RECORD OF PROCEEDINGS

	IN THE CASE OF:     .

	BOARD DATE:           27 January 2004                  
	DOCKET NUMBER:   AR2003091494

	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	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Yolanda Maldonado		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that her Drill Sergeant Badge (DSB) and Skill Qualification Identifier (SQI) “X” (Drill Sergeant) be restored; that any references to these issues be removed from her Official Military Personnel File (OMPF), and that her corrected record be placed before a Stand-By Advisory Board (STAB) for promotion reconsideration to sergeant first class/E-7 
(SFC/E-7).  

2.  The applicant states, in effect, that she was denied due process in connection with the process removing her DSB and X SQI.  She claims that the basis for the removal was an allegation of a violation of the Uniform Code of Military Justice (UCMJ) for which she was never provided an opportunity to confront.  She claims that she was the victim of gender discrimination as a result of her painful gynecological condition, and that the command misquoted and mislead the revocation authority by wrongfully using her mental health evaluations in support of its revocation package.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests, in effect, restoration of the permanent award of the DSB, restoration of the SQI X, removal of all references to this matter from the applicant’s OMPF, and that the applicant’s corrected record be placed before a STAB for promotion reconsideration to SFC/E-7.  

2.  Counsel states, in effect, that that the applicant was denied the procedural due process necessary for revoking the DSB and SQI X when the reason for the revocation was based on an alleged violation of the UCMJ.  Furthermore, the circumstances strongly suggest that the applicant was a victim of gender discrimination.  Counsel claims that it is clear from the record that the applicant attended mental health counseling to deal with the pain and prospective treatment of a severe gynecological disorder.  The mental health evaluations she received were inappropriately included as supporting documentation for removing her from the drill sergeant program, and such evaluations were intentionally misquoted and used to mislead the decision making authority to advance the administrative and disciplinary goals of the unit.  Counsel claims that the use of the mental evaluations in this manner was not only contrary to the intent of Army regulations, but was wholly contrary to the goals of the military mental health system.  As a result of the actions of the Army, and taking the totality of the circumstances of this case into account, a substantial injustice occurred to the applicant and the Board is obligated to provide her an adequate remedy immediately.  

3.  In his enclosed memorandum, counsel also provides his summary of the facts and circumstances related to this case.  His memorandum also includes his conclusions and his legal argument for relief.  Counsel points out that the applicant’s record is stellar and that up until this point was unblemished.  He claims that the applicant’s position is that she did nothing wrong and has now lost her DSB and SQI without ever getting the opportunity to confront her accuser.  Counsel further states that the applicant believes that these actions revolved around her female problems and does not understand how the command could get away with this.  Counsel asks that the Board concur with the applicant’s sentiments and find that her treatment was totally unjust.  

4  Counsel provides the 23 documents listed in the enclosed list of exhibits in support of this application.  

CONSIDERATION OF EVIDENCE: 

1.  As of the date of her application to the Board, the applicant continued to serve on active duty in the Regular Army in the rank of staff sergeant (SSG).  

2.  On 13 December 2002, the applicant’s unit commander notified her that she was being suspended from Drill Sergeant duties effective upon the approval of the brigade commander.  She was informed that this suspension was based on her violation of Fort Jackson Regulation (FJR) 350-6, paragraph 6-325.  The applicant acknowledged receipt of this notification and indicated that she would submit matters in rebuttal to the action.  

3.  On 3 January 2003, the applicant received a Letter of Reprimand (LOR) from her battalion commander based on her involvement in an incident with a solider in training.  The LOR indicated that the applicant while acting as the battalion Kitchen Police (KP) pusher kicked and verbally assaulted a private (soldier in training) who was serving on KP duty.   

4.  On 10 January 2003, the applicant’s unit commander notified the applicant that it was his intent to remove her from the Drill Sergeant Program based on the incident outlined in the 3 January 2003 LOR.  The applicant was further notified that a recommendation was being made to revoke her DSB and SQI of X.  The applicant acknowledged receipt of this notification and elected to make a statement in her own behalf.  In her statement, she outlined the events surrounding the removal action and the underlining causes which were related to relationship between her and the first sergeant and another drill sergeant.  She also claims that while she may have cursed at the soldier in training, she did not kick or otherwise physically abuse the soldier.  

