ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20160019107 APPLICANT REQUESTS: Correction of her record to show she was retired at the highest rank/grade held of sergeant (SGT)/E-5 instead of specialist (SPC)/E-4. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 647-1 (Personnel Register), dated 10 April 2013 * DA Form 705 (Army Physical Fitness Test (APFT) Scorecard), dated 20 December 2013 and 3 July 2014 * DA Form 5501 (Body Fat Content Worksheet (Female)), dated 3 July 2014 * Permanent Orders (PO) Number 300-13, dated 27 October 2014 * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 10 February 2015 * Memorandum, Subject: Findings and Recommendations for Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) for the applicant, dated 26 March 2015 * DA Forms 2823 (Sworn Statement), dated 29 and 30 January, 2, 3, 6, and 12 February 2015, 3 and 25 March 2015, and 1 April 2015 * DA Forms 4856 (Developmental Counseling Form), dated 11 February 2015 and 24 April 2015 * Enlisted Record Brief (ERB), dated 28 April 2015 * Memorandum, Subject: Article 15 Appeal, dated 18 May 2015 * Text messages * Self-authored letter to the applicant’s immediate commander * Memorandum, Subject: Legal Review for AR 15-6 Investigation of First Sergeant (1SG) S- N- and the applicant, dated 2 April 2015 * DA Form 2627 (Record of Proceedings Under Article 15 Uniform Code of Military Justice (UCMJ)), dated 6 May 2015 * Memorandum for Record (MFR), Subject: Letter of Recommendation, dated 19 January 2016 * Memorandum, Subject: Statements in Support of Restoration of Grade for the applicant, dated 22 January 2016 * Orders Number 109-0121, dated 18 April 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 May 2016 * Orders Number D074-44, dated 15 March 2018 * Application for the Army Grade Determination Review Board (AGDRB) * four letters of support FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states she would like to be reinstated to the rank of SGT. 3. A review of the applicant’s service records show the following: * 5 November 2010 – enlisted in the Regular Army * 8 January 2016 – an informal Physical Evaluation Board (PEB) convened and found the applicant unfit and recommended a rating of 60% and her disposition be placement on the Temporary Disability Retired List (TDRL) * 2 February 2018 – an informal PEB convened and found the applicant unfit and recommended a rating of 40% and her disposition be permanent disability retirement * 18 April 2016 – Orders Number 109-0121, issued by Headquarters, 3rd Corps, Fort Hood, TX placed the applicant on the retired list by reason of permanent disability, her retired grade was SPC effective 13 May 2015 * 30 May 2016 – the applicant was honorably retired from active duty; her DD Form 214 shows in item 7a (Grade, Rate or Rank) SPC * her record is void of orders promoting her to the rank of SGT * her record is void of any disciplinary action 4. The applicant provides * DA Form 647-1 showing her permanent change of station arrival to 2nd Chemical Battalion * DA Form 705 showing the results of her APFT’s * DA Form 5501 showing she was overweight but within Army standards for her body fat * PO Number 300-13, issued by Headquarters, 48th Chemical Brigade, Fort Hood, TX promoted the applicant from SPC to SGT effective 1 November 2014 * DA Form 268 showing an adverse action flag was initiated * Memorandum, Subject: Findings and Recommendations for AR 15-6 for the applicant, wherein the investigating officer recommends any promotions, benefits, or favorable actions due to falsified documents be redacted and the applicant be punished under Article 123 of the UCMJ * DA Forms 2823 wherein the author provides statements related to the falsified documents submitted by the applicant * DA Forms 4856 wherein the applicant was counseled related to the investigation for falsified documents and false official statements * ERB showing she was promoted to SGT on 1 November 2014 * Memorandum, Subject: Article 15 Appeal, wherein the applicant appeals her Article 15 to the next higher authority and requests to be returned to a noncommissioned officer, and the Article 15 wholly set aside * text messages (illegible) wherein the applicant corresponds with another person related to her APFT * self-authored letter to her immediate commander wherein she expresses her disappointment in her immediate commander for not supporting her through her challenges * Memorandum, Subject: Legal Review of AR 15-6 Investigation of 1SG S- N- and the applicant, wherein the AR 15-6 investigation was found legally sufficient * DA Form 2627 wherein her intermediate commander was considering punishment under Article 15 for falsifying documents (it is void of issuance of punishment and the applicant’s signature) * MFR, Subject: Letter of Recommendation, wherein the author attests to the applicant’s selfless service, hard work, honesty, and her representation of the perfect example of a noncommissioned officer * Memorandum Subject: Statements in Support of Restoration of Grade for the applicant, wherein four statements were submitted in support of her restoration of rank attesting to her abilities, character, professionalism, morals, integrity and selfless service * Orders Number D074-44, issued by the U.S. Army Physical Disability Agency, which removed the applicant from the TDRL and placed her on the permanent disability retired list SPC 5. The applicant also provided a self-authored letter to the AGDRB wherein the applicant requests to be advanced on the retired list to her highest held grade of E-5 which states: * she was wrongfully accused and there were biases against her during the UCMJ action * she was bullied by her commanding officer for over one and a half years * she reported her commanding officer to her chain of command and he began to treat her negatively after she told him she was stressed and wanted to seek help (she attached documents to support her claim) * her commanding officer spread word she was a terrible Soldier when she never received negative counseling statements * her commanding officer also attempted to make her sign a DA Form 4856 that he signed before she read it that said she threatened his life * she was the only female in the company subjected to height and weight each month, even though she was not on the Army Body Composition program * findings from her Article 15 for forgery on a body fat worksheet and a PT card were unsubstantiated; they were signed by the First Sergeant and Body Composition NCO though they denied signing it * she had no access to the Weight Control book or the APFT book which was locked in a filing cabinet * none of the females in the company were allowed to conduct height and weight on her; she was sent to the battalion or brigade and was in compliance until her ankle surgery * her battalion commander said she was overweight and she could not help her with her situation; the applicant feels she already had her mind set to punish her based on word from a fellow commander * the investigation for her UCMJ action was never completed, and after she was demoted to E-4, she was moved to a company where she was not given a fair chance to rehabilitate or be treated fairly * she was humiliated by a lie, went into major depression and was medically retired from the Army * she would like her rank back because she had a clean record and never received any negative counseling statements * she has nightmares about her prior commanding officer and his bullying * she didn’t take the case to court martial because she already suffered many losses and was extremely depressed and did not have the emotional or mental capacity to move forward * her rank was wrongfully taken from her * she was never given the opportunity to be treated fairly and impartially; the treatment humiliated her and she was referred for a medical evaluation board shortly after 6. Title 10, USC, section 1372 (effective 4 January 1995), states unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade or rank in which he or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired. 7. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states, 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, records relating to proceedings under Article 15 UCMJ and appeals for reinstatement of her rank, letters of support, Army Grade Determination Board proceedings, her medical disability processing and the date of rank on her separation orders. The Board found no evidence to support that her reduction was unjust and no evidence that she was subsequently promoted again to SGT. The Board determined, based on a preponderance of evidence, that the rank reflected on her DD Form 214 was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, section 1372 (effective 4 January 1995), states unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade or rank in which he or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states, 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. ABCMR Record of Proceedings (cont) AR20160019107 4 1