IN THE CASE OF:	  

		BOARD DATE:	  13 January 2009

		DOCKET NUMBER:  AR20080008701 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, promotion reconsideration to master sergeant (MSG) by a Standby Advisory Board (STAB) under the criteria for fiscal year 2007 (FY07).

2.  The applicant states, in effect, that she believes she has a basis for consideration by a STAB under the FY07 criteria.  The applicant states that her Official Military Personnel File (OMPF) was not correctly presented to the FY07 and FY08 MSG selection boards because the documentation removing her from the Drill Sergeant Program was improperly posted in the disciplinary portion of the file.  The applicant contends that this administrative error made it appear that she had been removed from the Drill Sergeant Program for disciplinary reasons, when, in fact, she was administratively removed from the program for becoming pregnant.  She continues that her previous attempts to have this problem resolved by submitting requests to the United States Army Enlisted Records and Evaluation Center (EREC), Army Board for Correction of Military Records (ABCMR), and Department of the Army Suitability Evaluation Board (DASEB) have been unsuccessful.

3.  The applicant continues that due to the high volume of records reviewed by the promotion board members, she firmly believes that the presence of the removal packet in the disciplinary portion of her OMPF may have unfairly biased their review of her records.  She states that removal from drill sergeant duty for pregnancy should not be considered a disciplinary action and she perceives this as a form of gender discrimination which should not be allowed under Army regulations.  The applicant continues that although the DASEB approved her request to transfer the removal information to the restricted portion of her OMPF, the board denied her request for referral to a STAB.  The applicant concludes that she was essentially punished for becoming pregnant and that there were no other blemishes in her OMPF prior to this action.

4.  The applicant provides two memoranda from DASEB, her removal packet, an award certificate, a letter from the Army Review Boards Agency (ARBA), four electronic mail messages, and her packet requesting a STAB as documentary evidence in support of this request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that she enlisted in the United States Army Delayed Entry Program for the period of 25 May 1990 through 31 October 1990.  The applicant enlisted in the Regular Army on 1 November 1990.  She completed basic combat training and advanced individual training.  Upon completion of advanced individual training, she was awarded military occupational specialty 95B (Military Police).  The applicant is currently a sergeant first class (SFC)/pay grade E-7 and assigned to the 411th Military Police Company (Forward) based in Iraq.  Her date of rank for promotion to SFC is 1 March 2004.

2.  On 5 April 2006, the applicant's company commander recommended that she be removed from the Drill Sergeant Program in accordance with the provisions of Army Regulation 614-200 (Enlisted Assignments and Utilization Management), chapter 8 (Assignment to Specific Type Organizations/Activities or Duty Positions), paragraph 8-17 (Removal from the Drill Sergeant Program), subparagraph 9, based upon her inability to fulfill her drill sergeant duties as the result of becoming pregnant.

3.  On 5 April 2006, the applicant's battalion commander recommended that she be removed from the Drill Sergeant Program effective 10 April 2006.  The battalion commander stated the applicant's removal was based upon her inability to fulfill her drill sergeant duties due to pregnancy.  The battalion commander also recommended that in accordance with the provisions of Army Regulation 600-8-22 (Military Awards), in pertinent part, the applicant's award of the Drill Sergeant Identification Badge be retained.

4.  On 19 April 2006, the applicant's brigade commander approved her removal from the Drill Sergeant Program effective 10 April 2006.  The brigade commander stated that all requirements under Army Regulation 600-37 (Unfavorable Information) had been met.  The brigade commander further stated that the applicant's removal was justified due to the fact that she was pregnant and unable to fulfill her drill sergeant duties.  He continued that the removal was imposed as an administrative measure, and not as punishment under the Uniform Code of Military Justice.  The brigade commander directed that a copy of the removal documents be filed in the applicant's OMPF.  The brigade commander further directed that the applicant would retain the "X" skill qualification identifier (SQI) identifying her as a qualified drill sergeant under the provisions of Army Regulation 614-200, paragraph 8-17, and her award of the Drill Sergeant Identification Badge under the provisions of Army Regulation 
600-8-22.

5.  The applicant's record contains a DA Form 2166-8 (NCO [noncommissioned officer] Evaluation Report), dated 9 May 2006, which was rendered for the period of January 2006 through April 2006.  Part IV (Army Values/Attributes/Skills/ Actions) of this form shows the applicant's rater assigned her ratings of "Excellence" in every category and provided only laudatory comments about her duty performance.  Part V (Overall Performance and Potential) of this form shows the applicant's rater opined that her overall potential for promotion and/or service in positions of greater responsibility was, "Among the best."  Part V of this form also shows the applicant's senior rater assigned her the highest ratings for overall performance and potential.  The senior rater stated that the applicant was, "a perfect role model for the Army, other services and the Department of Defense."

