ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 May 2019 DOCKET NUMBER: AR20170011671 APPLICANT REQUESTS: * to show he was promoted to SGM in May 2004 * medical retirement as a SGM (with waiver for not completing the Sergeant's Major Academy due to deployment) * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * recommendation for Meritorious Service Medal * recommendation for Army Commendation Medal * North Carolina Department of Public Safety Offender Public Information * newspaper article * NGB Form 22 (National Guard Report of Separation and Record of Service) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * letter from the Governor of Alaska * letter from the Mayor of Hoonah, Alaska * letter from the Mayor of Galena Alaska * letter for separation from Avery County School System * Veterans Administration (VA) claim * North Carolina Certificate for Criminal Justice Education and Training Standards * Certificate for North Carolina Sheriffs' Education and Training Standards * Certificate for Criminal Investigation * Certificate for School Resource Officer * Certificate for Community Oriented Policing * Certificate for Highway Patrol Basic School * Certificate for Introduction to Police Science * Certificate for General Instructor Training * identification cards FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 1. 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: a. He was removed from the promotion list and replaces with a less qualified candidate. The replacement occurred after the list was posted. The Guard acknowledged this happened but stated being the most qualified and selected did not guarantee promotion. This violates the integrity of the Army promotion philosophy. The Guard must adhere to Department of Defense, Army and Air Force procedural requirements. At the time this happened, the applicant had turned in a captain and first sergeant for sexually assaulting three of his female Soldiers. He also reported a CSM for committing a felony sexual assault of a child. b. He was selected for promotion to SGM in a military police (MP) specific position with the North Carolina Army National Guard in the 2003 promotion. He had served more than 3 years as an active MP in the United States Marine Corps leaving as a corporal with two merit promotions and several commendations one for guarding President Regan. c. He has also served as an activated Guard-Army MP in theater in the Gulf War. He also worked with the Army Criminal Investigation Division in Germany in 1996 through 1997 as a sergeant first class during Operation Joint Endeavor and Operation Joint Guard. d. He has a college degree and completed MP training. He completed the North Carolina Regional Law Enforcement Academy, the North Carolina State Trooper Academy, and he served as a civilian police officer as a jailer, trooper, city officer, city sergeant, count sheriff's detective lieutenant, and campus police department chief at the time he was on the promotion list for SGM. e. He had completed the North Carolina Criminal Investigation certificate program of 50 8 hour training days and the North Carolina School Resource Officer Certificate Program which was also 50 8 hour training days. He had over 2100 hours of training at that point and had completed assorted special trainings including firearms trainer, counter terror trainer, Army instructor trainer, and civilian law enforcement instructor. He taught almost a decade at the local academy. f. He was selected by the North Carolina Guard to conduct counter-terror training for the Republic of Moldova in 2003 and was presented with the Moldovan Carbinierei Merit Medal for superior service. g. After his retirement, he completed his third advance peace officer certificate, Police Management Institute, and was awarded the Alaska Medal of Valor as a police chief in Alaska for courage under fire. a. h. His point in listing all of his achievements is to note that prior to his reporting several superiors for grievous misconduct of a criminal nature under the USMC [sic], he was recognized as a stellar MP Soldier and Senior noncommissioned officer. i. At annual training in June of 2004, the command of another MP Company and his first sergeant came to the hotel where his unit was training. The captain and first sergeant came in contact with three enlisted female Soldiers from his unit at a bar and recognized them. Both men identified themselves and countermanded the orders of no alcohol consumption that he and his captain had given their troops. Both men were married and bought the Soldiers alcohol knowing two of them were under 21 and knowing the Soldiers had orders not to consume alcohol. j. The captain attempted to assault one Soldier in the parking lot in his parked car. The first sergeant attempted to assault the two remaining Soldiers in the bar. The Soldiers rebuffed the advances with one pushing the captain away and slapping him, according to her statement. The captain then told her she would be court-martialed for striking an