IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20120004214 


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 transfer of the letter removing him from the Drill Sergeant program from the performance portion to the restricted portion of his Official Military Personnel File (OMPF).

2.  He states the four-page letter duplicates a portion of a 56-page letter which was successfully transferred by the Department of the Army Suitability Evaluation Board (DASEB) to the restricted portion of his OMPF.  He was under the belief this action had already occurred as part of his previous request.

3.  He provides:

* A DASEB letter
* Several Noncommissioned Officer Evaluation Reports (NCOERs)
* His Meritorious Service Medal (MSM)
* Various certificates 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 September 1990.  He completed training and he was awarded military occupational specialty 88M (Motor Transport Operator).  After a series of reenlistments, he is currently serving on active duty in the rank/grade of staff sergeant (SSG)/E-6.

2.  The 56-page document contains an investigative final report, dated 4 March 2004.  After a thorough investigation into allegations of an inappropriate sexual relationship between the applicant and an advanced individual training (AIT) female private, the investigating officer substantiated the claims.  As a result, it was recommended he be removed from Drill Sergeant duties and he be given nonjudicial punishment (NJP) under the Uniform Code of Military Justice (UCMJ).  The nonjudicial punishment was administered on 27 April 2004.

3.  His brigade commander approved the findings and directed the applicant's removal from the drill sergeant program.  The commander also indicated the applicant's Skill Qualification Identifier (SQI) and Drill Sergeant Identification Badge would be revoked.  The applicant was provided 7 days to submit any statement or an appeal on his own behalf; however, he chose not to appeal and concurred with the findings.  The brigade commander directed a copy of the removal endorsement and all allied documents be forwarded and filed in the applicant's OMPF.  

4.  A review of his OMPF in the Interactive Personnel Electronic Records Management System (iPERMS) shows a document entitled "Letter Removing from Drill SGT Program" is posted in both the performance and restricted portions of his OMPF.  

5.  He petitioned the DASEB in March 2007 for transfer of the following documents to the restricted section of his OMPF:

* A General Officer Memorandum of Reprimand (GOMOR), dated 4 April 1994
* A Record of Proceedings under Article 15, UCMJ, dated 27 April 2004
* Letter removing him from the Drill Sergeant Program, dated 13 May 2004

6.  On 19 April 2007, the DASEB voted to partially approve his request and as a result, the GOMOR was transferred to the restricted section of his file. 

7.  On 19 September 2009, he petitioned the DASEB once again for transfer of the Article 15, dated 27 April 2004.  The DASEB unanimously voted to transfer the document to the restricted section of his OMPF. 

8.  In December 2011, the applicant petitioned the DASEB for transfer of the Drill Sergeant Program removal letter from the performance to the restricted portion of his OMPF.  On 26 January 2012, the DASEB returned his request without action due to lack of authority to transfer that type of unfavorable information.  He was directed to seek relief through the Army Board for Correction of Military Records (ABCMR). 

9.  He provided copies of his last 10 NCOERs, ranging in date from 1 June 2004 through 30 October 2011.  Some of the NCOERs reflect his service in a deployed environment and contain no adverse comments:

* Part IV (Army Values/Attributes/Skills/Actions) shows all “Yes” ratings
* Part IV (Values/NCO Responsibilities) shows a mix of “Excellence” and Success” ratings
* Part V - Rater (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows 10 ratings of “Among the Best” 
* Part V - Senior Rater (Overall Performance) shows all ratings in the Successful “1” block 
* Part V - Senior Rater (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows all ratings in the Superior “1” block 

10.  The applicant provided his MSM award certificate which shows he was recognized for exceptionally meritorious service while performing duties as a truck master in the deployed theater. 

11.  A review of his record in the Integrated Web Service (IWS) indicates he has no special qualifications.  Further review of his iPERMS record depicts a Department of the Army official photograph, taken on 21 January 2011, which depicts the applicant wearing the Drill Sergeant Identification Badge on his Class A uniform. 

12.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in their individual official personnel files and to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in their individual official personnel files.  

   a.  Paragraph 3-4 states that a letter of reprimand, admonition, or censure, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer senior to the recipient or by direction of an officer having general court-martial jurisdiction over the individual.  Letters filed in the OMPF will be filed in the performance section.  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.  If it is desired to file allied documents with the letter, these documents must also be specifically referenced in the letter or referral document.  
   
   b.  Paragraph 7-2b states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would 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.  Appeals approved under this provision will result in transfer of the document from the performance section to the restricted section of the OMPF. 

13.  Army Regulation 600-8-22 (Military Awards), paragraph 8-42 provides for award of the Drill Sergeant Identification Badge.  It states:

	a.  The badge is awarded after successful completion of the Drill Sergeant Course and assignment as a drill sergeant to a training command.

	b.  The Commandant of the Drill Sergeant School will authorize the permanent wear of the badge to eligible personnel by memorandum.  

	c.  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."

14.  The Manual for Courts-Martial (MCM), Article 134, Section 113 (Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button) states the maximum punishment for wearing an unauthorized military decoration has been increased to include a bad conduct discharge because the offense often involves deception.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to transfer the drill sergeant program removal letter from the performance to the restricted section of his OMPF was carefully considered.

2.  The evidence of record confirms that in 2004 he was removed from drill sergeant status for cause.  His SQI and identification badge were revoked and he was administered NJP under Article 15, UCMJ for having an improper sexual relationship with an AIT student.  

3.  As a result, he was issued a letter removing him from the drill sergeant program, which his brigade commander to be filed in his OMPF.  The letter was served in accordance with the applicable regulation, all requirements of law were met, and his rights were fully protected throughout the process.

4.  The NCOERs the applicant provides indicate that he has performed his duties in an outstanding manner over the course of the last 7 years.  However, he wore the Drill Sergeant Identification Badge as an authorized decoration on an official photograph taken in 2011 when he was no longer authorized to wear this decoration.  This is a violation of section 113, Article 134 of the MCM and is punishable under the Uniform Code of Military Justice (UCMJ). 

5.  While the ABCMR will not pursue punishment under the authority of the UCMJ, the ABCMR will neither authorize transfer of the drill sergeant program removal letter from the performance to the restricted portion of his OMPF.  The governing regulation does authorize the transfer of certain documents from the performance to the restricted section of the OMPF when it can be determined that the document has served its intended purpose; however, NCOERs are not included in these documents.   


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)                                         AR20120004214



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ABCMR Record of Proceedings (cont)                                         AR20120004214



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