5.  On 10 January 2003, the applicant’s battalion commander prepared a memorandum for the brigade commander recommending that the applicant be removed from the Drill Sergeant Program.  He stated that allegations had been made and substantiated that the applicant kicked soldiers in training, which violated the prohibited practice provisions of FJR 350-6.  He stated that the applicant’s performance of duty was overshadowed by infractions of training policies, and substandard performance as a basic training drill sergeant.  He further indicated that the Community Mental Health Service had stated that the applicant could not perform her duties in a basic training environment due to ongoing extreme family problems, medical problems, and stress brought on by the demanding duties expected of a drill sergeant.  He finally recommended revocation of the applicant’s DSB and SQI.  

6.  The applicant’s brigade commander approved the applicant’s removal from the Drill Sergeant Program under the provisions of paragraph 8-18a (7), 
Army Regulation 614-200.  He also directed that the applicant’s DSB be withdrawn under the provisions of paragraph 8-39c, Army Regulation 600-8-22, and that her SQI of X be withdrawn in accordance with paragraph 8-18d (4), Army Regulation 614-200.  The applicant appealed this decision on 6 February 2003.  

7.  In her appeal, the applicant stated that she had been informed by her battalion commander that the deciding factor in her removal was the Community Mental Health letter.  She commented that this letter did not indicate that she was a threat to her job or soldiers, it simply stated that she had an ongoing female situation.  She further claimed that she had not kicked a soldier in training and her performance was not sub-standard.  In support of her appeal, the applicant provided a letter from the Community Mental Health Services staff psychiatrist in support of her being allowed to continue in the Drill Sergeant Program.  She also provided a statement from her Gynecologist physician that indicated that her gynecological problems did not interfere with her ability to function as a 
Drill Sergeant.  

8.  On 20 February 2003, the appellate authority, after carefully reviewing the applicant’s appeal and weighing its merits against the established criteria for Drill Sergeant duty, denied the applicant’s appeal.  

9.  In connection with the processing of this case, and advisory opinion was obtained from the Chief, Infantry Branch, United States Army Total Army Personnel Command (PERSCOM).  It indicates that the LOR the applicant received from her battalion commander is sufficient justification for removal from Drill Sergeant duty.  

10.  The PERSCOM infantry branch official further stated that a review of the DS removal packet completed on the applicant indicates that the United States Army Training Center and Fort Jackson correctly followed all administrative procedures required by Army Regulation 614-200,  paragraph 8-18g.  Per this paragraph, removal packets must include the following documents:  a letter of intent to remove; a soldier’s acknowledgement statement required by Army Regulation 600-37; the soldier’s rebuttal statement, if provided; all chain of command correspondence; and approval correspondence signed by the appropriate authority with removal paragraph and reason cited.  It further confirms that approval authority for Drill Sergeants will no longer be the first general officer in the soldier’s chain of command and will always be a general officer higher in grade than the designated removal authority.  

11.  The applicant was provided a copy of the PERSCOM advisory opinion and her counsel provided a rebuttal, dated 4 August 2003, and a supplemental rebuttal, dated 18 August 2003.  In his initial rebuttal, counsel refers to the position taken by PERSCOM that it would not be appropriate to restore the DSB and SQI of X to the applicant unless the LOR were removed from her record.  He claims that the LOR should in fact be removed from the applicant’s record because it was not issued in substantial compliance with the governing regulation.  Counsel claims, in effect, that the regulatory notification procedures and rebuttal requirements were not followed in issuing the applicant the LOR.  He further claims that issuing the LOR was premature because as indicated by the unit commander in his request for a mental status evaluation, his inquiry into the incident was still ongoing.  Counsel further indicates that the Army response to a Congressional inquiry was misleading in that it indicated that the LOR was not the sole reason for the actions taken against the applicant and that she also suffered from a severe mental health condition.  

12.  In his supplemental rebuttal of 18 August 2003, counsel also stated that PERSCOM failed to address whether or not a proper removal authority acted in removing the applicant from the Drill Sergeant Program.  He claims that in reviewing the Army’s response, it has come to his attention that there was not a proper delegation of the removal authority to the brigade commander level.  Thus, the removal authority in the applicant’s case should have been the Commander of the United States Army Training Center and Fort Jackson, and the appellate authority should have been the first general officer in the chain of command that was senior in rank to this commander.  Counsel concludes that given this information, there is no doubt that the applicant was denied the procedural and substantive due process that was due her in this administrative action.  

