IN THE CASE OF:	 

		BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20130006083 


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, correction of his military records by:

	a.  reinstating his name to the Sergeant First Class (SFC)/pay grade E-7 Promotion Selection List;

	b.  reinstating his special qualification identifier (SQI) of "X" indicating he is drill sergeant qualified;

   c.  reinstating his Drill Sergeant Badge;

	d.  amending his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), for the period 22 November 2011 through 24 September 2011, due to Relief for Cause;

	e.  removing from his Army Military Human Resource Record (AMHRR):

* the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 24 September 2012, and associated documents 
* the letter that removed him from the Drill Sergeant Program

2.  The applicant states his punishment did not fit the incident.  He contends that his medical diagnosis of post-traumatic stress disorder (PTSD) and adjustment disorder with disturbance emotions and conduct were the bases for his problems.  

3.  He also states that his military legal counsel admitted failure on his part caused an end to the applicant's career.  The applicant further contends that he was not given any counseling on the date of the incident and there was a lack of evidence.  Lastly, he states his chain-of-command failed to give him the opportunity for rehabilitation by receiving a mental assessment at the hospital.

4.  The applicant summarized the incident in a 3-page document wherein he makes the following arguments/contentions:

	a.  On 31 August 2012, he was joking around his platoon as they ate dinner.

	b.  He said the "F" word one or two times and offended a female Soldier to whom he apologized that same day and again the next morning.  His command failed to counsel him at that time.

	c.  He argues that the counseling and Letter of Concern that he received from his previous battalion commander in June and July 2012 for using foul language did not involve using profanity toward Soldiers and they should not have been made a part of this packet.

	d.  He has put together this packet of evidence to show that he was severely punished for using profanity and offending a female Soldier.

	e.  He argues that the statements against him from four different Soldiers are inconsistent.  He indicates the statements should not have been used in the nonjudicial punishment (NJP) because they state he was only joking and he was a great drill sergeant.

	f.  He argues that the four female Soldiers are white and he is black.  The investigating officer (IO) failed to interview any male Soldiers or other female Soldiers of a different ethnic group.  He further points out that the majority of his chain-of-command, to include his company commander, battalion command sergeant major, battalion commander, and brigade commander, are all white.  He believes that race played a big part in him receiving such harsh punishment.

	g.  He also contends his legal counsel admitted that he was responsible for failing to include the applicant's financial documents in his case which caused his career to end.

	h.  He states his health record shows that he was suffering from chronic PTSD and adjustment disorder with disturbance with emotions and conduct that caused his downfall and that his chain-of-command failed to see the signs.

	i.  He states he takes full responsibility for his actions.  He believes he should have been punished as the IO recommended, which was that he be counseled, receive a letter of concern, and be required to write a letter of apology.

	j.  He indicates he was not counseled on the "later dates" specified.  He further indicates that there is no documentation on file to prove the bullets written in Part IVb and Part V concerning his leadership, responsibility and accountability and overall performance and potential.

