IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160003587 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: 12 October 2017 DOCKET NUMBER: AR20160003587 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: 12 October 2017 DOCKET NUMBER: AR20160003587 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 reconsideration of his request for correction of his military service records by: a. setting aside the nonjudicial punishment (NJP) imposed against him under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ); b. rescinding reduction orders and restoring his rank/pay grade of sergeant (SGT)/E-5 to his original date of rank (DOR) with back pay and allowances; c. promotion to the rank/pay grade of staff sergeant (SSG)/E-6; and d removal of a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 7 November 2009 through 9 September 2010 from his Official Military Personnel File (OMPF). e. He now also requests, in effect, correction of his military service records by showing he was awarded the: * Bronze Star Medal (BSM) for meritorious service in Afghanistan * Combat Action Badge (CAB) for a combat action on 31 May 2010 * U.S. Navy (USN)/U.S. Marine Corps (USMC) Presidential Unit Citation (PUC) (in lieu of the U.S. Army Meritorious Unit Commendation (MUC)) 2. The applicant states, in effect: * the evidence he provides (i.e., expert handwriting analysis and opinion) establishes that his witness statements pertaining to the action on 31 May 2010 were forged by Specialist (SPC) Charles T___ * his command conducted a smear campaign against him; it misrepresented facts, forged documents, and did not afford him due process * his command protected a commissioned officer from criminal charges * delays and oversights demonstrate error and injustice within the administrative process * the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) was not completed and is not filed in his OMPF * the reduction order is not filed in his OMPF * his relief for cause (RFC) NCOER was unjust * he was recommended for promotion to SSG (E-6) by his supervisors * the 2010 order of merit list (OML) and 2010 vacancies by unit report show he was first in line for promotion * he was recommended for the BSM, but the award recommendation was downgraded to the Army Commendation Medal (ARCOM) * Marine Administration (MARADMIN) 231/15 added Army units to the PUC * the evidence he provides supports the following actions – * the Article 15 be set aside and his rank/DOR restored * the RFC NCOER be removed from his OMPF * award of the PUC (Navy) in lieu of the MUC (Army) 3. The applicant provides several self-authored statements (summarized above) and copies of – * a forensic handwriting analysis letter of opinion * DA Forms 2823 (Sworn Statements) * DA Form 2627 * numerous documents related to unit awards * letters of recommendation * 2010 OML, unit vacancy, and unit readiness reports * National Guard Bureau (NGB) policy for retroactive combat award recommendations * derogatory information pertaining to a commissioned officer * Army Review Boards Agency decision documents * United States Court of Appeals, Federal Circuit, Case Number 99-5163, decided 17 June 2003 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150000345 on 6 October 2015. 2. The applicant had prior active duty and reserve enlisted service in the USMC. He enlisted in the Army National Guard (ARNG) on 1 November 2007 in the rank/pay grade of SGT/E-5. 3. On 7 November 2009, he was ordered to active duty in support of Operation Enduring Freedom. He served in Afghanistan from 3 January 2010 through 4 November 2010. He was assigned to the 204th Engineer Company (Mobility Augmentation Company (MAC)). 4. The RFC NCOER (DA Form 2166-8) for the period 7 November 2009 to 9 September 2010 was previously summarized in the original Record of Proceedings. 5. The redacted DA Form 2627, dated 10 September 2010, and the orders that reduced him from SGT/E-5 to SPC/E-4 (effective 10 September 2010) for misconduct were previously summarized in the original Record of Proceedings. 6. A DD Form 214 (Certificate of Release from Active Duty) shows the applicant entered active duty on 7 November 2009, was released from active duty on 14 December 2010, and transferred to the Washington ARNG. He completed 1 year, 1 month, and 8 days of net active service this period. It also shows in: * item 4a (Grade, Rate or Rank): SPC * item 4b (Pay Grade): E04 * item 12 (Record of Service), block i (Effective Date of Pay Grade): 10 September 2010 * item 21a (Member Signature), the applicant digitally signed the document 7. A review of the applicant's OMPF failed to reveal a DA Form 2627 related to the misconduct that led to his reduction on 10 September 2010 or an appeal of the NJP. This review also failed to show he appealed the RFC NCOER that is under review in his request for reconsideration. In addition, this review found no evidence that he was promoted to SGT/E-5 subsequent to 10 September 2010. Moreover, this review (including his DD Forms 214, corrected by DD Forms 215 (Correction to DD Form 214)) failed to reveal any evidence that he was awarded the ARCOM or the CAB. However, this review did reveal that a DD Form 215 was issued that added the MUC (Army) to his 14 December 2010, DD Form 214. 