RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	29 April 2008  
	DOCKET NUMBER:  AR20070006754 


	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.  




Director



Analyst

      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) dated 10 August 2005 and the Relief for Cause Noncommissioned Evaluation Report (NCOER) for the period covering January 2005 through August 2005, from her Official Military Personnel File (OMPF).  She also requests that she be reissued a drill sergeant badge and/or reinstated on drill sergeant duty to complete her obligation; and that she be reconsidered for promotion by the Sergeant First Class Promotion Selection Board under the 2006 and/or 2007 criteria.

2.  The applicant states that under Army Regulation (AR) 15-6, paragraph 3-7, subparagraph (6), provides that involuntary admission or confession obtained by unlawful coercion or inducement likely to affect its truthfulness will not be accepted into evidence.  She states that the investigating officer (IO) had been under investigation by the Fort Huachuca Inspector General's (IG) office for over ten different claims of harassment and unlawful conduct while conducting 
AR 15-6 investigations.  She states that she filed an IG complaint against the IO in June 2005.  She states that 1 year later the IG's office unsubstantiated her claim of any wrong doing against the IO.  She states that all other allegations of any type of wrong doing against the IO have been unsubstantiated by the IG's office.  She states that all investigations pertaining to the 309th Military Intelligence Battalion during the 2004 through 2005 timeframe dealing with drill sergeants were conducted by the same IO and everyone was removed from the drill sergeant program.  

3.  The applicant states that the IO was recently discharged from the Army for having an inappropriate relationship with a drill sergeant and that he was also charged with fraternization with the drill sergeants under his command.  She states that her command knew of the IO's conduct during the investigations and did nothing but ruin careers at the Soldiers' expense.  She states that her command failed to take care of her and others who had to endure the IO's deceptive tactics.  She states that IO was out to make a name for himself at the expense of others.  She states that prior to the incident in question, she was receiving number 1 ratings and that she was rated among the best.  She states that the last three evaluations that she has received contain number 1 ratings and that she is rated among the best.

4.  The applicant provides in support of her application, a memorandum addressed to this Board dated 21 April 2007; portions of Army Regulation 15-6 dated 2 October 2006; a copy of her NCOER Appeal addressed to the 

Commander, United States Army Enlisted Records and Evaluation Center (EREC) dated 9 January 2006; a copy of a memorandum from the Chief, Personnel Actions Branch, United States Army EREC dated 21 February 2006, forwarding her NCOER appeal to the Commander, Office of the Deputy Chief of Staff, G-1; a memorandum from the President, Special Review Boards, dated 30 March 2006, notifying the Chief, Personnel Actions Branch, United States Army EREC that her appeal was denied; a memorandum from the Chief, Personnel Actions Branch, United States Army EREC dated 7 April 2006, notifying her that her NCOER appeal was denied; an undated memorandum from the President Special Review Board, notifying the Chief, Personnel Actions Branch, United States Army EREC that her Relief for Cause NCOER appeal was denied; a copy of the Judge Advocate's legal review of the Army Regulation 15-6 Investigation dated 21 June 2005; the Report of Proceedings by the Investigating Officer/Board of Officers; a copy of her Rights Warning Procedure/Waiver Certificate; a copy of her Sworn Statement dated 9 June 2005; and a copy of another Soldier's Rights Warning Procedure/Waiver Certificate and his Sworn Statement dated 8 June 2005.

5.  The applicant also submits two Memorandums for Record (MFR’s), authored by the IO dated 16 June 2005, regarding the AR 15-6 Investigation and a false official sworn statement made by the applicant pertaining to adultery; four copies of MFR’s, authored by the IO dated 16 June 2005, regarding the AR 15-6 investigation and statements made by another Soldier admitting to adultery and making a false official Sworn Statement; a MFR, authored by the applicant's first sergeant dated 16 June 2005, pertaining to a telephone conversation he had with the wife of the other Soldier involved in the adultery allegation; electronic mail (email) from the applicant's first sergeant that was forwarded to the command sergeant major dated 24 May 2005, regarding a telephone call that he received from the other Soldier's wife about "blowouts" between the applicant and the Soldier's wife; a MFR authored by her commanding officer (CO), dated 9 June 2005, regarding a telephone conversation that he had with her husband; a MFR, authored by executive officer (XO) of C Company, 309th Military Intelligence Battalion, dated 16 June 2005, regarding an altercation that she witnessed between her (the applicant) and the other Soldier's spouse; a copy of an EREC Worksheet; and copies of her NCOERs for the periods covering January 2001 through October 2003, November 2003 through July 2004, August 2004 through December 2004, January 2005 through August 2005, September 2005 through June 2006, 1 July 2006 through 31 December 2006, and 1 January 2007 through 13 April 2007.



