IN THE CASE OF:	  

		BOARD DATE:	    21 August 2012

		DOCKET NUMBER:  AR20120010969 


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;

* dismissal of the action that removed him from the drill sergeant program
* retention of his Drill Sergeant Identification Badge
* retention of his "X" special qualification identifier (SQI)
* removal of the change of rater DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), covering the rating period 1 November 2010 through 1 June 2011 (hereafter referred to as the contested NCOER) from his records

2.  The applicant states the corrections are needed due to legal errors and estoppels (legal equity concept in which a person is wronged by relying on the actions of others).

3.  The applicant provides:

* Letter, dated 10 April 2012, from the Criminal Records Center, Richland County Judicial Center, Columbia, SC
* Orders, dated 17 August 2011, from the Court of General Session, SC, for destruction of arrest records
* Removal from the Drill Sergeant Program packet
* Contested NCOER
* DA Form 1059 (Service School Academic Evaluation Report)
* NCOER Appeal to the Enlisted Special Review Board (ESRB) and ESRB's decision and Record of Proceedings
* Enlisted Record Brief
* Certified copy of his official military personnel file (OMPF), including his:

* Award of the Drill Sergeant Identification Badge, Parachutist Badge, and Mechanic Badge
* Promotion orders
* Enlistment and reenlistment documents
* Awards and decorations certificates and orders
* Certificates of training, achievement, and appreciation Security Questionnaire
* Medical records
* NCOERs from June 2004 through November 2010
* DA Forms 1059
* Civilian Education Transcripts
* Certificate of live birth
* Social security card

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests dismissal of the action that removed the applicant from the drill sergeant program and removal of the contested NCOER from the applicant's records.  In the alternative, counsel requests reinstatement of the applicant's Drill Sergeant Identification Badge and the SQI of "X." 

2.  Counsel states there were procedural and substantive errors. 

* He was improperly removed from the drill sergeant program under Army Regulation 614-200 (Enlisted Assignments and Utilization Management)
* The unit failed to establish and maintain a rating scheme as required by Army Regulation 623-205 (NCO Reporting System)
* The published rating scheme was not used and the Drill Sergeant School failed to utilize qualified raters
* He never received his initial counseling or any performance counseling
* The ESRB failed to consider and acknowledge all matters submitted by him in his appeal
* The ESRB erroneously assumed the counseling listed on the contested NCOER was quarterly or performance counseling
* The criminal charges against the applicant were not substantiated; there was no trial; there were no factual findings made and no determination of guilt
* His OMPF was not updated due to no fault of his; he does not know why some of his documents are not filed in his OMPF and he has no control of what gets filed
* The Drill Sergeant School used derogatory information that never resulted in charges or a conviction; rating officials used prohibited comments
* He was never charged with a crime but his rating officials used unverified information to place on the contested NCOER
* The chain of command undermined the regulation to give him ratings of "Needs Improvement"
* The chain of command did not provide him with copies of his OMPF in an effort to impede his appeal rights
* The ESRB did not consider all the evidence he submitted in his appeal
* The contested NCOER erroneously states he was charged with a substantiated domestic abuse offense
* The applicant relied on the brigade and post commanders' recommendations to retain his badge and SQI pursuant to the removal action
* He drafted his appeal and made tactical decisions based on the recommendations by the brigade and post commanders
* If he had known the U.S. Army Human Resources Command (HRC) would ultimately remove the badge and SQI, he could have drafted his appeal differently
* The chain of command was not concerned with mentoring him and obstructed his access to his appellate rights
* No Soldier deserved to have completely false derogatory information permanently engrained on their records.

3.  Counsel did not provide additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 August 2002 and he held military occupational specialty (MOS) 91B (Wheeled Vehicle Mechanic).  He served through multiple reenlistments in a variety of stateside and/or overseas assignments and he was promoted to staff sergeant (SSG)/E-6 on 1 November 2007.

2.  His records also show he completed several civilian and military training courses and received multiple peace/wartime awards.  He served in Kuwait/Iraq from April 2003 to March 2004, January 2005 to January 2006, and November 2006 to November 2007.  

3.  He completed the Drill Sergeant Course at Fort Jackson, SC, from 15 October 2008 to 18 December 2008 and he was awarded the Drill Sergeant Identification Badge in accordance with paragraph 8-39b of Army Regulation 600-8-22 (Military Awards), effective 18 December 2008.

