IN THE CASE OF: BOARD DATE: 13 April 2020 DOCKET NUMBER: AR20180013163 APPLICANT REQUESTS: * removal of the court-martial proceedings, dated 14 May 2013, from his Army Military Human Resource Record (AMHRR) * in the alternative, transfer of the court-martial proceedings from the performance folder of his AMHRR to the restricted folder APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Statement, Applicant (undated) * two DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the periods 1 July 2012 through 31 March 2014 and 1 April 2014 through 31 March 2015 * three DA Forms 2166-9-2 (NCOER (SSG-1SG/MSG)) covering the periods 1 April 2015 through 31 March 2016, 1 April 2016 through 31 March 2017, and 1 April 2017 through 31 March 2018 * Enlisted Record Brief, dated 24 July 2018 * nine Character-Reference Letters 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. Title 10, U.S. Code, section 1552(f), provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice (UCMJ), action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) 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. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial, United States, 2008, and the Rules for Courts-Martial contained in the Manual for Courts-Martial. 5. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed the enlisted promotions and reductions function of the military personnel system. a. Paragraph 4-13a stated the Deputy Chief of Staff, G-1, or designee may approve cases for referral to a standby advisory board (STAB) upon determining that a material error existed in a Solder's AMHRR when the file was reviewed selection board. STABs are convened to consider records of those Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board. b. Paragraph 4-17 (Removals from a Centralized Selection List by Headquarters, Department of the Army) stated a Soldier may be referred to a STAB for an adverse document filed in the AMHRR. 6. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. Paragraph 7-2 (Policies and Standards) 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. b. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 7. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. FACTS: 1. The applicant did not file within the 3-year time frame AS provided in Title 10, U.S. Code, section 1552(b); however, the 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 the incident happened about 5 years ago. He was selected in 2016 for promotion to sergeant first class (SFC), but his records were sent before a STAB because he was told the promotion board overlooked his packet and did not see his court-martial proceedings. He was removed from the Fiscal Year 2016 SFC promotion list. He was considered for promotion to SFC twice and was not selected. He has done everything in his power to stay resilient and continue moving forward and try to better himself as an NCO, but it seems like he can't get fair consideration for promotion to the next rank no matter what. He has done nothing to jeopardize his career or question his integrity or his loyalty to the military since the incident. He feels he deserves a fair assessment on whether he should be promoted to the next rank not based on what happened, because he was already punished for the incident and he has not done anything wrong since then. 3. In a self-authored statement, undated, he described his family, military assignments, military education, awards, accomplishments, and the incident pertaining to his summary court-martial conviction. a. On 14 February 2013, he went to the Army and Air Force Exchange Service (AAFES) Post Exchange to purchase some items before he was scheduled to leave Germany. When he left the Post Exchange several hours later, the Military Police and U.S. Army Criminal Investigation Command personnel were looking for him. The Post Exchange loss prevention personnel said he was seen on camera putting several items he did not pay for into his backpack. His room was searched and the search found nothing the Post Exchange loss prevention personnel claimed he had taken maliciously except for a rechargeable iPhone case, previously purchased by his then wife, which resembled an item supposedly seen by the Post Exchange loss prevention personnel. b. His command decided to give him nonjudicial punishment under Article 15 of the UCMJ for theft, which he refused. Since there was not enough evidence to find him guilty without reasonable doubt, he was given a summary court-martial hearing. He was found guilty of something he did not do. He was punished and reduced to the rank/grade of sergeant (SGT)/E-5. c. The entire summary court-martial proceedings are filed in his AMHRR with several discrepancies that do not constitute guilt. 4. He was serving in the Regular Army in the rank/grade staff sergeant/E-6 at the time he received event-based developmental counseling for being under investigation for larceny of AAFES property that occurred at or around 1200 hours on 14 February 2013. He indicated he agreed with the counseling and signed the DA Form 4856 (Developmental Counseling Form). 5. Section VII (Narrative) of the DA Form 3975 (Military Police Report), dated 14 February 2013, states at 1123 hours on 14 February 2013, the applicant removed property #1 (iPhone leather rechargeable power case) owned by AAFES. The applicant then proceeded to his barracks room and secured the stolen item. The video surveillance recording was collected on a DA Form 4137 (Evidence/Property Custody Document). The property was collected on a DA Form 4137 and returned to AAFES loss prevention. The Office of the Staff Judge Advocate, 7th Army Joint Multinational Training Command, opined that sufficient evidence existed to title the applicant with the offense of larceny of AAFES property. 6. Court-martial charges were preferred against him on 2 May 2013 for stealing one black iPhone leather rechargeable power case of a value of less than $500.00, the property of AAFES, on or about 14 February 2013 in violation of Article 121 (Larceny and Wrongful Appropriation), UCMJ. 7. On 2 May 2013, he received notification of the summary court-martial hearing and acknowledged notification. 8. On 14 May 2013, he was found guilty by a summary court-martial of violation of Article 121, UCMJ. His sentence consisted of reduction to the rank/grade SGT/E-5 effective 28 May 2013. 9. On 21 May 2013, his trial defense attorney requested a petition for clemency, stating the following objections to the trial and notable weaknesses of proof cast doubt on the justice of the outcome: a. The applicant was not given the opportunity to conduct voir dire (a preliminary examination of a witness or a juror by a judge or counsel) or question the summary court-martial officer (SCMO). Whether because of the script or the SCMO's preference, the trial went directly to arraignment and entry of pleas and did not allow for questioning the SCMO. b. The SCMO allowed impermissible hearsay at trial. SGT E____, the first witness called by the SCMO, was allowed to relay in trial that he actually had some firsthand knowledge of what was observed by another witness. This testimony should have been excluded. c. Regarding the legal advisor, the SCMO on multiple occasions left the room in order to consult with his attorney. d. Mr. N____, the primary witness in the case, admitted that he lied multiple times in his statement to the Military Police. He admitted he had no way of telling whether the allegedly stolen iPhone case was the one missing from AAFES. e. The SCMO called a witness on the telephone without notifying the defense or the applicant beforehand. This was a sua sponte (of his, her, its, their own accord) decision by the SCMO without notice and violated the applicant's Sixth Amendment right to confront witnesses called against him. 10. The 7th Army Joint Multinational Training Command Administrative Law Attorney legal review, dated 29 May 2013, states: a. The proceedings were conducted in accordance with the law and regulations. b. The court-martial had jurisdiction over the accused and each offense as to which there was a finding of guilty. c. Each specification as to which there was a finding of guilty states an offense under the UCMJ. d. The sentence imposed was within the limits prescribed by law. e. After reviewing the applicant's defense counsel's allegations, he recommended approving the findings and sentence in whole. 11. After reviewing the summary court-martial packet and clemency matters, the convening authority directed approval of the adjudged findings of guilty to the charge of violation of Article 121, UCMJ, and its specification. He also directed approval and execution of the sentence of reduction to the rank/grade of SGT/E-5. 12. The applicant provided five NCOERs demonstrating his excellent performance, promotion potential, and highly qualified ratings from his raters and senior raters. 13. The applicant provided nine character letters attesting to his dedicated service, professionalism, highest levels of character, and integrity. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and regulatory requirements. The Board noted the facts presented above. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the filing of the court-martial proceedings, dated 14 May 2013, in his Army Military Human Resource Record (AMHRR) official personnel records. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013163 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1