MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 March 2002
	DOCKET NUMBER:   AR2001063541

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Donald P. Hupman, Jr.		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, the setting aside of all punishment imposed by nonjudicial punishment on 18 December 1998, the removal of the Record of Proceedings of Nonjudicial Punishment (DA Form 2627) and all related documents from his Official Military Personnel File (OMPF), correction of a Noncommissioned Officer Evaluation Report (NCOER) covering the period from June 1998 to January 1999, Reinstatement of his Special Qualification Identifier (SQI) of “X” and Drill Sergeant Identification Badge, Reinstatement to the Drill Sergeant Program, Payment of all back pay and allowances and promotion to the pay grade of E-7.

APPLICANT STATES:  In effect, that he was unjustly punished for something he did not do and was never proven.  He also states that the nonjudicial punishment (NJP) was improperly administered and the punishment was changed after-the-fact on the DA Form 2627, by adding extra duty and restriction, that his appeal rights were violated because he was unable to appeal to the commanding general, that a commissioned officer and a command sergeant major withheld evidence that could have proved his innocence, that the investigation was unfounded, that he was unjustly relieved for cause and given a derogatory NCOER, that his SQI has never been withdrawn, which shows the depth of unjust actions against him, that he was punished more severely than others involved and his total record of service was not taken into account, that his battalion commander did not have the authority to withdraw his SQI, revoke his Drill Sergeant Identification Badge or remove him from the Drill Sergeant Program, that his battalion commander falsified an official document regarding the charges against him and which he was never given an opportunity to refute, that an unsigned Memorandum of Concern and Admonishment dated 16 December 1998, was unjustly placed in his OMPF, and that he has been unjustly denied promotion to the pay grade of E-7.  In support of his applications he submits an extensive packet with approximately 75 enclosures and a cassette tape of a conversation.

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

He enlisted on 18 February 1986 for a period of 3 years and 14 weeks and training as an infantryman.  He completed his training and has remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 1 August 1995. 

On or about 8 December 1998, while the applicant was serving as a drill sergeant at Fort Leonard Wood, Missouri, the applicant’s company commander directed that a company level investigation be conducted into allegations that a drill sergeant had been involved in sexual relations with a trainee.  The investigation directly involved the applicant and he was placed on administrative pass, pending the completion of the investigation.  Upon interviewing the parties concerned, the investigating officer concluded that there was sufficient evidence of a contradictory nature to warrant a formal investigation.  The investigating officer concluded, in effect, that the applicant was not being truthful.
On 11 December 1998, the company commander recommended to the battalion commander that a formal investigation be conducted in accordance with Training and Doctrine Command (TRADOC) Regulation 350-12.  Accordingly, an officer was appointed to conduct the investigation.

The investigating officer (a major), investigated the allegations of an improper relationship with a trainee by the applicant, intent to conspire with trainees to hide alleged misconduct by the acting first sergeant and the applicant, misconduct with trainees by the acting first sergeant, as evidenced by photographs witnessed by another drill sergeant and perjury by the applicant to a commissioned officer regarding allegedly incriminating photographs of the acting first sergeant and a trainee.  He recommended that based on the evidence received, the allegations of improper conduct by the applicant with a trainee, perjury by the applicant to a commissioned officer in a sworn statement, intent to conspire with trainees to hide misconduct by the acting first sergeant and the applicant, and misconduct by the acting first sergeant with a trainee be founded. 

On 16 December 1998, the battalion commander authored a memorandum for record regarding the alleged misconduct by the applicant and the acting first sergeant (E-7).  He indicated that the evidence obtained in the investigations failed to substantiate the allegations of sexual misconduct; however, there was sufficient credible evidence to show that the applicant had lied to a commissioned officer and swore to a false statement.  He indicated that he had lost trust and confidence in the applicant’s ability to serve as a drill sergeant and would seek, through the brigade commander, removal of the applicant from the Drill Sergeant Program, transfer to another unit, and imposition of NJP.

He also rendered a Memorandum of Concern and Admonishment to the applicant on 16 December 1998, indicating that while he had no evidence or basis to continue the investigation into the allegations of sexual misconduct, during the course of the investigation, credible evidence was obtained to show that he had exhibited inappropriate conduct for a cadre member.  He indicated six areas of improper conduct, of which one was lying to a commissioned officer.  He advised the applicant that he was recommending him for removal from the Drill Sergeant Program and transfer from the unit.

Also on 16 December 1998, the battalion commander notified the applicant that he was considering whether he should be punished under Article 15, Uniformed Code of Military Justice, for making false official statements to a commissioned officer that he did not have photos of the acting first sergeant, which was false and known to be false. 