officer. k. The Soldiers reported the incident to the noncommissioned officer on duty. The noncommissioned officer woke the applicant up and he went to the operations center and determined the three Soldiers were under the influence of alcohol. He recognized the moderate intoxication from his experience as a state trooper and police officer. l. The three Soldiers admitted to consuming alcohol but also reported the assault. He realized they were victims and not suspects. He woke the commander up and his response was to convene Article 15 proceedings against the three and ignore the crimes committed by the captain and first sergeant. m. The applicant recommended the Soldiers refuse the Article 15 and speak to an attorney. They then threatened to go to the local South Carolina prosecutor, State Alcoholic Beverage Enforcement and to assorted North Carolina media outlets unless the captain and first sergeant were prosecuted. He offered to pay the cab fee for the Soldiers to go to Navy Base Judge Advocate General. n. The company commander relented and gave the three Soldiers a written counseling. He reported the captain and first sergeant to the battalion commander. The captain was relieved and the first sergeant retired. o. The applicant was then informed by the battalion commander that his company commander no longer wanted the application as a first sergeant because he was "disloyal". The applicant was reassigned to a master sergeant position in the Battalion S-2. p. Prior to this incident, the applicant was selected for an MP SGM position for the battalion. He was clearly the most qualified candidate for the position and promotion in the state with his active duty Marnie Corps, Army, Guard, and civilian police experience. a. He also had completed the police management institute and first line supervision on the civilian side and he had time as a police trainer, MP trainer and investigator. q. Prior to the annual training, his company commander told him despite being the highest MP qualified E8 in the State, another master sergeant who had no MP training, experience or background was selected because he was several points higher than the applicant on the promotion list. The applicant noted he was not an MP so his score was irrelevant. The Guard sent the other master sergeant to training to make him an instant MP. r. Sending the master sergeant was illegal. He had just had rotator cuff surgery and was unable to pass and Army physical training test on day one of the Army school. It also is not legal to change the ranking on the promotion list once it has come out. The master sergeant completed the school and was promoted over the applicant. s. The applicant initiated an appeal but he was already at annual training and could not pursue it due to mission requirements that were taking his time. After annual training, his unit was alerted to activate and were at the Armory for several days prior to going to Fort Bragg completing around the clock work. He did not have time or the practical ability to pursue an appeal while at Fort Bragg and while he was in Iraq it was all but impossible to work on the appeal. t. The applicant was injured while in Iraq and sent to Fort Bragg on medical hold where he was medically boarded and retired from active duty. When he was on medical hold, he was told by the Fort Bragg by the company commander the guard had reported him to medical hold as a "disloyal trouble maker." This was also mentioned on his retirement evaluation when it was noticed by his civilian attorney and it was removed from his records. It had been illegally and covertly inserted into the evaluation without his knowledge. u. The retirement board president noted the applicant was not in good graces with the Guard and the medical hold system but he had given an objective review of the applicant's career and the problems with the Guard were obviously due to personal animosities and the board excluded such reference from their deliberations on the applicant's case. The applicant was honorably retired as a master sergeant with active benefits as a retiree. He later received 100 percent disability from the VA and elected for VA benefits versus Department of Defense retirement. He was given a retired identification card and his finances original from the VA and not the Defense Finance and Accounting Service. v. The applicant also reported a command sergeant major (CSM) to the Guard. The CSM called him at his civilian job and asked him not to take the lateral promotion to first sergeant because the position had been promised to one of the CSM's friends a non- MP. If the applicant moved to the first sergeant position the CSM's friend could not move in the master sergeant position as a non-MP, so he asked the applicant to remain as a master sergeant so the CSM's friend could become first sergeant. The applicant a. talked to the State Personnel office and was told he was up for increased leadership and if he passed up the first sergeant position, it could harm his future promotion