6.  The applicant's record contains a DA Form 4980-12 (Meritorious Service Medal Certificate), dated 24 May 2007, that shows permanent orders awarded the applicant the Meritorious Service Medal for exceptional service during the period of 7 September 2004 to 8 June 2007.

7.  The applicant provides copies of electronic mail messages exchanged between a representative of the EREC and herself during the period of 14 through 20 August 2007.  The applicant, in effect, informed the EREC representative that the documents which removed her from the Drill Sergeant Program were erroneously filed in the disciplinary portion of her OMPF and requested they be moved to the restricted portion of her OMPF.  The EREC representative informed the applicant that the documents could not be administratively removed and referred her to the ABCMR to request removal.  The applicant in turn questioned why the documentation could not be administratively moved since it was obviously filed improperly.  The applicant also mentioned the fact that she was pending her second consideration by the MSG promotion selection board and expressed her concern that perhaps this error resulted in her not being selected for promotion by the previous board.  The EREC representative responded that the documents were filed correctly in accordance with Army Regulation 600-8-104 (Military Personnel Information Management/Records) and Army Regulation 614-200.

8.  On 27 August 2007, the Chief of the Case Management Division of ARBA sent a letter to the applicant in response to her request to transfer documentation pertaining to her removal from the Drill Sergeant Program from the performance portion to the restricted portion of her OMPF.  The Chief, Case Management Division, informed the applicant that the ABCMR will not consider any application if it determines an applicant has not exhausted all administrative remedies available.  The Chief, Case Management Division, also informed the applicant that she had not exhausted her administrative remedies and referred her to the DASEB for consideration of her request.

9.  On 17 December 2007, the applicant submitted a memorandum to the DASEB requesting that the documentation that removed her from the Drill Sergeant Program be removed from the disciplinary portion and placed in the restricted portion of her OMPF due to the fact that the contents of the documents were due to the medical limitations of her pregnancy rather than being punitive in nature.  The applicant, in effect, acknowledged the fact that Army Regulation 614-200 prescribed that Drill Sergeant Removal Packets for medical reasons, to include pregnancy, would be filed in Soldiers' OMPFs.  The applicant noted that her removal packet, in pertinent part, stated that all requirements under Army Regulation 600-37 had been met.  She further noted that this regulation defined unfavorable information as any credible derogatory information that may reflect on a Soldier's character, integrity, trustworthiness, or reliability.  The applicant contended that this statement caused the erroneous filing of the documents in the disciplinary portion of her OMPF.  The applicant also mentioned the fact that her chain of command had recommended retention of her Drill Sergeant Badge and awarded her a Meritorious Service Medal for her performance, both as a drill sergeant and battalion operations sergeant.  The applicant's battalion and brigade commanders recommended approval of her request to move the documents in question to the restricted portion of her OMPF and for her corrected record to be considered by an STAB for all of the aforementioned reasons.

10.  On 14 February 2008, the President of the DASEB sent a memorandum to the applicant in response to her request to transfer documentation pertaining to her removal from the Drill Sergeant Program from the performance portion to the restricted portion of her OMPF and for her corrected record to be considered by a STAB.  The President of the DASEB informed the applicant the DASEB had voted to approve the appeal and transfer of the Drill Sergeant Program removal documentation and all related documents, since the intent had been served.  The President of the DASEB reiterated that the transfer was based upon intent served and concluded that the transfer was not to be considered retroactive and, therefore, did not constitute grounds for referral to a STAB for a previous non-selection.  The President of the DASEB also sent a memorandum to the EREC directing that the aforementioned documents be transferred from the performance portion of the OMPF to the restricted portion.

11.  Army Regulation 614-200, paragraph 8-17, subparagraph 9, provides that installation, U.S. Army training center, separate brigade, and/or appropriate equivalent commanders may remove active Army Soldiers from the Drill Sergeant Program (while in candidate status or while assigned drill sergeant duties) for medical reasons, including pregnancy, when the condition prevents a Soldier from performing drill sergeant duties.

12.  Army Regulation 600-8-22, paragraph 8-42 (Drill Sergeant Identification Badge) provides that upon successful completion of the Drill Sergeant Course and assignment as a drill sergeant to a training command, the Commandant of the Drill Sergeant School will authorize the permanent wear of the badge to eligible personnel by memorandum.  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 U.S. Army training centers and commandants of drill sergeant schools.  Commanders of U.S. Army training centers may further delegate the revocation authority to commanders in the grade of colonel or higher who have the authority to remove Soldiers from drill sergeant duties and withdraw SQI "X."

13.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  This regulation defines unfavorable information as any credible derogatory information that may reflect on a Soldier's character, integrity, trustworthiness, or reliability.

