1.  The applicant requests that the DA Form 1059s, Academic Evaluation Reports (AER) dated 20 March and 14 October 1992 be removed from the performance section of his Official Military Personnel File (OMPF) or at least moved to his restricted fiche.  (This Board notes that only the AER dated          14 October 1992 is in his OMPF.)  He states he received the second AER because of the Article 15 and the Article 15 was moved to the restricted fiche through action by this Board.

2.  The applicant’s military records show he enlisted in the Regular Army on      11 October 1983 and was promoted to Staff Sergeant on 1 September 1988.

3.  He was selected to attend Drill Sergeant School and started that course on    6 January 1992.  

4.  He completed the course on 10 March 1992.  The AER dated 10 March 1992 shows he “exceeded the course standards” and he received a “superior” rating in oral communication, leadership skills and contribution to group work.  All comments were highly favorable.

5.  At some point, a trainee accused the applicant of having sexual intercourse with her.  An investigation was initiated that resulted in the applicant accepting, on 14 October 1992, non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) in lieu of a court-martial because he had a wife and children and upon the advice of his military and civilian lawyers.  His imposed punishment included a reduction to pay grade E-5.  He appealed the Article 15

6.  On 14 October 1992, the applicant’s AER was rewritten to show he failed to achieve course standards and he received a “satisfactory” rating in oral communication, leadership skills and contribution to group work.  The comments were changed, to include one phrase “…did not graduate because of an          on-going investigation…”

7.  As part of his appeal, the applicant submitted three sworn statements from individuals stating that the he could not have had sexual relations with the trainee because he had spent all evening and overnight in the barracks.  The commander denied the appeal.

8.  Also filed in his OMPF are five documents concerning his removal from the drill sergeant program.  These documents mention his UCMJ action.

9.  On 1 September 1993, the applicant was promoted to Staff Sergeant.

10.  On 8 September 1995, the applicant received a Department of the Army Qualitative Management (DA QMP) bar to reenlistment.  The Article 15 and the AER were cited as the basis for the bar.  The applicant appealed the QMP bar.  One memorandum in support of his appeal was from a retired Sergeant Major of the Army.  He noted that he had discussed the action with the applicant’s then sergeant major (SGM), who told him he had asked the commander to drop the charges because there were witnesses to verify the applicant was elsewhere at the time.  The commander pushed the action because fraternization with troops was a hot topic at that time on the installation and the commander wanted to send a message with the action.  DA approved his appeal.

11.  The applicant requested this Board take action to move his Article 15 to his restricted fiche and on 29 June 1998 that request was granted.

CONCLUSIONS: 

1.  The AER was properly filed in his OMPF.  However, there appears to be an injustice in the rendering of the report.  The new AER is dated 14 October 1992, prior to the completion of the Article 15 appeal action.  The comments on the report state he did not graduate because of an on-going investigation.  This Board feels that the AER should not have been written until the investigation, which could have completely exonerated the applicant, been completed.  

2.  If the AER had been written at the proper time, i.e., after the completion of an investigation which substantiated all charges, this Board could understand why the performance summary would have been changed to “failed to achieve course standards.”  However, it fails to understand how this could possibly have dropped his demonstrated abilities in oral communication and contribution to group work from “superior” to “satisfactory” or why his leadership abilities would have been dropped only to “satisfactory” and not “unsatisfactory.”

3.  The applicant successfully overcame a DA QMP bar to reenlistment that was triggered in part by this AER.  This Board finds that there is a reasonable doubt as to the propriety of the AER having been rewritten at the time and in the manner it was.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  transferring the AER dated 10 March 1992 and its related endorsement from the applicant’s performance fiche to his restricted fiche; 

     b.  transferring the five documents relating to his removal from the drill sergeant program (in the education and training data section) from his performance fiche to his restricted fiche; and

     c.  by removing the memorandum dated 13 July 1998, subject:  Correction of Military Records, from his performance fiche (continuation fiche).  It is already on the restricted fiche.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

			                                                                         				 	                                    CHAIRPERSON