CONSIDERATION OF EVIDENCE:

1.  On 10 February 1992, the applicant enlisted in the United States Army Reserve under the Delayed Entry Program, in Phoenix, Arizona, for 8 years, in the pay grade of E-1.  She enlisted in the Regular Army for 5 years on 25 March 1992.  Through a series of reenlistments, she is currently on active duty in the United States Army.

2.  In an email dated 24 May 2005, the applicant's first sergeant notified the command sergeant major of a telephone call that he received from a Soldier's wife regarding her husband and the applicant.  The Soldier's wife explained that she previously had several blowouts with the applicant and that she repeatedly asked the applicant to stay away from her husband.  According to the information contained in the email, the applicant went to the other Soldier's house, yelled at his wife, used abusive language, and threatened his wife in front of their children. The first sergeant noted that at that time, the other Soldier's wife did not believe that the applicant was having an affair with her husband, and that she really wanted any personal relationship that the applicant was attempting to establish with her husband to be stopped.  The first sergeant documented this telephone conversation in a MFR dated 16 June 2005.

3.  A Commanders Inquiry (Army Regulation 15-6 Investigation) was initiated on 8 June 2005 to determine if the applicant and the other Soldier had committed adultery and/or any other improprieties.

4.  In a MFR dated 9 June 2005, the applicant's CO noted that he had a telephone conversation with the applicant's husband on 8 June 2005, and that during the conversation the applicant's husband spoke about the applicant and her alleged affair with another Soldier.  The applicant's husband told the CO that the applicant went to his office on 7 June 2005 and talked to him in a very erratic manner.  He said that she used a lot of profanity and tried to take a picture out of his office and the picture cut her hand.  During the conversation the applicant's husband spoke about divorcing the applicant and he mentioned that he and the applicant had previously been to the other Soldier's house.  The applicant’s husband stated that the applicant had committed adultery when the two of them lived in another state.  He stated that the other Soldier's wife came to his house and told him about an affair between the applicant and her husband.  The applicant’s husband stated that the applicant found out about the visit, got mad and went to the other Soldier's house to confront his wife.  During the telephone conversation, the applicant's husband went on to talk about her temporary duty (TDY) to Missouri and he stated that she did not take a privately owned vehicle (POV); however, when she returned she filed a travel voucher indicating that she did drive a POV and she claimed mileage.  The applicant's husband concluded the conversation by stating that the applicant got paid for the mileage that she claimed for that TDY and that the travel voucher was fraudulent.

5.  In Sworn Statements obtained by the IO during the investigation on 8 June 2005 and 9 June 2005, both the applicant and the other Soldier denied having any type of a sexual relationship with each other.  In the applicant's Sworn Statement, she spoke about marital problems that she was having with her husband and in the other Soldier's Sworn Statement, he spoke about one incident of driving to Drill Sergeant School with the applicant.  However, they both swore they had never had any sexual contract. 

6.  In a MFR dated 16 June 2005, the IO noted that on 10 June 2005, the other Soldier admitted under oath and of his own free will that it was his open condom wrapper that was found at the residence that the applicant shared with her husband.  The IO also noted that the applicant's husband called the battalion and stated that he found an open condom wrapper in a cooler at his residence.  In the MFR the IO noted that the other Soldier stated that he and the applicant were having sexual intercourse and the wrapper fell into a cooler.  The IO noted that the other Soldier provided the information about the precise location of the condom wrapper on his own.  The applicant refused to provide a Sworn Statement and elected to seek legal counsel.