4.  The applicant provides copies of the following documents with his application:

* An Appeal Letter addressed To Whom It May Concern, dated 21 March 2013
* Applicant's Department of the Army photograph
* Letter of Concern, dated 13 June 2012
* DA Form 4856 (Developmental Counseling Form), dated 20 July 2012
* Four DA Forms 2823 (Sworn Statement), dated 31 August 2012
* Four DA Forms 2823, dated 1 September 2012
* Applicant's DA Form 2823, dated 1 September 2012
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated
1 September 2012
* Memorandum for Commander, Commander's Inquiry, dated 3 September 2012
* Two Memoranda for the Brigade Commander, Recommendation for Removal from the Drill Sergeant Program, dated 4 September 2012 
* DA Form 4856, dated 5 September 2012, suspending the applicant from drill sergeant duty
* DA Form 4856, dated 13 September 2012, battalion commander recommending the applicant be barred from reenlistment
* DA Form 4126 (Bar to Reenlistment Certificate), dated 14 September 2012
* Memorandum from the applicant requesting reconsideration of the commander's bar to reenlistment, dated 20 September 2012
* DA Form 2627, dated 24 September 2012
* Memorandum from applicant in rebuttal to the NJP, dated 24 September 2012
* Memorandum from applicant in appealing the NJP, dated 28 September 2012
* Memorandum from applicant's legal counsel, appealing the NJP, dated
1 October 2012, with enclosures
* Memorandum, Intent to Remove from Drill Sergeant Program, and the applicant's election to submit rebuttal, dated 2 October 2012
* Memorandum, approving the applicant's removal from the Drill Sergeant Program, with the applicant's acknowledgement and stated intention to appeal, dated 15 October 2012
* Memorandum from the applicant's legal counsel, requesting reconsideration of the NJP, dated 18 October 2012, with enclosures
* Character Reference Letter from an Army first sergeant, pay grade E-8, dated 5 September 2012
* Character Reference Letter from a senior drill sergeant, pay grade E-7, dated 6 September 2012
* Character Reference Letter from a staff sergeant, pay grade E-6, dated    6 September 2012
* Character Reference Letter from a chief warrant officer five, dated 
6 September 2012
* Character Reference Letter from a chief master sergeant, U.S. Air Force, dated 19 October 2012
* Applicant's appeal for reconsideration of the NJP and his removal from the Drill Sergeant Program, dated 22 October 2012
* Applicant's legal counsel's statement pertaining to the applicant's removal from the Drill Sergeant Program, dated 24 October 2012
* The applicant's appeal to the Commander, Fort Jackson, SC pertaining to his removal from the Drill Sergeant Program, dated 24 October 2012
* DA Form 4187 (Personnel Action) reassigning the applicant within the brigade, dated 25 October 2012
* Memorandum, Appeal Removal from the Drill Sergeant Program, dated     1 November 2012
* DA Form 4126, dated 21 November 2012
* Three Enlisted Record Briefs (ERB), dated 9 November 2012,
27 November 2012, and 13 March 2013
* Email from the applicant to a sergeant first class, dated 21 November 2012
* Excerpts from Department of the Army Pamphlet 623-3 (Evaluations) Army Regulation 601-280 (Reenlistment Procedures)
* DA Forms 2166-8, ending on 21 November 2011 and 24 September 2012
* Standard Form 600 (Chronological Record of Medical Care) dated 
1 March 2013

5.  In a subsequent submission, the applicant provides a letter, dated 26 April 2013, wherein he states he received an email informing him of his removal from the E-7 promotion list.  He also states that he also heard that his former battalion commander who imposed the NJP against him has been diagnosed with a traumatic brain injury.  The applicant requests that this Board investigate the medical records of his former commander.
6.  On 24 June 2013, the applicant provided what appears to be complete documentary packets pertaining to two other Soldiers who were removed from the Drill Sergeant Program for misconduct and a listing of several incidents concerning several drill sergeants and officers from the same regiment as the applicant's.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army in the rank of sergeant, pay grade E-5.

2.  On 24 June 2003, the applicant enlisted in the Regular Army, in the rank of private first class, pay grade E-3.  He received the following advancements/ promotions:

* 1 September 2004: advancement to specialist, pay grade E-4
* 1 October 2005: promotion to sergeant, pay grade E-5
* 1 August 2008: promotion to staff sergeant, pay grade E-6

3.  Records show the applicant served in Iraq during the following periods:

* 6 January to 6 April 2004
* 1 December 2005 to 13 November 2006
* 17 August 2008 to 7 March 2009

4.  Records also show the applicant received a Bachelor of Science (BS) degree in criminal justice in 2009.

5.  On or about 23 November 2010, the applicant was assigned as a drill sergeant with Company C, 1st Battalion, 13th Infantry Regiment, located at Fort Jackson, SC.

6.  On 13 June 2012, the applicant received a letter of concern from his battalion commander.  That letter, as provided by the applicant, states the actions of the applicant in the performance of his duties as a drill sergeant were of concern.  The letter specifically stated the applicant had referred to a Soldier in training as "fat body" and "cheeseburger."  Furthermore, the applicant had made Soldiers in training "tap" their heads against a wall locker as part of corrective training.  Both of these actions were in violation of Training and Doctrine Command regulations against hazing and would not be tolerated.


7.  On 20 July 2012, the applicant was given an event-oriented counseling by the first sergeant.  In a copy of this counseling, as provided by the applicant, he was reminded of his actions at that morning's physical training (PT) requiring the battalion commander to pull him aside.  The applicant had used foul language toward the Soldiers doing PT.  The commander further reminded the applicant about earlier briefings that all drill sergeants had received about language used toward the Soldiers when conducting training.  The commander asked him how he expected to teach those Soldiers about the Army values and be able to hold them accountable when he was not leading by example.  The commander stated he would not tolerate this type of behavior.  If he continued to use such language, he would recommend UCMJ action against him.