8. In support of his request for reconsideration the applicant provides the following documents: a. Handwriting Analysis and Letter of Opinion from Brenda A____, Forensic Document Examiner (EHA Case Number 12716), dated 29 January 2016. It shows she examined the DA Forms 2823 (Sworn Statements) of the applicant and (then SPC) Damon P. K___, both signed on 20 July 2010. She opined that the signatures of First Lieutenant (1LT) Michael B____ (the Person Administering the Oath) on both sworn statements are not genuine. She opined that there was a strong likelihood that SPC Charles T___ signed for 1LT B____ on both documents. She further opined that the applicant did not commit the forgeries on the sworn statements. b. The two DA Forms 2823, one completed by the applicant and one completed by (then SPC) Damon P. K____, both signed on 20 July 2010. They describe a combat action that occurred in Afghanistan at about 1345 hours, 31 May 2010. The Affidavit section shows that the person making the statement subscribed and swore to his statement before a commissioned officer. The two statements also show, in pertinent part: * the applicant signed his 3-page statement on 20 July 2010 * 1LT Michael B____ affirmed that the applicant signed the statement on 20 July 2010 * Charles T____ signed as a witness * Damon P. K____ signed his 2-page statement on 20 July 2010 * 1LT Michael B____ affirmed that Damon P. K___ signed the statement on 20 July 2010 * Charles T____ signed as a witness c. U.S. Army Human Resources Command, Fort Knox, KY, memorandum, dated 17 November 2011, subject: Army Concurrence for the Marine Expeditionary Brigade–Afghanistan PUC (Navy). (1) It shows the Department of the Army concurred with the recommendation to award the PUC (Navy) to the following Army units that participated in operations with the Marine Expeditionary Brigade–Afghanistan during the period 1 February to 28 February 2010: * Headquarters and Headquarters Company, Company A, Company B, and Company C, 4th Battalion, 23rd Infantry Regiment * Company A, 1st Battalion, 17th Infantry Regiment (2) It also lists units that were mentioned in the USMC's request for concurrence, but are not authorized the PUC (Navy) and shows in pertinent part: * 162nd Engineer Company, THOR 3-3 and THOR 3-4 * 204th Engineer Company, THOR 3-1 and THOR 3-2 * 618th Engineer Company, THOR 1-2 d. U.S. Army Human Resources Command, Fort Knox, KY, Permanent Orders 327-16, dated 23 November 2011, awarded the MUC to Headquarters and Headquarters Company and 105th Engineer Battalion Support Company, 105th Engineer Battalion, and its subordinate units assigned as Task Force THOR, for meritorious service during the period 4 January 2010 to 3 November 2010. The order lists the following subordinate units: * 162nd Engineer Company * 174th Engineer Company * 204th Engineer Company * 1036th Engineer Company * 1037th Engineer Company * 1222nd Engineer Company e. Department of the Navy, Office of the Chief of Naval Operations, Washington, DC, letter, dated 25 September 2014, notified the applicant his inquiry concerning the attachment of 162nd Engineer (MAC) and 204th Engineer (MAC) Task Force Bigfoot to the Marine Expeditionary Brigade–Afghanistan receiving the PUC (Navy) for their service with the USMC was forwarded to the Manpower Management Division, Military Awards Branch, USMC, for adjudication. f. Records that show the applicant's unit (162nd Engineer Company (MAC)) was authorized the Shoulder Sleeve Insignia–Former Wartime Service and that the applicant was listed as a member of the unit serving in the theater of operations. g. Several letters (prepared in 2008 and 2009) that offer favorable recommendations pertaining to the applicant for promotion and assignments. h. 2010 SSG Military Occupational Specialty (MOS) OML (undated) that shows the applicant's rank (SGT), MOS (91H2O), assignment (204th Engineer Company (MAC)), and that he had a sequence number of 89. i. A photograph and article pertaining to criminal charges against a former commissioned officer (now retired) who served in the applicant's ARNG unit. j. He also provides copies of an NGB policy for retroactive recommendations for combat awards, several ABCMR Records of Proceedings, and a Federal Circuit Court decision, which are not dispositive with respect to the applicant's case that is before this Board. REFERENCES: 1. Army Regulation (AR) 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations. a. The BSM is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party. b. The ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service. c. As with all personal decorations (e.g., BSM, ARCOM, etc.), formal recommendations, approval through the chain of command, and announcement in orders are required. d. The MUC (Army) is awarded to units for exceptionally meritorious conduct in the performance of outstanding services for at least 6 continuous months during the period of military operations against an armed enemy occurring on or after 1 January 1944. e. The military awards regulation shows awards of certain decorations are authorized to be made (converted) on the basis of existing letters, citations, and/or orders. A review of the decorations (for the period of service under review) which may be awarded under this provision does not include the ARCOM as being authorized to be converted to the BSM. This review also did not show the MUC (Army) as being authorized to be converted to any other unit award (i.e., Presidential Unit Citation or Valorous Unit Award). 2. The ABCMR operates under the procedures set forth in AR 15-185 (ABCMR) which provide that the ABCMR will not consider any application until the applicant has first exhausted all other administrative remedies to correct the alleged error or injustice. a. Requests for retroactive award of the Combat Action Badge (CAB) must be forwarded to the Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The request must be on a DA Form 4187 (Personnel Action) if the Soldier is currently on active duty or in an active status. If the individual is not on active duty or in an active status, he/she may request the award by letter. b. All requests must contain: * assignment, attachment, or operational control orders * a copy of the Enlisted Record Brief or Personnel Qualification Record * a copy of the chain of command endorsement * a one-page narrative description of the qualifying incident * a certified copy of the DD Form 214 * other supporting documentation c. Since the applicant has not exhausted his administrative remedy with regard to the CAB, no further action can be taken at this time. This does not mean the applicant's request has been denied by the ABCMR or that he may not file again. Should the applicant's case not be satisfactorily resolved and he still feels an error or injustice exists, he may submit an application with evidence of the U.S. Army Human Resources Command's denial of his request. 