IN THE CASE OF: BOARD DATE: 24 March 2016 DOCKET NUMBER: AR20150012251 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 24 March 2016 DOCKET NUMBER: AR20150012251 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 24 March 2016 DOCKET NUMBER: AR20150012251 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the removal of General Court-Martial Order Number 5, dated 10 June 2003 from his military record. He also requests a review of the promotion policy for the U.S. Army Centralized Senior Noncommissioned Officer (NCO) promotion boards in effect for 2003 to determine whether he was erroneously removed from the sergeant first class (SFC) promotion list. 2. The applicant states the removal of this document would prevent his future leadership and other reviewing authorities from making character judgments about him because of this document and allow him to have a nonbiased chance at advancement based only on his performance as a Soldier. Even though these orders are in the restricted section of his Official Military Personnel File (OMPF), there have been times when members of his commands have gained knowledge of this document and based their assessment of his merit on the withdrawal order. Additionally, he believes the 2003 SFC promotion board may have erroneously removed his name from the 2003 Sergeant First Class (SFC) promotion list due to the original court-martial withdrawal orders dated 13 February 2003, which was before that year's SFC promotion board. The second set of withdrawal orders dated 10 June 2006 was generated due to the result of that year's promotion list. 3. The applicant provides a memorandum, dated 13 February 2003 and General Court-Martial Order Number 5, dated 10 June 2003. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 2 December 1993. 3. Orders Number 281-016 issued by Detachment C, 55th Services Battalion, Germany, on 8 October 1997 promoted him to the rank/grade of sergeant (SGT)/E-5 with an effective date and date of rank (DOR) of 3 October 1997. 4. Orders Number 060-12 issued by Headquarters, U.S. Army Aviation and Missile Command, Redstone Arsenal, AL, on 1 March 1999 promoted him to the rank/grade of staff sergeant (SSG)/E-6 with an effective date and DOR of 2 March 1999. 5. The applicant provided a Memorandum for Record, issued by the commanding general, Joint Readiness Training Center, Fort Polk, LA, on 13 February 2003. The subject line of the memorandum reads, "Withdrawal of Charges, United States v. [Applicant]..." The body of the memorandum reads, "I withdraw all charges, referred on 3 January 2003, in the aforementioned case. The withdrawal of the charges is without prejudice to the Government's right to prefer and refer charges anew." The applicant acknowledged receipt of the withdrawal of court-martial charges on 20 February 2003. 6. General Court-Martial Order Number 5, issued by Joint Readiness Training Center, Fort Polk, LA, on 10 June 2003 is the only document filed in the restricted section of his OMPF. This order states court-martial "proceedings were terminated on 16 January [2003]. All charges and specifications were withdrawn after [the] arraignment... All rights, privileges, and property of which the accused has been deprived are hereby ordered restored." 7. The applicant has not provided, and his records do not contain any evidence to show his name was placed on or removed from the CY2003 promotion list. 8. Order Number 325-16, issued by the U.S. Army Human Resources Command (HRC), on 20 November 2008 promoted him to the rank/grade of SFC/E-7 with an effective date and DOR of 1 December 2008. REFERENCES: 1. Military Personnel (MILPER) Message Number 03-096 (Zones of Consideration for Promotion to SFC, Selection for Advanced NCO Course (ANCOC), and Qualitative Management Program (QMP)), issued on 19 February 2003 states: a. A Department of the Army (DA) selection board is scheduled to convene at the Enlisted Records and Evaluation Center, Indianapolis, Indiana on 29 May 2003 to consider Soldiers for promotion to SFC and automatic selection for attendance at ANCOC. In addition, the board will review records for possible DA denial of continued service and subsequent separation under the QMP. b. The current sequence presented challenges in filling training seats and created short notice Permanent Change of Station (PCS) notifications. To better serve families and support the force, the enlisted centralized boards will be sequenced`. This resequencing begins with the Calendar Year (CY03) SFC/ANCOC board. This year's board will select 19 months' worth of SSG for promotion to SFC to carry promotions through May 2005. The next SFC board will be held in February 2005. Zones of consideration have been adjusted accordingly c. Soldiers erroneously included in the zones of consideration, if selected, will be administratively removed from the list and will not be eligible for reinstatement. The eligibility criteria for promotion consideration to SFC is as follows: (1) All SSG with DOR of 1 October 2001 and earlier and with a Basic Active Service Date (BASD) between 30 May 1984 and 29 May 1997 (both dates inclusive); (2) Primary zone DOR is 30 Jun 00 and earlier; and (3) Secondary zone is 1 Jul 00 thru 1 Oct 01. d. SSG in the following categories are ineligible for consideration for promotion to SFC: (1) approved retirement; (2) approved DA directed denial of continued service; (3) approved local bar to reenlistment; (4) not resident Basic Noncommissioned Officer Course (BNCOC) qualified, unless graduated from ANCOC; (5) does not possess a high school diploma/GED equivalency or higher (6) signed a Declination of Continued Service Statement (DCSS); (7) special bands persons ; (8) Soldiers assigned to U.S. Army Marksmanship Units (USAMU); and (9) ineligible to reenlist due to courts-martial conviction, confinement, or Absent Without Leave (AWOL) 2. MILPER Message Number 03-220 (CY2003 SFC Promotion List Release Date), issued on 18 July 2003 stated the SFC selection list was authorized for release on 17 July 2003. 3. Army Regulation 600-8-104 (Army Military Human Resources Records Management (AMHRR) Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3–5 (Authority for filing documents in the Army Military Human Resource Record folders) of this regulation states that only documents pertaining to a Soldier’s military career and listed in this regulation will be filed in the AMHRR. Appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) lists all the forms and documents which have been approved by DA for filing in the AMHRR and/or iPERMS. a. Table 3-1 (OMPF folders in the AMHRR) states the restricted folder contains documents that may normally be considered improper for viewing by selection boards or career managers. Includes masked documents defined in paragraph 3-10. b. Appendix B (Documents Required for Filing in the Army Military Human Resource Record and/or iPERMS) states all documents approved by DA and required for filing in the AMHRR and/or iPERMS can be found at the Web sites listed in paragraph B-1a. c. Paragraph B-1a (Required Document List) states rapid policy changes affect the filing of documents in the AMHRR. The list of documents required for filing in the AMHRR and/or iPERMS will be updated quarterly and posted on the HRC, Army Soldier Records Branch Web site and the S1 Net on MilBook Web site. Document additions, removals, or changes to existing filing instructions will be highlighted. This document is located on the HRC, Army Personnel Records Division Web page at: https://www.hrc.army.mil/TAGD/Record%20Update%20and%20Maintenance. 4. The HRC Army Soldiers Records Branch contains a link to the document referred to in paragraph B-1a of Army Regulation 600-8-104. Page 9 of this document shows Court-Martial Orders (General, Special, and Summary) will be filed in the restricted folder if all approved findings are not guilty and if all charges and specifications are later dismissed. If all findings of guilty have been reversed in a supplemental orders, the court-martial order will be removed from the performance folder and transferred to the restricted folder. DISCUSSION: 1. The applicant requested General Court-Martial Order Number 5, dated 10 June 2003 be removed from his OMPF. a. Army Regulation 600-8-104 and authorized supplemental documents referred to in paragraph B-1a of that regulation state General Court-Martial Orders will be filed in the restricted folder of the OMPF if all charges and specifications are later dismissed. b. The General Court Martial Convening Authority withdrew the court-martial charges on 13 February 2003 and the court-martial proceedings were terminated on 16 January 2003. As such, these orders were properly filed in restricted folder the applicant's OMPF. 2. MILPER Message Number 03-096, issued on 19 February 2003 announced the zones of consideration for the CY2003 SFC promotion board. This message stated that Soldiers ineligible to reenlist due to courts-martial conviction, confinement, or AWOL were ineligible for consideration for promotion to SFC. The Board CY2003 SFC promotion selection board convened on 29 May 2003. a. The General Court Martial Convening Authority withdrew the court-martial charges on 13 February 2003, and the court-martial proceedings were terminated on 16 January 2003. Both the withdrawal and the termination of proceedings occurred prior to the release of MILPER Message Number 03-096 on 19 February 2003. As such, the applicant was eligible for consideration by the CY2003 SFC promotion board. b. The General Court Martial Convening Authority withdrew the court-martial charges on 13 February 2003 and court-martial proceedings were terminated on 16 January 2003. General Court-Martial Order Number 5, dated 10 June 2003 would have been filed directly in the applicant's restricted folder since it was published after the withdrawal of charges and the termination of the court-martial proceedings. 3. MILPER Message Number 03-220, authorized the release of the SFC promotion selection on 17 July 2003. The applicant has not provided, and his record does not contain any evidence to show his name was listed on or removed from the CY2003 SFC promotion selection list. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012251 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012251 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2