BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20160015694 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF __x______ __x______ __x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20160015694 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR20090017341, dated 27 April 2010. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 12h (Effective Date of Pay Grade) of his DD Form 214, dated 31 January 1996, to show "1983  08  01" and providing him any back pay and allowances due as a result of this correction. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application in excess of the relief described above. __________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: 22 June 2017 DOCKET NUMBER: AR20160015694 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, in effect, reconsideration of his previous request for all retroactive pay to which he is entitled based on his retirement in the rank and pay grade of sergeant first class (SFC)/E-7 with an effective date of 1 February 1996. He requests that the recommendation of The White House and the Army Board for Correction of Military Records (ABCMR) be carried out and that he be restored to pay grade E-7 and retired in the rank and pay grade of sergeant major (SGM)/E-9 with all back pay and total restorations. 2. The applicant states: a. He was persecuted for his religious beliefs, harassed, oppressed, victimized, and discriminated against based on his race. b. This case has been ongoing for over 26 years, dealing with the ABCMR. The ABCMR was "put under investigation for being corrupt and being a rubber stamp for all branches of service." The only thing that has changed is a few directors, but the "good old boy" network is still in place. c. He retired from the Army on 1 February 1996 in the rank and pay grade of sergeant (SGT)/E-5. d. He submitted an application to the ABCMR and the Board approved changing his permanent retired rank and pay grade to SFC/E-7 effective 1 February 1996. e. The Defense Finance and Accounting Services (DFAS) advanced him to pay grade E-7. As a result of his request for back pay for pay grade E-7, he was reduced to the rank and pay grade of staff sergeant (SSG)/E-6. f. The ABCMR went back, overturned his case, and said they would correct his DD Form 214, which was already done. He was made to pay back every dollar he received and he was denied promotion to pay grades E-7, E-8, and E-9. g. Under the National Defense Authorization Act, the ABCMR cannot go back and overturn something that was in favor of an applicant. Any time you believe you can disrespect The White House, it means you believe you are above the law. h. The ABCMR did not say he must be considered by a Standby Advisory Board (STAB) to determine if he was eligible for promotion to pay grade E-7. The ABCMR stated that if he met all other promotion criteria prior to the imposition of his bar to reenlistment, appropriate action should be taken to promote him effective the earliest date he would have become eligible for promotion to pay grade E-7. He had already completed the Advanced Noncommissioned Officer (NCO) Course for pay grade E-7. i. His records were never purged of all the adverse documents. 3. The applicant provides: * memorandum for the Secretary of the Army, dated 9 January 2015 * letter to the Secretary of the Army, dated 10 August 1999 * newspaper articles * staffing control sheet * DD Form 149 (Application for Correction of Military Records), dated 20 April 2011 (two copies) * "BCMR Worksheet" – Correction of Rank from SSG/E-6 to SFC/E-7 * ABCMR memorandum to Commander, U.S. Army Reserve Personnel Center, dated 10 January 1997 * Headquarters, I Corps and Fort Lewis, Legal Assistance Attorney letter, dated 6 July 1999 * Retiree Account Statement, dated 8 June 2009 * DFAS Retired and Annuity Pay letter, dated 2 July 2009 * DFAS letter, dated 2 May 1997 (two copies) * ABCMR Record of Proceedings (pages 4 and 5) * self-authored memorandum, dated 1 January 2015, subject: Promotion Oversight * NCO Evaluation Data Report, dated 16 November 1993 * NCO Evaluation Report (NCOER) for the period March 1990 through June 1990 * ABCMR letter, dated 15 January 2013 (two copies) * Army Review Boards Agency (ARBA) letter, dated 3 July 2013 * ABCMR notification letter, dated 28 April 2010 * ABCMR Record of Proceedings, dated 27 April 2010 * ARBA letter, dated 30 June 2010 * voided DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 October 1991 (two copies) * DD Form 215 (Correction to DD Form 214), dated 31 January 1996 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 ABCMR in Docket Number AR20090017341 on 27 April 2010. 2. The applicant enlisted in the Regular Army for 3 years on 31 July 1975 in pay grade E-1. He remained in the Army through continuous reenlistments and extensions. He was promoted through the ranks to pay grade SSG/E-6 effective 1 August 1983 with a date of rank of 5 July 1983. 