3. AR 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policies for completing evaluation reports that support the Evaluation Reporting System, this includes the NCOER. Chapter 4 (Evaluation Report Redress Program): a. Section II (Commander's or Commandant's Inquiry), paragraph 4-4 (Purpose), provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's or commandant's attention by the rated Soldier or anyone authorized access to the report. The primary purpose of a commander's inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. b Section III (Evaluation Appeals), paragraph 4-7 (Policies), places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an NCOER. 4. AR 27-10 (Military Justice), chapter 3 (NJP)), implements/amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial. Chapter 3, Section V (Suspension, Vacation, Mitigation, Remission, and Setting Aside), paragraph 3-28, shows that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under UCMJ, Article 15. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. a. If all findings are set aside, then the Article 15 itself is set aside and removed from the Soldier's records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. b. The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed. When a commander sets aside any portion of the punishment, the commander will record the basis for this action on DA Form 2627-2. When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action. 5. AR 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. a. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file. b. The Authorized Documents list provides guidance for filing documents in the OMPF. It shows the: * DA Form 2166-8 (NCOER) will be filed in the performance folder * DA Form 2627 (NJP) will be filed in either the performance or restricted folder, as directed by item 4b of the DA Form 2627 6. AR 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends that his request for correction of his military service records should be reconsidered and: * the DA Form 2627, dated 10 September 2010, should be set aside * his rank/grade of SGT/E-5 and original DOR should be restored, including back pay and allowances, along with promotion to SSG/E-6 * removal of the RFC NCOER (7 November 2009 to 9 September 2010) * award of the – * BSM (i.e., an upgrade of an ARCOM award recommendation) * PUC (Navy) in lieu of the MUC (Army) * CAB for a combat action on 31 May 2010 2. The applicant has not exhausted all other administrative remedies to correct the alleged error or injustice with respect to award of the CAB. 3. The evidence does not confirm he was recommended for or awarded the ARCOM. There is no evidence of record that shows he was awarded the ARCOM or the BSM. 4. Orders awarded the applicant's former unit the MUC (Army) and the award is recorded in his records. The evidence of record fails show the applicant's former unit(s) was/were awarded the PUC (Navy). The evidence of record also fails to show that an award of the MUC (Army) may be converted to an award of the PUC (Navy). 5. The contested RFC NCOER is properly filed in the performance folder of the applicant's OMPF. a. An evaluation report accepted for inclusion in the rated NCO's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. b. The applicant failed to appeal the contested RFC NCOER. c. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. d. There is an insufficient evidentiary basis to remove the RFC NCOER. 6. The evidence of record shows the applicant provided a handwritten statement on a DA Form 2823, dated 20 July 2010, attesting to a combat action on 31 May 2010 and he swore to his handwritten statement before 1LT Michael B___. a. He now presents evidence (i.e., a forensic handwriting analysis letter of opinion) that his sworn statement was forged by SPC T___ when SPC T___ signed as 1LT B___, the officer administering the oath. Based on the evidence he presents, this suggests the applicant did not sign the sworn statement in the presence of 1LT B___. However, the process prescribed for authenticating a sworn statement dictates otherwise. b. The DA Form 2823 is to be subscribed (written) and sworn under oath before a commissioned officer. This means, if the applicant swore an oath in the presence of 1LT Michael B___, the officer would have signed the DA Form 2823 while the applicant was in his presence. (The witness would also be present and sign at that time.) c. It is not clear why the applicant is inclined to present evidence that suggests he was witness to a fraudulent act (forgery). Specifically, after writing his statement and properly authenticating the sworn statement, he would have observed SPC T___ sign the form for the officer administering the oath and also as the witness. d. Based on the evidence of record, it appears the statement he submitted to his chain of command was in support of a recommendation for award of the CAB. 7. It is noted the DA Form 2627 that is under review shows four DA Forms 2823 (Sworn Statements) as allied documents to the NJP. a. There is no evidence of record that shows the NJP was imposed in error or that it was unjust. b. The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed. c. The NJP was imposed in September 2010, more than 7 years ago. The evidence or record does not demonstrate unusual circumstances that support setting aside the NJP (in whole or in part). 8. The letters of recommendation for promotion were written prior to the applicant's misconduct that is under review. In addition, the 2010 OML is undated and shows his rank as SGT (E-5), which indicates his status prior to his reduction to SPC (E-4) for misconduct. They do not constitute evidence that supports his contention that he should have been promoted to SSG (E-6). 9. The derogatory information pertaining to a former commissioned officer was considered. There does not appear to be a nexus between the officer's misconduct and the applicant's misconduct. 10. The ABCMR decision documents and Federal Circuit Court decision were considered. However, it is not apparent how these documents might mitigate the misconduct that resulted in his reduction in rank. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003587 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003587 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2