IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150003077 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: 21 July 2016 DOCKET NUMBER: AR20150003077 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: 21 July 2016 DOCKET NUMBER: AR20150003077 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, correction of her records to show she was promoted to staff sergeant (SSG)/E-6. 2. The applicant states she should be awarded the higher rank because her career advancement was hindered. a. She requested to reclassify from her military occupational specialty (MOS) and transfer to a new unit, but proper procedures were not followed and paperwork was never forwarded. She informed her higher-level chain of command that her unit did not know how to process personnel actions relating to reclassification and transfer. On or about 30 May 2013, the Office of the Inspector General (IG) counseled her chain of command in the correct way to process requests for reclassification. She believes this incident may be the reason for reprisal because her paperwork was still never processed. b. She also remarks about letters containing personal medical information being opened and discussed with other Soldiers and being forced to take leave to exercise her right to vote. c. Lastly, she describes receiving nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order after refusing to sign a counseling statement accusing her of threatening to file an Equal Opportunity (EO)/IG complaint. 3. The applicant provides: * three DA Forms 4187 * memorandum and an email regarding the Unit Prevention Leader Certification Course, dated 1 August 2012 and 16 August 2012 * promotion packet with corresponding documents * DA Forms 4856 (Developmental Counseling Form) * DD Forms 214 (Certificate of Release or Discharge from Active Duty) * numerous orders * Physical Evaluation Board (PEB) Proceedings * Enlisted Record Brief * enlistment/reenlistment documents * Servicemembers' Group Life Insurance (SGLV) Form 8286 (Servicemembers' Group Life Insurance Election and Certificate), dated 21 June 2014 * TRICARE North – Health Net Grievance Form * Health Insurance Claim Form with supporting documents * DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) * IG Correspondence * Congressional Correspondence CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve on 27 June 2005. 2. On 27 September 2005, she was ordered to initial active duty training. She was awarded MOS 92Y (Unit Supply Specialist) upon completion of advanced individual training. She was released from active duty to the control of her Reserve unit on 17 February 2006. 3. U.S. Army Human Resources Command Orders R-06-784283, dated 6 June 2007, ordered her to active duty in an Active Guard Reserve status with a reporting date of 16 July 2007. 4. On 1 February 2012, she was promoted to sergeant (SGT)/E-5. 5. A DA Form 4187, dated 10 April 2012, shows she requested reclassification from primary MOS 92Y to primary MOS 88N (Transportation Management Coordinator) without training. The commander recommended approval. 6. A DA Form 4856, dated 29 October 2012, shows she was counseled by the battalion S-3 concerning her voting rights/civil rights, EO threats/IG threats, and physical fitness. The battalion S-3 stated, in part, that she was given three options concerning her voting rights: to take a regular pass and return to work after voting, vote by absentee ballot, or take leave to vote. She choose to take leave and, therefore, her comment indicating her civil rights were violated was unacceptable talk and inappropriate. The battalion S-3 also stated the EO/IG threats against Soldiers would not be tolerated at any level to influence future decisions within the battalion. The applicant refused to sign the counseling statement. 7. A second DA Form 4856, dated 29 October 2012, shows she was counseled by the battalion executive officer for disobeying a direct lawful order by refusing to sign her counseling statement. She signed this counseling statement on 30 October 2012, indicating that she disagreed with information contained in the form. 8. On 2 November 2012, the Commander, 415th Civil Affairs (CA) Battalion, 308th CA Brigade, issued a DA Form 2627 to the applicant wherein he stated, "I am considering whether you should be punished under Article 15, UCMJ, for the following misconduct: In that you, having knowledge of a lawful order issued by CPT [Captain] C____ S____, to sign your counseling statement, DA Form 4856, an order which it was your duty to obey, did, at or near the 415th CA Bn [Battaltion] Reserve Center, Portage, MI  49002, on or about 30 October 2012, fail to obey the same. This is in violation of Article 32, UCMJ." It does not appear that this DA Form 2627 was processed to completion; a copy of the form is not contained in her official military personnel file. 9. A DA Form 4187, dated 3 November 2012, shows she requested voluntary reassignment from her current duty location (Kalamazoo, MI) to Houston, TX. The approval section is incomplete. 10. She provided a copy of her promotion packet containing a DA Form 3355 (Promotion Point Worksheet); numerous certificates; a DA Form 3349 (Physical Profile), dated 19 December 2012; and orders. The DA Form 3349 shows she was assigned a temporary physical profile rating of "113111" with an expected date of being fully mission capable of 19 June 2013. The form states, in part, "This temporary profile is an extension of a temporary profile first issued on 20121025 [25 October 2012]." The form is not signed by the approving authority (commander). There is no evidence that she was recommended for promotion or appeared before a promotion board. 11. A DA Form 4187, dated 26 January 2013, shows she requested reassignment in the Active Guard Reserve Program to one of the following locations: Fort Sheridan, IL; St. Louis, MO; or Orlando, FL. This form was not certified and/or approved by the commander. 