8.  On 31 August 2012, four female Soldiers each completed a DA Form 2823 concerning verbal comments directed at them by the applicant at about 18:10 hours on that same day while in the chow hall.  They were in the middle of eating their dinner and the applicant was talking to them.  The essence of their statements included:

	a.  The applicant was joking around with us as we ate.  He was talking about how some Soldier's girl friends were going to look good at graduation.  He continued to joke around and make funny threats to us in a childish manner.  He then approached a Soldier and said, "you [Soldier's name] it might be your mom, she might look good as f---, I'll F--- her."  At first some people laughed; but then they realized from the Soldier's facial expression that she was pissed.  Little did the applicant know that her mother was deceased and in heaven.  To hear those words come out of a drill sergeant's mouth is appalling.  It is disrespectful, degrading, immature, sleazy, and disgusting.  He needs to think about what he says before it comes out.  Not only did he hurt her, but it hurts all of the drill sergeants' reputation, especially his own.  She is expecting an apology from him and hopes he will learn a lesson.  The applicant's vocabulary is outrageous sometimes.  It needs to be corrected sooner or later before a Soldier loses his or her military bearing.

	b.  The applicant said that he likes it when a girl takes him out to dinner, pays for dinner and then likes to f--- them afterwards.  He said that if our moms looked good then f--- them.  He said to the Soldier that would be your mom if she looked good.  He then said he would do that to any mom.  He then tried to quote from a movie and said he would go around and just f--- any girl he sees.

	c.  We were in the chow hall and the applicant was making comments to us while we were all sitting down eating and in front of the whole platoon.  He stated that he would have fellow male Soldier's girlfriends take him to dinner at the Oliver Garden.  He then turned around and stated that maybe one of our moms looks good on graduation and he would f--- her.  He then turned to private [Soldier's name] and stated that maybe it would be her mom.  Private [Soldier's name] became really upset and finished eating and left the chow hall.  Once we got back to platoon 4 bay, that Soldier left formation and went to the sleep bay.  When the applicant was informed she was upstairs, he said OK and walked away.

	d.  In the middle of eating dinner while the applicant was walking around the hall, as he always did, he said he and one of our girlfriends are going to the Olive Garden and a movie.  She is going to be looking real good and if she wants to take me out and pays that is fine by him.  It might even be your mom, indicating a particular Soldier, who's looking good and I'm going to f--- her.

9  On 1 September 2012, the same four Soldiers who made the sworn statements described in the preceding paragraph each made another statement. These statements are essentially the same as their first statements.

10.  On 1 September 2012, the applicant made a sworn statement.  He said, "around 1800 yesterday evening our company went to chow.  As my Soldiers were eating I talked to them.  Things that was said was pertaining to their girlfriends and boyfriends back home.  I told them that they had moved on and they are running around on them and that they should focus their minds here on BCT.  I also talked about on family day their loved ones will bring Jody Boy or Jody Girl with them to see them.  I also said that on family day some mothers liked to talk to drill sergeants.  I said that if one of their mothers tried to take me on a date I might do it.  I said this out of spite.  I then said that you never know Soldier we might even "F_ _ _."  One Soldier looked offended.  Her name is [Soldier's name].  So when my platoon formed up outside I looked for her and said I was sorry.  This morning at "FTW" I pulled her to the side and apologized again."

11.  An incomplete DA Form 3881, dated 1 September 2012 indicates that the Executive Officer (XO), Company B, 1st Battalion, 13th Infantry Regiment was appointed as an IO to inquire about the applicant's behavior on the previous day.

12.  In a memorandum for the battalion commander, the XO discussed the incident that occurred concerning the applicant on 31 August 2012, at about 1800 hours.

	a.  Fact:  The applicant was speaking to his Soldiers during the dinner meal in the dining facility.  While speaking to them, he made an inappropriate comment that was unbecoming of an NCO.  The applicant spoke to Soldiers regarding their personal relationships and how they should not be surprised if they fail.  He also spoke about their families in which graphic language was used in both instances.  The comment was said loud enough for the entire platoon to hear.  A Soldier was offended and felt disrespected as the comment was directed towards her.  The applicant admitted to wrongdoing but denied the comment was geared toward that Soldier.

	b.  The XO determined that the allegation of verbal trainee abuse by the applicant toward [Soldier's name] was substantiated by the interviews and sworn statements.  The applicant acknowledged the language that was used in the comment in the interview.

	c.  The XO recommended the applicant receive a counseling statement and/or a letter of concern.  Additionally, as a form of corrective training, the applicant should write the trainee a letter of apology about why his actions were wrong.