3. The applicant accepted nonjudicial punishment (NJP) on 2 July 1990 for two incidents of failure to obey a lawful order. His punishment consisted of reduction to pay grade E-5, forfeiture of $703.00 pay for 2 months (suspended for 2 months), and 14 days of extra duty (2 hours per day). 4. On or about 30 July 1990, the applicant received a relief-for-cause NCOER. His rater commented: a. He did not place dedication and commitment to the goals and mission of the unit. b. He was not disciplined and obedient to the spirit and letter of a lawful order. c. He was not honest and truthful in word and deed. d. He displayed poor judgement in the performance of his duties. e. He maintained physical fitness. f. He scored 266 on his latest Army Physical Fitness Test, exceeding both battalion and detachment goals. g. He failed to set the example for peers and subordinates. h. He conducted squad training on a routine basis. i. He violated confinement facility policy memorandum number 25. j. He was notified of the reason for his relief. k. He emphasized individual and equipment safety. l. He placed personal needs before the mission. m. Do not promote. 5. The applicant's senior rater rated his overall performance as "Poor." 6. On 25 July 1991, Orders 163-4 reassigned the applicant to the U.S. Army Transition Point for discharge processing with a reporting date of 2 October 1991. 7. A DD Form 214 was prepared for the applicant showing he was discharged in the rank and pay grade of SGT/E-5 effective 31 October 1991 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) at the expiration of his term of service. It shows he completed 16 years and 3 months of net active service during this period. 8. In a memorandum, dated 1 November 1991, the applicant was notified he was being barred from reenlistment under the Qualitative Management Program (QMP) as a result of a Department of the Army (DA) imposed bar to reenlistment. He was told the Calendar Year 1991 Master Sergeant (MSG) Selection Board determined that he was to be barred from reenlistment after a comprehensive review of his Official Military Personnel File (OMPF). He was told the board identified one NCOER; four records of NJP; and a DA Form 2A (Personnel Qualification Record), Section II, item 33, as areas of deficiency/weakness and the basis for his bar to reenlistment. 9. On 6 November 1991, the applicant was notified by the U.S. Army Transition Point that Orders 163-4 were amended to show 31 October 1991 as the effective date of his discharge. 10. On 20 November 1991, Orders 222-03 revoked Orders 163-4 and extended his enlistment through 31 January 1992. On the same date, Orders 222-09 attached him to Headquarters and Headquarters Company, U.S. Army Garrison, Fort Myer, Virginia, effective 19 November 1991 through 25 November 1991. He remained on active duty through extensions pending resolution of an appeal to have three records of NJP transferred from the performance section to the restricted section of his OMPF by the DA Suitability Evaluation Board. His appeal was denied. 11. On 6 November 1992, the applicant's appeal to have a locally imposed bar to reenlistment removed was approved. 12. On 15 March 1993, he was notified that a Department of the Army STAB disapproved his appeal for removal of the DA-imposed bar to reenlistment that he received under the QMP. However, he was allowed to extend to achieve retirement eligibility. 13. The applicant submitted several applications to the ABCMR to have the NJP, dated 20 July 1990, set aside; to have the record of the NJP removed from his record; and to have all rights, privileges, and property he lost as a result thereof restored, including his former pay grade of E-6. He also requested promotion consideration to pay grades E-7 and E-8. On 8 January 1997, the ABCMR recommended granting partial relief in his case. The ABCMR also recommended correction of his DA records by setting aside the NJP imposed against him on 2 July 1990 and restoring all rights, privileges, and property lost as a result of the NJP, including his former pay grade of E-6 with his original date of rank of 5 July 1983. 14. Additionally, the ABCMR recommended a review of his records after his former pay grade and date of rank were restored to determine if he would have been eligible for promotion to pay grade E-7 had it not been for the NJP. If it were determined that he would have been eligible for promotion to pay grade E-7 and if he had met all other promotion criteria prior to imposition of the QMP bar to reenlistment, appropriate action would be taken to promote him effective the earliest date he would have become eligible. The ABCMR recommended, if he were promoted, placing his name on the Retired List in pay grade E-7 effective 1 February 1996. The ABCMR further recommended denial of so much of the application in excess of the foregoing. 