4.  He was assigned as a drill sergeant to B Company, 2nd Battalion 13th Infantry Regiment, Fort Jackson, SC, on or about 1 January 2009.  He received favorable NCOERs during the periods 1 January 2009 through 31 December 2009 and 1 January through 1 October 2010.  Both NCOERs show he received initial and quarterly counseling during each rating period.

5.  On 24 July 2009, he was arrested by county police, Richland County Sheriff Department, SC, for the offense of weapons/point and presenting.  However, the charge was later (19 March 2010) dismissed, not pressed, or he was not found guilty of the charge. 

6.  On 30 December 2010, he was arrested by county police, Richland County Sheriff Department, SC, for the offense of unlawful carrying of a pistol.  His arrest warrant stated "it is believed the [Applicant] did commit the crime of unlawful carry of pistol because he did unlawfully and willingly have a Sigsauer P250 pistol on front passenger seat of his vehicle.  Deputy Mxxxxx conducted a traffic stop on the [Applicant] due to him assaulting a female.  As I approached the [Applicant] to do a field interview I observed the pistol in plain view.  The [Applicant] was driving...  This did occur in Richland County.  Axxxxx and others are witness to prove the same."

7.  A military police report shows that on 30 December 2010 the Provost Marshal's Office (PMO), Fort Jackson, SC, was notified that the applicant was apprehended for unlawfully carrying a gun (pistol) and that he had been transported to Glenn Detention Center, Columbia, SC.  Military police officials assumed custody of the applicant and subsequently transported him back to the PMO, Fort Jackson, where he was further processed and released to his unit.

8.  The applicant was suspended from the Drill Sergeant Program subsequent to this incident.  He was counseled by his senior drill sergeant and company first sergeant, on 6 January, 3 February, and 17 March 2011 and informed that the suspension would continue until the charges are dropped or a sentence is imposed. 

9.  On 11 March 2011, Headquarters, U.S. Army Medical Department Activity, Fort Jackson, SC, issued a memorandum addressed to the applicant, Subject: Family Advocacy Review Committee (CRC) Incident Determination.  It stated:

	a.  The CRC met on 9 March 2011 to review an incident of alleged adult physical abuse.  He (the applicant) had been identified as the offender.  The CRC determined that the incident met criteria for physical abuse and will enter the determination into the Department of Defense Central Registry database.  

	b.  The CRC recommends the applicant be command-directed to contact the assigned case worker to schedule and monitor treatment and to comply with the recommended actions determined by the CRC.  The treatment plan consisted of anger management counseling and individual therapy.  

10.  On 16 March 2011, by memorandum, the Commandant, Fort Jackson Drill Sergeant School, recommended to the brigade commander the applicant be removed from the drill sergeant program in accordance with paragraph 8-17a(11) of Army Regulation 614-200 due to a serious incident involving an arrest on 30 December, and previous incidents involving weapon charges.  The Commandant stated that the applicant had demonstrated behavior that was inconsistent with the Drill Sergeant Program and had been identified by the Family Advocacy Case Review Committee as an abuser.  The Commandant, however, recommended the applicant retain his Drill Sergeant Identification Badge and SQI of "X."  

11.  On 16 March 2011, the applicant acknowledged receipt of the recommended action and elected to submit a rebuttal. 

12.  On 30 March 2011, by memorandum to HRC, the brigade commander (a colonel (COL)) recommended approval of the applicant's removal from the Drill Sergeant Program and he also recommended the applicant retain his Drill Sergeant Identification Badge and SQI of "X." 

13.  On 11 April 2011, by memorandum to the Commanding General (CG), Fort Jackson, SC, the applicant appealed his removal from the Drill Sergeant Program.  He took full responsibility for his actions, acknowledged his poor judgment, and he stated he was not making excuses for his actions.  He contended the facts presented were not accurate and stated:

* He was involved in a verbal altercation; he could have handled the situation better but he was not thinking properly
* He did not have a loaded weapon nor did he pull it on anyone at any time
* He was coming back from a road trip and had the weapon in his vehicle
* Although he was arrested, he was not facing trial
* He had enrolled in counseling and attended anger management classes
* The previous (2009) charges of pointing and presenting a weapon were dropped 
* The CG should take into consideration his prior accomplishments 
* He completed three combat tours
* He performed well as a Drill Sergeant
* He regretted his actions

14.  On 3 June 2011, the applicant's application to the State of South Carolina for pre-trial intervention was approved and he was accordingly scheduled for an orientation on 20 June 2011.  

