PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            17 March 1999                  
	DOCKET NUMBER:   AR1999015791

	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. Loren G. Harrell		Director	
	Mr. Ed Clark.		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. James P. Steuve		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 reinstatement to the Drill Sergeant Program and reinstatement of his Drill Sergeant Identification Badge and special qualification identifier (SQI "X").  Additionally, in effect, he requests the removal of an NCO Evaluation Report (NCOER) covering the period April 1995 through January 
1996.  He states, in essence, that he was falsely accused of kissing a trainee; that the Commanding General(CG), after reading his appeal which was accompanied by statements written by other trainees, decided not to file a general officer letter of reprimand (GOMOR) in his official military personnel file (OMPF); and that the contested NCOER was based on the aforementioned unsubstantiated allegation.

3. The applicant, who had been selected as battalion and brigade NCO of the year in the 82nd Airborne Division in 1989, graduated from Drill Sergeant School in 1994 and was serving as a Drill Sergeant in the grade of staff sergeant in a basic training company at Fort Jackson, South Carolina, during the period of time in question.

4.  On 3 October 1995 he was selected as the Honor Graduate of the Advanced Noncommissioned Officer Course and returned to his unit in Fort Jackson.  

5.  A portion of a 15-6 investigation (Section IV-Findings, and Section 
V-Recommendations) submitted by the applicant, shows that the investigating officer (IO) determined that on 15 October 1995 the applicant, who was performing duties as the unit Charge of Quarters (CQ) at the time, had kissed and engaged in a personal conversation with a female trainee after 2300 hours.  The IO stated that this conclusion was based primarily on the sworn statement of that female trainee.  The IO recommended that the applicant receive a GOMOR "for illegal associations by attempting to foster a personal relationship with soldiers in training [and that he] be removed from the Drill Sergeant Program."

6.  On 21 December 1995 the applicant was issued a GOMOR by the CG; however, he appealed and submitted statements with his appeal which were signed by several trainees (male and female) who described the female trainee accuser as a flirt and a liar.  Included was a statement from his Assistant Charge of Quarters (a trainee) who stated that the accuser's version of the event was "impossible" since the area where the event allegedly occurred was in his view during the entire period of time in question.

7.  A 22 January 1996 Memorandum addressed to the Commander, Total Army Personnel Command and signed by the CG shows that the applicant was removed from the Drill Sergeant Program; that his Drill Sergeant Identification Badge and SQI would be withdrawn; that his special duty assignment proficiency pay had been terminated; and that a copy of the memorandum would be filed in his OMPF, Career Management Information File, and the Military Personnel Records Jacket.

8.  The applicant's NCOER covering the period April 1995 through January 
1996, a relief for cause report, shows that he was "Relieved from duty for not creating an environment of strict professionalism."  Another comment shows "Won NCO of the Quarter this rating period."  He was reassigned to duty as a weapons instructor.

9.  A memorandum dated 8 February 1996 signed by the CG and addressed to the applicant through his chain of command, shows that the CG determined that the GOMOR should not be filed in the applicant's OMPF.  However, he then admonished the applicant stating that he ( the applicant) had been given prior warnings about "the perception of being engaged in improper associations with female soldiers in training;" that the statements submitted indicated that the female trainee accuser had previously attempted to flirt with the applicant but that he had not reported those actions; that other improper acts between trainees (a couple kissing in a closet, and a female on the male floor of the barracks) had occurred while he was performing CQ duty but he did not see or report them; and that "While I will not file the letter of reprimand, I do not have complete trust and confidence in your potential for continued performance as a Drill Sergeant in contact with female soldiers in training.  And I do not think your behavior in this regard is fully consistent with the high standard of professionalism expected of noncommissioned officers in the United States Army."

10.  A memorandum signed by a military lawyer dated 7 March 1996, shows, in part, that she had spoken to the applicant's commander at the time; and that the commander indicated that "every accusation made against the applicant was proved to be false."

11.  An 18 April 1996 memorandum signed by an officer in the grade of  lieutenant colonel concerning a Commander's Inquiry, shows, in part, that "The Relief for Cause NCOER was initiated based on the removal [of the applicant] from the Drill Sergeant Program."  He stated that he could not address the accuracy of statements in the contested NCOER without essentially redoing the investigation that led to the contested NCOER.

12.  On 23 February 1999, having been provided a draft copy of the Board Proceedings, the Board was advised by the Senior Legal Advisor, Army Review Boards Agency, that there were no legal objections to the contents of the document.  He recommended that paragraph 3 in the Conclusions portion be replaced.  Further detail is contained in the advisory opinion and need not be reiterated.
13.  On 26 February 1999, as is the policy of the Board, the applicant was provided a copy of the advisory opinion and advised that he was being provided a 30 day period in which to submit a response/rebuttal to the advisory opinion if he desired to do so.

14.  On 2 March 1999 he advised the Board that he agreed with the recommendation in the advisory opinion and did not desire to submit a rebuttal.

CONCLUSIONS:

1.  Following an investigation that indicated that the applicant had kissed and engaged in a personal conversation with a female trainee, he was issued a GOMOR.  He appealed the GOMOR and submitted statements from other trainees which clearly indicated that the allegation was not true.  The CG withdrew the GOMOR; however, he removed the applicant from the Drill Sergeant Program and directed that his Drill Sergeant Identification Badge and SQI be withdrawn. 

2.  Based on the aforementioned statements made by trainees in defense of the applicant, the CG concluded, in essence, that the applicant had not performed his CQ duties properly because he had not witnessed two incidents of trainee misconduct; and that because the applicant had not reported previous instances of flirting by the female trainee accuser, he (the CG) no longer had complete trust and confidence in him as a Drill Sergeant.  This message was relayed to the applicant through the Fort Jackson Training Brigade chain of command.  

3.  Had the applicant not been forced to defend himself concerning the apparently false allegation, the CG would not have been aware of the improper acts by trainees on the night of 15 October 1995 which apparently occurred without the knowledge of the applicant who was performing duties as the CQ at the time, nor would he have been aware that the applicant had not reported previous instances of flirting by the female trainee accuser.  Further, even if both of these matters occurred, they should more appropriately have been addressed by the applicant's company commander rather than by a general officer.  Therefore, the actions by the CG which resulted in the applicant being removed from the Drill Sergeant Program, the withdrawal of his Drill Sergeant Identification Badge and SQI, and the issuance of the contested NCOER were unjust.

4.  The advisory opinion provided by the Army Review Board’s Senior Legal Advisor is attached and has been made an integral part of the Board Proceedings.

5.  Because of the circumstances of this case, returning the applicant to duty as a Drill Sergeant would not be in the best interest of either the applicant or the Army.  However, his military career should not be jeopardized based on this incident.  Accordingly, removal of all documents from the applicant's OMPF related to this matter, including documents showing his removal from the Drill Sergeant Program, the withdrawal of his Drill Sergeant Identification Badge and SQI, and the contested NCOER would be appropriate.

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:

	a.  by voiding the action by which the Drill Sergeant Identification Badge and SQI were withdrawn from the individual concerned;

	b.  by removing from his records all documents related to his removal from the Drill Sergeant Program; and

	c.  by removing the contested NCOER from his OMPF and by inserting an appropriate nonprejudicial statement for that period of time.

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

BOARD VOTE:  

TSK__  OWT____  JPS____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC9812889/1999015791	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 March 17	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	134.02	
2.	111.02	
3.		
4.		
5.		
6.