15. On 31 January 1996, the applicant retired due to completion of sufficient service for retirement. His DD Form 214 shows he completed 20 years and 6 months of net active service during this period. Accordingly, on 1 February 1996, he was placed on the Retired List in the rank and pay grade of SGT/E5. 16. On 2 May 1997, the applicant was notified by DFAS that in accordance with the ABCMR and pursuant to Title 10, U.S. Code, section 1552, his permanent record had been changed to show he was permanently retired in the rank and pay grade of "SSG/E-7 vice SGT/E-6 [should read SSG/E-6 vice SGT/E-5]" effective 1 February 1996. The notification details erroneous retired pay during the period 1 December 1995 to 30 January 1996 and the balance owed the Government. DFAS stated an audit was performed on his account for the period 1 February 1996 through 30 March 1997 that revealed he was entitled to SFC/E-7 pay in an amount greater than that previously paid to him as an E-6. DFAS also identified an overcharge for Survivor Benefit Plan (SBP) premiums, along with an SBP credit. The notification outlined the process for settling the retired pay due against the debt he owed based on pay in the rank of SFC/E-7. 17. Headquarters, U.S. Total Army Personnel Command, memorandum, dated 22 July 1997, shows the applicant was considered for promotion to pay grade E-7 by the STAB that adjourned on 13 June 1997 as instructed by the ABCMR. He was not recommended for promotion under the criteria for the Calendar Year 1990. 18. On 17 October 1997, the applicant was notified that his records were reviewed by the STAB, but he was not recommended for promotion to pay grade E-7. He was told his name could not be placed on the Retired List in pay grade E-7 and that no further action effecting promotion to pay grade E-7 or E-8 was warranted. 19. On 2 January 1998, the applicant was notified the changes the ABCMR directed had been accomplished. He was told the NJP that had been finalized on 20 July 1990 was set aside and the relief-for-cause NCOER remained valid. He was also told that if he were successful in any new requests to appeal his NCOER and DA-imposed bar to reenlistment, he could then request a review of his records for promotion consideration to SFC/E-7 by a STAB. 20. In a letter to DFAS, dated 12 May 2009, the applicant stated he retired from the U.S. Army on 1 February 1996 and he was wrongfully retired in the rank of "SGT/E-5." He stated his request to the ABCMR to show he was permanently retired in pay grade E-7 effective 1 February 1996 was approved. He confirmed he received the DFAS letter, dated 2 May 1997, and he stated he did not read it until "yesterday." The applicant requested reinstatement of E-7 retired pay and all back pay. 21. In a letter from DFAS Retired and Annuity Pay, dated 2 July 2009, the applicant was notified that in accordance with the ABCMR decision, his records were corrected to reflect he retired in the rank and pay grade of SFC/E-7. The letter shows the resulting change in gross pay for the period from 1 February 1996 through 31 May 2009. He was told that based on the statute of limitations (6-year barring statute), DFAS could only pay 6 years of the increase in retired pay from the date DFAS received the applicant's inquiry (12 May 2009). 22. On 27 April 2010, the ABCMR reviewed the applicant's request for retroactive pay he believed he was entitled to receive based on retired in pay grade E-7. The applicant further contended: a. The relief-for-cause NCOER and the DA-imposed bar to reenlistment should be removed from his OMPF and he should be promoted to pay grades E-7, E-8, and/or E-9. b. DFAS notified him they could only pay him for 6 years of the retired pay that he requested on 12 May 2009. c. DFAS also advised him he owed the Government for an adjustment of his SBP. d. He was wrongfully retired from the U.S. Army in the rank and pay grade of SGT/E-5 effective 1 February 1996 and the ABCMR approved his request and changed his permanent retired rank and pay grade to SFC/E-7. e. He did not receive all of his retroactive retired pay due to an error on the part of DFAS, which he was not aware of until May 2009. He argued that given the ABCMR's decision in his case, it is unfair to punish him by denying him the money he is entitled to receive. 23. The ABCMR recommended granting partial relief as follows: a. issuing the applicant a DD Form 215 or other document declaring his 31 October 1991 DD Form 214 void; b. showing the applicant's former rank (SSG) and pay grade (E-6) were restored along with his original date of rank of 5 July 1983 and effective date of 1 August 1983 while he was on the Retired List; c. issuing the applicant a DD Form 215 to correct his 31 January 1996 DD Form 214 by: (1) deleting the entry "SGT" from item 4a and adding the entry "SSG"; (2) deleting the entry "E-5" from item 4b and adding the entry "E-6"; and (3) deleting the entry "1990  07  02" from item 12h and adding the entry "1993  08  01"; and d. as a result of the above actions, he would be entitled to: (1) pay grade E-6 active duty pay and allowances (less any deductions and withholdings) from 2 July 1990 through 31 January 1996; and (2) pay grade E-6 retired pay (less any deductions and withholdings) from 1 February 1996 to the present. 