14.  Army Regulation 600-8-104, paragraph 2-3 (Composition of the OMPF), provides that only those documents listed in tables 2-1 and 2-2 are authorized for filing in the OMPF.  Depending on the purpose, the documents will be filed in one of three sections.  For those OMPFs on microfiche, the sections are as follows:

	a.  The performance fiche, which is used for filing performance, commendatory, and disciplinary data.  The performance fiche is routinely used by career managers and selection boards.  Documents placed on this fiche are limited to those that provide evidence of a Soldier's demonstrated performance.  These documents are used for evaluation and selection purposes.  This fiche is divided into a P section and a commendatory and disciplinary section.

	b.  The service fiche, which is where general information and service data are filed.  The fiche is divided into a service computation section and a general administration section.  Documents filed on this fiche are those that must be permanently kept to record a Soldier's military service, manage a Soldier's career, and/or protect the interests of both the Soldier and the Army.

	c.  The restricted fiche, which is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information on this fiche is controlled.  Documents on this fiche are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; corrections to other parts of the OMPF; record investigation reports; record appellate action; and/or protect the interest of the Soldier and the Army.

15.  The adverse information section of Table 2-1 (Composition of the OMPF) of Army Regulation 600-8-104 stipulates that original letters containing adverse information should only be filed if the provisions of Army Regulation 600-37 have been complied with.  This section of Table 2-1 also provides guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature (including personal indebtedness, dependent nonsupport, and paternity cases and drill sergeant reliefs) on the performance section of the fiche and any other allied documents specifically directed for filing in the commendatory and disciplinary section of the fiche.  This regulation contains no provisions for filing Drill Sergeant Program removal documentation when the basis for removal was pregnancy.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. 
It provides the objectives of the Army's Enlisted Promotions System, which include filling authorized enlisted spaces with the best qualified Soldiers.  Paragraph 4-14 stipulates, in pertinent part, that the Deputy Chief of Staff, G-1, or designee may approve cases for referral to an STAB upon determining that a material error existed in a Soldier's OMPF when the file was reviewed by a promotion board.  It further states that an error is material when, in the judgment of a mature individual familiar with promotion selection proceedings, a reasonable chance exists that had the error not existed, the Soldier may have been selected.  Reconsideration normally will be granted when an adverse document reviewed by a board was subsequently declared invalid in whole or in part and was determined to constitute a material error.  Soldiers requesting reconsideration normally will be granted reconsideration only for the most recent board held prior to the Soldier's request.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she has a basis for consideration by a STAB under the FY07 criteria due to the fact that her OMPF was not correctly presented to the FY07 and FY08 MSG selection boards was carefully considered and determined to have merit.

2.  When taken out of context, it is reasonable to assume that the applicant's brigade commander's statement that all requirements under Army Regulation 600-37 had been met resulted in the assumption that she had been removed from the Drill Sergeant Program under adverse circumstances and resulted in the erroneous filing of the documents in the disciplinary portion of her OMPF.  However, each member of the applicant's chain of command made it quite clear that her removal from the Drill Sergeant Program was based solely on the fact that she had become pregnant and would no longer be able to perform the duties of a drill sergeant.

3.  The applicant's chain of command commended her duty performance and recommended that she retain both her Drill Sergeant Badge and SQI "X."  They further demonstrated their opinions of her performance and potential by rendering her a stellar NCO Evaluation Report and awarding her a Meritorious Service Medal.

4.  Army Regulation 600-37 defines unfavorable information as any credible derogatory information that may adversely reflect on a Soldier's character, integrity, trustworthiness, or reliability.  By no means does becoming pregnant fit into any of these categories.  Another intent of this regulation is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in an individual's official personnel file and to ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

5.  In view of the foregoing, the documentation removing the applicant from the Drill Sergeant Program was improperly posted in the disciplinary portion of her OMPF and her records contained material error when reviewed by the FY07 MSG selection board.  All documentation pertaining to the applicant's removal from the Drill Sergeant Program and the DASEB determination should be removed from her record.  In the interest of justice and equity, the applicant's corrected records should now be submitted to an STAB for promotion reconsideration.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that:

	a.  all documentation pertaining to the applicant's removal from the Drill Sergeant Program and the DASEB determination be removed from her record;

	b.  the applicant's corrected records be submitted to a duly constituted STAB for promotion consideration to MSG under the FY07 criteria;

	c.  if selected, her records be further corrected by showing she was promoted to the next higher grade on her date of eligibility therefore, as determined by appropriate Departmental officials using the criteria cited, provided she was otherwise qualified and met all other prerequisites for promotion; and

	d.  if not selected, the applicant be so notified.



      										___________x______________
      										 	     CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008701



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ABCMR Record of Proceedings (cont)                                         AR20080008701



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