ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 November 2019 DOCKET NUMBER: AR20170000593 APPLICANT REQUESTS: * reconsideration of retroactive promotion to sergeant first class (SFC)/E-7 * reconsideration of medical retirement * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * letter from applicant’s attorney * DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) * U.S. Army Human Resources Command (HRC) memorandum dated 23 July 2012, Subject: Advisory Opinion, Staff Sergeant (SSG) X__, XXXX * letter from Raintree Clinic of the applicant’s attendance * Army Review Boards Agency (ARBA) memorandum dated 15 December 2016, Subject: Advisory Opinion for X__, XXX-XX-XXXX, AR20160016667 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160016667 on 21 November 2017. 2. The applicant states through his attorney, he requests reconsideration for retroactive promotion to SFC/E-7 and be medically retired as he had provided new evidence for the Board to consider. 3. The applicant provides new evidence: a. DA Form 268, that shows that his flag was removed due to disciplinary action taken, effective 10 January 2010, signed by Master Sergeant (MSG) X__ with X Company, XXth X__ X__ Battalion (Airborne). b. A letter from X__ of Raintree Clinic dated 3 August 2019, that states that the applicant attended sessions from September 2009 to January 2010 and that he was referred by the military for assistance coping with his post-traumatic stress disorder (PTSD) and alcohol use issues. Records that documented the applicant’s clinical perspective and progress had been destroyed and the details of a diagnosis and outcome were no longer available. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 13 January 2002. b. He reenlisted in the RA on 9 August 2004. c. He reenlisted in the RA on 27 March 2006. d. Headquarters, U.S. Army Troop Command Order 135-001 dated 15 May 2007, he was promoted to staff sergeant (SSG)/E-6 effective 1 June 2007. e. He reenlisted in the RA on 22 July 2008. f. He accepted non-judicial punishment on 11 August 2009 for two specifications of with the intent to deceive by making a false statement, one specification of bribery of a Soldier and one specification of wrongful endeavor to influence the testimony of a noncommissioned officer during an investigation. His punishment included reduction to the rank of sergeant (SGT)/E-5 that was suspended and to be automatically remitted if not vacated before 10 January 2010. g. On 5 April 2012, the separation authority directed that the applicant be separated with an honorable characterization of service under provisions of Army Regulation 635-200, paragraph 14-12c. h. DA Form 268, dated 13 April 2012, the flag that was initiated on the applicant was removed effective 13 April 2012 for the reason of other final action. i. He was discharged from active duty on 15 July 2012 with an honorable characterization of service under the provision of Army Regulation (AR) 635-200, paragraph 14-12c (Misconduct – serious offense), which was changed by the Army Discharge Review Board to paragraph 14-12a (Misconduct – minor infractions). His DD Form 214 (Certificate of Release or Discharge) shows that he completed 10 years, 5 months, and 3 days of active service. 5. He applied to the Army Discharge Review Board (ADRB) for change of his reason and chapter of his discharge. On 16 November 2012, the ADRB determined his discharge was proper and equitable, and denied his request. 6. He applied to the ADRB for change of his narrative reason for separation to include the reentry code of his discharge. On 23 September 2013, the ADRB determined that his narrative reason for discharge was inequitable. His separation authority was changed to AR 635-200, paragraph 14-12a, separation code changed to JKN, and the narrative reason change to Misconduct (Minor Infractions). A new DD Form 214 was issued. 7. He applied to the Army Board for Corrections of Military Records (ABCMR) for an upgrade of his discharge. On 4 April 2013, the ABCMR determined that the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of the case were insufficient as a basis for correction of his records, and denied his request. 8. He applied to the ABMCR for an upgrade of his discharge. On 21 November 2017, the ABCMR determined that the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of the case were insufficient as a basis for correction of his records, and denied his request. 9. By regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAGS), states a suspension of favorable personnel actions (FLAG) is mandatory when an investigation (formal or informal) is initiated on a Soldier by military or civilian authorities. Provision for removal of the flag for investigations are when the Soldier is released without charges, charges are dropped, or punishment is completed. 10. By regulation 40-501 (Standards of Medical Fitness) provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. 11. By regulation 15-185 (ABCMR), applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 12. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions, new evidence, his counsel’s statement, the advisory opinions, and the previous application was carefully considered. Based upon a preponderance of the evidence, the Board determined the applicant’s request for promotion to SFC is without merit, and he did not have an unfitting and boardable physical condition requiring referral for a medical evaluation board. The Board agreed there is insufficient evidence to amend the previous Board’s decision. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 to amend the decision of the ABCMR set forth in Docket Number AR20160016667 on 21 November 2017. 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. REFERENCES: 1. Army Regulation (AR) 600-8-2 (Suspension of Favorable Personnel Actions (FLAGS) in effect at the time, states a suspension of favorable personnel actions (FLAG) is mandatory when an investigation (formal or informal) is initiated on a Soldier by military or civilian authorities. Provision for removal of the flag for investigations are when the Soldier is released without charges, charges are dropped, or punishment is completed. a. Paragraph 1-12 (Circumstances requiring a non-transferable flag), the specific actions and investigations listed require a non-transferable flag: * adverse actions – charges, restraint or investigations, court martial, non- judicial punishment, absent without leave, administrative reduction, memorandum of admonition or reprimand * elimination * removal from promotion, command or school selection list field initiated * referred officer evaluation report * security violation * removal from promotion, command or school selection list HQDA initiated b. Paragraph 2-1 (Rules for initiating the flag), a separate flag will be initiated for each investigation, incident, or action. The commander (or general officer staff head) directs the flagging action. The effective date of the flag is the date of the incident or the date the commander initiates the action, whichever is earlier. c. Paragraph 2-7 (Rules for removing the flag), the commander directs the removal of the flag. The effective date of the removal is the day on which the Soldier’s status changes. The first general officer in the chain of command will determine the effective date of removal if there is a conflict. 2. AR 600-8-19 (Enlisted Promotions and Reductions) in effect at the time, prescribes policies and procedures governing promotion and reduction of Army enlisted personnel. Paragraph 1-10 (Non-promotable status), Soldiers (specialist (SPC) through master sergeant (MSG) are non-promotable to a higher grade when one of the following exists: * a Solider who is in proceedings that may result in an administrative elimination * a Soldier who has incurred a flag under the provisions of AR 600-8-2 * failure to initiate DA Form 268 does not affect the Soldier’s non-promotable status if a circumstance exists that requires imposition of a flag under the provisions of AR 600-8-2, paragraph 1-12 and 1-13 * promotion status of Soldiers incurring a flag under the provisions of AR 600-8- 2 is controlled by paragraph 1-11 3. AR 635-200 (Active Duty Enlisted Administrative Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 14 deals with separation for various types of misconduct. Paragraph 14-12a (Minor disciplinary infractions), a pattern of misconduct consisting solely of minor military disciplinary infractions. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separation under the provisions of chapter 14. 4. AR 15-185 (ABMCR) states board members will review all applications that are properly before them to determine the existence of an error or an injustice. The ABMCR decides cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABMCR may grant a formal hearing whenever justice requires. 5. AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), states gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter will be evaluated by a medical board and will be referred to a physical evaluation board (PEB). 6. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation), in effect at the time, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court- martial. However, the guidance applies to more than clemency from a sentencing in a court-martial: it also applies to other corrections, including changes in the discharge, which may be warranted based on equity, or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgrade service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000593 5 1