13.  Army Regulation 614-200 prescribes the Army’s policy for the reporting, selection, assignment, and utilization of Active Army enlisted personnel.  
Chapter 8, Section III contains guidance ion the Drill Sergeant (DS) Program.  Paragraph 8-18 contains the policy for removal from the Drill Sergeant Program.  It states, in pertinent part, that United States Army Training Center, separate brigade and/or appropriate equivalent commanders may remove active Army soldiers from the Drill Sergeant Program (Removal authority must be at least colonel level command and may be delegated to subordinate commanders or deputy commanders/commandants in the grade of colonel or higher including commanders/commandants of other Services). 

14.  Army Regulation 600-8-22 prescribes the Army’s awards policy, and 
chapter 8 contains the policy for awarding badges and tabs.  Paragraph 8-39 contains the policy and procedure for awarding and revoking the Drill Sergeant Identification Badge.  It states that the Commandant of the Drill Sergeant School will authorize the permanent wear of the badge to eligible personnel by memorandum.  It further states that the badge may be revoked if the recipient is removed from the position of a drill sergeant for cause, regardless of the amount of time the individual has served in the position in a satisfactory manner.  Authority to revoke the badge is delegated to commanders of U.S. Army Training Centers and commandants of Drill Sergeant Schools.  Commanders of U.S. Army training Centers may further delegate the revocation authority to commanders in the grade of colonel or higher who have the authority to remove soldiers from drill sergeant duties and withdraw skill qualification identifiers (SQI) "X." 

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant and her counsel, which allege that she was not afforded due process in connection with her removal from the Drill Sergeant Program and associated actions, which included her receiving a LOR, and the revocation of her DSB and SQI were carefully considered.  

2.  However, the evidence of record confirms that the applicant was involved in an incident with a soldier in training that led to her receiving a LOR.  The specific facts and circumstances related to this incident, its investigation, and the resultant LOR are not on file.  However, there is sufficient evidence to confirm that the applicant was involved in a incident that led to a determination by the responsible commanders that she violated Fort Jackson policy pertaining to the treatment of soldiers in training.  

3.  Further, the record confirms that shortly after she received the LOR, action to remove her from the Drill Sergeant Program based on this incident was initiated by her commander.  The evidence of record confirms that all procedural notification, referral, and rebuttal requirements were afforded the applicant in connection with this action.  This included the opportunity for her to rebut the incident for which she received the LOR.  

4.  The evidence of record also confirms that the applicant suffered from a medical condition that resulted in a recommendation from medical authorities that she be removed from normal drill sergeant duties and placed on light duty while she suffered from this condition.  The applicant and her counsel now assert that the Army represented this condition as more serious than it actually was.  Further the medical professionals that treated the applicant and made the initial light duty recommendation now take the position that the applicant’s condition did not permanently prevent her from performing drill sergeant duties.  

5.  However, even if the applicant’s medical condition only temporarily affected her ability to perform normal drill sergeant duties in a basic training environment and was not in itself a disqualifying condition, it was a relevant issue for commanders to consider along with the other factors in her removal action.  In addition, all the supporting medical evidence and statements from attending physicians were included in the applicant’s rebuttal to the drill sergeant removal action.  This rebuttal, to include all the medical evidence, was carefully considered by the appellate authority, who ultimately denied the applicant’s appeal.  

6.  The assertion that the applicant’s brigade commander did not have the authority to revoke the applicant’s DSB and SQI X was also carefully considered. However, the evidence shows that even had there been administrative errors in the formal delegation of the authority to the applicant’s brigade commander, the regulation does allow the delegation of this authority to subordinate commanders in the grade of colonel.  Further, it was clearly the intent of the commander of the United States Army Training Center and Fort Jackson that this authority be delegated to the applicant’s brigade commander.  

7.  In view of the facts of this case, there is no evidentiary basis upon which to support the requested relief.  Although some minor procedural errors may have occurred in the issuing of the LOR to the applicant and in the removal process, the Board does not find the applicant was denied due process or that there was any substantial error or injustice related to her removal from the drill sergeant program or the revocation of her DSB and SQI.  

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

AO____  ___LE__  _YM____       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.

		
		Arthur A. Omartian
		 CHAIRPERSON

INDEX

CASE ID	AR	
SUFFIX		
RECON		
DATE BOARDED	2004/01/27	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	D	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.