12. On 1 March 2013, the Deputy G-1 (Support), Headquarters, U.S. Army Reserve Command, Fort Bragg, NC, responded to a Congressional inquiry on behalf of the applicant. The Deputy G-1 (Support) made the following statements regarding the applicant's allegations: a. Violation of Her Voting Rights. Her command held a meeting with all the full-time staff to discuss the various option for voting in the 6 November 2012 general elections. Three options were given: (1) take a pass, vote, and return to work the same day once she completed voting; (2) vote by absentee ballot; and (3) take leave for the entire day to vote. She chose to a take a day of leave and vote in Calumet City, IL. b. Curtailment of Her Freedom of Speech. She was counseled that her complaints or issues should be directed to her chain of command or through various other available military resources, such as EO. c. Reprisal. Her accusation of reprisal by the use of the UCMJ action or other forms of nonjudicial punishment is unsubstantiated. On 4 November 2012, nonjudicial punishment was imposed under Article 15 due to this adverse action. She is currently under suspension of favorable actions (flagged) and may not attend schools or be considered for promotion. d. Violation of the Health Insurance Portability and Accountability Act. The command has never disclosed any medical information covered under Health Insurance Portability and Accountability Act. Her command made an appointment for her at Fort Knox, KY, to ensure she was provided timely and proper medical attention. 13. On 30 May 2013, the Assistant IG, Headquarters, U.S. Army CA and Psychological Operations Command, Fort Bragg, NC, responded to the applicant's request received on 27 March 2013 concerning reclassification and her DA Form 4187. The Assistant IG stated her request for reclassification and transfer were not properly submitted to the U.S. Army Human Resources Command in accordance with the regulation and, therefore, no action was taken. The inquiry determined the issue she presented to the IG office was founded. The Assistant IG stated teaching and training were conducted with her chain of command regarding the process and they were now aware of the proper procedures. 14. On 26 January 2014, the company commander counseled her regarding her request to transfer from Company D, 415th CA Battalion. He said that she could not receive any favorable action due to the applicant's pending UCMJ action. He added that he would sign and acknowledge her DA Form 4187 request for transfer; however, he will disapprove the transfer due to the pending UCMJ action. On 26 January 2014, the applicant signed the counseling statement disagreeing with the information contained in the form and stating the Article 15 was undeserving. 15. On 20 October 2014, a physical evaluation board convened and found the applicant was physically unfit and recommended a disability rating of 80 percent with the disposition of permanent disability retirement. 16. The "Promotion Points/Date" entry of her Enlisted Record Brief, dated 21 November 2014, is blank. Additionally, her physical profile rating (PULHES) is listed as "133113." 17. On 24 December 2014, she was honorably retired due to permanent disability. Item 4a (Grade, Rate, or Rank) and item 4b (Pay Grade) of her DD Form 214 show her rank/pay grade as SGT/E-5. REFERENCES: Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. a. Chapter 3 (Semicentralized Promotions (SGT and SSG)) governs the promotion system for Regular Army and Reserve Soldiers. b. Table 3-3, in effect at the time, provided the eligibility criteria for recommendation for promotion. It stated for promotion to SSG, a Soldier: * must be recommended in the career progression MOS and must be fully qualified in the recommended MOS * must have high school diploma, general education development, or an associates or higher degree * must complete resident Warrior Leader Course prior to board appearance, but may be waived for deployed Soldiers * must have 70 months of time in service (TIS) and 8 months of time in grade (TIMIG), waivable to 46 months of TIS and 5 months of TIMIG in the secondary zone and 16 months of TIS and 4 months of TIMIG in the primary zone * must not be flagged * must be considered physically qualified * must possess a current passing Arm Physical Fitness Test score in accordance with applicable regulations and field manuals * cannot be enrolled in the Weight Control Program * cannot be enrolled in the Army Substance Abuse Program, unless self-referred c. For Soldiers fully qualified but not recommended, the battalion human resources specialist will prepare a DA Form 3355 and forward it to the first-line leader for appropriate counseling. Once the counseling is completed, the commander will forward the DA Form 3355 and counseling documents to the promotion authority for final decision. d. Once a Soldier has been counseled for not being recommended for promotion, the battalion human resources specialist will not continue to provide a new DA Form 3355 to the commander. Copies of the Soldier's periodic counseling (at least quarterly) will be provided to the promotion authority until the Soldier is recommended for promotion or is no longer eligible. DISCUSSION: 1. There is no evidence and the applicant has not provided any evidence showing she should have been promoted to SSG/E-6. 2. The evidence of record shows she was promoted to SGT on 1 February 2012 and would not have been fully eligible for promotion to SSG until October 2012 (without a TIMIG waiver). Additionally, her records indicate she was assigned a temporary physical profile as of 25 October 2012, which would have precluded her from meeting the physical qualification for promotion to SSG. Further, on 4 November 2012, the Deputy G-1 stated the applicant was currently flagged and could not attend schools or be considered for promotion. 3. Nevertheless, there is no evidence and the applicant has not provided any evidence showing she was recommended for promotion to the next higher grade and was on the Promotion Standing List at the time she was discharged on 24 December 2014 for physical disability. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003077 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003077 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2