RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050018069


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 removal of a DA Form 2627 (Record of Proceedings
Under Article 15 UCMJ) and associated documents including the Relief for
Cause Noncommissioned Officer Evaluation Report (NCOER) and his removal
from drill sergeant status.

2.  The applicant states that he was innocent of all charges and that the
records of all unfavorable actions taken against him should be removed.  He
previously explained what really happened in each and every situation and
submitted statements to substantiate his contentions.

3.  The applicant provides copies of the various documents including the
statements of his accusers, his supporting statements and the various
unfavorable actions.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel provides no request, statement, evidence or argument beyond
that submitted by the applicant.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a sergeant first class with approximately 13 years of
continuous active duty service, was serving as an advanced individual
training (AIT) drill sergeant when he was accused of improper behavior and
language by several AIT trainees.

2.  On 17 March 2003 the applicant was notified that the battalion
commander was considering whether to impose nonjudicial punishment (NJP)
against him under the provisions of Article 15, Uniform Code of Military
Justice (UCMJ) for four specifications of violating a lawful general
regulation by engaging in illegal association with Soldiers in training: by
asking Private First Class (PFC) H____ to engage in a discrete personal
relationship, by expressing to Privates G____ and W____ his fantasy to be
with white and black girls at the same time, by writing a note to Private
G____, and by offering to pay the hotel and cab costs if Private W____
would meet him and engage in sex.

3.  The applicant waived his right to demand a trial by court-martial, and
requested an open hearing and that another person speak in his behalf.  He
indicated that matters in defense, mitigation and/or extenuation would be
presented in person.

4.  The battalion commander imposed punishments of a forfeiture of
$1,363.00 pay per month for 2 months and extra duty for 45 days.  He
directed that the DA Form 2627 be filed in the performance portion of the
applicant’s Official Military Personnel File (OMPF).

5.  The applicant appealed and submitted a detailed rebuttal in which he
denied any wrongdoing and explained away each and every instance.  He also
submitted a statement from his wife, several character references from
fellow NCOs and a letter from a former AIT trainee.

6.  An officer of the Judge Advocate General’s Corps opined that the NJP
proceedings were conducted in accordance with law and regulation and that
the punishments imposed were neither unjust nor disproportionate to the
offenses committed.

7.  The applicant was formally removed from the Drill Sergeant Program on
2 April 2003.

8.  On 18 April 2003, the NJP appeal authority mitigated the forfeiture to
$1000.00 per month for 2 months and directed that the DA Form 26627 be
filed in the restricted section of the applicant’s OMPF.

9.  Army Regulation 27-10 provides policy for the administration of
military justice.  Paragraph 3 provides that nonjudicial punishment is
appropriate in all cases involving minor offenses in which non-punitive
measures are considered inadequate or inappropriate.  It is a tool
available to commanders to correct, educate and reform offenders whom the
commander determines cannot benefit from less stringent measures; to
preserve a member's record of service from unnecessary stigma by record of
court-martial conviction; and to further military efficiency by disposing
of minor offenses in a manner requiring fewer resources than trial by court-
martial.  The imposing commander is not bound by the formal rules of
evidence before courts-martial and may consider any matter, including
unsworn statements the commander reasonably believed to be relevant to the
case.  Furthermore, whether to impose punishment and the nature of the
punishment are the sole decisions of the imposing commander


10.  The applicant appealed the Relief for Cause NCOER.  He contended there
were administrative errors in that the date of his annual physical fitness
test was erroneous, and that the NCOER had never been provided to him to
review–the command had simply entered the notation that he had refused to
sign.

11.  He also contended that there were substantive errors in that he was
blameless and that the entire incident was based upon false accusations.
He noted that there had been no commander’s inquiry in spite of the fact
that he had requested one.  He submitted the previously furnished
supporting documents and a purported request for a commander’s inquiry.
These are the same documents that he provided in support of this
application for correction.

12.  On 1 March 2005, the Office of the Deputy Chief of Staff, G1 informed
him that the Enlisted Special Review Board had found insufficient evidence
to overcome the presumption of regularity and had, therefore, rejected his
request for review of the Relief for Cause NCOER.

13.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting
System (NCOERS)) sets forth the policies and procedures governing the
NCOERS.  It gives instructions for preparing, processing, submitting DA
Form 2166-7 (NCOER), and DA Form 2166-8-1, Noncommissioned Officer (NCO)
Counseling Checklist/Record.

14.  Paragraph 3-2 of the regulation provides evaluation principles and
states, in pertinent part, that rating officials must prepare complete,
accurate, and fully considered evaluation reports.  This responsibility is
vital to the long range success of the Army’s missions.  With due regard to
the NCO’s grade, experience, and military schooling, evaluations should
cover failures as well as achievements to the rated NCO.  The goal of
performance counseling is to get all NCOs to be successful and meet
standards.

15.  Paragraph 6 of the evaluation regulation contains guidance on NCOER
appeals.  Paragraph 6-6 stipulates that a report accepted for filing in a
NCOs record is presumed to be administratively correct, to have been
prepared by the proper rating officials, and to represent the considered
opinion and objective judgment of rating officials at the time of
preparation.  Paragraph 6-7 states that substantive appeals must be
submitted within 5 years of the NCOER's completion date.

16.  Paragraph 6-10 of the regulation contains guidance on the burden of
proof necessary for a successful appeal of an NCOER that has already been
accepted for filing in the OMPF.  It states, in pertinent part, that in
order to justify amendment or deletion of a report, clear and convincing
evidence must be provided to show that the presumption of regularity should
not be applied to the report in question and/or action is warranted to
correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS

1.  The applicant’s assertions and support have been considered, but none
of them are from individuals who were really in a position to examine all
of the available evidence and observe and evaluate the applicant’s
performance and behavior from the perspective of the members of his rating
chain.

2.  The regulatory burden of proof necessary to support a successful appeal
for removal of the NCOER in question has not been satisfied.  There is
insufficient convincing evidence to support granting the requested relief.

3.  The punishment under Article 15, UCMJ was imposed in compliance with
applicable laws, regulations and policies.  The punishments imposed were
neither unjust nor disproportionate to the offense, and there is no
evidence of any substantive violation the applicant’s rights.

4.  Furthermore, it must be remembered that, by waiving his right to a
trial by court-martial the applicant’s behavior was essentially weighed by
the forum of his own choosing.  By imposing punishment, the battalion
commander indicated that he had considered all of the available evidence
and found the applicant guilty beyond a reasonable doubt.

5.  The Army has an obligation to maintain a complete and accurate record
of an individual’s service.  The placement of a record of NJP in the
restricted section of the OMPF enables the Army to maintain that historical
record without unduly jeopardizing the individual’s career.

6.  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

_JEV____  __BJE__  __DLL___  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.





                                  ___      James E. Vick_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050018069                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |134.01                                  |
|2.                      |111.02                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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