RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                                        03 NOVEMBER 2005
      DOCKET NUMBER:                         AR20050010909


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas Howard                 |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 that his special qualification identifier (SQI)
of “X” be reinstated and that his Record of Nonjudicial Punishment (NJP) DA
Form 2627 be either removed from his Official Military Personnel File
(OMPF) or transferred to the restricted fiche of his OMPF.

2.  The applicant states that the charges against him were not
substantiated beyond a reasonable doubt, that the handling of documents was
inappropriate, that the integrity of the case is questioned because there
was not a military police (MP) report filed for an alleged assault and he
was not afforded the opportunity to question the victim during the NJP
proceedings, which is a right.  He continues by stating that the punishment
he received has met and exceeded its purpose and he desires to continue to
serve his country and to advance his career.

3.  The applicant provides documents related to his court-martial charges,
his removal from the drill sergeant program, a legal review of the Army
Regulation (AR) 15-6 investigation, the final report of Training Abuse
Allegation against the applicant, copies of sworn statements related to the
accusations/charges against the applicant, counseling statements, the
applicant’s rebuttal to the administrative removal from drill sergeant
status, a copy of a congressional inquiry and documents related thereto, a
trainee abuse report, a character reference from a third party officer in
Korea, a character reference from a subordinate drill sergeant, a character
reference from a sergeant major and the applicant’s former first sergeant,
a copy of his enlisted records brief, policy letters on sexual harassment,
excerpts from AR 614-200 regarding the removal from the Drill Sergeant
Program, copies of certificates and letters of appreciation/achievement and
copies of his noncommissioned officer evaluation reports (NCOER).

CONSIDERATION OF EVIDENCE:

1.  He enlisted in Philadelphia, Pennsylvania, on 22 October 1986 for a
period of 3 years and training as a military policeman.  He successfully
completed his training and has remained on active duty through a series of
continuous reenlistments.  He was promoted to the pay grade of E-7 on 1
December 1998.

2.  On 21 January 2000, while serving as a senior drill sergeant at Fort
Leonard Wood, Missouri, allegations of trainee abuse were lodged against
the applicant by a trainee.  The battalion commander prepared the initial
report and indicated that the applicant had been suspended from drill
sergeant duties pending investigation and that he was flagged.

3.  On 24 January 2000, two officers were appointed as investigating
officers       (a male major and female first lieutenant) to conduct an
informal investigation under the provisions of AR 15-6 and AR 210-7.

4.  After reviewing the facts in the investigation, the investigating
officer (major) prepared a report of investigation (ROI) which found that
the applicant had told sexually explicit stories to several trainees, that
he had improperly grabbed and pushed a female trainee into a wall and that
he had thrown a blanket into a trainee’s face, then grabbed and pushed her
towards the female barracks.  These findings were based on sworn statements
from several other trainees and cadre who witnessed the events when they
occurred.  The applicant invoked his rights and did not provide a
statement.  The investigating officer recommended that the applicant’s
status as a drill sergeant be reviewed and that he be considered for
disciplinary action.

5.  The battalion commander prepared a final report on 4 February 2000 in
which he determined that the allegations against the applicant were
founded.  He also indicated that the brigade commander had reserved the
right to pursue a summary court-martial against the applicant.

6.  On 8 February 2000, charges were preferred against the applicant by the
battalion commander for sexually harassing a trainee by wrongfully
directing vulgar and obscene language at her, for assaulting a trainee by
grabbing her person and shoving her against a wall, and for assaulting a
trainee by throwing a blanket at her and shoving her towards a door.

7.  On 25 Ferbruary 2000, the special court-martial convening authority
dismissed the charges and imposed nonjudicial punishment against the
applicant for wrongfully directing vulgar and obscene language towards a
trainee, by sexually harassing her by making deliberate and repeated
unwelcome verbal comments to her, for assaulting her by grabbing her person
and shoving her against a wall, and for assaulting her by throwing a
blanket at her and grabbing and shoving her towards a door.  His punishment
consisted of a forfeiture of $1,161.00 per month for 2 months.  He did not
appeal his punishment and the imposing officer (brigade commander) directed
that the DA Form 2627 be filed on the performance fiche of the applicant’s
OMPF.  There is no evidence that the applicant ever applied to the
Department of the Army Suitability Evaluation Board to have the DA Form
2627 transferred to the restricted fiche of his OMPF.

8.  On 29 February 2000, the applicant’s commander notified him that he was
initiating action to remove him from the drill sergeant program.  He also
indicated that he was recommending that the applicant retain his SQI and
drill sergeant badge.  Initially, the applicant elected not to appeal the
removal action, but he subsequently changed his decision and elected to
submit a rebuttal.

9.  The commander initiated the recommendation to remove the applicant from
the drill sergeant program.  However, at this time, he also recommended
that the applicant’s SQI and drill sergeant badge be withdrawn.

