BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090003569 


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, that his July 2005 Relief for Cause Noncommissioned Officer Evaluation Report (NCOER) be removed from his records.

2.  The applicant states, in effect, that there are errors in the information used to support the adverse NCOER.  He was reinstated to his drill sergeant position following presenting his case to the commanding general.  The statement by the brigade commander that he was brought back to duty after the Soldier's class graduated is incorrect.  The trainee in question went absent without leave (AWOL) and never returned.  All allegations were unfounded except one and he questions the truthfulness of that statement.  This adverse NCOER has hindered his promotion for almost 5 years.  (He does not indicate which allegation was founded.)  

3.  The applicant provides copies of his NCOER and seven pages of appeals related documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a career Soldier who enlisted in the Regular Army on 18 June 1989.

2.  He was promoted to sergeant first class on 3 May 2001. 

3.  In April 2005, Headquarters, 266th Quartermaster Battalion, Fort Lee, initiated an investigation for inappropriate conduct with a trainee by the applicant, a drill instructor (DI).  

4.  PVT B____ submitted a sworn statements wherein she stated she and the applicant had had sexual relations on two occasions and the applicant had touched her buttock in a manner she considered sexual in nature.

5.  PVT G____ provided sworn statements, wherein she stated PVT B____ in effect told her that she and the applicant had had sexual relations on two occasions.  She also stated she personally witnessed the applicant touch PVT B____'s buttock in a manner she considered sexual in nature. 

6.  The applicant submitted sworn statements denying any sexual relations with PVT B____ and refused to clarify his relationship with Ms. M____ P____.

7.  Statements from Ms. M____ P____ initially indicated that she and the applicant had "marital relations" but she later stated that she had not understood what the investigator meant by that term and that she and the applicant had not had sexual relations.

8.  On 16 May 2005, the investigating officer found that the allegations of sexual relations between the applicant and the trainee could not be corroborated; however, there was sufficient indication of inappropriate actions on the part of the applicant with a trainee.  The applicant was also found to be having an adulterous relationship with Ms. P____.  It was recommend that:

	a.  the command reprimand the applicant for inappropriately touching PVT B____ and for attempting to have a personal relationship with her;

	b.  the command punish the applicant under the Uniform Code of Military Justice for having an adulterous relationship with Ms. M____ P____; and

	c.  the command should reopen the investigation if PVT B____ returns from being AWOL to determine if PVT B____ can substantiate her allegations of sexual misconduct by the applicant.

9.  The applicant was removed from his duties as a drill instructor on or about 29 July 2005 and was given a Relief for Cause NCOER covering the period April 2005 through July 2005.


10.  In addition to the Relief for Cause NCOER, the applicant also received a letter of reprimand for fraternization and engaging in an inappropriate relationship with a female subordinate Soldier; inappropriately touching, in a sexual nature, the buttocks of an Initial Entry Training (IET) Soldier; and attempting to contact an IET Soldier via cellular telephone for purposes not related to the training mission.  Additionally, he was further reprimanded for engaging in an adulterous relationship with a woman, not his wife (Ms. M____ P____).

11.  On 29 August 2005, the applicant was reinstated into the Drill Sergeant Program with restoration of the Drill Sergeant Identification Badge and special qualification indicator.  However, the NCOER was unchanged.

12.  A review of PVT B____'s iPERMS record contains no documentation of the alleged incidents or the fact that she was and apparently still is AWOL.  Her iPERMS record consists only of initial enlistment documents.  

13.  On 2 October 2006, the Office of the Deputy Chief of Staff (DCS), G-1, Special Review Board (SRB) denied the applicant's appeal to remove the Relief for Cause NCOER.

14.  Army Regulation 623–205 (Noncommissioned Officer Evaluation Reporting System), in effect at the time, established the policies and procedures for the NCOER system.  It stated the following:

	a.  a report is required when an NCO is relieved for cause regardless of the rating period involved.  Relief-for-cause is defined as the removal of an NCO from a rateable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain.  A relief-for-cause occurs when the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the Army.  The burden of proof in appealing an NCOER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy;

	b.  NCOERs may have administrative errors or may not accurately record the rated individual's potential or the manner in which he/she performed their duties.  The Redress Program protects the Army's interests and ensures fairness to the evaluated NCO.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause.  Commander's Inquiries and Evaluation Appeals are separate actions.  Rated individuals may seek an initial means of redress through a Commander's Inquiry; however, a Commander's Inquiry is not a prerequisite for submission of an appeal;

	c.  alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the DCS, G-1, SRB; and 

	d.  clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states all allegations concerning an IET Soldier were unfounded except one and he questions the truthfulness of that statement.  This adverse NCOER has hindered his promotion for almost 5 years.  He does not indicate which allegation was founded.  

2.  While the sexual relations allegations concerning an IET Soldier could not be corroborated, the applicant was found to have violated training command regulations by having inappropriate physical contact with a trainee.  This inappropriate physical contact was deemed to be sufficient to warrant his removal from his DI status.  

3.  Additionally, the applicant's relationship, which he refused to clarify during the investigation, with Ms. P____ also constitutes inappropriate behavior on the part of a drill instructor.  The applicant was married at the time of the incident and his answers or lack of answers supports a presumption of inappropriate behavior.

4.  The fact that the applicant was returned to his DI position after the trainee's class graduated shows his command's faith in him not to repeat the questionable actions, but does not show that he did not commit them.

5.  While the fact that the trainee went AWOL, and apparently is still AWOL, raises a significant question about her truthfulness, it does not exonerate the applicant in light of the statements by a third party to the inappropriate physical contact.  It also has no bearing on his relationship with Ms. P____.


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

___x____  ____x___  ___x____  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.



      _______ _   __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)                                         AR20090003569





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ABCMR Record of Proceedings (cont)                                         AR20090003569



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