ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 October 2019 DOCKET NUMBER: AR20190000919 APPLICANT REQUESTS: removal of his name from the title block of the U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI). 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) * Memorandum, Headquarters, 8th Army, dated 23 October 2018, subject: Request to Delete a Name from the Titling Block (Applicant) * CID Forms 94 (Agent's Investigation Report), dated 27 February 2008 and 20 March 2008 * DA Forms 3881 (Rights Warning Procedure/Waiver Certificate), dated 27 February 2008, 4 March 2008, 5 March 2008, and 6 March 2008 * DA Forms 2823 (Sworn Statement), dated 27 March 2008, 4 March 2008, and 5 March 2008 * DA Form 4137 (Evidence/Property Custody Document), dated 27 February 2008 * Memorandum, CID, Fort Hood, TX, dated 28 March 2008, subject: CID ROI Final * DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 9 July 2008 * DA Forms 2166-8 (Noncommission Officer Evaluation Report (NCOER)) covering the periods 1 October 2007 through 30 September 2008 and 1 October 2008 through 1 June 2009 * Fiscal Year 2017 Regular Army U.S. Army Sergeants Major Academy (USASMA) Training and Selection List, released on 2 November 2017 * Memorandum, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 19 April 2018, subject: Headquarters, Department of the Army (HQDA), Standby Advisory Board (STAB) (Applicant) * Character Letter, Command Sergeant Major X____, dated 27 May 2018 * Memorandum, HRC, dated 9 October 2018, subject: HQDA STAB (Applicant) * Letter, CID, undated * Letter, CID, dated 27 November 2018 ? FACTS: 1. The applicant did not file within the 3-year time frame provided as in Title 10, U.S. Code, 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 defers to counsel. 3. Counsel states: * the applicant should never have been titled * the titling action is keeping him from attending the Sergeants Major Course (SMC) * the CID ROI happened in February 2008 and the applicant was not aware of any action until he was notified by the STAB in April 2018 * the applicant immaturely allowed Private Two (PV2) X____ to take a set of destroyed camouflage netting and poles from a dumpster * the applicant was never furnished a copy of the investigation in he was named the subject * the applicant categorically denies he ever authorized PV2 X____ to take military equipment that he was not otherwise authorized to take * the applicant was never charged with a Uniform Code of Military Justice offense and no action was taken by his command * the applicant received two NCOERs during this period of time – both NCOERs were stellar and led to his promotion to sergeant first class/E-7 and certainly assisted with his promotion to his current rank of master sergeant/E-8 * there was no evidence and, in fact, the applicant never authorized PV2X____ to dispose of military property through the advertisement and sale of the goods on the Internet * the entire case revolves around the actions of PV2 X____ * the applicant was not aware of any other items but the camouflage netting and poles until the CID investigator told him * the applicant requested the CID ROI under the Freedom of Information Act after he received notification of the STAB to remove his name from the SMC * only when the applicant requested retitling or removing the ROI from CID and upon CID's denial of his request did he receive documents of the actual investigation * the applicant was the unfortunate victim of a simple misunderstanding and probably poor word choice on his behalf during a CID interview only days before he deployed to Iraq * given the applicant's stellar career and the 10 years since the erroneous titling decision was made, the applicant is humbly requesting removal of his name from the titling block of the CID ROI 4. At the time of the CID ROI, the applicant was serving in the Regular Army as a section leader in the rank of staff sergeant. 5. The CID ROI, dated 28 March 2008, shows the applicant as the named subject for violation of Article 108 (Wrongful Disposition of Government Property), Uniform Code of Military Justice. a. The Office of the Staff Judge Advocate, Fort Hood, notified CID of the possible sale of military property on the Internet. b. A CID agent met with PV2 X____ who produced two sets of night vision optics and negotiated a selling price, at which time PV2 X____ was apprehended. c. PV2 X____ was interviewed and admitted he attempted to sell the optics, but stated he found them in a dumpster in his unit motor pool. PV2 X____ further stated he had other pieces of military equipment (a tent and four sets of camouflage screening) at his off-post quarters which had been given to him by the applicant and First Lieutenant X____. d. The applicant and First Lieutenant X____ were interviewed and admitted they wrongfully disposed of military property when they authorized PV2 X____ to take military equipment. e. In the applicant's sworn statement, he stated: * he never saw the night vision optics on the pallets * PV2 X____ asked if he could take one set of camouflage netting and one set of poles for the netting, and he told him he could 6. The Commander's Report of Disciplinary or Administrative Action, dated 9 July 2008, shows the commander issued the applicant an oral reprimand. 