potential. The applicant took the position and the next day the CSM called and berated him threatening to force him out of the Guard. The applicant told him to quit calling him at his civilian job or he would be turned in for making harassing phone calls under North Carolina law. w. The following month as a new first sergeant, he followed Guard policy and separated several Soldiers who had been absent without leave (AWOL) for years. The CSM went to the applicant's office with reprimands for the applicant and several other Soldiers who were in charge of the separated AWOL Soldiers for failing as leaders for separating them. The applicant told the CSM he was in violation of state law by falsifying and attempting to falsify drill attendance records and that he was intent on replaying the separated Soldiers with good Soldiers who would show up for training and would deploy in wartime. He stated they needed deployable troops and not numbers on paper and he refused to sign the reprimand and instructed his other Soldiers to do likewise. The Soldiers and applicant are in the process of filing a grievance on the CSM for falsifying or attempting to falsify drill records. x. The applicant also noted the CSM was out of regulation due to his illegal haircut. He also stated the CSM had made illicit remarks to female Soldiers in the field. The battalion commander tried to relieve him of duty for being "disloyal to the sergeant major." When he said he would file a grievance, the battalion commander moved the applicant to a hew unit and told him she would find a way to remove him from the promotion list because he was disloyal. The applicant told her that was whistle blower retaliation and she backed away from direct harassment. Months later, the applicant was removed from the promotion list which was a retaliatory move for reporting the CSM, Captain, and first sergeant. The North Carolina Guard admitted to this version of event as true and he was presented a letter in late 2015 stating the captain was relieved for fraternization. The captain was later promoted to major and the Guard has refused to release the name of who authorized his promotion. y. The CSM suddenly retired in the fall of 2011. It was unusual for him to suddenly retire and not ride out his ability to get active drill pay until he reached the age of mandatory retirement at the age of 62. He was arrested immediately after he retired for sexually assaulting his neighbor's child over an extended period of time. The CSM pushed the retirement through days before the case exploded. The Guard was complicit in helping him quietly retire. The CSM was convicted and sentenced to 16 years. He is currently a registered child sex offender. When he is released, he will be an honorably retires SGM despite being a convicted felon and registered child sex offender. The applicant will be lesser in rank than the CSM. The fact that the Guard is protecting the CSM is beyond comprehension. z. If the Guard had acted on the applicant's complaints earlier and in a timely manner, this incident may have been discovered earlier. The applicant was clearly ostracized and forced out of the Guard. The Guard did later reinstate his retirement a. rank of first sergeant and he was given several awards for retirement. The guard cannot try to impeach his record of service as their own write ups clearly state and picture him as a superior Soldier. The Guard still refuses to admit he was retaliated against. aa. There was an internal Guard investigation in November 2015 and it concluded the Guard did nothing wrong despite the overwhelming evidence. The investigation was completed by incompetent, corrupt, and unqualified biased Guard Judge Advocate General officers. ab. The applicant has requested the Guard ask Fort Bragg prosecutors to be loaned to them to prepare the post-investigation case. The Guard had the unqualified Judge Advocate General Attorneys conduct the administrative investigation instead. No criminal investigation was ever done. The Guard stated they were not acting on this matter further because the female Soldier did not wish to cooperate. It is not uncommon for sexual assault victims to not cooperate and a case can be constructed without their cooperation. ac. The lack of investigation was clearly misprision, obstruction of justice, and conspiracy. The entire process was corrupt and politically spun under state politics and nothing more than a damage control process from the start to present. ad. The applicant was told by informed sources at the Guard Headquarters the CSM was blackmailing senior Guard officers with whom he traded child pornography. He cannot state that is in fact true, but it is plausible and would explain the shocking and bizarre levels of ongoing cover up, failure to perform duties, misprision, lies, and general massive misconduct going on in this case. ae. Since the Guard has refused to answer his questions he thinks the burden of proof is in his favor absent answers from the Guard leadership. That explains why they