ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 October 2019 DOCKET NUMBER: AR20180006446 APPLICANT REQUESTS: * correction of his retired grade to the rank/pay grade of command sergeant major (CSM/E-9 instead of sergeant major (SGM) * removal of a Recommendation to Release and Removal from the CSM Program memoranda from his official military personnel file (OMPF) * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), with attached statement * DA Form 638 (Recommendation For Award) * Recommendation to Release memorandum * Removal from the CSM Program memorandum * Legal Assistance Attorney letter, with attachment foreign medical document * Information copy to physician providing further medical care letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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: a. Colonel (COL) X_ received the military police (MP) report about his domestic disturbance in December 1992. He spoke with his immediate supervisor COL X_ and informed him that he did not hit or slap his wife. When he spoke with COL X_., he asked him how old he was in January 1992? He told he was going on 48 years of age (he hopes COL X_ understood what he meant and not think that he was 48 years old. He informed COL X_ his wife did not give the facts about what happened. The episode began when he returned from his second combat experience as the first he was very easy to be irritated. (Now years later a name is given to the condition, post-traumatic stress disorder). During this time he was building their second house in Germany and that anger energy gave him more drive to work longer. He would work all day by the military and half the night on the house. Sometimes, he would come home around 1830 and his wife would ask why could he not come home early like the E-4s? b. His wife had problems that began during her childhood. He learned that her mom did not love her father later in their marriage. Her mom thought that he had molested his wife. Her father mysteriously died when he came home drunk and sat in the kitchen with the gas on stove on. The Commanding General (CG) accepted COL X_’s recommendation and removed him from the CSM program based on his wife's untrue statement. While his unit was waiting for their turn to return back to Germany from Desert Storm, the CG called him “Top” and he asked the CG not to call him “Top.” The CG stated that the CSM is the Top. So with this situation the CG had a perfect chance to remove him from the Top. Later, he learned the CG called all CSMs “Top.” So, he apologize to the CG for rejecting the title of “Top” when it was of high regard and respect. CSM X_ told him the CG considered them to be the Top of the enlisted chain. Therefore, if the CG wanted to call him Top, so be it. c. Currently, he is requesting reinstatement of his grade of CSM as a retiree. He went to Desert Storm and left his German Lotto cards with his wife. While deployed, he called her in Germany and she wanted to know his social security number. He gave it to her. When he returned, she said that she did not know where his Lotto card was. After their divorce, she quickly bought a big house in Turkey. She always did have some mental reservations and she was placed in mental clinic for about a month or so in 1993. His problems stemmed from her personality. She assisted the children with their homework and when they were quickly unable to understand, she would call them stupid and dumb in a loud voice. This would bother him something terrible, so he began helping their son with his homework. He quickly learned German, began taking some German course, and it all worked out very well. d. COL X_. wrote a memorandum to the CG recommending that he be removed from the CSM Program. He regrets that COL X_ did not have all the information at that time. He thinks COL X_ made his decision based on the false information his wife gave the MP’s for their report. If he had kicked her in the head and body or anyplace she would have been hospitalized. His wife went on vacation and left my step-daughter with him and when she came back, he had taught his step daughter how to drive. His wife accused him of molesting his step daughter (he is not a child molester period). He demanded that she take his step daughter to the doctor. His step daughter told her mom that no such event took place while she was on vacation. He thinks his wife took her daughter to the doctor because she calmed down for a while. Around 23 December, they had an argument and he smashed a beer bottle on the tile floor and broke it. In a command voice, he told his wife that he was tired of her sh_ _ and she ran across the street to her brother's house and she returned with bruises on her face from a hand. She said she was going to call the MPs. He told her that MPs do not arrest family members for auguring. She said, but “you hit me.” He replied, "I did not lay a hand on you." When she returned from her brother’s house she had finger marks on her face. He left the house before the MP’s they came. e. The MPs came and she made a statement according to COL X_’s memorandum to the CG, that he slapped her, knocked her down, and kicked her in the head and body. She had the finger marks on her face when she came back from her brother's house. Her brother disliked him anyway. (After this episode at her brother's house he had a very bad stroke that left him partly paralyzed). God does not like ugly. 3. The applicant provides copies of following: a. A DA Form 638, dated 31 October 1991, showing he was recommended for the Meritorious Service Medal, with 5th Oak Leaf Cluster, for meritorious service as the commandant