15.  During the month of June 2011, the applicant received the contested NCOER for his duties as a drill sergeant.  His rater was sergeant first class (SFC) CRJ, the squad leader; his senior rater was SFC JAW, the platoon sergeant; and his reviewer was sergeant major REM, the deputy commandant.  This NCOER shows in:

* Part IVa (Army Values), the rater boxes are marked "No" for "Selfless Service" and "Personal Courage" and entered the comments –

* does not display a high degree of loyalty, failing to keep the chain of command informed with all events happening in altercations off post
* fails to treat others with dignity and respect, as being charged with a substantiated domestic abuse offense 

* Part IVbc (Value/NCO (Noncommissioned Officer) Responsibilities - Competence), the rater marked "Needs Improvement (Some)," and entered the comments –

* failed to complete mandatory 54 day Drill Sergeant Leader Certification process
* removed from performing duties as a Drill Sergeant Leader after being arrested while in an off duty status
* poor judgment and decisions led to altercation, resulting in removal from Drill Sergeant Duty

* Part IVd (Leadership), the rater marked "Needs Improvement (Some)," entered the comments – 

* assisted in the molding and shaping of 45 NCOs into Drill Sergeants, capable of teaching, coaching, and mentoring future warriors in BCT (Basic Combat Training)
* negatively affected platoon readiness by being removed from Drill Sergeant duty prior to completion; decreasing platoon rating from Excellent to Satisfactory
* leadership and managerial skills need improvement to advance to the next level 

* In Part Va (Rater – Overall potential for promotion and/or service in positions of greater responsibility), the rater selected "Marginal"
* In Part Va (Senior Rater (SR) Bullet Comments), the senior rater entered the comments –

* Should not be promoted at this time
* Should receive additional training and evaluation prior to attending NCOES (NCO Education System) course
* Would best benefit the Army as a Forward Support battalion senior mechanic where his knowledge can be shared with Soldiers
* Not fit for Drill Sergeant activity; exhibits a negative attitude and should be removed from the Drill Sergeant Program

* In Parts Vc and d (Senior Rater – Overall performance and potential for promotion and/or service in positions of greater responsibility), the senior rater selected "Fair/Fair – 4/4"

This NCOER was signed by the applicant's rating officials on 3 and 4 August 2011 and by the applicant on 4 August 2011.  It is filed in his OMPF.

16.  On 15 August 2011, after having completed the pre-trial intervention program, the State dropped the charges of weapons/unlawful carrying of pistol against him.  Additionally, on 25 August 2011, the charges were ordered expunged (cleared) from his civilian record.

17.  On 30 August 2011, after carefully reviewing the applicant's appeal involving removal from the Drill Sergeant Program, the CG, Fort Jackson, SC, disapproved his appeal and stated the merits of his appeal were outweighed by the criteria established for the Drill Sergeant Program.  However, the CG recommended the applicant retain his Drill Sergeant Identification Badge and his "X" SQI.  

18.  The applicant's appeal was forwarded to HRC for a decision.  Regulatory guidance (Army Regulation 614-200, paragraph 8-17(k)) requires appeals of removal from the Drill Sergeant Program be acted upon and final decision provided to HRC within 20 calendar days from the date of the Soldier's removal from the program.  An appeal that is not acted upon within the allotted time period must be forwarded to the CG, HRC for action.  

19.  On 3 November 2011, after careful consideration of the applicant's appeal, the CG, HRC disapproved his appeal of removal from the Drill Sergeant Program and ordered the Drill Sergeant Badge be retained, the SQI of "X" not be retained, and the Special Duty Assignment Proficiency Pay (SDAP) be terminated. 

20.  On 19 January 2012, the ESRB thoroughly reviewed his NCOER appeal and the evidence he submitted.  The ESRB determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied or that action was warranted to correct a material error, inaccuracy, or injustice.  The ESRB unanimously voted to deny his case.

21.  References:

	a.  Army Regulation 623-3 (Evaluation Reporting System), effective 10 August 2007, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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.  The burden of proof rests with the applicant.