7. A review of the applicant's Army Military Human Resource Record (AMHRR) in the interactive Personnel Electronic Records Management System does not show any adverse administrative actions against the applicant with regard to the CID ROI. 8. A review of the applicant's AMHRR shows his NCOERs for his service in the rank of staff sergeant for the periods 1 October 2007 through 30 September 2008 and 1 October 2008 through 1 June 2009.? a. His rater marked "EXCELLENCE" in all the blocks of Part IV (Values/NCO Responsibilities) for Competence, Physical Fitness and Military Bearing, Leadership, Training, and Responsibility and Accountability. b. His rater marked "AMONG THE BEST" for his Overall Potential for Promotion and/or Service in Positions of Greater Responsibility. c. His senior raters marked "SUCCESSFUL/1" for his Overall Performance and "SUPERIOR/1" for his Overall Potential for Promotion and/or Service in Positions of Greater Responsibility. 9. On 7 January 2009, he was awarded the Army Commendation Medal for commendable service in support of Operation Iraqi Freedom 07-09 from 11 March 2008 to 25 March 2009. 10. He was promoted to sergeant first class/E-7 effective 1 September 2009. 11. On 16 March 2011, he was awarded the Bronze Star Medal for exceptionally meritorious service during Operation Enduring Freedom from 2 August 2010 to 1 August 2011. 12. On 13 September 2013, he was awarded the Meritorious Service Medal for exceptionally meritorious service in support of Operation Enduring Freedom from 26 January 2013 to 1 November 2013. 13. The applicant's AMHRR contains his NCOERs for his service in the rank of sergeant first class covering the periods 1 June 2009 through 2 March 2015. a. His raters consistently marked "EXCELLENCE" in all blocks of Part IV (Values/NCO Responsibilities) for Competence, Physical Fitness and Military Bearing, Leadership, Training, and Responsibility and Accountability. b. His raters consistently marked "AMONG THE BEST" for the applicant's Overall Potential for Promotion and/or Service in Positions of Greater Responsibility. c. His senior raters consistently marked "SUCCESSFUL/1" for his Overall Performance and "SUPERIOR/1" for his Overall Potential for Promotion and/or Service in Positions of Greater Responsibility. 14. The applicant was promoted to master sergeant/E-8 effective 1 April 2015. 15. On 16 December 2015, he was awarded the Meritorious Service Medal for exceptionally meritorious service while assigned as a first sergeant from 1 June 2009 to 10 June 2016. 16. The applicant's AMHRR contains his NCOER for his service in the rank of first sergeant covering the period 3 March 2015 through 23 October 2015. a. His rater marked "EXCELLENCE" in all blocks of Part IV (Values/NCO Responsibilities) for Competence, Physical Fitness and Military Bearing, Leadership, Training, and Responsibility and Accountability. b. His rater marked "AMONG THE BEST" for his Overall Potential for Promotion and/or Service in Positions of Greater Responsibility. c. His senior rater marked "SUCCESSFUL/1" for his Overall Performance and "SUPERIOR/1" for his Overall Potential for Promotion and/or Service in Positions of Greater Responsibility. 17. The applicant's AMHRR contains his NCOER for his service in the rank of first sergeant covering the period 23 October 2015 through 4 March 2016. a. His rater marked "EXCEEDED STANDARD" in Part IV (Performance Evaluation, Professionalism, Attributes, and Competencies) for Presence. b. His rater marked "FAR EXCEEDED STANDARD" in all remaining blocks of Part IV (Performance Evaluation, Professionalism, Attributes, and Competencies) for Intellect, Leads, Develops, and Achieves. c. His rater marked "FAR EXCEEDED STANDARD" for his Overall Performance Compared to Others in the Same Grade. d. His senior rater marked "HIGHLY QUALIFIED" for his Overall Potential. 18. The applicant's AMHRR contains his NCOER for his service in the rank of first sergeant covering the period 5 March 2016 through 15 February 2017. a. His rater marked "MET STANDARD" in Presence and Leads. b. His rater marked "EXCEEDED STANDARD" in Part IV (Performance Evaluation, Professionalism, Attributes, and Competencies) for Intellect and Develops. c. His rater marked "FAR EXCEEDED STANDARD" in Part IV (Performance Evaluation, Professionalism, Attributes, and Competencies) for Achieves.? d. His rater marked "EXCEEDED STANDARD" for his Overall Performance Compared to Others in the Same Grade. e. His senior rater marked "HIGHLY QUALIFIED" for his Overall Potential. 19. On 2 November 2017, the Fiscal Year 2017 Regular Army Sergeant Major Training and Selection List was released. The applicant was selected for attendance at the resident SMC. 20. On 19 April 2018, HRC notified the applicant's command that derogatory information was discovered during post-board screening conducted by the Department of the Army, G-1, U.S. Army Senior Enlisted Review Board and the applicant was referred for a STAB. 21. The applicant's AMHRR contains his NCOERs for his service in the rank of master sergeant covering the periods 16 February 2017 through 1 September 2018. a. His raters consistently marked "FAR EXCEEDED STANDARD" in all blocks of Part IV (Performance Evaluation, Professionalism, Attributes, and Competencies) for Presence, Intellect, Leads, Develops, and Achieves. b. His raters consistently marked "FAR EXCEEDED STANDARD" for his Overall Performance Compared to Others in the Same Grade. c. His senior raters consistently marked "MOST QUALIFIED" for his Overall Performance Compared to Others in the Same Grade and recommended his selection for SMC. 22. On 20 September 2018, he was awarded the Meritorious Service Medal for exceptionally meritorious service from 5 September 2016 to 1 October 2018. 23. On 9 October 2018, the Chief, Enlisted Promotions Branch, HRC, notified the applicant the STAB recommended his removal from the Fiscal Year 2017 Regular Army USASMA Training and Selection List. He was advised that based on the findings, he would no longer be eligible to compete in subsequent USASMA Training and Selection Boards. The Report to Suspend Favorable Personnel Actions initiated in conjunction with this action was then closed. 