no mention of any impropriety or investigation.  This
report was almost a perfect rating.  The applicant was rated as excellence
in all but one of the five Values/NCO Responsibilities, and was ranked top
block by his senior rater in overall performance and overall potential for
promotion.  His rater stated that the applicant’s “personal integrity and
conduct are beyond reproach; an exemplary role model.”  His senior rater’s
comments included “promote now to Master Sergeant and send to the First
Sergeant’s Course immediately; unlimited potential; will excel in any
position of increased responsibility.”

5.  On 14 February 2005, the US Army Garrison – Redstone, Freedom of
Information Office, informed the applicant that a Commander’s Informal
Inquiry was conducted on him in September 2003, and that investigation was
turned over to the CID.  The CID stated that it did an investigation and
determined that there was not enough evidence to pursue further
investigation of the applicant.

6.  The applicant is currently on active duty serving in pay grade E-7.

7.  Army Regulation 600-8-2, paragraph 1-12a, Circumstances requiring a non-
transferable flag, states that flags will be imposed for Soldiers under
charges, restraint, or investigation.  Paragraph 1-14, Actions prohibited
by a flag, states that promotion and reevaluation for promotion are
prohibited when a Soldier is flagged.

8.  TRADOC Regulation 350-6, paragraph 2-5, states that commanders are
responsible for reporting trainee abuse allegations as defined in these
guidelines unless the commander can quickly determine the allegation is not
credible.  Commanders will promptly conduct a preliminary inquiry into
every trainee abuse allegation, regardless of the nature, magnitude, or
source of the complaint.  For some allegations, a quick and informal
interview of the complainant and any witnesses is all that is required.
Drill Sergeant incentive pay will stop until the investigation is complete.
 Other allegations may require more extensive command or law enforcement
investigation.  Commanders will consult with their legal advisor when
conducting an inquiry or evaluating evidence concerning all allegations of
trainee abuse.  Commanders will keep their legal advisor apprised of the
major changes in the status of investigations and the disposition of
offenses.  Commanders will document and maintain records of all preliminary
inquiries into trainee abuse cases, including those the commander
determines are not credible.  Suspension of a drill sergeant, or other
cadre member, is required when a serious incident occurs IAW AR 614-200
(Enlisted Assignments and Utilization Management), paragraph 8-17(d), under
removal from the Drill Sergeant Program.  This includes investigations
conducted IAW AR 15-6 (Procedures for Investigating Officers and Boards of
Officers), chapter 3,
section I, or those the CID or a Military Police Investigator conducted.
Commanders should not automatically suspend drill sergeants, or other
cadre, simply because they are pending a preliminary inquiry into a trainee
abuse allegation.  Commanders will make suspension decisions based upon the
facts of each case, and may suspend individuals pending a preliminary
inquiry if it will aid the inquiry, benefit the training environment, or
for other valid command reasons.

9.  Army Regulation 600-8-19, paragraph 4–3, Promotion Boards, states that
the promotion board will recommend a specified number of soldiers by
military occupational specialty (MOS) from the zones of consideration who
are the best qualified to meet the needs of the Army.  The total number
selected for each career progression MOS is the projected number the Army
needs to maintain its authorized-by-grade strength.

DISCUSSION AND CONCLUSIONS:

1.  The Board was not provided a copy of the investigation or the
allegations made against the applicant.  As such, the Board is unable to
determine the appropriateness of the investigation or the applicant’s
suspension from Drill Sergeant duties.  In the absence of evidence to the
contrary, the Board must make a presumption of regularity.

2.  The applicant’s contention that members of the promotion boards which
considered him knew of the investigation conducted on him is speculative at
best.  The applicant has not submitted any evidence to support this
contention.  The fact that some of the members of the promotion boards were
assigned to units under the applicant’s command, the Ordnance Center and
School, does not establish that these individuals knew about the
investigation.

3.  The applicant’s statement that there is no evidence that his
exoneration of the charges was disseminated is also speculative.  The
applicant has not submitted any evidence to support this contention.

4.  In addition, the applicant has not submitted any evidence to support
his contention that the voting members of the promotion boards did not
impartially review his promotion packet because of their alleged knowledge
of the investigation.  The promotion board members would have seen the
NCOERs the applicant was given after the investigation had been initiated.
These NCOERs did not contain any mention of any impropriety and were
perfect or near perfect ratings.  Therefore, there is no reason to believe
that members of the two promotion boards did not impartially consider the
applicant for promotion.

5.  A promotion board selects the best qualified Soldiers for promotion.
The applicant has not submitted any evidence which would show that the best
qualified Soldiers were not selected for promotion by either promotion
board.

6.  As for the applicant’s request for a STAB, he did not meet the criteria
for such consideration.  A STAB is only authorized when a material error
existed in a Soldier’s OMPF.  No such error exists in the applicant’s case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___gjp___  ___wfc__  ___ji____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





            ________John Infante_________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050005982                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060119                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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