PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 October 2000                   
	DOCKET NUMBER:   AR2000039514

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that all references to the Fort Leonard Wood, MO Regulation 350-12 violation be removed from his records; that he be awarded the Army Good Conduct Medal 4th award; that his Drill Instructor Badge with skill qualification identifier (SQI) “X” be reinstated; that his reentry code be changed from 4 to a lesser number; that the bullet on his noncommissioned officer evaluation report (NCOER) concerning this incident be deleted; and that he receive back drill instructor pay.

3.  The applicant states that the incident in question was improperly investigated and he was not given fair treatment which was instrumental in his being selected to receive a bar to reenlistment under the Qualitative Management Program (QMP).  He initially submitted an application for correction of his records in September of 1996 but the application was misplaced.  He resubmitted in May 1999 but his application was returned because his records could not be located.  He provides as supporting evidence a copy of the Inspector General’s (IG) report which found that these incidents were not substantiated.

4.  The applicant’s military records show that he enlisted in the Regular Army on 15 February 1984.  He completed basic training and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  

5.  The applicant academically failed to meet the minimum standards of the Medical NCO course in December 1988.  On 17 February 1989, he was given a letter of reprimand for driving under the influence of alcohol.  He failed to achieve the Basic NCO Course (BNCOC) standards in April 1991.  His NCOER for the period ending October 1991 contains the rater comment “always displays a negative attitude towards unit” in part Va.  His leadership was rated as “needs some improvement” with the accompanying comment “needs to improve on demonstrating initiative and setting example for subordinates."  His senior rater made the comments “a lethargic, unmotivated NCO” and “not a team player.”  He completed BNCOC in June 1992.  His NCOER for the period ending July 1992 shows that his rater rated him as a “success” in all five categories of values/NCO responsibilities.  However, his senior rater made the comments “displays minimal effort towards assigned tasks and often requires supervision,” “lack of motivation sets poor example for subordinates,” and “do not promote or select for further schooling at this time.”  The reviewer nonconcurred with the rater and concurred with the senior rater.  He was promoted to Staff Sergeant (SSG), E-6 on              1 August 1992.  Orders awarding him the third award of the Army Good Conduct Medal are not available (it is listed on his Certificate of Release or Discharge from Active Duty, DD Form 214) but he was awarded the second award on       14 February 1990.  His fourth award would have been due 14 February 1996.

6.  On 3 August 1994, the applicant completed Drill Sergeant training and was assigned as a Drill Sergeant at Fort Leonard Wood, MO.  

7.  Around February 1996, (the applicant signed a Rights Warning Procedure/Waiver Certificate, DA Form 3861, on 9 February 1996) an investigation was conducted in which the applicant was alleged to have committed four offenses regarding touching female trainees and using profanity.  The applicant should have been flagged (a suspension of favorable personnel actions) at this time.  On 21 February 1996, the investigating officer found that all allegations were substantiated.  On 23 February 1996, the Commander, 3d Training Brigade directed the unit to initiate a Drill Sergeant removal/retention packet.  He noted that this was the fourth allegation against the applicant since he started drill sergeant duty.  On 26 February 1996, the applicant’s company commander initiated a Drill Sergeant removal packet on the applicant.  The applicant appealed the findings of the investigation.  His company commander reviewed his appeal and agreed with the findings concerning the frequency of profane, vulgar language used by the applicant.  However, the commander believed that the allegations of sexual misconduct should be evaluated further and elaborated as to why it appeared the allegations were unsubstantiated.  The allegations apparently were not investigated further.  On 13 March 1996, the Commander, 3d Training Brigade removed the applicant from the Drill Sergeant program.  He noted that the applicant’s removal was due to infractions of training policies.  His SQI “X” was revoked and his Drill Sergeant Identification Badge was removed.  

8.  On 27 March 1996, the applicant received a letter of reprimand for frequently using profanity, occasionally directed at privates and for making sexually suggestive touches or gestures with female privates.  If the applicant rebutted this letter, his rebuttal is not available.  The final decision on the filing of the letter is not available.  The letter is not filed in his Official Military Personnel File (OMPF).

