IN THE CASE OF:	  

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090007366 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be reinstated in the Drill Sergeant (DS) Program and all related documents, including her letter of reprimand (LOR), letter of removal from the DS Program, and relief-for-cause noncommissioned officer evaluation report (NCOER), be removed from her official military personnel file (OMPF) or moved to the restricted fiche.

2.  Counsel points out two material errors associated with this application:

	a.  The underlying allegations were demonstrably false.

	b.  The applicant's removal from the DS Program was unjust as two other drill sergeants with greater culpability involved in the case were allowed to remain on the drill trail.

3.  Counsel states the applicant has exhausted all of her administrative remedies.  She appealed twice to the Commanding General (CG) of U.S. Army Human Resources Command (HRC) with no responses.  Counsel states the applicant was removed from the DS Program for adverse reasons in accordance with Army Regulation 614-200 (Enlisted Assignments and Utilization Management), paragraph 8-17a(6)(7).  Counsel quotes Army Regulation 614-200, paragraphs 8-17a(6)(7), 8-17j through 8-17m, and Army Regulation 623-3 (Evaluation Reporting System (ERS)), paragraphs 1-8(c) and 3-22.

4.  Counsel presented the following arguments:

   a.  The applicant was wrongfully accused of having an affair with Sergeant First Class (SFC) D. Wa____ who was married to another Soldier.  She did not know SFC D. Wa____ was married and his Enlisted Record Brief (ERB) listed him as single.

   b.  The allegation that the applicant willingly continued in an inappropriate relationship with full knowledge of SFC D. Wa____'s marital status was false.

   c.  The applicant's LOR and removal from the DS Program were false and unjust.

   d.  The applicant was erroneously accused of making a false statement to the investigating officer (IO).

   e.  The relief-for-cause NCOER contains a false and prejudicial bullet comment, is unjust, and should be removed from the applicant's records or moved to her restricted fiche.

5.  Counsel provides the following documents in support of the applicant's application:

	a.  TAB A – two memoranda, subject:  Removal from DS Program, dated 20 May 2006; memorandum, subject:  Appeal of Removal from the DS Program, Special Qualification Identifier "X" and DS Badge, dated 19 June 2006; executive summary; memorandum, subject:  Removal from DS Program, dated 17 May 2006, with acknowledgment of receipt; memorandum, subject:  Recommendation for DS Removal, dated 17 May 2006; memorandum, subject:  Rebuttal for Removal from DS Program (Staff Sergeant (SSG) Wi___, S____, 
XXX-XX-XXXX), dated 7 June 2006; NCOER for the period ending May 2006, undated; DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 19 April 2006; DA Form 2823 (Sworn Statement), dated 19 April 2006; two emails sent to SFC D. Wa____'s wife, dated 5 October 2005 and 11 October 2005;

	b.  TAB B – memorandum, subject:  Commander's Inquiry, dated 25 April 2006 with enclosures;

	c.  TAB C – SFC D. Wa____'s divorce decree;

	d.  TAB D – letter, dated 2 April 2009, addressed to HRC-Alexandria; and

	e.  TAB E – second copy of NCOER for the period ending May 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Regular Army in the rank and pay grade of sergeant/E-5.  At the time in question, she was an SSG/E-6 assigned to Company E, 2nd Battalion, 29th Infantry Regiment, at Fort Jackson, SC.
 
2.  The evidence shows the applicant sent electronic mail (email) to SFC D. Wa____'s wife on 5 October 2005 and 11 October 2005 which contain profanities.  The applicant referenced SFC D. Wa____'s other affairs and gave the wife contact information to find out when SFC D. Wa____ would be leaving for the field.