24. On or about 15 October 2018, the applicant requested release of information from CID files and a copy of the CID ROI was provided. 25. On 27 November 2018, CID denied the applicant's request to correct information from CID files, which they received on 8 November 2018. CID determined the information the applicant provided did not constitute new or relevant information needed to amend the report and again enclosed a copy of the CID ROI. BOARD DISCUSSION: 1. Requests to delete a person's name from the title block of a CID ROI will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity. 2. The Board agreed that credible information did exist to believe that the applicant committed the offense for which titled as a subject at the time the investigation was initiated, and there is no evidence of mistaken identity. The record also shows the administrative action taken against the applicant (an oral reprimand), which confirms that an offense was committed. The Board did not find that his outstanding performance as a noncommissioned officer is a mitigating factor with regard to the independent investigative determination to record his name in the title block of the CID ROI. 3. After reviewing the application and all supporting documents, the Board found insufficient evidence to support a recommendation to remove the applicant's name from the title block of the CID ROI in question. 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. 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 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 195-2 (Criminal Investigation Activities) establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to the CID elements. Paragraph 4-4b (Amendment of CID reports) provides that: a. Requests to amend or unfound offenses in CID ROIs will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. b. The burden of proof to substantiate the request rest with the individual. c. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity. d. The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. e. The decision to make any changes in the report rests within the sole discretion of the Commanding General, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 3. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotions and reductions of Army enlisted personnel. a. Chapter 4 (Centralized Promotions) provides that Soldiers selected to attend the SMC by a centralized selection board are subject to post-board personnel suitability screening. This process includes a review of information contained on the restricted section of the AMHRR, substantiated Department of the Army Inspector General reports, and reports filed with the U.S. Army Crime Records Center. Soldiers found to have possible disqualifying derogatory information as a result of this screening will receive separate written notification from HRC. The notification will include copies of all derogatory information and will outline the rebuttal process for submission to a STAB. The STAB, complete with the Soldier's rebuttal should one be rendered, will then consider the Soldier's eligibility for attendance to the SMC. This STAB will make a recommendation to the Deputy Chief of Staff, G-1, Directorate of Military Personnel Management, for final decision on the suitability of the affected Soldier to serve as otherwise selected. Soldiers found unsuitable to attend the SMC will receive formal notification and are permanently ineligible for further consideration and selection to attend the course and subsequently, promotion to sergeant major. b. Section IV (Processing Request for STAB Consideration) states the Deputy Chief of Staff, G-1, or designee may approve cases for referral to a 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 recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list. This includes Soldiers selected to attend SMC for the purpose of promotion to sergeant major but were referred by the U.S. Army Senior Enlisted Review Board because of derogatory information identified during the post-board screening process. c. Paragraph 4-17 (Removal from a Centralized Selection List by HQDA) provides that HRC will continuously review selection lists against all information available to ensure that no Soldier is promoted or allowed to attend and/or complete training at the SMC for the purpose of promotion when there is cause to believe that a Soldier is mentally, physically, morally, or professionally unqualified to perform duties of the higher rank. A Soldier may be referred to a STAB when derogatory background information as determined by the U.S. Army Senior Enlisted Review Board in accordance with the Army Personnel Suitability Screening Policy. Other derogatory information received by HQDA, but not filed in the AMHRR, if it is substantiated, relevant, and might reasonably and materially affect a promotion recommendation. d. Paragraph 4-18 (Appeals of Removal from a Centralized Promotion List) provides that a Soldier who is removed from a selection list may appeal that action only in limited circumstances. HRC will take final action on any appeal. Soldiers may appeal a removal action when the underlying basis of the removal is subsequently determined to be erroneous. The subsequent determination must be based on facts that were not available or reasonable discoverable at the time of the original action or at the time that the Soldier was notified of the removal action. An appeal may also be submitted for other compelling reasons. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190000919 7 1