refused to recall the CSM back on a writ from prison to state active duty and convene a court-martial and prosecute him and give him a bad conduct discharge. The Guard claimed double jeopardy precluded a court-martial despite the precedence set in other cases. af. If the double jeopardy claim is true, the Guard could have administratively dismissed the CSM from the Guard for conviction of a felony. It could have and should have also recalled the captain who was promoted to major and reduce him back to captain. The Guard refuses to explain the great lengths of protection that had been offered to these two sexually deviant predators. ag. The Guard has also refused to admit the applicant is a whistle blower and they have violated North Carolina and Department of Defense regulations, laws, and Army regulations. The two Soldiers were hiding in plain sight for years and it was the open secret that no one was supposed to address. The applicant did and paid the price as a whistle blower. ah. The applicant requests to have his record corrected: * to show he was promoted to SGM in May 2004 * medical retirement as a SGM (with waiver for not completing the Sergeant's Major Academy due to deployment) ai. The applicant filed appeals by complaining to his chain-of-command in 2007. This can be verified by supporting statements of retired senior noncommissioned officers who were in the same unit and were aware of the situation. aj. He complained to the governor of North Carolina in 2008. He was told she would not override the decision of the Guard leadership. He then appealed to the new governor in 2013 and it was concluded by improper means in 2015 and then Governor left office. ak. The investigation conducted by the dishonest and unqualified Judge Advocate General officers of the North Carolina Guard was inept, incomplete, flawed, corrupt, rife with misconduct, and did not follow any semblance of investigative protocols. He has investigated many murders and homicides in his job as a civilian, he can state for a fact the Guard's investigative techniques were so inept, corrupt, biased, and incompetent that this case has never truly been investigated to date. al. He contends this is all part of a criminal conspiracy between the current Adjutant General and his command, the Judge Advocate General staff, and the former company commander of misprision of crimes. There is no statute of limitation under the Uniform Code of Military Justice for sexual assault of a minor. The statute of limitations continues to be on hold until the conspiracy concludes. The conspiracy is still ongoing. am. He requests that he be issued a corrected DD form 214 reflecting he retired as a SGM and that his promotion was effective 1 May 2004. This is due to a series of illegal retaliatory acts against him as a whistleblower and due process violations. 3. The applicant was a member of the North Carolina Army National Guard. He was honorably retired on 18 May 2006. His rank on his NGB Form 22 is first sergeant/E-8. 4. The applicant states he was selected for SGM and was selected for an E9 position within the battalion. His service records are void of any evidence to confirm this statement. The applicant provides his application as evidence. The applicant provides award recommendations and civilian employment certificates to show he was qualified to perform the duties and responsibilities of a SGM MP. 5. In the processing of this case, an advisory opinion was obtained on 15 November 2018, from the Chief, Special Action Branch from National Guard Bureau. The advisory official recommended disapproval of the applicant's request stating there is limited documentation available to validate the applicant's status on the 2004 and 2005 enlisted promotion list and there is no evidence to confirm an error of injustice occurred. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 6. The applicant was provided a copy of this advisory opinion on 19 November 2018, to provide him an opportunity to comment and/or submit a rebuttal. He responded, in part: * he has been unable to locate other information to support his claim * it is noteworthy the North Carolina National Guard does not rebut his allegations * absent evidence to the contrary, he is presumed to be believed and the North Carolina Guard is presumed to be at fault * the North Carolina Guard refused a freedom of information request he submitted * the Guard does not dispute that he was the most qualified MP E8 on the 04 promotion list * the Guard stated other factors can be take into consideration in deciding promotion * they were inferring that other factors arose to disqualify his promotion prospects at the last minute * this coincided with his filing a sexual assault claim on superiors * this made him ask what other standards were considered to justify his removal from the promotion list * the Guard refused to respond to his request for information to state what those considerations were * the timing of this matter is suspect to the point of giving his allegations