On 18 December 1998, after consulting with counsel, the applicant elected not to demand trial by court-martial.  He elected to have the proceedings conducted in a closed hearing and elected not to submit matters in defense, mitigation or extenuation.  NJP was imposed against the applicant on that date and his punishment consisted of a reduction to the pay grade of E-5, a forfeiture of pay (suspended for 2 months), extra duty and restriction.

The applicant elected to appeal the punishment and to submit additional matters in his own behalf.  The brigade commander at the time, denied his appeal on 11 January 1999.  The imposing officer directed that the DA Form 2627 be filed on the performance fiche of the applicant’s OMPF.

On 14 January 1999, the battalion commander notified the applicant that he was initiating action to consider whether he should be removed from the Drill Sergeant Program, revoking his Drill Sergeant Identification Badge and withdrawing his SQI of “X”.  The applicant acknowledged the commander’s intent and elected to submit a statement in his own behalf.  He asserted in his statement that he was not guilty of the offense for which NJP was imposed against him and provided a memorandum from his defense attorney indicating why he did not believe he was guilty.  He also contended that his excellent record of service should be taken into account and requested that he be allowed to continue as a drill sergeant.  He submitted 20 enclosures with his statement.

The battalion commander reviewed the applicant’s statement and supporting documents and on 17 February 1999, he authored a second endorsement addressed to the brigade commander in which he indicated that he was fully convinced that the applicant should be removed from drill sergeant duty.  He went on to explain that during the course of the investigations, it became absolutely clear that the applicant had lied on a number of occasions, not merely quibbled, to the investigating officer, his commander and to himself (the battalion commander).  He contended that there was irrefutable evidence that the applicant had held, had discussed and had shown two photos of his acting first sergeant to another drill sergeant at his quarters.  On countless occasions in his office at the time he imposed NJP, he asked the applicant to tell the truth, admit what he had done, and he refused.  The content of the photos, other than they were of the acting first sergeant and another individual is irrelevant.  He knew of the photos in question, denied having them, denied ever talking about them as a bargaining chit, and denied ever showing them to another drill sergeant at his new quarters (details of which the other drill sergeant can clearly describe).

On 19 February 1999, the brigade commander approved the recommendation to remove the applicant from the Drill Sergeant Program and directed that his Drill Sergeant Identification Badge be revoked and that his SQI be withdrawn.  He also directed that a copy of the removal action and all allied documents be filed in the applicant’s OMPF.
On 27 April 1999, the applicant received a relief for cause NCOER covering the period from June 1998 to January 1999, evaluating him as a drill sergeant.  In Part IVa under Values/NCO Responsibilities, his rater gave him “No” ratings under “Is disciplined and obedient to the spirit and letter of a lawful order” and “Is honest and truthful in word and deed.”  He gave the applicant “yes” ratings in the remaining five areas.  The supporting comments indicate that the applicant lied to an officer under oath.

In Part IVb under Competence, the applicant received a “Needs Improvement” rating.  The bullet comments indicate that his sound judgment was compromised when his integrity was questioned and that he could be rehabilitated.  He received success ratings in the remaining areas.  There is no indication in the available records to show that he has ever appealed the report to the Enlisted Special Review Board.

On 3 May 1999, in response to a congressional inquiry made by the applicant in which he requested an impartial review of the appropriateness of punishment for lying to a commissioned officer and swearing to a false statement, the status of his removal packet from the Drill Sergeant Program, and clarification about the perceived inconsistency for punishment leveled against the other NCO (acting first sergeant), the battalion commander responded to the member of Congress.  He indicated that an impartial review had been completed at the appellate level and was still being conducted by the Staff Judge Advocate and Inspector General’s offices.  To date, none have found any basis to the applicant’s claims that he had been dealt with inappropriately.  He went on to state that in the course of a routine investigation, there was overwhelmingly convincing evidence that the applicant had in his possession, and had intent to use to his advantage, photos of a criminal or embarrassing nature.  The applicant’s denial of having any such photos whatsoever is what escalated the matter to the level of NJP.  Beyond lying to the investigating officer and swearing to a false statement, the applicant maintained the lie in the presence of his entire chain of command for 45 minutes, while the chain of command pleaded with him to tell the truth.  In regards to his removal from the Drill Sergeant Program, the brigade commander removed him from the program and he was provided with a copy of the removal action.  With regard to the concern about inconsistency of punishment to the other NCO, the commander indicated that the NCO was embarrassed and while not immediately up front with the truth, he did take full and immediate responsibility for his actions, gave a full account of the photos, and demonstrated sufficient remorse so as to mitigate any further punishment – a completely different response than was seen from the applicant.  He also indicated that the applicant’s appeal had been denied by the brigade commander and reiterated that the applicant’s allegations of discrimination were without merit.

