PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           8 August 2002                  
	DOCKET NUMBER:   AR2002066607

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Margaret V. Thompson		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 a DA Form 1059, Service School Academic Evaluation Report (AER) for the period 17 October 1988 through 16 December 1988 be removed from his Official Military Personnel File (OMPF).

3.  The applicant states, in effect, that the subject AER was improperly prepared; that Army Regulation (AR) 623-1, Academic Evaluation Reporting System, prohibits references to "incomplete punitive or administrative action" in the comment portion of the AER.  He states that the Fort Jackson, South Carolina, Office of the Inspector General (IG), substantiated that the subject AER was improperly prepared by including mention of Uniform Code of Military Justice (UCMJ) action that was never taken.  Although the IG directed that the phrase be removed from the AER, corrective action was never taken.  The applicant adds, in effect, that the subject AER has damaged his career by causing his nonselection for promotion to master sergeant.

4.  The applicant's military records show that he is a career soldier serving in the rank of sergeant first class.  In 1988, as a staff sergeant, he attended Drill Sergeant School at Fort Jackson.  He was striving to finish the course among the top 20 percent of the students and, as a result, alienated several staff and students through his obstinacy and by contesting grading procedures.  At the end of the course, he was charged with not clearing the billets in the prescribed manner and missing a formation on 16 December 1988, the last day of school.  He argued that other students had also failed to follow the proper policy in clearing the billets, but they were not singled out.  He further argued that announcement of the formation was vague and others also missed it, but only he was singled out.

5.  The Commandant of the Drill Sergeant School recommended that the applicant receive punishment under the UCMJ; however, his commander opted to issue an administrative letter of reprimand to be filed in the applicant's local file for 1 year.  The reprimand was issued on 8 February 1989, but on the subject AER in Item 16 (Comments), the applicant's rater stated, "[Applicant's] lack of attention to detail caused him to be absent from his place of duty, resulting in Uniform Code of Military Justice action against him."  The applicant graduated from Drill Sergeant School and became a successful drill sergeant for 2 years.

6.  The applicant complained to the IG that his 16 December 1988 AER was improper in that it referenced UCMJ action that had never taken place [in fact, the reprimand was not issued until 2 months after the end date of the AER].  The IG substantiated that the AER was improper and directed that the US Army Enlisted Records and Evaluation Center (USAEREC), Fort Benjamin Harrison, Indiana, delete the improper reference to UCMJ action and insert the phrase, "A letter of reprimand was placed in his local file."  This was never accomplished although the 8 February 1989 IG memorandum is filed in the applicant's OMPF.

7.  On 18 August 2000, the applicant petitioned the USAEREC to have the subject AER corrected by removing mention of the UCMJ action.  On 4 May 2001, the USAEREC returned the applicant's request without action and referred him to this Board.

8.  AR 623-1, Academic Evaluation Reporting System, then in effect, established policies and procedures for preparation of AER's.  The regulation provided that no reference be made to incomplete administrative action taken, or planned against a student.

CONCLUSIONS:

1.  The applicant's overzealous personality alienated key faculty and staff at the Fort Jackson Drill Sergeant School.  When he missed one of several formations on his last day of class, he was told that, although he would be allowed to graduate, UCMJ action would be taken against him.  The subject AER states "resulting in UCMJ action against him."

2.  The UCMJ authority (company commander), perhaps realizing that the entire incident was overblown, issued the applicant a locally filed letter of reprimand on 16 February 1989, some 2 months after the applicant's graduation.

3.  The AER was improper and a correction was ordered, but never made.  The improper AER remains in the applicant's OMPF to this day and may have had an adverse effect upon subsequent promotion considerations to master sergeant.

4.  As a matter of equity, and in consideration of the potential harm already done to the applicant's career, it would be appropriate to remove the AER from the applicant's OMPF, rather than simply make the directed correction at this late date.  Furthermore, it would be appropriate to give the applicant promotion reconsideration for master sergeant in accordance with criteria and a timetable to be established by USAEREC.

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

RECOMMENDATION:

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

	a.  Removing the subject AER and the 8 February 1989 Fort Jackson IG memorandum, with subject:  Minor Correction to Evaluation Report, from the OMPF of the individual concerned;

	b.  By placing the corrected records of the individual concerned before an appropriate board for reconsideration of his promotion to master sergeant; and

	c.  If selected for promotion, by giving him an appropriate effective date and date of rank, with all due back pay and allowances. 

BOARD VOTE:  

__rjw___  __le____  __mvt___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Raymond J. Wagner
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002066607	
SUFFIX		
RECON		
DATE BOARDED	20020808	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.0100	
2.	134.0000	
3.		
4.		
5.		
6.