10.  The applicant’s battalion commander also recommended that the
applicant be removed from the drill sergeant program and that his SQI and
drill sergeant badge be withdrawn.

11.  The applicant submitted his rebuttal to the removal action on 6 March
2000 requesting that he not be removed from the Drill Sergeant Program.  He
went on to state, in effect, that he made an honest mistake that will be
regretted for the rest of his life; however, he did not feel that he should
be removed from the program based solely on the unfortunate incident that
occurred and that he deserved to remain in the program for his remaining 7
months, based on his otherwise excellent record of service and performance.


12.  After reviewing all of the evidence in the case, as well as the
applicant’s rebuttal, the brigade commander directed the removal of the
applicant from the drill sergeant program and revocation of his SQI and
drill sergeant badge.

13.  The applicant also received a relief for cause noncommissioned officer
evaluation report on 24 March 2000, covering the period from June 1999 to
March 2000.  There is no evidence that he appealed that report to the
Enlisted Special Review Board (ESRB).

14.  He was reassigned to another unit at Fort Leonard Wood and remained
there until he was transferred to Korea in June 2002.  He remained in Korea
until he was transferred to Fort Hood, Texas, in August 2003.  He remained
at Fort Hood until he was again transferred to Korea in October 2004.

15.  AR 27-10 prescribes the guidelines for the filing of NJP.  It states,
in pertinent part, that the decision to file the original DA Form 2627 on
the performance or restricted fiche of the OMPF will be determined by the
imposing commander at the time punishment is imposed.  Personnel serving in
the pay grade of E-4 or below, with less than 3 years of service will have
the Record of NJP (DA Form 2627) filed in the local unit military justice
files.  Personnel serving in the pay grade of E-4 with 3 or more years of
service will have the DA Form 2627 filed in the OMPF.  The filing decision
of the imposing commander is final and will be indicated in item 5, DA Form
2627.

16.  Paragraph 3-37 of AR 27-10 provides the filing determination for the
DA Form 2627 and associated documents.  It provides, in pertinent part,
that the Restricted Fiche of the OMPF is that portion of the OMPF that
contains information not normally viewed by career managers or selection
boards.

17.  That regulation also provides that individuals being considered for
NJP will be advised of their rights, which include the right to remain
silent, the right to counsel, the right to demand trial by court-martial,
the right to present the case in the presence of the imposing commander,
the right to call witnesses, present evidence, to be accompanied by a
spokesperson, to request an open hearing, to examine available evidence and
the right to request a decision period.  There is no right to question or
examine the victim/accuser under NJP proceedings.

18.  Army Regulation 614-200, Selection of Enlisted Soldiers for Training
and Assignment, provides the procedures for relief from drill sergeant
duties.  It provides, in pertinent part, that active duty Soldiers may be
removed from drill sergeant status by commanders occupying a colonel (O-6)
command or higher for failure to maintain high standards of military
appearance, military courtesy, bearing, conduct, professionalism, and
infractions of training policies or violations of the Uniform Code of
Military Justice.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the NJP in question was imposed in compliance with
applicable laws, regulations, and policies by a commander empowered to do
so, with no violations of any of the applicant’s rights.  Likewise, the
record of NJP was properly filed on the Performance Fiche of his OMPF, as
directed by the imposing commander.

2.  It also appears that the withdrawal of the applicant’s SQI and drill
sergeant badge were accomplished in accordance with the applicable
regulations.  The applicant was properly notified of the commander’s intent
to remove him from the drill sergeant program and he was afforded the
opportunity to submit matters in his own behalf, which were considered by
the approval authority before a final decision was rendered in his case.

3.  The applicant’s contention that he was unjustly denied the opportunity
to question the victim/accuser has been noted and found to be without
merit.  The applicant forfeited that right when he accepted NJP in lieu of
demanding trial by court-martial, a forum in which he could have faced and
questioned his accuser/victim.

4.  The evidence in this case suggests that the applicant violated the
trust placed in him as a senior noncommissioned officer and drill sergeant
and the command had no recourse but to take corrective action.  Under the
circumstances, it does not appear that the actions taken by the command
were too severe for the offenses committed by the applicant.

5.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TH___  __JI ____  ___CD __  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.





            ____Thomas Howard__________________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050010909                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051103                                |
|TYPE OF DISCHARGE       |N/A AD (AC) Soldier                     |
|DATE OF DISCHARGE       |N/A AD (AC) Soldier                     |
|DISCHARGE AUTHORITY     |N/A AD (AC) Soldier                     |
|DISCHARGE REASON        |N/A AD (AC) Soldier                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |N/A AD (AC) Soldier                     |
|ISSUES                  |281/expunge njp                         |
|1.126.0400              |                                        |
|2.100.0000              |1021/reinstate sqi/di badge             |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]