for the 3rd Armored Division Noncommissioned Officers Academy from 8 September 1989 to 15 December 1990. The form shows his grade as CSM. b. A Recommendation to Release memorandum, dated 17 February 1993, wherein the Commander, 104th Area Support Group, recommended the applicant’s removal from the CSM Program based on the applicant assaulting his wife. The commander stated the applicant’s commander administered an Article 15 and found the applicant guilty of the violation. Also as a result of that conduct, the applicant had been relieved from duty and notified by memorandum, dated 27 January 1992 and served his relief for cause NCO Evaluation Report on 29 January 1993. c. A Removal from the CSM memorandum, dated 17 February 1993, wherein the CG, V Corps, approved the applicant’s removal from the CSM Program. The CG stated the applicant had submitted his application for retirement and the most expeditious approval was in the best interest of their Soldiers and the Army. d. A Legal Assistance Attorney letter, dated 14 April 1993, showing the applicant’s wife had been committed for the treatment of mental problems. e. An Information copy to physician providing further medical care letter, dated 8 June 1993, showing the applicant’s wife was hospitalized from 8 March to 19 April 1993, for exhaustion syndrome secondary to suspicious of neurological abnormality and recommended for outpatient psychotherapy. 4. Review of the applicant’s service record shows: a. He enlisted in the Regular Army on 6 July 1964. He served continuously on active duty through several reenlistments, in various assignment, and served overseas during several deployments to Korea, Vietnam, Germany, and Saudi Arabia during his period of service. b. He was promoted to SGM on 30 June 1985 and to CSM on 9 July 1986. c. An Assignment of Enlisted Personnel memorandum, dated 8 November 1991, shows he was reassigned to a CSM position effective 1 November 1991. d. A DA Form 3713 (Data for Retired Pay), dated 20 April 1973, shows submitted an application for retirement in the retired grade of SGM. The forms shows the highest grade attained was CSM. e. Orders Number 17-1, issued by Headquarters, 1st Personnel Command on 20 April 1993, announced his placement on the Retired List on 31 July 1993, in the retired rank of SGM. f. Orders Number 106-1, issued by the 369th Personnel Service Company on 5 May 1993, announced his termination of appointment to CSM. g. He was honorably retired on 31 July 1993. His DD Form 214 shows he completed 22 years and 25 days of active service. This form also shows in: * Item 4a (Grade, Rate, or Rank) – SGM * Item 4b (Pay Grade) – E-9 * Item 12h (Effective Date of Rank) – 1 July 1985 5. By law, each retired member of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily. 6. By regulation, service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when caused by nonjudicial punishment pursuant to Article 15, Uniform Code of Military Justice. Highest grade served on active duty does not include merely being in a promotable status or serving in “acting” or holding a position or job title authorized at a higher grade. 7. By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: 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. After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. Based upon the record of misconduct, with offenses of a criminal nature, as well as the absence of evidence to show that the applicant's due process rights were not offered or protected during the process, the Board agreed there is insufficient evidence to show an error or injustice which would warrant making a correction to the applicant’s rank. 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. 1/3/2020 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 (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. Army Regulation (AR) 15-80 (Army Grade Determination Review Board and Grade Determinations) governs the actions and composition of the Army Grade Determination Review Board. It determine or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability. The regulation states in: a. Paragraph 2-5 (Unsatisfactory service) states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when the highest grade was a result of a terminal leave promotion or reversion to a lower grade was: * expressly for prejudice or cause * owing to misconduct * caused by nonjudicial punishment pursuant to Article 15, Uniform Code of Military Justice b. There is sufficient unfavorable information to establish that the Soldier’s service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time service in the grade. However, since retirement in lieu of or as the result of elimination action will not, by itself, preclude retirement in the highest grade. c. Paragraph 3-2 (Thirty-year cases) states 10 U.S. Code 3964 entitles certain retirement members of the Army who are retired with fewer than 30 years of active service, when such member’s active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade served on active duty satisfactorily. Each case is reviewed individually to determine the highest grade served on active duty satisfactorily. This is not an automatic advancement on the retired list. Highest grade served on active duty is the grade to which a Soldier was actually promoted and paid pursuant to a lawful promotion. Highest grade served on active duty does not include merely being in a promotable status or serving in “acting” or holding a position or job title authorized at a higher grade. 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. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. //NOTHING FOLLOWS//