ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20170011079 APPLICANT REQUESTS: removal from his official records two Letters of Reprimand (LOR) (General Officer Memorandum of Reprimand), dated 3 December 2014 and 20 July 2015 respectively. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Online DD Form 149 (Application for Correction of Military Record) * Personal letter * DA Form 2166-8 (Noncommissioned Officer Evaluation Report) for the rating period 2 October 2013 through 13 October 2014 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 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 an Army separation board that was staffed by three field grade officers and approved by a General Officer concluded that he did not commit the offenses as alleged due to his accuser lying under oath in order to "ruin his life as stated by witnesses in the hearing." The separation point has voided his DD Form 214 (Certificate of Release or Discharge from Active Duty) due to the reversal of the separation. He adds: a. He wants both LORs removed and his derogatory NCOER corrected. He also wants to be reinstated on active duty due to an Army separation board that concluded that he would remain on active duty. The Army separation board concluded that he did not commit the allegations that he was accused of and the convening authority, Brigadier General X__ approved of the board's findings and recommendation to retain him on active duty. At that time, he was told that he would not have time to appeal the QMP (Qualitative Management Program) discharge in light of the new evidence of the discharge board due to the time it takes to get the request to the Secretary of the Army. This information, coupled with his feelings of anger over what his family and he went through led him to believe that pursuing an appeal would be pointless. b. He separated from the Army with just over 13 years towards retirement and 15 years in service. Since he did not have 15 years or more towards retirement, he did not qualify for a Temporary Early Retirement Authority (TERA) separation, a separation that he would have pursued. He always saw himself retiring from the Army and he accomplished a lot of great things for his Soldiers, himself, and his leadership while he was in the service. c. He had recently learned that his DD Form 214 was voided by the separation point due to the fact that the separation board cleared him of all wrongdoing. He also spoke to a U.S. Army Career Counselor named Master Sergeant X__ at Fort Knox, KY. He said he would be able to complete an antedated reenlistment only after the board of corrections approves of this decision. He was not aware of this until recently; otherwise, he would have pursued this course of action sooner. He asks that the Board helps right this injustice and help bring a Soldier back on active duty where he can be a positive influence. 3. Review of the applicant's service records shows: a. Having had prior service in the Regular Army, he enlisted in the U.S. Army Reserve (USAR) on 29 June 2009. b. He served in a variety of assignments and he was promoted to sergeant first class/E-7 on 1 May 2013. He was assigned to C Company, 368th Military Intelligence Battalion, Camp Parks, CA. c. On 3 December 2014, he was reprimanded by the Commanding General (CG) of the Military Intelligence Readiness Command for assault on a female Soldier. The LOR stated (1) An Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation has established by a preponderance of the evidence that he assaulted Staff Sergeant (SSG) X__ in violation of Article 128, Uniform Code of Military Justice (UCMJ), by being physically aggressive and unlawfully grabbing her on two separate occasions without permission or consent. (2) This serious misconduct demonstrates a grave lack of judgment and personal responsibility that brings discredit upon himself, the Army Reserve and the Military Intelligence Readiness Command. His actions severely violated the trust he was given as a Soldier and as an NCO. These actions will not be tolerated and seriously cause me to question your fitness to continue serving in the USAR. He was being reprimanded for intentionally violating the UCMJ, Army regulations and Army values. (3) The applicant acknowledged receipt and indicated that he realized he had made a mistake. He took full responsibility for his actions and requested the imposing officer place the LOR in his local file. (4) On 7 January 2015, after reviewing the reprimand and the applicant's rebuttal, dated 29 December 2014, the imposing general officer directed the LOR be permanent filed in his Army Military Human Resource record (AMHRR) in accordance with paragraph 3-4b of AR 600-37 (Unfavorable Information). d. During October 2015, he received an Annual (extended) NCOER covering the rating period 2 October 2013 through 13 October 2014. This NCOER shows: (1) His rater rated placed an "X" in the "No" block for the Respect/EO/EEO Value and entered the supporting bullet "neglected to show respect to his subordinate within the unit." (2) His rater placed an "X" in the "Needs Improvement (Much)" Leadership block and entered the supporting bullets block of * needed much improvement on leadership ability; AR 15-6 investigation found Soldier in violation of Articles 93 (Cruelty and Maltreatment) and 128 (Assault) * failed to affirm a conducive workplace environment by treating all members