24. The Board stated that, as a result of the above corrections, DFAS should be notified of the Board's determination and conduct an audit of the applicant's retired pay account to determine if there was any debt owed the Government. The Board stated that based on the facts surrounding the case, any debt that may have resulted from a recalculation of the applicant's pay based on approval of his application by this Board did not warrant relief or remission. 25. The Board recommended denial of so much of his application that pertained to: a. removal of the relief-for-cause NCOER, DA-imposed bar to reenlistment, or any documents related to these actions from his OMPF; b. promotion to pay grades E-7, E-8, and E-9; and c. relief due to any debt that may have resulted from a recalculation of the applicant's pay based on approval of his request by this Board. REFERENCES: 1. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army Enlisted Personnel. Chapter 4 (Centralized Promotions – SFC, MSG, and SGM) provides the rules and steps for managing the Centralized Promotion System. It states STABs are convened to consider records of those Soldiers whose records were not reviewed by a regular board and/or Soldiers whose records were not properly constituted due to material error when reviewed by the regular board. A STAB will normally be granted when an NJP (Article 15) punishment that was wholly set aside on or after 1 September 1979 was filed in the OMPF when reviewed by the board. 2. Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling state claims, which are often difficult to prove or disprove. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) 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's contentions have been noted and his supporting evidence has been considered. 2. He provided no evidence to substantiate his contention that he was persecuted for his religious beliefs, harassed, oppressed, victimized, and discriminated against based on his race. 3. The evidence does not substantiate his contention that the ABCMR approved his request to change his permanent retired rank and pay grade to SFC/E-7. 4. On 8 January 1997, the ABCMR granted the applicant partial relief. The ABCMR directed correction of his records by setting aside the NJP imposed against him on 2 July 1990 and by restoring all of his rights, privileges, and property lost as a result of such NJP, including his former pay grade of E-6 with his original date of rank of 5 July 1983. 5. The ABCMR further directed a review of his records after his former grade and date of rank was restored to determine if he would have been eligible for promotion to pay grade E-7 had it not been for the subject NJP. According to the applicable regulation, STABs are convened to consider records of those Soldiers whose records were not reviewed by a regular board and/or Soldiers whose records were not properly constituted due to material error when reviewed by the regular board. A STAB will normally be granted when an NJP (Article 15) punishment that was wholly set aside on or after 1 September 1979 was filed in the OMPF when reviewed by the board. It is not the function of the ABCMR to review records for promotion purposes. 5. Although DFAS incorrectly notified the applicant on 2 May 1997 that he was being placed on the Retired List in the in the rank and pay grade of "SSG/E-7," the applicant should have had in his possession a copy of the ABCMR's decision, dated 8 January 1997, informing him that his rank/grade was restored to SSG/E-6. 6. On 17 October 1997, the applicant was notified that his records were reviewed by a STAB, but he was not recommended for promotion to pay grade E-7. He was informed that his name could not be placed on the Retired List in pay grade E-7 and no further action effecting promotion to pay grade E-7 or E-8 was warranted. He was never considered for promotion to pay grade E-8 or E-9; the same circumstances exist today that kept him from being recommended for promotion to pay grade E-7 or other higher pay grades. 7. An error was made in ABCMR Record of Proceedings in Docket Number  AR20090017341, dated 27 April 2010. The Board recommended correction of the applicant's records by issuing him a DD Form 215 deleting the entry "1990  07  02" from item 12h and replacing it with the entry "1993  08  01." The effective date of his original promotion to pay grade E-6 was 1 August 1983 and his DD Form 214 should be amended to show this date. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160015694 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160015694 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2