BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150017584 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 BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150017584 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. BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150017584 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 promotion to sergeant major (SGM)/E-9 effective 1 April 2005. 2. The applicant states he was relieved from his duties [as a first sergeant (1SG)] before a final decision was made in his case. He was given a second chance [to be a unit 1SG]. His performance in Iraq was stellar where he was awarded the Bronze Star Medal, Combat Action Badge, and the Prestigious Order of St. Martin Award. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * letters of recommendation * Army Review Boards Agency power point slide * personal resume * newspaper articles titled "Order of St. Martin" and "Amite native has long, impressive military career" 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 12 August 1982 and he held military occupational specialty 92A (Automated Logistical Specialist). 3. He served through multiple reenlistments in a variety of stateside or overseas assignments including Bosnia, Korea, and Iraq. He was promoted to master sergeant (MSG)/E-8 on 1 March 1999. 4. In June 2003, he assumed duties as a company 1SG for a unit in Korea. 5. On 14 April 2004, the U.S. Army Criminal Investigation Command (CID) conducted an investigation into allegations of sexual assault. The investigation determined that a sergeant/pay grade E-5 went to the military health clinic for treatment. She stated she contacted a sexually transmitted disease as a result of being raped. Upon further questioning, she stated she was raped by the applicant in his barracks room. She provided a statement indicating she did not want the rape investigated. She claimed he raped her on 5 January 2004, denying any touching (personal contact) occurred in his office or that she had been to his barracks room prior to this incident. The applicant admitted to having sexual intercourse with her but denied raping her. 6. On 17 May 2009, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of military Justice (UCMJ) for: * wrongfully having sexual intercourse with a sergeant, a married woman not his wife, between 1 February and 28 February 2004 * wrongfully fondling her breasts and buttocks through her clothing while in his office, conduct prejudicial to good order and discipline, between 1 August 2003 and 1 April 2004 7. The applicant's punishment consisted of a forfeiture of pay. The imposing officer ordered the Article 15 filed in the performance section of the applicant's official military personnel file (OMPF). The applicant elected not to appeal. 8. In May 2004, the applicant also received a relief for cause noncommissioned officer evaluation report (NCOER) for failing to use sound judgment and improper conduct that affected the command climate. He was removed from his 1SG duties. 9. The Chief of the Enlisted Promotions Branch at the U.S. Army Human Resources Command (HRC) notified the applicant by letter of a "Command Initiated Removal from a Centralized Promotion List." The notification memorandum stated: a. The Department of the Army Enlisted Standby Advisory Board (STAB) which adjourned on 14 June 2005 recommended removal of the applicant from the promotion list to SGM. The Director of Military Personnel Policy (DMPM), Army G1, approved the recommendation of the board on 27 June 2005. b. The applicant's name was removed from the recommended list. The letter advised him that provided otherwise eligible, this removal action did not preclude him from consideration by future promotion boards. c. A copy of this correspondence was placed in the applicant's OMPF in accordance with the governing regulation. 10. A review of the applicant's OMPF shows he served as a unit 1SG in Iraq during the period 1 June 2006 to on or about 30 June 2007 as documented by two NCOERs. His rater and senior rater recommended him for promotion to SGM stating he demonstrated unlimited potential. His senior rater rated him "Among the Best" and "Superior – 1." 11. There is no indication the applicant was selected for promotion to SGM by an HQDA promotion board following his removal but before his retirement date. 12. He retired on 31 August 2008 and he was placed on the retired list in his retired rank/grade of MSG/E-8. He completed over 26 years of active service. He was issued a DD Form 214 showing among his awards the Bronze Star Medal and the Combat Action Badge. 13. He provides multiple letters of recommendation from senior officers, NCOs, and others. The authors' state: * the applicant exceeded expectations in his performance and epitomized the quality of leadership * everyone makes mistakes and there is no individual without faults * the applicant never let anyone down, failed a mission, or failed to carry out his duties; he had always been outstanding * the applicant is a man of great integrity as well having a positive attitude and behavior * the applicant served our country in combat and was exposed to multiple combat situations * he is a man of loyalty, honesty, and integrity; his friendship had been a rewarding experience 14. He also provides a newspaper article about his induction into the Quartermaster Corps Military Order of Saint Martin and a local newspaper article highlighting his military career. REFERENCES: Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotions and reductions of Army enlisted personnel. a. Paragraph 1-11 (Suspension of favorable personnel actions for Soldiers on a Headquarters, Department of the Army (HQDA) centralized promotion list; promotion to sergeant first class and above), Soldiers who are flagged while on a centralized selection list are not eligible for promotion selection and pin-on, regardless of their sequence number. If action has been initiated to remove the Soldier from the recommended list, the Soldier will be flagged. The Soldier is ineligible for promotion until the flag is lifted. b. Paragraph 4-17 (Removals from a centralized selection list by HQDA, HRC will continuously review selection lists against all information available to ensure that no Soldier is promoted or allowed to attend and/or complete training at the Sergeants Major Academy for the purpose of promotion when there is cause to believe that a Soldier is mentally, physically, morally, or professionally unqualified to perform duties of the higher rank. In addition, Soldiers may be referred to a STAB due to acceptance of an Article15, UCMJ, which was directed for filing in their AMHRR and for a relief for cause NCOER. c. Paragraph 4-18 (Appeals of removal from a centralized promotion list), a Soldier who is removed from a selection list may appeal that action only in limited circumstances. HRC will take final action on any appeal. Soldiers may appeal a removal action when the underlying basis of the removal is subsequently determined to be erroneous. The subsequent determination must be based on facts that were not available or reasonably discoverable at the time of the original action or at the time that the Soldier was notified of the removal action. An appeal may also be submitted for other compelling reasons. Appeals must be referred through command channels, to include a general court-martial convening authority, to Commander, HRC. DISCUSSION: 1. The applicant, during his tenure as a company 1SG, was selected by an HQDA promotion board for promotion consideration to SGM/pay grade E-9. Based on an allegation of misconduct by a subordinate Soldier, he was investigated by CID leading to his relief for cause from his 1SG duties and his acceptance of an Article 15 under the provisions of the UCMJ. As he was on a promotion list, by regulation his records were required to be referred to an HQDA STAB. 2. The STAB recommended removal of the applicant's name from the HQDA promotion list to SGM. The approval authority approved the board's recommendation. Thus, the applicant was no longer a promotable MSG. 3. The applicant's combat service and subsequent awards for his service were noted. However, meritorious combat service does not negate acts of misconduct. While he was given a second chance and appears to have performed his 1SG duties admirably as recorded in two NCOERS, there is no evidence he was selected for promotion to SGM/E-9 after his removal from the standing list and prior to his retirement by a properly appointed HQDA promotion board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017584 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017584 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2