BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20170004469 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: 25 January 2018 DOCKET NUMBER: AR20170004469 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the following senior rater comments from his DA Form 2166-8 for the period ending July 2009: * "do not promote" * "do not send to BNCOC" * "do not retain" * the words "is confined and" from "Soldier is confined and unavailable for signature" 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 that pertains to the permanent removal of all documents related to a general court-martial conviction involving dismissed charges. ____________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: 25 January 2018 DOCKET NUMBER: AR20170004469 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, removal from his Official Military Personnel File (OMPF) of all information pertaining to his general court-martial (GCM) conviction, adjudged on 19 November 2009, because the charges were dismissed. 2. He requests the Board take into consideration the following facts in determining his case: * the GCM Convening Authority directed a complete reversal of charges * his last three consecutive performance evaluations rated him as fully capable and excellent in all areas * he was appointed as the Noncommissioned Officer in Charge (NCOIC) of the 47th Medical, 8th Medical Brigade, Fort Dix, NJ Motor Pool * the Inspector General (IG) recommended the redaction of all information pertaining to his GCM from his record 3. Removing this unfavorable information from his OMPF will prevent further discrimination against him and allow his OMPF to reflect his excellent history of being a highly regarded and respected Soldier. 4. He provides: * DA Form 2166-8 (NCO Evaluation Report), ending 31 July 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Memorandum, Office of the Inspector General, U.S. Army Human Resources Command (HRC), dated 6 January 2017 CONSIDERATION OF EVIDENCE: 1. On 8 June 2004, the applicant enlisted in the Regular Army. 2. His OMPF contains a DA Form 2166-8 for the period 1 August 2008 through 31 July 2009. This document shows: a. in Part Vc (Overall performance and potential) his senior rater gave him a 3 (Successful) rating. b. In Part Vd (Overall Potential for promotion and or service in positions of greater responsibility) his senior rater gave him a "3" (Superior) rating. The senior rater made the following comments: * do not promote * do not send to BNCOC (Basic Noncommissioned Officer Course) * do not retain * Soldier is confined and unavailable for signature 3. On 3 May 2010, the U.S. Army Combined Arms Support Command and Fort Lee, Fort Lee, VA, issued General Court-Martial Order Number 6. This order shows the applicant was found guilty of wrongfully soliciting another Soldier to commit premeditated murder. On 19 November 2009, he was sentenced to reduction to pay grade E-1, confinement for 5 years, and a dishonorable discharge. 4. The sentence was approved and, except for the part of the sentence extending to the dishonorable discharge, was ordered to be executed. 5. The applicant was released from confinement at the U.S. Disciplinary Barracks and returned to duty on 18 February 2013. 6. On 14 August 2013, the U.S. Court of Appeals for the Armed Forces set aside the finding of guilty and the sentence. The decision shows a rehearing was authorized. 7. A document from the Commander, U.S. Army Combined Arms Support Command, Sustainment Center of Excellence and Fort Lee, dated 9 January 2014, shows the GCM charges and specifications against the applicant were dismissed. A rehearing was authorized but was not practicable. The applicant was restored all rights, privileges, and property of which he had been deprived by virtue of the findings of guilty and the sentence. 8. His DD Form 214 shows he was honorably discharged on 28 January 2014 by reason of completion of required active service. 9. The applicant enlisted in the U.S. Army Reserve on 4 June 2015 and he is currently serving in that component. 10. An ABCMR analyst contacted the interactive Personnel Electronic Records Management System Help Desk in regards to several GCM documents located in the performance section of the applicant’s OMPF. As a result, these documents were transferred to the restricted section of the applicant’s OMPF, effective 28 September 2017. 11. The applicant provides a letter from the Inspector General, HRC, dated 6 January 2017. This final response states, “The HRC IG initiated a thorough look into the final decision of the Active Guard Reserve board and determined the board had valid reason not to recommend you.” The HRC IG recommended redaction of the following bullets from his NCOER ending 31 July 2009: * do not promote * do not sent to BNCOC * do not retain * Soldier is confined and unavailable for signature REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. Table B-1 of this Army regulation states that court-martial orders will be filed in the restricted section of the OMPF if all approved findings are not guilty. The regulation also shows that if all charges and specifications of a court-martial order are later dismissed or if all findings of guilty have been reversed in a supplemental order, all related documents will be removed from the performance section and transferred to the restricted section of the OMPF. 2. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. It states to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 3. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) states in paragraph 3-8, table 3-5, that: a. a “3” Successful rating in block Vc of the DA Form 2166-8, represents a solid performance. b. a “3” Superior rating in block Vd of the DA Form 2166-8, represents a recommendation for promotion should sufficient allocations be available. c. if the rated Soldier is unavailable, unable, or fails to sign the DA Form 2166-8 for any reason, the senior rater will either resolve the problem or explain why in Part Ve (Senior Rater Bullet Comments) of the DA Form 2166-8, and the rated Soldier’s signature is left blank. DISCUSSION: 1. The applicant requests, in effect, removal of all unfavorable information pertaining to his GCM conviction from his military records, because the charges and specifications were dismissed. 2. On 14 August 2013, the appropriate GCM convening authority ordered restoration of all rights, privileges, and property of which the applicant had been deprived by virtue of the findings of guilty and the sentence resulting from his GCM conviction adjudged on 19 November 2009. 3. The regulatory guidance states if all court-martial charges and specifications are later dismissed, or if all findings of guilty have been reversed in a supplemental order, file the court-martial documents in the restricted section of the OMPF. A review of his military records revealed that all documents relating to his GCM conviction were transferred to the restricted section of his OMPF on 28 September 2017. Regulatory guidance does not permit permanent removal of such documents. 4. The applicant’s DA Form 2166-8 for the period 1 August 2008 to 31 July 2009 lists negative comments regarding further promotion, retention and advanced schooling. However, the senior rater indicates the applicant’s overall performance was “Successful” and his overall potential for promotion was “Superior.” 5. It appears the senior rater’s negative bullet comments were based on the applicant’s court-martial conviction and subsequent confinement for which the charges were later dismissed. However, the senior rater rendered a “Successful” rating for the applicant’s overall performance and a “Superior” overall rating for his potential for promotion. Department of the Army Pamphlet 623-3 guidance shows these ratings represent a solid performance and a recommendation for promotion if allocations were available. The negative bullet comments are not in accordance with regulatory guidelines in that they are not congruent with the senior rater box checks. 6. The senior rater’s bullet comment listed in part Ve of his DA Form 2166-8, ending 31 July 2009, stating the applicant was unavailable for signature because he was confined is a required entry. It is noted, however, that reference to his confinement could be construed negatively and may be unfair due to the subsequent dismissal of the charges against him. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170004469 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170004469 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2