ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:  26 March 2020 DOCKET NUMBER:  AR20170016366 


APPLICANT REQUESTS: Correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her rank/grade as staff sergeant (SSG)/E-6, in lieu of, sergeant (SGT)/E-5.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.Army Board for Correction of Military Records (ABCMR) Docket NumberAR20160011133 letter, dated 6 December 2016

.Administrative separation board documents

.DD Form 214, dated 29 September 2016

.Self-authored letter to the Board, dated 3 August 2017

.Self-authored letter, dated 6 June 2019



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10 UnitedStates Code (USC), section 1552(b); however, the ABCMR conducted a substantivereview of this case and determined it is in the interest of justice to excuse the applicant'sfailure to timely file.

2.In the matter of a reconsideration; the applicant petitioned the Board to correct herrank on 22 June 2016.  Her case was not boarded due to a lack of documentation in herofficial records showing she was reduced in rank from SSG to SGT.  This applicationwill be the first petition to be boarded.

3.The applicant states she was given Article 15s for no reason due to unfair treatment.She was found innocent of all charges and no one in the unit would fix the error due tofear of retaliation.

4.A review of the applicant’s official records show the following:

a.On 14  February 2008, having had prior enlisted service in the Regular Army(RA), the applicant enlisted in the RA in the rank/grade of specialist (SPC)/E-4. 

b.The applicant’s records are void of orders promoting her to the rank of SGT,however, it contains a DA Form 2166-8 (Noncommissioned Officer Evaluation Report) showing she was promoted to the rank of SGT on 10 July 2010. 

c.On 25 September 2013, Orders Number 268-31517, issued by Headquarters,U.S. Army Maneuver Center of Excellence, Fort Benning, GA, promoted the applicant to the rank of SSG, effective on 1 October 2013. 

d.The applicant’s records contain an Enlisted Record Brief showing she wasreduced to the rank of SGT effective 3 February 2015.  However, her record is void of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) to support this reduction in rank. 

e.On 30 November 2015, the applicant accepted non-judicial punishment under theprovisions of Article 15, UCMJ for three specifications of violation of Article 90, and one specification of violation of Article 92, UCMJ.  Her punishment was reduction to the rank of SPC (suspended, to be automatically remitted if not vacated before 28 May 2016).  She did not demand trial by court martial and did not appeal to the next higher authority. 

f.The applicant’s records are void of any orders promoting her again to the rank ofSSG. 

g.On 19 July 2016, Orders Number 201-2210, issued by Headquarters, U.S. ArmyGarrison, Fort Benning, reassigned the applicant to the transition point for separation processing.  These orders show her retired rank as SGT effective 3 February 2015 and prior grade/date of rank as SSG/1 October 2013. 

h.On 29 September 2016, the applicant was honorably retired from active duty byreason of disability, permanent (enhanced).  DD Form 214, item 4a (Grade, Rate or Rank) shows the rank of SGT.  

5.The applicant provides:

a.ABCMR Docket Number AR20160011133 letter that states in pertinent part therewas no evidence in her official military personnel file showing she was reduced from SSG to SGT.  

b.Administrative board proceedings held to determine whether the applicant shouldbe separated from the Army prior to her expiration term of service for the following: 

.violation of Article 107, UCMJ; not supported by the preponderance ofevidence and separation was not warranted


.three specifications of violation of Article 90, UCMJ; two specification wassupported by evidence and the other was not supported by thepreponderance of evidence and separation was not warranted

.violation of Article 92, UCMJ; not supported by the preponderance ofevidence and separation was not warranted



c.Self-authored letter to the Board that states:

(1)I received a letter about my case that I submitted on June 22, 2016, and itstated that there was nothing in my records that shows I was reduced from SSG (E-6) to SGT (E-5). I submitted my paperwork to get my files corrected; however, I didn't receive anything that showed me that my rank was restored from SGT to SSG. 