3.  An informal investigation was conducted on 19 April 2006 and the applicant replied to the following questions:

	a.  "(If applicable) would you say that you've ever had a relationship with SFC D. Wa____ that was more than professional?"  She responded, "Yes."

   b.  "Did you know that SFC D. Wa____ is married?"  She responded, "No."

	c.  "How long have you known he was married and how did you find out he was married?"  She responded, "I still had no knowledge of his marriage."

	d.  "When (if at all) did your relationship with SFC D. Wa_____ end?  Why?"  She responded, "11 September 2005."

	e.  "Have you had any interaction with his wife?  If so, when was the first time you spoke with her?"  She responded, "On September 5 when I found out she was his wife at his apartment."

4.  On 25 April 2006, the company commander conducted a preliminary inquiry to determine whether or not SFC D. Wa____ was currently having an adulterous relationship and to determine whether or not SFC D. Wa____ had engaged in an adulterous affair prior to this relationship and fathered a child by a woman other than his wife.  The company commander arrived at the following conclusions:  (1) SFC D. Wa____ did not make it known to SSG S. Wi____ (the applicant) that he was married initially, but some degree of inappropriate association continued after she was informed; (2) SFC D. Wa____ and SSG T Wo____ apparently had recently had some degree of interaction, but no evidence submitted clearly showed proof that SSG T. Wo____ knew or knows that SFC D. Wa____ was married; and (3) SFC D. Wa____ may have fathered a child with a woman other than his wife who may be residing at the residence that he claims on his ERB.  The company commander recommended a formal investigation be conducted.

5.  On 24 May 2006, the applicant received an LOR for lying to a commissioned officer during an investigation.  The LOR indicated that the applicant flagrantly admitted through email that she had a relationship with SFC D. Wa____ who was married.  When questioned about it during a commander's inquiry, however, she lied and told the IO that she had broken off the relationship as soon as she found out SFC D. Wa____ was married.  Later, in the same official statement, she stated that she still did not know SFC D. Wa____ was married at the present time.  Additionally, her email traffic with SFC D. Wa____'s wife indicated that she continued to have contact with SFC D. Wa____ after she knew he was married, which was inappropriate given her sexual relationship with SFC D. Wa____ prior to her knowledge of his marriage.

6.  The LOR also indicated the applicant was reprimanded for her language and behavior demonstrated through her email with SFC D. Wa____'s wife and another Soldier which were highly inflammatory and completely unprofessional.  The LOR indicated the applicant was rehabilitatively transferred from the 3rd Battalion, 13th Infantry, to the 2nd Battalion, 39th Infantry, because she was abusive to Soldiers in the 3rd Battalion, 13th Infantry.  She was issued a memorandum of concern from her company commander and transferred to the 2nd Battalion, 39th Infantry, for a fresh start.  The LOR was imposed as an administrative measure and not as punishment under Article 15, Uniform Code of Military Justice (UCMJ).

7.  On 24 May 2006, the applicant acknowledged receipt of the LOR.  Her chain of command recommended that the LOR be filed in her OMPF.  On an unknown date, the LOR was filed in her OMPF.

8.  In a 17 May 2006 memorandum, the company commander recommended the applicant be removed from DS duties in accordance with Army Regulation 
614-200, paragraph 8-17a(6) and paragraph 8-17a(7), with an effective date of removal of 17 May 2006.  The company commander indicated the applicant had willingly continued an inappropriate relationship with another service member with full knowledge of his marital status and she also made a false official statement to the IO.

9.  In a 17 May 2006 memorandum, the battalion commander recommended approval of the applicant's removal from the DS Program.  The battalion commander also recommended that the effective date of removal be 17 May 2006 and withdrawal of the DS Identification Badge and the Soldier's special qualification identifier "X."

10.  In a 30 May 2006 memorandum, the brigade commander approved the removal of the applicant from the DS Program for adverse reasons in accordance with Army Regulation 614-200, paragraph 8-17a(6)(7).  The brigade commander indicated that this action was adverse in nature and disqualified the applicant from future consideration for the DS Program.