credibility * he had a stellar career until he "locked horns" with the CSM who was well known in the ranks as being substandard, a draft dodger, and politically connected * the CSM was also sent to prison for 17 years and is currently incarcerated as a registered child sex offender * the CSM attempted to cause him to falsify documents to include AWOL Soldiers to inflate unit strength * he reported the CSM * the Guard was corrupt and the CSM's actions were unethical and illegal * he filed the sexual misconduct report on the first sergeant and the captain at the same time * he was illegally removed from the promotion list in retaliation for being a whistle blower * the burden of proof in this case is on the accused, which is the Guard * the Guard has all but acknowledged his allegations * he understands he would not have completed the Sergeant's Major Academy which is a requirement to become a SGM * he was not able to complete it due to being medically boarded and subsequently retired * he was deprived of the being selected for promotion to SGM and lost close to 2 years of active duty pay at E9 * * he was informed by the Guard when he was on the promotion list that if he was unable to complete the Sergeant Major's Academy due to no fault of his own, he would be able to apply for a waiver to maintain his rank * he should not have been subjected to any reprisals or retaliation for turning in the two for sexual assault * he was clearly relived of his duties the day after making a report of sexual assault * he did receive a retirement award when he complained * if the Army fails to correct this injustice, it is condoning the sexual assault by inaction * the offending first sergeant was retired honorably and the offending captain was later promoted to major * the only person who was lost was the applicant * if he had not threatened to go to the media, the two female Soldiers would have been crucified * if the Army takes no corrective action, it will be a shameful black mark on the United States Army 7. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the advisory opinion’s finding that there is limited documentation available to validate the applicant's status on the 2004 and 2005 enlisted promotion list and there is no evidence to confirm an error of injustice occurred, as well as a lack of evidence to show the applicant completed the SGM Academy which is a requirement for promotion to SGM, the Board concluded there was insufficient evidence to grant the applicant’s requested relief. 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. 5/23/2019 X CHAIRPERSON Signed by: 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. 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. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. 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 ABCMR may grant a formal hearing whenever justice requires. 3. National Guard Regulation 600-22 (Enlisted Personnel Management), prescribes the policies and procedures for the management of enlisted personnel. a. Paragraph 11-3 states, Soldiers may be advanced or promoted only while in a promotable status. A soldier is in a nonpromotable status and will not be promoted, advanced, appointed to a higher grade, or laterally appointed to CPL, 1SG or CSM when: * the subject of proceedings that may result in administrative elimination * a written recommendation has been sent to the promotion authority to reclassify the soldier for inefficiency or disciplinary reasons * the soldier does not have the security clearance or favorable security investigation for promotion to the grade and MOS * ineligible for immediate reenlistment or extension of enlistment per chapter 7 * a Bar to Reenlistment or Extension of Enlistment has been approved or initiated per chapter 7 * ineligible to reenlist or extend to meet the remaining service obligation for advancement or promotion in paragraph 11-10. * a written recommendation has been submitted to remove the soldier from a promotion list * a State Medical Duty Review Board (MDRB) per NGR 40-501 or a Physical Evaluation Board (PEB) determines that a soldier is no longer qualified for service * declared an unsatisfactory participant per AR 135-91: (1) Paragraph 4-9, for 9 or more unexcused absences from scheduled training assemblies b. Paragraph 11-28 states, consider soldiers for promotion without regard to their current levels of NCOES. When selected for promotion and listed in the selection a. objective of the promotion lists, they are eligible for training and, provided they are in or will be concurrently assigned to positions authorized the higher grade. The following is the educational requirements for promotion to SGM: * MSGs and lSGs without ANCOC or USASMC credit are promotable to SGM after they complete ANCOC Phase I and are enrolled in the USASMC by NGB. * MSGs and lSGs with ANCOC credit, but not USASMC credit, are promotable after they are enrolled in the USASMC by NGB. * MSGs with USASMC credit are promotable. There is no new training requirement