(2)I have retired out of the military as of September 2016, but I would really liketo get this issue resolved due to me not doing anything illegal or immoral. My records currently show that I am a SGT. The chain of command that I served under at the time did nothing to help me with this matter. 

d.Self-authored letter that states:

(1)In 2015, she received two Article 15s in the Army.  After the first UCMJ, sheworked hard to retain her rank back even though it was an injustice.  She did a congressional in September of 2015 in Columbus, GA and received the second UCMJ in October and November time frame of 2015.  In 2016, there was an administrative hearing and all of the charges were found wrong and an injustice.  No one wanted to reverse the charges and give her back the rank of SSG that was taken from her. 

(2)When the paperwork was sent to the Senior Commander of the base, heretained her on active duty which allowed her medical board to continue.  Even with her going through a medical board, they ask you the highest rank you have held which was SSG and she was discharged as a SGT.  She has a case with the Board and has not received an answer in two years.  She has emailed several times and the response is different.  Her case number is AR20170016366.  She understands that she is medically retired and happy to have served her country, but the way she was treated was wrong and unfair.  She has been begging for help with her case and she does have an attorney who helped her at the board and he has no clue as to what is taking so long.  She will say it was her second time responding to the Board due to the first response back they stated there was nothing in her file that reduced her from SSG to SGT.  Why no one fixed it at the time baffles her. 

6.Army Regulation (AR) 15-185 (ABCMR) states in paragraph 2-9 (Burden of Proof)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. 

7.AR 635-5 (Separation Documents) in effect at the time states:

a.Paragraph 2-1, the DD Form 214 is a summary of a Soldier's most recent periodof continuous active duty.  It provides a brief, clear cut record of active duty service at the time of release from active duty, retirement, or discharge.   

b.Paragraph 2-3 (Source documents) the following documents will be used whenpreparing DD Form 214: 

.Enlisted Record Brief

.separation order

.any other document authorized for filing in the official military personnel file









c.Paragraph 2-4 (Completing the DD Form 214) item 4a, enter the active dutygrade or rank and pay grade at the time of separation. 8.AR 635-200 (Active Duty Enlisted Administrative Separations), section 2(Administrative Board Procedure) states when the reason for separation requires theadministrative board procedure, the commander will notify the Soldier in writing thathis/her separation has been recommended per this regulation.  The commander willadvise whether the proposed separation could result in discharge, release from activeduty to a Reserve Component, or release from custody and control of the Army.  TheSoldier will be advised of the least favorable characterization of service or description ofseparation he/she could receive.  The board does not make rank/grade determinations.BOARD DISCUSSION: After reviewing the application, supporting documents, and the evidence found within the military record, the Board found that relief was not warranted.  The applicant’s contentions, the military record, and regulatory guidance were carefully considered.The Board considered the review and conclusions of the administrative separation board regarding UCMJ violations and separation or retention.  The Board foundinsufficient evidence of the applicant’s promotion to SSG, subsequent to prior reductions, at the time of her separation.  Based on a preponderance of evidence, the Board determined there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s rank. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XX :XX 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. 

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. 



REFERENCES: 
 
1.  Title 10 USC, 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 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.  AR 15-185 (ABCMR) states in paragraph 2-9 (Burden of Proof) 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. 
 
3.  Army Regulation 635-5 (Separation Documents) in effect at the time states: 
 
 a.  Paragraph 2-1, the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear cut record of active duty service at the time of release from active duty, retirement, or discharge.   
 
 b.  Paragraph 2-3 (Source documents) the following documents will be used when preparing DD Form 214: 
 
. Enlisted Record Brief 

. separation order  

. any other document authorized for filing in the official military personnel file 


 
 c.  Paragraph 2-4 (Completing the DD Form 214) item 4a, enter the active duty grade or rank and pay grade at the time of separation. 
 
4.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), section 2 (Administrative Board Procedure) states when the reason for separation requires the administrative board procedure, the commander will notify the Soldier in writing that his/her separation has been recommended per this regulation.  The commander will advise whether the proposed separation could result in discharge, release from active duty to a Reserve Component, or release from custody and control of the Army.  The Soldier will be advised of the least favorable characterization of service or description of separation he/she could receive.  The board does not make rank/grade determinations. 
 
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