11.  On 7 June 2006, the applicant elected to appeal removal from the DS Program along with the reprimand being placed in her OMPF.  In her appeal, she stated the following:

	a.  The reprimand she received stating that her standards as a DS had been substandard was incorrect.  During the five cycles she had successfully completed, only once had she been given counseling for a misunderstanding on a range.

	b.  She helped achieve Honor Platoon twice and was runner up at least twice.  Her platoon won Best Marching Platoon at the company level and during graduation ceremony.  She selected Soldiers to compete for the Soldier Leader of the Cycle and they won.  Soldiers who graduated continue to seek her help and guidance.  She commented that her appearance is outstanding as an SSG as well as a DS.

	c.  She received comments from some of the range cadre who respect her for training Soldiers to the fullest.

	d.  The NCOER for the period immediately preceding her request to move from 3rd Battalion, 13th Infantry, to the 2nd Battalion, 39th Infantry, does not support a rehabilitative move as stated in the reprimand.  Her NCOER for the period in question shows that both her rater and senior rater gave top blocks.  She alleges that this is not the NCOER of an "abusive" or "sub-standard" DS as the reprimand states.  She also received the "Hat Stand" award.

	e.  The investigation conducted by the outgoing commander for Company A, 3rd Battalion, 13th Infantry, on 19 April 2006 was truthful and accurate.  The questions pertained to her relationship with SFC D. Wa____ from March 2005 to September 2005.  She described her encounters with SFC D. Wa____'s wife and the email she sent SFC D. Wa____'s wife and current girlfriend.

	f.  She admitted that she made mistakes and was counseled three times while assigned to the 2nd Battalion, 39th Infantry.

	g.  She is aware of her actions and has accepted full responsibility for them.  She does not feel that these infractions that she has been counseled on warrant removal from the trail along with her hat and badge or filing in her OMPF.

	h.  Her career and advancements have suffered gravely through manipulation and deceit.  She states she was not the only person implicated in the case involving inappropriate behavior.  She was the only one reprimanded and recommended for removal from DS Program.

	i.  She enjoyed being a Soldier as well as a DS and has given her all during the time she has served.  She wants to continue serving her country and training future Soldiers.  Her career will suffer greatly with this removal.  She attended 11 schools and obtained six additional skill identifiers/special qualification identifiers to assist her efforts in becoming a senior NCO.

12.  The evidence of record contains an executive summary.  It indicates that she admitted she had a relationship with a man not her husband and was unaware that he was married at the time.  She had been a DS for 1 year and had tried hard to pass the Army Values on to her Soldiers.  Also, the applicant contends that she had made mistakes, but has learned from them and feels that this incident should not impact her military career.  The applicant requested reinstatement into the DS Program.

13.  In a 19 June 2006 memorandum, the CG of the U.S. Army Training Center and Fort Jackson disapproved the applicant's appeal involving removal from the DS Program, special qualification identifier "X," and DS Badge.

14.  On 19 June 2006, the applicant received a relief-for-cause NCOER for the period January 2006 through May 2006 in which she was evaluated as the DS in Company E, 2nd Battalion, 39th Infantry Regiment, at Fort Jackson, SC.  In Part IV(a) (Values/NCO Responsibilities) of the NCOER in question, the rater gave a "No" response to Army Values (1) through (6) with the comments:  "does not live up to the Army Values, Honor, Duty, Respect and Integrity"; "placed integrity on the line by making false statements during an investigation"; and "failed to comply with instructions of superiors on several occasions."

15.  In Part IV(b) (Competence), the rater marked "needs much improvement" with the comments:  "displayed poor judgment by having inappropriate relationship with a married Soldier" and "displayed poor judgment in making false statements to a commissioned officer during an investigation."

16.  In Part IV(c) (Leadership), the rater marked "needs much improvement" with the comments:  "placed her own self-interest above the interest of her unit and the Army" and "perception of improper conduct adversely affected morale and discipline within the unit."

