SAMR-RB 23 June 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20150018934 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 06 June 2017, in which the Board members unanimously recommended partial relief of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is not sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I have determined that the facts do not support a conclusion that he is entitled to advancement on the Retired List in the grade of master sergeant/E-8. BY ORDER OF THE SECRETARY OF THE ARMY: Encl - Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20150018934 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: 6 June 2017 DOCKET NUMBER: AR20150018934 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 showing he is entitled to advancement on the Retired List in the grade of sergeant first class/E-7 (the highest grade in which he served on active duty satisfactorily) when his active service plus his service on the Retired List equals 30 years. 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 showing the highest grade he held satisfactorily as master sergeant/E-8. _____________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: 6 June 2017 DOCKET NUMBER: AR20150018934 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 reinstatement to the rank of master sergeant (MSG)/ E-8 (the highest grade he held) based on 30 years of Federal service. 2. He states he believes his records to be in error or unjust. The situation started with a specialist four (SP4) who worked for him and he was eligible for promotion to E-5. The SP4 had written numerous bad checks and he counseled him that based on his lack of responsibility and inability to be a role model, his actions did not warrant promotion to sergeant (SGT)/E-5. In retaliation of his promotion denial, the SP4 started writing letters to high-ranking officials, citing an alleged affair between him and a female private first class (PFC)/E-3 in the unit, which was totally untrue. a. The PFC was a friend of the SP4. She testified against him after being badgered by the Criminal Investigation Division (CID) and the command. During the process, he assembled a rebuttal with statements and character references. One of the Soldiers recanted his statement and refused to testify, which caused the Soldier to receive punishment under the Uniform Code of Military Justice (UCMJ) and be reduced from E-5 to E-4. b. His first counsel was appointed in orders and he was given new counsel who was unaware of his situation until the night before the hearing. This created a clear disadvantage in his case and forced him to proceed with a Judge Advocate General's (JAG) Corps officer who was ill prepared. He was reduced from E-8 to E-3 and allowed to retire, whereas many Soldiers are reduced one rank or not at all. He was told many times from numerous sources that the sentence was extremely harsh. 3. He provides: * self-authored statement * numerous awards * Request for Clemency Packet with character references, 1997 * military history * evaluations * civilian education 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. On 3 August 1977, the applicant enlisted in the Regular Army (RA). Following a variety of assignments, he rose to the rank/grade of first sergeant (1SG)/E-8. 3. On 21 April 1997, court-martial charges were preferred against him while serving in the position of 1SG, Operations Company, 297th Military Intelligence Battalion, Panama. 4. On 6 August 1997, he was convicted by a general court-martial and reduced to the grade of E-3 for the following offenses: * sodomy, on or about 30 September 1996 * adultery, on or about 30 September 1996 * graft, on or about 30 September 1996 * wrongful breach of custom, on or about 5 January 1997 5. On 28 February 1998, he was honorably retired in the grade of PFC/E-3. He completed 20 years, 6 months, and 28 days of active duty service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized the: * Meritorious Service Medal * Joint Service Commendation Medal * Army Commendation Medal * Army Achievement Medal (4th Award) * Army Good Conduct Medal (6th Award) * National Defense Service Medal * Noncommissioned Officer's Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Marksman Marksmanship Qualification Badge with Rifle Bar 6. On 27 March 1998, the U.S. Army Judiciary completed the appellate examination of the general court-martial findings of guilty and determined there was sufficient legal and competent evidence to support the approved finding above a reasonable doubt. The findings and sentence were final and conclusive. 7. On 5 November 2007, the applicant applied to the Army Grade Determination Review Board (AGDRB) to be advanced on the Retired List to the highest grade satisfactorily held on active duty. 8. On 5 February 2008 after a thorough review of his official military personnel file (OMPF), the AGDRB denied his request. The board stated he received a general court-martial conviction while in the grade of E-8/1SG for committing sodomy with a female PFC, wrongfully receiving sexual intercourse as compensation for personnel and housing action regarding the female PFC, committing adultery, and wrongly breaching a custom of service by asking a junior enlisted Soldier to approach a junior enlisted female Soldier and ask her if she would have a romantic dinner with him. REFERENCES: 1. Title 10, U.S. Code, section 3964, provides that a retired RA enlisted member, who is retired with less than 30 years of active service is entitled, when active service plus service on the Retired List totals 30 years, may be advanced on the Retired List to the highest grade in which he/she served on active duty satisfactorily, as determined by the Secretary of the Army. 2. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army. a. Paragraph 2-5c states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for the determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. b. Paragraph 7, in effect at the time, specifically defined unsatisfactory service as it pertains to the revision to a lower grade when it was expressly for prejudice or cause; due to misconduct; or caused by nonjudicial punishment pursuant to Article 15, UCMJ; or the result of a sentence from a court-martial. 3. Manual for Courts-Martial, Rule 1003, provides the punishment authorized if adjudged in the case of any person found guilty of the offense by a general court-martial. The maximum limits for the authorized punishments are set forth for each separate offense, not for each charge. Authorize punishments consist of: * reprimand * forfeiture of pay and allowances * fine * reduction in pay grade ( an enlisted Soldier may be reduced to the lowest or any intermediate pay grade) * restriction to specified limits * hard labor without confinement * confinement * dishonorable discharge * bad conduct discharge (BCD) DISCUSSION: 1. The applicant's records verify his outstanding achievements and conduct. However, it does not negate the fact that he was convicted by a general court court-martial for four offenses for which the punishment could have resulted in a combination of punishments for each offense such as a forfeiture, confinement, and/or a BCD. Therefore, his claim that his punishment was too harsh is not supported by the available evidence. 2. The evidence of record shows he was serving as a 1SG with over 20 years of active service at the time of the court-martial. It is not unreasonable to presume he would have had some awareness and understanding of the military justice system, and where he could go if he felt he was not receiving adequate legal support. 3. Additionally, as cited by the AGDRB and confirmed by regulation, since his reduction from E-8 to E-3 was the result of a general court-martial sentence, his service as an MSG/E-8 is considered unsatisfactory. 4. His request for advancement to the grade of E-8 on the Retired List is not supported by the evidence of record. /NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018934 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018934 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2