7.  In a follow-up interview the applicant denied the other Soldier's claims and she accused the IO of coercing a confession from the other Soldier.  During the interview, the applicant stated that the IO was out to get her and the other Soldier and that she thought that the IO was going to "make this go away" if they told him what happened.  In an MFR dated 16 June 2005, the IO stated that he explained to the applicant that the only way he could "make this go away" was if she and the other Soldier were innocent and told the truth.  He further explained that if they were cooperative and honest, but had committed adultery, he would recommend that they be charged with the minimum punishment for the offense.  The IO explained to the applicant that the final decision on punishment belonged to her CO and that his report was only a recommendation.  The IO further explained that the facts of the investigation and the admission of adultery made by the other Soldier was enough for the investigation to be closed.  The IO stated that he gave the applicant an opportunity to explain why she thought the other Soldier would lie about their relationship and that she stated "I don't know, all I am going to say is nothing happened."  The IO stated that the applicant accused him of using "cop tricks" to try and "get her" and that the applicant stated that her family was full of lawyers and that she "knows the game."  According to the MFR when the IO questioned the applicant about the filing for mileage on her voucher to and from Drill Sergeant School, she confirmed that she did drive to school in the other Soldier's car and she claimed that her payment from the Army for the mileage was a mistake.  The applicant stated that she had filed to have the money returned to the Army and she accused the IO of trying to use her mileage claim against her.  The IO stated that the applicant became irate and said, "I should lawyer up too."

8.  In a follow-up interview conducted with the other Soldier on 10 June 2005, the other Soldier admitted to the IO that he had sexual intercourse with the applicant on at least six occasions:  in a hotel room in Amarillo, Texas; on the way to Drill Sergeant School; in his barracks room while at Drill Sergeant School; in a hotel room on the way back from Drill Sergeant School; and on more than one occasion in a hotel room in Benson, Arizona.  The other Soldier admitted again that the open condom wrapper belonged to him and that it was found by the applicant's husband when she returned from Drill Sergeant School.

9.  In a MFR dated 15 June 2005, the other Soldier provided his version of the circumstances surrounding his confession to the IO and he contends, in effect, that he was coerced into lying so that he would receive a lesser punishment.  

10.  On 16 June 2005, the IO completed his investigation.  In the Report of Proceedings by Investigating Officer/Board of Officers, that he completed, he included the information that he gathered from the applicant and the other Soldier and he recommended that they both receive a field grade Article 15 for adultery and for making false official sworn statements, and a reduction in rank.  He also recommended that both the applicant and the other Soldier be tested for sexually transmitted diseases; that the applicant undergo a pregnancy test and, pending the results, a paternity test; that they both be counseled regarding the importance of integrity as a Soldier; they both be provided the opportunity to seek professional counseling; and that the applicant complete an anger management course.

11.  Nonjudicial punishment (NJP) was imposed against the applicant on 10 August 2005, for wrongfully having sexual intercourse with another man, not her husband, between 3 January 2005 and 9 March 2005; for making a false official statement; and for being disrespectful in language towards the IO who was a commissioned officer in the execution of his office.  The applicant opted not to demand trial by court-martial and she requested a closed hearing with a person to speak in her behalf.  She indicated that matters in defense, mitigation, and/or extenuation would be presented in person.  In a closed hearing and after evidence had been considered, the punishment imposed against her consisted of a forfeiture of pay in the amount of $320.00 per month for 2 months; however, $200.00 was suspended to be automatically remitted if not vacated before 8 October 2005.  Her CO directed that the NJP be filed in the restricted portion of her Official Military Personnel File.  The applicant indicated that she had no desire to appeal the punishment that was imposed.

12.  On 22 September 2005, the applicant was furnished a Relief for Cause NCOER for the period covering January 2005 through August 2005.  In Part IV (Army Values/Attributes/Skills and Actions) of the NCOER her rater indicated that she had no honor or integrity, as she failed to be honest with her superiors and she failed to maintain personal conduct off duty.

13.  In Part IV (Values/NCO Responsibilities) of her NCOER the applicant was rated as needing improvement in Responsibility and Accountability.  Her rater stated that she allowed her personal lifestyle to negatively effect her professional conduct and that she had been notified of the reason for her relief.  