17.  In Part IV(f) (Responsibility and Accountability), the rater marked "needs much improvement" with the comments:  "the rated NCO has been notified of the reason for the relief."

18.  In Part V (Overall Performance and Potential), the rater evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "marginal" and listed three positions in which the applicant could best serve the Army at her current or next higher grade:  (1) Human Resources Sergeant, (2) Training Room NCO, and (3) Administrative Sergeant.

19.  The senior rater (SR) evaluated the applicant's overall performance as "poor" and placed an "X" in block 5.  The SR evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "poor" and placed an "X" in block 5.  The SR also provided the comments:  "do not promote," "performance not indicative of a professional NCO," "further potential in the United States Army depends on achieving a higher level of maturity," and "technical expertise is unlimited; however needs further experience as a leader."

20.  Counsel provided a copy of SFC D. Wa____'s divorce decree.  This document shows SFC D. Wa____ was granted a divorce on 5 July 2006 based on the grounds of a 1 year separation from his wife.

21.  In a 2 April 2009 letter, counsel indicated that a request had been submitted to the CG of HRC on 12 September 2008 requesting the applicant's reinstatement in the DS Program.  However, as of the date of the letter, HRC had not responded.  The letter indicated that this was a second request for reinstatement in the DS Program and removal of all related documents from the applicant's OMPF.  There is no evidence which indicates HRC responded to this request.

22.  Army Regulation 614-200 governs the selection and assignment of enlisted personnel.  Chapter 8, section III, governs the DS Program.  Subparagraph 8-17 states that installation, U.S. Army Training Center, separate brigade, and/or appropriate equivalent commanders may remove Active Army Soldiers from the DS Program (while in candidate status or while assigned DS duties) for various reasons, including failure to maintain high standards of military appearance, military courtesy, bearing, conduct and/or professionalism, and infractions of training policies or violations of the UCMJ.

23.  Paragraph 8-17j through paragraph 8-17m of Army Regulation 614-200 state the following:

	a.  The appeal and reinstatement approval authority for DS removed from the DS Program will no lower than the first general officer in the Soldier's chain of command and will always be a general officer higher in grade than the designated removal authority.

	b.  Appeals to DS removal actions must be acted upon and a final decision provided to HRC (AHRC-EPD-D) within 20 calendar days from the date of the Soldier's removal from the DS Program.  An appeal that is not acted upon within the allotted time period must be forwarded to the CG, HRC, for action.  Appeals that must be acted upon by the CG, HRC, as indicated in paragraph 8-17j above, must be submitted to the CG, HRC, within 20 calendar days of the date the Soldier was removed from the DS Program.

	c.  When removal from the DS Program is HRC directed, the Deputy Chief of Staff (DCS) G-1 will act as the appeal and reinstatement authority.  These appeals must be submitted to the DCS G-1 (DAPE-MPE) within 20 calendar days from the date of the Soldier's removal.

	d.  Appeals submitted to the CG, HRC, and the DCS G-1 must be processed through the highest general officer on the installation who is an appeal authority and is in the Soldier's chain of command.

24.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the ERS.  It provides principles of support, standards of service, and policies governing all work required, to include Army evaluations policies and guidance regarding redress programs including Commander Inquiries and appeals.  Procedures, tasks, and steps pertaining to the completion of each evaluation report are contained in Department of Army Pamphlet 623-3 (ERS).

25.  Paragraph 1-8(c) of Army Regulation 623-3 states that the primary function of the ERS is to provide information to Headquarters, Department of the Army, for use in making personnel management decisions.  This information is supplied by the rating chain in the Soldier's assigned or attached organization.

26.  Paragraph 3-22 of Army Regulation 623-3 states that a thorough evaluation of the Solider is required.  The following techniques will, therefore, not be used:

	a.  brief, unqualified superlatives or phrases, particularly if they may be considered trite;
	b.  too brief comments – these frequently need to be interpreted by the selection board and the career manager.  If not correctly interpreted, the best interests of the Army and the rated Soldier are not served; and

	c.  bullet comments.