13.  On 4 September 2012, both the company and battalion commanders recommended the applicant's removal from the drill sergeant program based on his infractions of training policies that were adverse in nature and disqualified him from future consideration for this program.  They also recommended that the applicant not be permitted to retain either the Drill Sergeant Badge or the SQI of "X" for drill sergeant.

14.  On 5 September 2012, the battalion commander counseled the applicant concerning his failure to obey a lawful order and for his use of profanity around initial entry training (IET) Soldiers on 20 July and 31 August 2012.

	a.  The incident of making vulgar, obscene and inappropriate remarks to Soldiers on 31 August 2012 was substantiated, resulting in a loss of trust in his ability to lead Soldiers.

	b.  The applicant was informed that the brigade commander was the approval authority to remove any NCO from the drill sergeant program.  The battalion commander was recommending that he not retain either his Drill Sergeant Badge or the SQI of "X."

	c.  The applicant was informed that he had been suspended from the drill sergeant program pending a final determination.  He was reassigned to the battalion S3 (Operations) and was not to have any unsupervised contact with any IET Soldiers.  He was suspended from all favorable actions pending disposition of the charge of failing to obey a lawful order or regulation.

	d.  The applicant acknowledged agreement with the counseling statement, signed, and dated it that same day.

15.  On 14 September 2012, the battalion commander initiated action to bar the applicant from reenlistment based on his letter of concern, dated 13 June 2012; the commander's inquiry, dated 3 September 2012; and the request for removal from the drill sergeant program, dated 4 September 2012.  The applicant indicated he had been furnished a copy of the commander's recommendation that he be barred, he had been counseled, and he desired to submit a statement in his own behalf.  The applicant signed and dated the DA Form 4126 on
18 September 2012.

16.  On 20 September 2012, the applicant wrote a memorandum for the brigade commander, wherein he stated:

	a.  As an NCO, he took the initiative whenever there was a mission or task that needed to be completed.  No matter the situation, he made sure the task was completed above the standard and always in a punctual manner.  He had dedicated 9 years of his life to assisting the growth and development of himself, his peers, subordinates, and superiors.  His ability to lead and train Soldiers was something every NCO should strive to accomplish.

	b.  He was selected for promotion to SFC from the secondary zone with only 8 years in the service.  He earned his BS degree and was currently working on a master's degree.

	c.  He completed three tours of duty in Iraq and has been awarded the following:

* Bronze Star Medal
* Joint Service Commendation Medal
* Army Commendation Medal with Oak Leaf Cluster
* Joint Service Achievement Medal
* Army Achievement Medal with two Oak Leaf Clusters

	d.  He completed the following training:

* Master Resilience Training Course
* Air Assault School
* Senior Leaders Course
* Drill Sergeant School
* Airborne School
* Advanced Leaders Course
	e.  He highlighted the above areas of his personal life and career to inform the commander that he was very responsible, dedicated, and extremely driven.  His commitment and dedication to military service has been proven through his work ethic.  He has displayed and lived by the Army values on a day-to-day basis.  He is a valuable asset to the Army, as well as to his unit and should be allowed to continue his formidable work.  If given the opportunity to overcome this failure and to avoid the bar to reenlistment, he truly believes and desires to continue to serve without jeopardizing his long-term goals of continuing to grow and develop into a future command sergeant major.

17.  The DA Form 2627 and the applicant's rebuttal and appeal show:

	a.  On 20 September 2012, the battalion commander informed the applicant that he was considering whether he should receive NJP for his misconduct on 
31 August 2012, by communicating to an IET Soldier certain indecent language, to wit: "Your Mom might be looking good as F--- at graduation, I'll F--- her."

	b.  On 24 September 2012, the applicant did not demand trial by court-martial; requested a closed hearing; did not request a person to speak on his behalf; and indicated that matters in defense, extenuation, and/or mitigation would be presented in person.  He signed and dated the form.

	c.  On 24 September 2012, the applicant stated in his rebuttal memorandum that he said something that was unprofessional and in poor taste; but, his comments were not directed specifically at anyone.  He argued that it would not have made any sense to single out a specific Soldier or the mother of a specific Soldier.  What he did was a joke, admittedly in poor taste.  He further stated that the reactions of the female Soldier caused him to understand how his comments could be hurtful and inappropriate to some people.

	d.  On 27 September 2012, the imposing commander, in a closed hearing, found the applicant guilty of all specifications.  He directed filing of the DA Form 2627 in the restricted section of his AMHRR.  The applicant was advised of his right to submit an appeal within a 5-day period.  The applicant indicated his intent to appeal and to submit additional matters.

