IN THE CASE OF: BOARD DATE: 13 October 2022 DOCKET NUMBER: AR20220000039 APPLICANT REQUESTS: * correction of her rank on her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 28 October 2016 * removal of DA Form 2627-1 (Proceedings Under Article 15 Uniform Code of Military Justice (UCMJ)) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from U.S. Army Human Resources Command (HRC) 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, in effect, she is requesting a rank correction on her DD Form 214 and removal of an Article 15 for her file due to sexual harassment. The investigating officer (IO) sexually harassed her during an investigation asking her if he could touch and see her breast. She reported this immediately and received adverse actions to follow, including the reduction of rank with no extra duty or pay taken. It was malicious and, at the time, the chain of command did not see his filthy actions. One year later, this same officer was separated form the Army for similar behavior. Fast forward to her time of medical retirement, she was promotable again, after proving herself at a different duty station. There were some paperwork errors within their S-1 and upon retirement, her promotable status was removed due to not having an updated physical training (PT) card. She was on a profile that did not allow her to take a PT test. She was in a dark place mentally, falling apart physically and emotionally. She did not care, at the time, and just wanted to get out to regain her mental health. She is finally strong enough to ask for the correction five years later. She can provide additional statements, if needed. 3. The applicant's service records provide the following information: a. On 16 September 2008, the applicant enlisted in the Regular Army. b. Enlisted Record Brief shows she was stationed at Fort Carson, CO on 4 February 2009 as a Unit Supply Specialist. She was promoted to the rank of sergeant (SGT)/E-5 on 1 November 2013 and reduced to specialist (SPC)/E-4 on 2 September 2014. c. The applicant's Article 15 was not available for the Board's review; however, on 2 September 2014 she received a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), which shows in: (1) Part IV (Army Values/Attributes/Skills/Actions) she received a “no” in respect, selfless service, honor, and integrity with the comments "failed to demonstrate respect toward junior Soldiers", abused status as an NCO"; "failed to place the Army, Unit, and Soldier interests above personal gain"; "failed to adhere to Army regulations, values, and the Creed of the Noncommissioned Officer." (2) Leadership, “needs much improvement” with the comments, "relieved of duty due to violation of Army policies and regulations", "leadership skills need improvement", "created a toxic environment in the Company." (3) Part V (Overall Performance and Potential), “marginal,” with the comments "do not promote at this time" and "needs quality mentorship to develop her leadership skills before advancing to the next grade with duties of greater responsibility." d. On 28 October 2016, the applicant was honorably released from active duty by reason of disability, temporary (enhanced). Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in item 4a (Grade, Rate or Rank) "SPC." She completed 8 years, 1 month, and 13 days of service. e. She received a DD Form 199 (Informal Physical Evaluation Board Proceedings), on 1 May 2018, which shows the board found the applicant was physically unfit and recommended a rating of 70 percent and that she be placed on permanent disability retirement. f. Orders Number D136-04 published by the U.S. Army Physical Disability Agency, dated 16 May 2018, show the applicant was permanently retired in the rank of sergeant with a 70 percent disability rating, effective 16 May 2018. g. There is no evidence in the applicant's service record that the applicant was promotable at the time of her discharge. The applicant's service record was void of a DA Form 2627. 4. The applicant provides a letter from HRC, dated 21 September 2021, for the Board's consideration. It states, after review of the applicant's request and supporting documents, the requested correction could not be processed. The rank listed on the DD Form 214 was correct as issued. 5. On 12 July 2022, the U.S. Army Criminal Investigation Division (CID) sent the Board a redacted CID Report of Investigation, which shows the applicant was the victim of aggravated sexual assault of adult, which was unfounded. 6. On 13 July 2002, the CID report was sent to the applicant to allow her the opportunity to respond. She did not respond. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Army has an interest in maintaining the integrity of its records for historical purposes. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. Additionally, the governing regulation provides that a DD Form 214 will not be prepared for Soldiers being removed from the TDRL, in effect, including placement on the PDRL. A change in rank was not required nor removal of the DA Form 2627. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence of an error or injustice which would warrant a correction of the applicant’s record. For that reason, the Board recommended that denying the requested relief was appropriate. 2. 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. 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, 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. Army Regulation (AR) 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial and the rules for courts-martial contained in the Manual for Courts-Martial. Chapter 3 provides that non-judicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. It is a tool available to Commanders to correct, educate, and reform offenders whom the Commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial. It also provides the Officer imposing NJP to determine whether the DA Form 2627 is filed in the Soldier's restricted or performance fiche. 3. AR 635-5 (Separation Documents) in effect at the time, provides the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. For Block 4a (Grade, Rate or Rank) and Block 4b (Pay Grade) to enter the active duty grade and pay grade at the time of separation, respectively. Paragraph 5-2 further indicates that a DD Form 214 will not be prepared for Soldiers being removed from the TDRL, in effect, including placement on the PDRL. 4. AR 600-8-104 (Army Military Human Resource Records Management (AMHRR)) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the AMHRR, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board. 5. 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 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// ABCMR Record of Proceedings (cont) AR20220000039 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1