9.  The applicant received a relief-for-cause NCOER for the period April 1995 through March 1996.  The NCOER contains the comments “inappropriate conduct toward a female trainee while on duty,” “inappropriate actions toward a trainee led to removal from the Drill Sergeant Program,” “the rated NCO has been notified of the reason for the relief,” and “unprofessional conduct toward a female trainee.”  In part IVa5 (Maintains high standards of personal conduct on and off duty), the “no” block was checked.  In part IVd (Leadership), he was rated as “needs some improvement.”  The NCOER also contains numerous commendatory comments such as “dedicated to accomplishing every mission” and “positive reinforcement techniques resulted in 9 of the platoon’s soldiers receiving distinguished honors.”

10.  Around May 1996, the applicant informed the IG that he was concerned about how the investigation was conducted.  He did not deny the profanity allegations but adamantly denied that he committed any of the allegations involving touching of female soldiers.  He was alleged to have committed four offenses regarding touching of female trainees.  The IG found that the evidence suggested that the incident in the first allegation never occurred; that there was no preponderance of evidence to support the second allegation and that the lack of documentation as presented by the investigating officer was perceived as presenting a report which did not represent the facts; that the preponderance of the evidence presented did not substantiate the finding that the third allegation was founded and that there was not enough credible documentation to substantiate or refute the allegation; and that the preponderance of evidence presented did not substantiate the finding that the fourth allegation was founded and that there was not enough credible documentation to substantiate or refute the allegation.  

11.  On 1 August 1996, the applicant was notified that the calendar year 1996 Sergeant First Class Promotion Board determined that he was to be barred from reenlistment under the QMP.  The documents cited for the bar were his NCOERs for the periods ending October 1991, July 1992, and March 1996 and his Letter of Removal from Drill Sergeant Duty.  He appealed the bar.  On 11 March 1997, his appeal was disapproved and it was directed that he be discharged no later than 31 July 1997 with a reentry code of 4.  Due to late notification of the results of his appeal, his separation date was adjusted from 31 July to 31 October 1997.

12.  On 31 October 1997, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 16-8, for reduction in force and given a reentry code of 4.  He had completed over 13 years of creditable active service.

13.  Army Regulation 614-200 governs reporting, selection and assignment of enlisted personnel.  Chapter 8, section II discusses the Drill Sergeant Program.  Active Army soldiers assigned to drill sergeant duty will incur a 24-month obligation for drill sergeant duty after successful completion of Drill Sergeant School.  The appropriate commander (authority may be delegated to subordinate commanders in the rank of colonel or higher) may remove Active Army soldiers from the Drill Sergeant Program for a number of reasons, including failure to maintain high standards of military appearance, military courtesy, bearing, conduct and/or professionalism.  When the decision has been made to remove an Active Army soldier from Drill Sergeant Program, SQI “X” is removed and special duty assignment pay (SDAP) is stopped.  

14.  Army Regulation 600-8-22 prescribes Army policy and criteria concerning individual military awards.  It provides that the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is normally 3 years.  The company-level commander is the approval authority.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  In instances of disqualification as determined by the unit commander, the commander will prepare a statement of the rationale for his or her decision.  This statement will include the period of disqualification and will be referred to the individual concerned for response.  

15.  Army Regulation 600-8-22 also states that while any record of nonjudicial
punishment could be in conflict with recognizing the soldier’s service as exemplary, such record should not be viewed as automatically disqualifying.  The commander should give consideration to the nature of the infraction and the circumstances under which it occurred and when.  The regulation does state that a medal will not be awarded to any individual whose entire service subsequent to the time of the distinguished act, achievement or service has not been honorable. However, this provision is limited only to the award of personal decorations.  The Army Good Conduct Medal is not defined as a personal decoration.

16.  Army Regulation 15-185, which governs the operation of the Board, provides that an application will normally be returned without action when it has been determined that no effective relief can be granted.