	e.  On 28 September 2012, the applicant stated in his memorandum appealing his NJP that he:

* was extremely unprofessional by using vulgarity causing his military bearing and respect to be compromised
* did not intend to offend anyone

* was attempting to make laughter and he is sorry for the hurt he caused
* had been previously warned both verbally and in writing about his improper use of language and he understands such words make him even less of an NCO
* takes full responsibility for those lapses in judgment
* knows the use of inappropriate language can hurt Soldiers
* has displayed an impeccable record of excellence over the course of his 9-year career and he has lived the Army values
* a reduction in rank would destroy his career
* requested that the reduction be suspended and removal of the suspension of all other portions of his punishment

	f.  On 2 October 2012, the applicant's appeal was considered and denied.  The Office of the Staff Judge Advocate opined that the NJP proceedings were conducted in accordance with law and regulation and the punishment imposed was unjust or disproportionate to the offense committed.

	g.  The following punishment was imposed:

* Reduction to sergeant, pay grade E-5
* A forfeiture of $1,422.00 pay for 2 months (suspended)
* Extra duty for 45 days (suspended)
* Restriction to the specified areas on the installation for 45 days (suspended)

18.  On 1 October 2012, the applicant's legal counsel appealed the NJP to the brigade commander.  Counsel argued that the applicant was not the average Soldier.  He is not a mediocre Soldier; rather, he is a consummate professional with the performance evaluations, awards, and education to prove it.  Counsel further argued that the applicant's punishment is much more severe than what he is used to seeing.  While counsel normally discourages comparison of one case against another because he realizes that all cases are different; he believes the results of the applicant's trial demonstrates the unusual severity of the applicant's punishment.  Counsel refers to a case which involved a drill sergeant who had sexual intercourse with a trainee and sexually harassed another in an attempt to have sexual intercourse.  That drill sergeant was reduced two ranks to specialist, pay grade E-4.  However, the applicant also was effectively reduced two ranks because he was on the sergeant first class, pay grade E-7, promotion list and was reduced to sergeant, pay grade E-5.  Counsel argued that ruining the career of such a distinguished NCO as the applicant for using profanity could actually have a significantly negative impact on good order and discipline.  If one of the best could have his career destroyed over cursing, 
what drill sergeant would report another drill sergeant for anything?  All but the most serious offenses could go unreported.  Counsel contends that it makes no sense that the applicant would have randomly targeted this female trainee and tell her he would f--- her dead mother.  It makes more sense to believe he had a mental lapse and slipped back into a bad habit of using profanity.  Counsel further argues that filing the NJP in the restricted section of his AMHRR sends a mixed signal because the reduction is still clearly visible.  His career should not be utterly destroyed because he used foul language on 31 August 2012.

19.  On 2 October 2012, the brigade commander officially notified the applicant of his intention to remove him from the Drill Sergeant Program.  He was informed that he had 7 days to submit matters in rebuttal to this action.  On that same day, the applicant indicated via a memorandum that he intended to submit such rebuttal matters.

20.  On 15 October 2012, the brigade commander approved the action to remove the applicant from the Drill Sergeant Program based on misconduct.  He also terminated the applicant's authorization to retain the Drill Sergeant Badge, SQI "X" and Special Duty Assignment Pay.

21.  On 15 October 2012, the applicant acknowledged receipt of the brigade commander's removal of him from the Drill Sergeant Program and indicated he would appeal the action to the Commanding General, Fort Jackson, SC.

22.  On 18 October 2012, the applicant's legal counsel wrote another memorandum to add information to his earlier request for reconsideration pertaining to the NJP.  Counsel stated:

	a.  he failed to adequately mention or even explore the applicant's financial situation;

	b.  he argued that the applicant and his family would be substantially negatively impacted by his reduction in rank;

	c.  he argued that the applicant's appeal may have been denied because of a perception he lacked a certain level of morality; and 

	d.  he related how the applicant had paid more each month to his ex-wife then he had to so that their son would be alright.  He did this even though he had to accrue substantial credit card debt.


23.  The applicant provided five letters of support from three Army NCOs, an Air Force NCO, and a chief warrant officer five that were written between 
5 September and 19 October 2012.  In summary, they essentially state:

	a.  he is a very competent and motivated leader who is always setting the example;

	b.  he has the intestinal fortitude, passion, and pride to train Soldiers;

	c.  his trustworthiness was never questioned and his loyalty was always to his subordinates, peers, superiors, and the unit;

	d.  he has shown commitment to the unit by devoting countless hours to the well being of Soldiers regardless of any issues he may have had himself;

	e.  he is the kind of leader that must be retained; and

	f.  his demeanor, appearance, attitude, and moral character were a perfect fit to mold young Soldiers in today's military.