		(1)  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pamphlet 623-3.  Consideration will be given to the following:  (a) the relative experience of the rated officer or NCO; (b) the efforts made by the rated officer or NCO; and (c) the results that could be reasonably expected given the time and resources available.  Potential evaluations will be performance-based assessments of the rated officers or NCOs of the same grade to perform in positions of greater responsibility and/or higher grades.  

		(2)  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion of amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or 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. 

	b.  Army Regulation 614-200, effective 26 February 2009, prescribes the reporting, selection, assignment, and utilization of Active Army enlisted personnel.  Chapter 3 governs SQIs, additional skill identifiers, and language codes.  Chapter 8 provides for assignment to specific types of organizations and/or activities or duty positions. 

		(1)  Paragraph 3-14 states the SQI is the fifth character of the MOS Code (MOSC) and may be used with any MOS unless restricted by another regulation. The fifth character of the MOSC will contain the letter “O” when the Soldier is not qualified for an SQI.  SQI "X" (drill sergeant) has precedence while a Soldier is assigned to a drill sergeant position.  The SQI will be withdrawn and deleted from the MOS awarded when qualification skills are lost or when the Soldier withdraws from a voluntary program (for example, airborne or ranger duty).

		(2)  Paragraph 8-13 states drill sergeants are the primary representatives of the Army during the formative weeks of an enlistee’s training; therefore, only the most professionally qualified Soldiers will be assigned to drill sergeant duty.  Paragraph 8-14 (Drill Sergeant Candidate prerequisites) lists multiple prerequisites for this program, one of which is not to have assault or spouse/child abuse other than characterized as mild record (Army Regulation 608-18, Table C-1 and the CRC).

		(3)  Paragraph 8-17 (removal from the drill sergeant program) states installation, U.S. Army Training Center, separate brigade and/or appropriate equivalent commanders may remove active duty Soldiers from the Drill Sergeant Program (while in candidate status or while assigned Drill Sergeant duties) for any of various reasons (listed).  Removal authority must be at least COL level command and may be delegated to subordinate commander or deputy commanders and/or commandants in the grade of COL or higher including commanders and/or commandants of other Services.  

		(4)  HRC is the removal authority for active duty Soldiers who are stationed in continental United States and who become unqualified for drill sergeant assignment and/or duties after graduation from drill sergeant school and prior to departing current installation (other than drill sergeant installation) on drill sergeant assignment instructions.   All requests will be forwarded through current installation command channels to HRC and will include recommendation (approval or disapproval) from the first commander in rank of COL.  Requests will include all supporting documentation as appropriate.  The mere occurrence of an incident or the conduct of an investigation is not intended to be a basis for removal from the program.  Decisions on removal must be based on the circumstances or the completed investigation.  Reports of removal are not required if Soldiers are cleared and returned to drill sergeant duty. (Soldiers who are pending removal or who are temporarily suspended from duties pending completion of investigation will be counted in total (assigned) drill sergeant strength.  However, when active duty Soldiers are removed from the drill sergeant program, they will—

* Be removed from the school or unit
* Be assigned other duties at the installation (if possible)
* Have their SDAP terminated in accordance with appropriate regulatory guidance
* Have SQI "X" removed for reasons of failure to maintain high standards, conduct and professionalism; infractions in training, violations of the UCMJ, lack of motivation
* Award and revocation of the Drill Sergeant Identification Badge is governed by Army Regulation 600–8–22, paragraph 8–39 

		(4)  The appeal and reinstatement approval authority for drill sergeants removed from the program will be no lower than the first general officer (GO) in the Soldier’s chain of command and will always be a GO higher in grade than the designated removal authority.

		(5)  Appeals to drill sergeant removal actions must be acted upon and final decision provided to HRC within 20 calendar days from the date of the Soldier’s removal from the drill sergeant 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 j, above, must be submitted to the CG, HRC, within 20 calendar days of the date the Soldier was removed from the program.  Appeals submitted to the CG, HRC, and the Army G–1 must be processed through the highest GO on the installation who is an appeal authority and is in the Soldier’s chain of command.

	c.  Army Regulation 600-8-22 governs awards and decorations for Army personnel.  Paragraph 8-42 states the Drill Sergeant 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 COL or higher who have the authority to remove Soldiers from drill sergeant duties and withdraw skill qualification identifiers (SQI) "X."

DISCUSSION AND CONCLUSIONS:

1.  The applicant completed the drill sergeant course on 18 December 2009 and he was awarded the Drill Sergeant Identification Badge.  Additionally, although official orders are not available, it appears SQI "X" was added to the fifth character of his MOS.  He was subsequently assigned to drill sergeant duties. 