CONCLUSIONS:

1.  The Board concludes that it would be equitable to award the applicant the Army Good Conduct Medal fourth award.  He could not have been awarded it on the date it was due, 14 February 1996, since he should have been flagged on this date.  He could have been awarded it after the flag was lifted.  The investigation that determined the allegations he committed four offenses regarding touching of female trainees and using profanity was not completed until 21 February 1996.  The Board notes that the applicant’s commander agreed with the findings concerning the use of profanity but questioned the allegations of sexual misconduct.  In addition, the IG soon thereafter found that the allegations that he touched female trainees were unsubstantiated by a preponderance of the evidence.  There is no evidence of record to show that the applicant’s commander disqualified him for the award, prepared a statement to that effect and presented it to the applicant for rebuttal.  In the absence of this documentation and with the IG’s findings that the allegations of sexual misconduct were unsubstantiated, the Board concludes it would be a matter of equity to award the applicant the Army Good Conduct Medal fourth award.

2.  The Board acknowledges that the IG’s report found that the allegations against the applicant regarding touching of female trainees were unsubstantiated by a preponderance of the evidence.  If these four allegations were the only basis for his removal from the program the Board would agree that it would be unjust to allow his removal to stand.  However, use of profanity by drill sergeants is also against regulations and is a reason for removal from the program.  His removal letter stated that he was removed due to infractions of training policies.  Inappropriate touching was not mentioned in the letter.  In the absence of extraordinary circumstances the Board is reluctant to substitute its judgment for that of the commander on the question of what constituted unprofessional conduct and so concludes that the applicant was properly relieved from the Drill Sergeant Program.  Reinstating his SQI “X” and granting him back SDAP would not be appropriate.

3.  The Board concludes that the applicant was appropriately selected for a QMP bar to reenlistment.  The Board notes that it was not just his removal from the Drill Sergeant Program that led to his QMP.  Two NCOERs received prior to his entry into the Program were cited.  The Board also notes that a 17 February 1989 letter of reprimand is filed on his performance fiche.  Therefore, the reentry code of “4” was and still is appropriate.  

4.  The applicant requests “removal of bullet on his NCOER in reference to this incident.”  The Board notes that there is more than one bullet comment on his NCOER referring to his conduct concerning female trainees and more than one check mark rating that appear to refer to that conduct.  Army Regulation 15-185 provides that an application will normally be returned without action when it has been determined that no effective relief can be granted.  Since no action the Board takes regarding this NCOER will afford the applicant any effective relief (the Board concluded above that his QMP discharge was appropriate and so amendment or deletion of this NCOER would not affect his military career) the Board will take no action on this portion of his request.  (The Board notes the applicant’s claim that he initially submitted his application in September 1996, prior to his discharge.  However, since the Board has also concluded that his selection for QMP was not based just on his removal from the Drill Sergeant Program and was appropriate considering the other factors involved in his selection, no effective relief could have been given in 1996, either.)

5.  However, while the Board acknowledges that no effective relief could be granted, it would be a matter of equity to delete all current references to the investigation from the restricted fiche portion of the applicant’s OMPF.  This action would leave just two Article 15s on his restricted fiche.  It would also be appropriate to remove the two-page 4th endorsement, company commander’s review of the applicant’s appeal of his removal from the Drill Sergeant Program from the Education and Training Data section of his performance fiche.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by awarding the applicant the Army Good Conduct Medal fourth award for the period 15 February 1993 through 14 February 1996 and adding the award to his DD Form 214.
2.  That all references to the investigation that led to the applicant’s removal from the Drill Sergeant Program be deleted from the restricted fiche portion of his OMPF, leaving just two Article 15s on his restricted fiche, and that the two-page 4th endorsement, company commander’s review of his appeal to his removal from the Drill Sergeant Program be deleted from the Education and Training Data section of his performance fiche.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__jns___  __rjw___  __rtd___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000039514	
SUFFIX		
RECON		
DATE BOARDED	20001003	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	134.00	
2.	107.0056	
3.	111.02	
4.		
5.		
6.