24.  On 22 October 2012, the applicant submitted a request to the brigade commander to reconsider his appeal of the NJP and removal from the Drill Sergeant Program.  He essentially argued the following:

	a.  He may have come across as unapologetic toward the Soldier he offended.  He was nervous.  He felt as though he gave a weak presentation compelling him to elaborate in further detail.  While he only intended to be humorous, he said something that was on its face vulgar and unprofessional but turned out to be highly offensive and even inadvertently disrespected a Soldier's deceased mother.

	b.  He took a moment to place himself in the Soldier's shoes.  He does not know what it is like to lose a mother, but he did lose his daughter, a stillborn, last December.  He has not been the same since.  Despite that his words were said in jest, he could understand the pain they must have caused.  If someone made a vulgar or sexual remark about his deceased daughter, it would hurt.  It would be even worse if that person was in a position of authority.  He was deeply troubled by what he had done and he would live the rest of his life with that knowledge.

	c.  He prays for mercy and another opportunity to prove himself to the chain-of-command and to Soldiers.  He needs this chance for his career to progress and to be able to take care of his son and help his ex-wife.  He pays $1,000.00 in child support and voluntarily gives an additional $600.00 for spousal support.  It is not his discretion on the outcome of his own punishment.  He is by no means guiltless.  He just wishes for mercy to be granted and pleads for a reversal of the reduction in rank and reinstatement into the Drill Sergeant Program.

25.  On 24 October 2012, the applicant's legal counsel wrote a third memorandum requesting that the Commanding General, Fort Jackson, SC permit the applicant to remain in the Drill Sergeant Program and that the NJP- imposed reduction be reconsidered.  Counsel based his request on the applicant's understanding that what he did was wrong, why it was wrong, and that he would not make a mistake of this type or magnitude again.

26.  On 24 October 2012, the applicant wrote a memorandum to the Commanding General, Fort Jackson, SC requesting consideration to remain a drill sergeant.  He indicated that he has wanted to be a drill sergeant since he was a private in basic training.  Two years earlier that dream became a reality and he was very proud.  He believes he was a good drill sergeant.  He went to work early, worked hard all day and left late.  He knew his stuff and was an overall good leader.  However, he admits what he said was unbecoming of a drill sergeant and sincerely apologized for his insensitive and offensive remarks.  He understands that these remarks will forever tarnish all the good work he did and understands why that is so.  He promised, if given another chance, that he would not let anything like this happen again.  He would correct himself and find ways to ensure other drill sergeants learned from his mistakes.  He would do everything in his power to make sure that no other drill sergeant goes through what he has been through, or that any other IET Soldier had to go through what his IET Soldier endured.  Further, the applicant indicated that his removal from the sergeant first class, E-7 promotion list was a lesson that struck home.  He will never forget the impact of his hurtful, mindless remarks.  However, being reduced to sergeant, pay grade E-5 will destroy his career and he will never be able to recover.  The Army will lose a good Soldier and his family will lose its primary means of support.  He asked that his reduction in rank be suspended.

27.  A DA Form 4187, dated 25 October 2012, reassigned the applicant to the 193rd Infantry Brigade, Fort Jackson, SC, effective 26 October 2012.

28.  In a memorandum, dated 1 November 2012, the Commanding General, Fort Jackson, SC, stated that the applicant's appeal involving his removal from the Drill Sergeant Program had been carefully reviewed.  The commander weighed the merits of his appeal against the established criteria for the Drill Sergeant Program, and disapproved the request.

29.  DA Forms 4126, dated 20 and 21 November 2012, show the applicant elected not to submit a statement on his own behalf concerning his bar to reenlistment.  The bar certificate was approved on 21 November 2012 by the Commander, 193rd Infantry Brigade.

30.  On 9 January 2013, the applicant signed an NCOER for the evaluation period ending on 24 September 2012.  This NCOER shows:

	a.  his rating period was from 22 November 2011 to 24 September 2012;

	b.  his rating was rendered due to relief for cause, while serving as a senior drill sergeant;

	c.  his rating chain was the first sergeant, company commander, and battalion commander.