14.  In Part V (Overall Performance and Potential) of the applicant's NCOER, her rater stated that she should be promoted when her personal affairs do not interfere with her duty performance.  In overall performance she was rated as fair (block 4) by her senior rater and in overall potential for promotion and/or service in positions of greater responsibility she was rated as superior (block 3).

15.  On 9 January 2006, the applicant submit an appeal to the Relief for Cause NCOER to the Commander, United States Army EREC, citing administrative error and substantive inaccuracies as the basis for her appeal.  In her appeal, she stated that her rating chain did not act as the relieving officials, nor did they want to draft a Relief for Cause evaluation.  She cited Army Regulation 623-205, stating that there should have been an accompanying memorandum attached to the Relief for Cause evaluation and that the memorandum should have been 
drafted by the relieving officials.  She states that she was not afforded the opportunity to rebut or comment upon the contents of any such memorandum.  The applicant went on to state in her appeal that she had never been counseled in accordance with Army Regulation 623-205; that the rating period reflected on the Relief for Cause NCOER is incorrect; and that several substantive miscalculations, misstatements, and errors in judgment are described in her evaluation which is unduly prejudicial.

16.  On 7 April 2006, the Chief, Personnel Actions Branch, United States Army EREC notified the applicant that her official records had been reviewed and referred to the Department of the Army Enlisted Special Review Board.  She was told that the board determined that the evidence did not justify altering or withdrawal of the NCOER.  She was informed that a copy of the memorandum notifying her of the decision made in her appeal and the correspondence that she submitted in support of his appeal would be entered on the restricted portion of her Official Military Personnel File.

17.  Army Regulation 623-205, Noncommissioned Officer Evaluation Reporting System sets forth the policies and procedures for the Enlisted Evaluation Reporting System  It provides, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.  Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

18.  The Drill Sergeant Identification Badge is authorized for wear upon successful completion of the Drill Sergeant Course.  During this tour of duty the Drill Sergeant badge is considered a temporary decoration pending successful completion of the tour as a drill sergeant.  The award is authorized by the Commandant of the Drill Sergeant School, and the Drill Sergeant Identification Badge may be worn for the duration of a military member’s career.  Any drill sergeant who is relieved of drill sergeant duties for cause may be required to surrender the badge and in this case would not eligible for any further display of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was relieved for cause because of allegations that she had an improper relationship with another Soldier who was not her husband.  Although she denies that the relationship was improper to the extent that she was accused, she has failed to show through the evidence submitted with her application and the evidence of record that such was the case.  Despite her accusations against the IO, she has failed to show that the conclusions reached in the AR 15-6 investigation were invalid.

2.  The applicant has failed to show through convincing evidence that the contested report does not reflect the objective evaluation of her rating chain at the time and that it does not properly reflect the rating chain’s evaluation of her performance and potential during the period in question.  It appears the report was filed in accordance with the applicable regulation and there is no justification for removal of her relief for cause NCOER.  There is no evidence that her relief was directed by anyone other than her rater or senior rater; therefore, no separate enclosure was required to the NCOER.

3.  The applicant's contentions concerning the Article 15 have been considered.  However, her contentions seem to lack merit.  Her records show that she had NJP imposed against her on 10 August 2005, as a result of her improper relationship with another Soldier; for making a false official statement; and for being disrespectful in language towards the IO who was a commissioned officer in the execution of his office.  She was afforded the opportunity to demand trial by court-martial.  However, she opted not to demand trial by court-martial and she opted not to submit an appeal to the information contained in the record of NJP.  She has failed to present sufficient evidence to undermine the validity of the commander's finding her guilty of the charged offences.

4.  Based on the available evidence, the applicant is not entitled to wear the Drill Sergeant Identification Badge.  She was relieved of her drill sergeant duties and she was required to surrender her badge.  She has provided insufficient evidence to show that her command's decision to relieve her for cause and that her requirement to surrender her badge was in error or unjust.  

5.  As there is insufficient evidence to show that the Relief for Cause NCOER or the Record of Proceedings under Article 15 were in error or unjust, there is no basis to direct that she be reconsidered for promotion.

6.  In order to justify correction of a military record the applicant must show 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

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070006754



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
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