in the unit with respect and dignity and adhering to the SHARP, EO, and EEO Program * reported to have assaulted a female Soldier through oppressive and maltreatment actions per AR 15-6 report findings (3) His rater placed an "X" in the Marginal block of his Overall potential for promotion and/or service in positions of greater responsibility. (4) His senior rater placed an "X" in the "Fair/4" block of Overall Performance and "Fair/4" block of Overall Potential. The senior rater further added the bullets: * do not promote at this time * failed to treat a subordinate with respect; thereby did not foster a conducive climate adhering to SHARP, EO and EEO * Soldier has taken responsibility for his actions and is showing potential to serve in NCO could best serve the Army at his/her positions of greater responsibility * performance counseling's were conducted on a monthly basis, but specific dates were not recorded e. On 20 July 2015, the applicant was again reprimanded by the CG of the Military Intelligence Readiness Command for misconduct by violating a no contact order with SSG X__. The LOR stated (1) On 28 August 2014, he received a direct order to have no contact with SSG X__. This no contact order was given after an AR 15-6 investigation established that he assaulted SSG X__ in violation of Article 128 of the UCMJ. He recently violated that no contact order by having contact with her via Facebook when he specifically posted, "You ruined my life! Why?" and "Spruce Goose... go fu__ yourself!!!" (2) In violating a direct order, he engaged in serious misconduct. His actions demonstrate a grave lack of judgment, personal responsibility and integrity that brings discredit upon himself, the Army Reserve and the Military Intelligence Readiness Command. His actions severely violated the trust he was given as a Soldier and as a senior enlisted leader. These actions will not be tolerated and seriously cause the imposing officer to question his fitness to continue serving in the USAR. He was being reprimanded for intentionally violating the UCMJ. (3) The applicant acknowledged receipt and indicated that he had believed upon reassignment, the no contact order was not in effect. He added that he had removed the SSG from his social media and requested the imposing officer place the LOR in his local file. (4) On 28 July 2015, after reviewing the reprimand and the applicant's rebuttal, the imposing general officer directed the LOR be permanent filed in his AMHRR in accordance with paragraph 3-4a of AR 600-37. f. On 18 November 2015, a QMP selection board notified the applicant that a review of his records for potential denial of continued service recommended he be denied continued service on active duty. As a result, the Director of Military Personnel Management approved the findings and recommendations, and that he would be involuntarily discharge from active duty no later than 1 May 2016. g. On 11 January 2016, an administrative separation board convened to determine if the applicant should be retained or separated. The administrative board determined that the applicant did commit a serious offense as alleged, specifically, being physically aggressive and unlawfully grabbing SSG X__ on two separate occasions without her permission or consent. The board further determined that the applicant did not commit a serious offense as alleged, specifically, disobeying a direct order to have no contact with SSG X__. The administrative board recommended the applicant be retained in the Army. h. On 24 February 2016, a military attorney reviewed the findings and recommendations and found them legally sufficient, and on 25 February 2016, the CG, Military Intelligence Readiness Command reviewed the entire record of proceedings initiated under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separation), chapter 14 (misconduct), regarding the applicant, and agreed with the administrative separation board's recommendation. He directed the applicant's retention. i. The applicant had been issued Discharge Orders 053-0001, on 22 February 216, ordering his discharge from the Army effective 5 March 2016. On the same date, those orders, and the resultant DD Form 214 were both revoked. j. On 25 December 2018, the Department of the Army Suitability Evaluation Board reviewed his request to remove both LORs. The DASEB determined the evidence presented did not provide substantial evidence that the documents in question have served their intended purpose, are untrue or unjust, nor that their transfer would be in the best interest of the Army. By unanimous vote, the DASEB denied his request. 4. By regulation (AR 600-37), paragraph 7-2 provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the official records. 5. By regulation (AR 635-200), the purpose of the administrative separation board was to give the applicant a fair and impartial hearing to determine if he should be retained in the Army. The administrative separation board recommendations were limited to either retention or elimination and the board's findings had no bearing on whether he was guilty of misconduct for assault and/or violating a no contact order. 6. By regulation (AR 623-3), evaluation reports accepted for inclusion in the Soldier's official record are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature; not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the applicant. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. Based upon the preponderance of the evidence, the Board agreed he accepted responsibility for his actions relating to the first reprimand, and clearly violated the no contact order reflected in the subsequent reprimand. There is no clear and convincing evidence the misconduct reflected in the reprimands are factually baseless. 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. REFERENCES: 1. Army Regulation (AR) 600-37 (Unfavorable Information), sets forth policies and procedures to authorize placement of unfavorable information about Soldiers in individual official personnel files. a. Paragraph 1-1 states, in relevant part, that the intent of Army Regulation 600-37 is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and, to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. b. Paragraph 1-4 stipulates that the objectives of Army Regulation 600-37 are to apply fair and just standards to all Soldiers; protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility; to prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity; to provide a means of correcting injustices if they occur; and, to ensure that Soldiers of poor moral character are not continued in Service or advanced to positions of leadership, trust, and responsibility. c. Paragraph 3-2c states that unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These traits must be identified early and shown in permanent official personnel records that are available to personnel managers and selection board members for use in making decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others. Other unfavorable character traits of a permanent nature should be similarly recorded. d. Paragraph 7-2a, states that once an official document is properly filed in the AMHRR, it is presumed to be administratively correct and filed pursuant to an objective decision by competent authority. e. Paragraph 7-2b(1) states that unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and their transfer would be in the best interest of the Army. The burden of proof rests with the appellant to provide substantial evidence that these conditions have been met. 2. AR 600-8-104 (AMHRR Management) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the AMHRR, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board. Table B-1 covers authorized documents. Army Personnel Records Division (APRD), will update the list of authorized documents for filing in the AMHRR quarterly. The new list of authorized documents will supersede the list in Table B-1, Appendix B of AR 600-8-104. The latest update, dated 15 December 2015, states: * File only Letters of Reprimand designated for filing in the OMPF * Letters not designated for filing in the OMPF will not be filed in iPERMS; these documents will be filed locally 3. AR 623-3 (Evaluation Reporting System0 prescribes the policy for completing the NCOER and support form. Procedures, tasks, and steps pertaining to the completion of each evaluation report and support form are contained in DA Pamphlet 623-3. a. Paragraph 4-1 states that the Evaluation Report Redress Program consists of several elements at various command levels. The program is both preventive and corrective, in that it is based upon principles structured to prevent, and provide a remedy for, alleged injustices or regulatory violations, as well as to correct them once they have occurred. b. Paragraph 4-2 states that an NCOER may have administrative errors or may not accurately record the rated Soldier's potential or the manner in which he or she performed his or her duties. The Redress Program protects the Army's interests and ensures fairness to the evaluated NCO. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. A Commander's Inquiry and an evaluation report appeal are separate and distinct actions. Rated Soldiers may seek an initial means of redress through a commander’s inquiry; however, a commander’s inquiry is not a prerequisite for the submission of an appeal. c. Paragraph 4-7h stipulates that appeals based on administrative error only will be adjudicated by HQDA, Evaluation Appeals Branch. Such claims may include, but are not limited to, deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the report period, and errors in the Army Physical Fitness Test and/or height and weight entries. d. Paragraph 4-11 states, in pertinent part, that evaluation reports accepted for inclusion in the Soldier's official record are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature; not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. e. Paragraph 4-11e states that evidence will be material and relevant to the appellant's claim. In this regard, note that support forms (or equivalent) or academic counseling forms may be used to facilitate writing an evaluation. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form (or equivalent) or counseling form was omitted from an evaluation, or because the comments of rating officials on the evaluation report form are not identical to those in the applicable support form or counseling form. Evaluation reports written based on the findings of an AR 15-6 investigation will include a copy of the AR 15-6 investigation as an enclosure to the appeal. In addition, if there was a commandant’s inquiry conducted, the results of the inquiry will be added as an enclosure to the appeal. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011079 6 1