2.  With respect to the Drill Sergeant Identification Badge and SQI X":

	a.  In December 2010, he was arrested by civilian police for allegedly having a weapon and assaulting a female.  In view of this alleged misconduct and arrest, his chain of command suspended him from drill sergeant duties.  The chain of command followed that with a recommendation for removal from the program for a serious incident involving an arrest and previous incidents involving weapon charges.  The Commandant stated that the applicant had demonstrated behavior that was inconsistent with the Drill Sergeant Program and had been identified by the Family Advocacy Case Review Committee as an abuser.  The Commandant, however, recommended the applicant retain his Drill Sergeant Identification Badge and SQI of "X

	b.  The approval authority, a COL, approved the removal action and recommended the applicant retain his Drill Sergeant Identification Badge and maintain his SQI of "X."  The applicant appealed to the next higher authority – the first GO in the chain of command.  After carefully reviewing his appeal, the GO disapproved his appeal and stated the merits of his appeal were outweighed by the criteria established for the Drill Sergeant Program.  However, the CG recommended the applicant retain his badge and SQI.

	c.  When the appeal reached HRC for final adjudication, after careful consideration of the applicant's appeal, the CG, HRC disapproved his appeal of removal from the Drill Sergeant Program and ordered the Drill Sergeant Badge be retained, the SQI of "X" not be retained, and the Special Duty Assignment Proficiency Pay (SDAP) be terminated. 

	d.  The chain of command conducted his removal action in accordance with regulatory guidance.  He was counseled and briefed, he acknowledged receipt of the removal action, and he was fully aware of his rights.  He appealed to the first GO in the chain of command and his appeal was denied.  Although the removal packet is not filed on his OMPF, there is no reason to dismiss the action that removed him from this program.  

	e.  Since the applicant was removed from the position of a drill sergeant for cause and no longer performing the duties of drill sergeant, the "X" SQI was withdrawn and there is no reason to reinstate it.  Additionally, the CG HRC ordered he retain the Drill Sergeant Identification Badge.  There is no evidence in his records that this badge had been revoked.  

3.  With respect to the NCOER:

	a.  The Drill Sergeant Program is built under the premise that drill sergeants are the primary representatives of the Army during the formative weeks of an enlistee’s training; therefore, only the most professionally qualified Soldiers will be assigned to drill sergeant duty.  The conduct underlying his arrest was contrary to the higher standards required of a drill sergeant  

	b.  Once he was removed from the program and his removal decision was made by the appropriate authority, he was required to receive a change of rater NCOER.  By then, the information about his arrest was confirmed, the weapon charge was in his police record, and he had been identified by the Family Advocacy Case Review Committee as an abuser.  As such, his rating officials properly stated the facts in their assessment of his performance during the period covered by this NCOER.  

	c.  The fact that the second charge of unlawfully carrying a pistol was not pressed and his civilian court ordered to expunge this charge from his civilian records did not preclude his command from considering the underlying conduct in determining whether he should remain in the program.  His command believed the evidence of his misconduct was credible.  The decision by the civil authorities in disposing of the allegations has no bearing on this assessment by his command.

	d.  As an NCO, he had an equal responsibility in seeking counseling from his chain of command.  It is inconceivable that in previous NCOER rating periods, in the same job, in the same unit, he received counseling (initial and quarterly) but during the contested NCOER he did not. 

	e.  His personnel records reside on the interactive Personnel Management (iPERMS) database and can be accessed using his Common Access Card.  It is unclear why he believes his own records were withheld from him.  It is equally unclear why he did not exercise due diligence in updating his own records which can be viewed by him 24/7, if he felt his records were incomplete. 

	f.  The contested NCOER clearly states that his signature indicated he verified the administrative data, including the rating officials.  The rating scheme normally mirrors the chain of command.  It is inconceivable that after having received two previous NCOERs for the same duties, he did not know who his chain of command or rating officials were. 

	g.  The contested report appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question.  There is no evidence the contested report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOER or that they exercised faulty judgment in evaluating him as they did.

	h.  The applicant did not provide evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  There is insufficient evidence to grant him the requested relief.

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 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)                                         AR20120010969



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ABCMR Record of Proceedings (cont)                                         AR20120010969



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