31.  This NCOER also shows in:

	a.  Part IIIf (Counseling Dates):

* Initial:  28 November 2011
* Later:  16 February 2012
* Later:  16 May 2012
* Later:  4 August 2012

	b.  Part IVa, Army Values/Attributes/Skills/Actions, a "NO" rating in the values of Loyalty, Duty, Respect/EO/EEO, Selfless Service, Honor, and Integrity.  He received a "YES" rating for the Army value of Personal Courage.  Bullets indicate he was removed from the Drill Sergeant Program for failing to follow orders; he was frequently unwilling to cooperate in working towards unit goals; and he demonstrated a serious lack of integrity and poor judgment;

	c.  Part IVb, Values/NCO Responsibilities, that the applicant was rated excellent in competence; success in training, needs some improvement in physical fitness and military bearing and in responsibility and accountability; and needs much improvement in leadership;

	d.  Part V, Overall Performance and Potential, that he was marginal for promotion and positions of higher responsibility.  The senior rater indicated he was fair in overall performance and potential.  The senior rater comments do not promote him, do not send him to NCO professional development training, and he lacks maturity and judgment and he displayed a disregard for policies and orders.
32.  Standard Forms 600, as provided by the applicant, dated 1 and 3 March 2013, indicate the applicant was referred for a medical evaluation for depression.

	a.  The applicant made a subjective statement to the behavioral health consultant, essentially stating that he had finally come to the realization there was something wrong with him and that he needed help.

	b.  He stated he felt moody, irritable, hostile, and negative even before going "on the trail."  These feelings worsened the longer he was a drill sergeant.  He was never encouraged to get help.  He was to simply "suck it up."  He admitted to being relieved as a drill sergeant for allegedly verbally abusing a trainee, which he denied.  He was on the E-7 promotion list.  He was not only removed from the program; he was also reduced to the pay grade of E-5.

	c.  He had filed for divorce, saying that he has changed.  He had three combat deployments to Iraq in which he experienced numerous firefights, saw dead bodies, lost a Soldier and a dear friend, and experienced numerous mortar attacks.

	d.  He had occasional nightmares in which others were trying to kill him and he awakened startled and perspiring.  He also reported an increased startle response, hypervigilance, and intrusive recollections of critical incidents.

	e.  He mumbled throughout the session and rarely maintained eye contact.  He reported sleeping 4 to 5 hours per night with diminished energy during the day.  He also exhibited psychomotor retardation.  He stated that he rarely left his home, but did find some enjoyment and occasional reading and listening to music.

	f.  He reported having reoccurring, severe headaches and requested some medication to alleviate them and help him sleep.  He stated he had appealed his NJP all the way to the post commander and he was now preparing an appeal to the Department of the Army with the assistance of a civilian attorney.

	g.  The applicant was diagnosed with an adjustment disorder with disturbance of emotions and conduct and with chronic PTSD.  He was released without limitations.

	h.  On 3 March 2013, he returned to the medical clinic and complained that he was experiencing a mild headache.  He admitted to feeling a loss of interest and that he had been depressed several days.  He denied having any thoughts of suicide/homicide.

33.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides that the Army Board for Correction of Military Records (ABCMR) is not an investigative body and places the burden of proving an error and/or injustice on the applicant.

34.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.

	a.  This states that NJP is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

	b.  This regulation states that the decision to file the NJP in the performance or restricted section of the AMHRR will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be so indicated on the NJP.

	c.  This regulation provides for the setting aside of the punishment imposed by NJP and restoration of rights, property and privileges.  This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges or property affected by the portion of the punishment set aside are restored.  NJP is wholly set aside when the commander who imposed the punishment, a successor-in-command or a superior authority sets aside all punishment imposed upon an individual.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  Clear injustice means that there exists an un-waivered legal or factual error which clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have an adverse effect on the retention or promotion potential of the Soldier.

35.  Army Regulation 600-8-104 (Military Army Human Resource Records Management) provides that:

	a.  All personnel information recorded under the authority of this regulation is the property of the U.S. Government.  Once recorded, it will not be removed except as provided by law or this regulation.

	b.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from a section or moved to another part of the AMHRR unless directed by one or more of the following:

* The ABCMR
* The Department of the Army Suitability Evaluation Board
* Chief, Appeals and Corrections Branch, U.S. Army Human Resources Command (HRC)
* The AMHRR custodian when documents have been improperly filed
* Commander, HRC, ATTN: HRC-PDO-PO, as an approved policy change to this regulation
* Chief, Appeals Branch, HRC
* Chief, Appeals Branch, National Guard Personnel Center

	c.  DA Form 2627 will be filed in either the performance or restricted section of the AMHRR as directed on the form.  Relief from some special assignments
such as drill sergeant will be filed in the performance section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by:

	a.  reinstating his name to sergeant first class, pay grade E-7 promotion list;

	b.  reinstating his Drill Sergeant Badge;

	c.  reinstating his SQI of "X" indicating he is drill sergeant qualified;

	d.  correcting his DA Form 2166-8;

	e.  removing the letter from his AMHRR that removed him from the Drill Sergeant Program; and

	f.  removing the NJP and associated documents from his AMHRR because he does not believe his punishment fit the incident.