A review of the applicant’s OMPF fails to reveal that the applicant has ever received any other punishment of a derogatory nature or adverse evaluations.

Army Regulation 600-8-22 provides the policies and procedures for the revocation of the Drill Sergeant Identification Badge.  It provides, in pertinent part, 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 he has served in the position in a satisfactory manner.  Authority to revoke the badge is delegated to commanders of the United States Army Training Centers who may further delegate the authority to commanders in the grade of colonel or higher who have the authority to remove soldiers from drill sergeant duties and withdraw the SQI of “X”. 

Army Regulation 623-205, sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation. 

Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

AR 27-10 prescribes the guidelines for the filing of NJP.  It states, in pertinent part, that the decision to file the original DA Form 2627 on the performance or restricted fiche of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be indicated in item 5, DA Form 2627.

Paragraph 3-18 of that regulation provides, in pertinent part, that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the soldier committed the offense.  If the commander decides to impose the punishment he or she will announce the punishment to the soldier and explain the soldier’s appellate rights and procedures.

Paragraph 3-23 of that regulation provides, in pertinent part, that the imposing commander, a successor in command or the next superior authority may remit, mitigate, suspend, vacate or set aside punishments imposed under NJP.

Army Regulation 600-8-104 provides the policies and procedures for filing of documents in the OMPF.  It provides, in pertinent part, that in cases involving drill sergeant reliefs, the removal action and all allied documents, to include the member’s reply, will be filed on the performance fiche of the OMPF.

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.  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.

2.  It appears that the NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so.  The punishment was not disproportionate to the offense and there is no evidence of any alterations to the DA Form 2627 or any violations of the applicant’s rights.   

3.  The applicant properly exercised his rights of appeal and was unsuccessful in his appeal.  Accordingly, the record of NJP was properly filed on the performance fiche of the applicant’s OMPF and he has failed to show through the evidence submitted with his application or the evidence of record that such was not the case.

4.  The Board has noted the applicant’s contention that the charges against him were unproven and that he was unjustly punished for an offense that he did not commit.  However, he was afforded an opportunity to demand trial by           court-martial, whereas he could have asserted his innocence before a jury of his peers and with the assistance of counsel.  He elected not to do so.  While the burden of proof is not as great as in a court-martial, he was also unable to convince his chain of command of his innocence both prior to the imposition of NJP and during his appeal.  The Board finds, after reviewing the available evidence in this case, no basis to overturn or set-aside the NJP imposed against him.

5.  The Board also finds that the proper authority removed him from the Drill Sergeant Program, directed the revocation of his Drill Sergeant Identification Badge and withdrawal of his SQI of “X.”

6.  The contested NCOER appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for altering or removing the report from his OMPF.

7.  The applicant’s contention that he was punished more severely that the other NCO has also been noted.  However, given the circumstances in this case, the Board finds that the commander properly exercised his authority in this matter and the applicant has failed to show otherwise.  It appears that the bottom line in this case was that the commander simply wanted the NCOs involved to accept responsibility for their actions, actions he knew that had occurred and by whom.  The one NCO who accepted responsibility for his actions was not punished and the one who did not (the applicant), was punished accordingly.

8.  The applicant’s contention that the Memorandum of Concern and Admonishment was unjustly placed in his OMPF, also appears to be without merit.  While such a document by itself would normally require a general officer to direct such filing, the fact that it was part of the removal action from the Drill Sergeant Program and his appeal of that action, it is required to be filed in the OMPF.  Although the applicant has not appealed to the Department of the Army Suitability Evaluation Board (DASEB) to have it transferred to the restricted fiche of his OMPF, the actions by this Board to deny his request for removal of the document will not preclude his applying to the DASEB at a future date.

9.  While the applicant has had an excellent record of service both prior to and subsequent to the incident in question, the Board finds, after reviewing the extensive packet of information submitted by the applicant, as well as the evidence of record, that there is no evidence of error or injustice in his case that would warrant a reversal of the actions taken by the chain of command. 

10.  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

__fe ____  ___tbr___  ___dh___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063541	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/03/05	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  277	126.0000/NJP	
2.  279	126.0200/EXCESS PUNISH	
3.  281	126.0400/EXPUNGE NJP	
4.  310	131.0000/PROM	
5.  193	111.0000/VOID NCOER	
6.