27.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records (ABCMR), the DA Suitability Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections Branch of the HRC, the OMPF custodian when documents have been improperly filed, HRC, as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.

28.  Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Chapter 3 covers unfavorable information in official personnel files.  Paragraph 3-4 applies to filing of nonpunitive administrative letters of reprimand or censure in official personnel files.  Paragraph 3-4(b) states that a letter, regardless of the issuing authority, may be filed in the OMPF maintained by HRC, only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual.  Letters filed in the OMPF will be filed on the performance fiche.  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions which allege the applicant's removal from the DS Program was unjust were carefully considered.  However, the evidence of record confirms that all procedural notification, referral, and rebuttal requirements were afforded the applicant in connection with this action.

2.  By regulation, commanders may remove Active Army Soldiers from the DS Program for various reasons, including failure to maintain high standards of military bearing, conduct, and professionalism.  It appears that the applicant's chain of command determined she failed to maintain military conduct and professionalism and recommended she be removed from the DS Program.  Although the applicant appealed her removal from the DS Program, it was disapproved by the CG.  In her appeal, the applicant admitted she made mistakes.

3.  Counsel contends the applicant was wrongfully accused of having an affair with SFC D. Wa____ who was married to another Soldier and that the applicant did not know he was married.  The evidence of record confirms the applicant was involved in a relationship with a SFC D. Wa____ who was married to another Soldier at the time in question.  Although the applicant alleges she did not know SFC D. Wa____ was married, she testified during an investigation that she found out SFC D. Wa____ was married when she met his wife at his apartment on the 5 September.  The evidence of record also confirms the applicant sent email (containing inappropriate language) to SFC D. Wa____'s wife in October.  In addition, the commander's inquiry indicated the applicant continued some "inappropriate" association with SFC D. Wa____ after she had knowledge of his marital status, even though the company commander did not clearly define the term "inappropriate" association.  The commander imposing the LOR obviously found the evidence supporting this assertion compelling.

4.  Counsel's contentions which allege that the applicant's LOR was false and unjust were acknowledged.  However, there is insufficient evidence that supports his claims.  The applicant received an LOR in May 2006 for lying to a commissioned officer during an investigation and for her language and behavior demonstrated through her email with SFC D. Wa____'s wife and another Soldier.  The commander imposing the LOR believed the evidence sufficient to draw this conclusion.  While counsel disagrees, this conclusion is one supportable by a fair reading of the evidence.  By regulation, once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust.

5.  Counsel's contention that the applicant was erroneously accused of making a false statement to the IO is also acknowledged.  However, during the investigation, the applicant was asked the question whether she knew that SFC D. Wa____ was married, the applicant responded, "No."  To the question how long she knew he was married and how did she find out he was married, she responded, "I still had no knowledge of his marriage."  However, the applicant knew of SFC D. Wa____'s marital status as of 5 September according to her testimony.

6.  In addition, counsel contends that the relief-for-cause NCOER contains a false and extremely prejudicial bullet comment, is unjust, and should be removed from the applicant's records or moved to her restricted fiche.  There is insufficient evidence to support this claim.  The regulation states that a thorough evaluation of the Solider is required.  The rater indicated "No" for six out of seven Army Values listed in Part IV of the NCOER in question and made three adverse comments.  The rater also indicated the applicant needed much improvement in competence, leadership, and responsibility and accountability with adverse comments.  The narrative comments taken together fairly characterize the misconduct cited in the LOR.  The command had a factual basis for these findings and, counsel's arguments notwithstanding, the ABCMR does not find them clearly erroneous or without a rational basis.

7.  In the absence of evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the investigation and the resultant DS Program removal process.  Therefore, the requested relief is not warranted in this case.

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)                                         AR20090007366



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ABCMR Record of Proceedings (cont)                                         AR20090007366



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