2.  The available evidence clearly shows the applicant was counseled by the battalion commander in June 2012 for referring, in a demeaning manner, to Soldiers as "fat boy" and "cheeseburger."  He was also counseled for making Soldiers tap their heads against a wall locker as part of corrective training.  Even though he was clearly told these actions would not be tolerated, and he was given a letter of concern by the battalion commander, he had to be counseled again in July 2012 for cursing at his Soldiers while they were in formation.  He was again told that this behavior would not be tolerated and that it could result in UCMJ action.  On the last day of the next month, he again used foul language toward his Soldiers.  But worse than that, he directed vulgar comments toward a specific Soldier, telling her what he would do with her mother.  His insulting and demeaning actions resulted in four Soldiers making sworn statements against him.  The allegations were substantiated by the IO, who recommended that he be counseled or receive another letter of concern and that he write a letter of apology to the victimized Soldier.

3.  In early September 2012, the applicant was suspended from performing further duties as a drill sergeant pending further action by his chain-of-command.  Both his company and battalion commander requested the applicant's removal from the Drill Sergeant Program.

4.  The applicant was informed by the battalion commander of his intent to impose NJP against him for the use of indecent language toward a Soldier.  He elected not to demand trial by court-martial and accepted the NJP.  The applicant now believes his punishment did not fit the misconduct and he wants his reduction in rank set aside.  Both he and his military counsel appealed the NJP and the appeal was denied.  A legal review of the NJP found that the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offense.

5.  In an effort to show that his NJP was too severe, the applicant has provided documentation concerning the punishment of other Soldiers for misconduct similar to his, wherein the Soldiers received a punishment less severe than his.  Whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.  In the absence of extraordinary circumstances the Board is reluctant to substitute its judgment for that of the commander.

6.  The applicant was given two opportunities to correct his misbehavior toward trainees.  When he failed a third time the commander had little choice but to increase the severity of the punishment.  There is no error or injustice in this case and the applicant's request to restore his lost rank and put him back on the E-7 promotion list should be denied.
7.  As a result of the applicant's repeated misconduct, his chain-of-command decided he was no longer fit for drill sergeant duty.  Accordingly, he was removed from the program and no longer permitted to hold the SQI of "X" or wear the Drill Sergeant Badge.  There is no error or injustice as a result of the command's decision.  The applicant's request to reinstate his SQI and badge should be denied.

8.  The applicant requests correction of his relief for cause NCOER.  He did not specify the exact corrections he believes are needed.  However, he did indicate by written comments on the NCOER that there were no documents on file to substantiate various bullet comments in Part IVb and for the entry of counseling dates in Part IIIf.  The applicant has not provided any documentary evidence to prove his contention that he was or was not counseled on the dates indicated, or on some other date.  Furthermore, he has not offered any argument or documentary evidence to refute the bullet comments in Part IV of the subject NCOER.  Therefore, this portion of his request should be denied.

9.  In order to remove a document from the AMHRR, there must be clear and convincing evidence showing the document is untrue or unjust.  In the absence of an error or an injustice, there is no reason to remove it from his records.  Accordingly, the subject DA Form 2627 and the letter relieving him from the drill sergeant program are properly filed and should not be removed.

10.  The available evidence indicates on or about 1 March 2013 the applicant was diagnosed as suffering from chronic PTSD and adjustment disorder with disturbance of emotions and conduct.  The applicant now argues that these medical conditions are the cause of his misconduct.  Unfortunately, he has not provided sufficiently convincing documentary evidence showing that he had these conditions prior to the events of his misconduct or that his misconduct was the result of his medical condition.  Accordingly, his argument is not accepted.

11.  The Board is not an investigative body, the applicant's request for an investigation of his former battalion commander's medical records is inappropriate.  The applicant has the burden of proving an error or injustice by the preponderance of the evidence.  In this case, he has not done so.

12.  In view of the above, the applicant's request for relief should be denied.






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)                                         AR20130006083



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ABCMR Record of Proceedings (cont)                                         AR20130006083



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