MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 July 2001
	DOCKET NUMBER:   AR2000046990

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

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Kenneth W. Lapin		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, that his Special Qualification Identifier (SQI) X (Drill Sergeant) and his Drill Sergeant Badge (DSB) be reinstated.  

APPLICANT STATES:  In effect, that his removal from Drill Sergeant (DS) duty was the result of a flawed investigation which he has repeatedly tried to resolve through command channels.  His contends that the trainee abuse incident in question and the actions taken to issue him a Letter of Reprimand (LOR) and remove him from the DS program were the result of this flawed investigation.  He claims, in effect, that the action he took at the time of the incident was based on his concern for the safety of all 138 trainees who were in the area at the time. He also contends that the investigation conducted was not thorough and was accomplished after a very long weekend of graduation preparation, which included 138 hours of cleaning and inspections, of which, he spent 120 hours personally working with the platoon because another DS had been suspended and the platoon sergeant was away with his in-laws.  The investigation never touched upon these facts and took less than 12 hours and the recommendation for his removal was made less than 24 hours later.  The applicant touches upon several reasons he believes the investigation was flawed and provides his expanded argument in the enclosed statement to the Board. 

EVIDENCE OF RECORD:  The applicant's military records show:

At the time of his application to this Board, the applicant was serving on active duty, in the rank of staff sergeant/E-6, at Fort Campbell, Kentucky. 

In January 1998, while performing DS duties at Fort Sill, Oklahoma, the applicant was involved in an incident with a private/trainee that resulted in a decision by his battalion commander to conduct a commander’s inquiry into an allegation of trainee abuse leveled against him.  On 3 February 1998, an investigating officer (IO) was appointed and he immediately began his investigation.  

On 5 February 1998, the IO published the results of his investigation.  In this report of investigation (ROI), the IO indicated that an allegation of trainee abuse against the applicant came to the command’s attention when a representative of the Inspector General’s office contacted the applicant’s unit commander and requested an appointment with the trainee in question.  The unit commander briefed the battalion commander who ultimately directed the investigation.  

In his ROI, the IO indicated that he had interviewed the trainee in question, ten of his fellow trainees, the applicant, four other DSs, the first sergeant, and the unit commander.  After reading these individuals their rights, the IO conducted interviews and formally recorded them in sworn statements made under oath.  

The IO concluded that the allegation of trainee abuse against the applicant was founded based on the statements from all the trainees and the applicant, all of which confirmed that the applicant had laid his hands on the trainee in question and took him down to the ground.  In addition, the applicant had admitted to forcibly holding the trainee in question to the ground to prevent him from standing up.  The IO recommended that the applicant be removed from DS duty and that he receive a Letter of Reprimand (LOR).  

On 5 February 1998, the applicant’s unit commander found that there was sufficient evidence to support the allegation of trainee abuse against the applicant, recommended that the applicant receive a LOR, and that he be removed from DS status. 

On 17 February 1998, the applicant’s battalion commander gave the applicant a LOR based on the findings of the commander’s inquiry, which determined that the applicant physically abused a private in training.  The applicant was provided a copy of the LOR and given the opportunity to provide a rebuttal.  

On 18 February 1998, the applicant’s unit notified the applicant he intended to recommend his removal from the DS program.  On 20 February 1998, the applicant submitted a rebuttal to the recommendation that the LOR be filed in his OMPF and on 24 February 1998, he submitted a rebuttal to the DS program removal action.  These rebuttals indicated that his actions on the date of the incident were predicated on safety considerations for all involved.  

On 27 February 1998, the applicant’s battalion commander requested that the applicant be removed from the DS program based on his having been found to have committed acts of misconduct and that he not be permitted to retain his DSB. 

On 3 March 1998, the applicant’s brigade commander removed the applicant from the DS program, terminated his special duty pay, withdrew his SQI X, directed that the applicant not retain his DSB.  It was further directed that the removal action be filed in the applicant’s OMPF.  

On 18 March 1998, the deputy CG, TRADOC after reviewing the applicant’s rebuttal and the recommendations of the chain of commander directed the LOR be filed in the applicant’s Official Military Personnel File (OMPF). 

In connection with the processing of this case an advisory opinion was requested of and received from the Chief, DS Team, Total Army Personnel Command (PERSCOM).  This opinion indicated that the applicant had been properly removed from the DS program for cause, his DSB and SQI X were revoked by proper authority in accordance with the applicable regulations and recommended that his request to the Board should be denied. 
On 23 April 2001, the applicant was provided a copy of the PERSCOM advisory opinion in order to have the opportunity to rebut its contents.  To date, he has failed to respond. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board notes the applicant’s contention that his removal from the DS program, the LOR he received, and the revocation of his DSB and SQI X were based on a flawed investigation.  However, the Board finds no evidence of record or independent evidence provided by him that supports this claim. 

2.  The evidence of record confirms that the applicant was removed from DS status, issued a LOR, and that his DSB and SQI X were revoked for cause by the proper authority in accordance with applicable regulations.  Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the investigation and the resultant DS removal process.  Thus, the Board concludes that relief is not warranted in this case. 

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__KAK__  __RWA__  __KWL__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000046990	
SUFFIX		
RECON		
DATE BOARDED	2001/07/10	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  1040	118.0200	
2.		
3.		
4.		
5.		
6.