IN THE CASE OF: BOARD DATE: 14 December 2022 DOCKET NUMBER: AR20220003795 APPLICANT REQUESTS: in effect – * promotion to the rank/grade of sergeant (SGT)/E-5, effective on and with a date of rank (DOR) of 1 October 2020 * entitlement to back pay and allowances APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 1059 (Service School Academic Evaluation Report), Basic Leader, 4 September 2020 * Police Report with allied documents, 23 September 2020 * Victim's statement, 23 September 2020 * Municipal Court Complaint, 24 September 2020 * Court Dismissal Order, 27 October 2020 * DA Form 2823 (Sworn Statement) victim statement, 17 December 2020 * DA Form 2823, Commander's sworn statement, 18 December 2020 * Memorandum for the applicant, Subject: Disqualification of the Army Good Conduct Medal, 22 February 2021 * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), 3 March 2021 * Enlisted Record Brief (ERB), 4 March 2021 * Field Grade Article 15, Uniform Code of Military Justice (UCMJ), legal review packet, 10 March 2021 * DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), 19 March 2021 * Counseling statements * Protective Order documents FACTS: 1. The applicant states: a. On 4 September 2020, he completed the Basic Leaders Course (BLC) at Joint Base Lewis-McCord (JBLM), WA. From his understanding, as well as the list that populated on the U.S. Army Human Resources Command (HRC) website, he was up for a promotion from specialist (SPC)/E-4 to SGT/E-5 that upcoming October in the same year. Due to a false allegation that his previous spouse made about him, he was arrested and spent a couple of days in a corrections facility. Under the UCMJ he was flagged for a period along with a pending field grade Article 15 (non-judicial punishment). b. At his second hearing, it was decided by his Battalion Commander that all allegations made against him were unfounded and he was not to be held punishable for the said allegation. His request to the Board is if possible, and all documentation checks out, then may he be granted the respected rank of SGT/E-5 along with the backpay he has missed out on. c. The amount of effort he has put in along with countless hours he has committed to the Soldiers that were under him speaks on his behalf as a leader. As someone who was, at one point, days away from getting promoted to SGT, he personally feels as though this correction is reasonable. He asks the Board to consider the stunt in career progression he underwent because of this. 2. A review of the applicant's official military records show the following: a. On 13 February 2018, the applicant enlisted in the Regular Army for a period of 3 years and 16 weeks. b. On 4 September 2020, DA Form 1059 shows the applicant completed BLC. c. On 22 February 2021, a memorandum shows the applicant's commander notified him that he was disapproved for the award of the Army Good Conduct Medal for the period of Active Duty from 6 January 2018 to 7 January 2021, due to the domestic violence incident with his spouse. His new eligibility period began on 8 January 2021. d. On 23 April 2021, DA Form 1695 (Oath of Extension of Enlistment) shows the applicant extended his enlistment for 12 months changing his expiration term of service to 4 June 2022. e. On 4 June 2022, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement). DD Form 214 shows in item 4a (Grade, Rate or Rank) SPC and item 12i (Effective Date of Pay Grade) shows 1 September 2019. 3. The applicant provides, in pertinent part: a. Police Department Arrest Report with allied documents showing he was arrested for domestic violence simple assault on 23 September 2020. b. Municipal Court Order of Dismissal dated 27 October 2020, ordering the dismissal of the domestic violence assault charge(s) without prejudice. c. DA Form 268 dated 3 March 2021 showing a flag was initiated against him for adverse action. d. DA Form 2627 that shows, on 19 March 2021, his Battalion Commander found him not guilty of all specifications related to assaulting SPC [his spouse]. e. He also provided protective order documents, sworn statements, counseling statements, Enlisted Record Brief, Trial Defense Services document, and 1st Stryker Brigade Combat Team, Ghost Legal coversheet. The documents in their entirety are available in the supporting documents. 4. On 2 August 2022, the U.S. Army Criminal Investigation Division, Army Crime Records Center, responded to the Army Review Boards Agency's request for sanitized Report of Investigation and/or Military Police Report pertaining to the applicant. The responding official stated, a search of the Army criminal file indexes utilizing the information provided revealed no records pertaining to the applicant. 5. On 29 August 2022, HRC, Chief, Enlisted Promotions Branch, provided an advisory opinion for this case and determined the applicant's request for correction of military records should be approved for promotion to SGT with an effective date and date of rank (DOR) of 1 October 2020. The advisory official further stated: a. The applicant was selected for promotion on 1 October 2020. He was not flagged for Commander's Inquiry until 3 March 2021 this should not have affected his promotion date. The applicant's unit failed to promote him appropriately and on time. The applicant is entitled to SGT back pay from 1 October 2020 to 4 June 2022. b. The applicant must request a DD Form 215 (Correction to DD Form 214) be completed to correct his DD Form 214 sections 4a and 4b (Pay Grade) to reflect SGT and E05 and 12h to reflect his correct date of pay grade as 1 October 2020. He must also request for promotion orders for promotion to SGT with a DOR of 1 October 2020 with the below special instructions in accordance with Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-14f. Special Instructions: Because the effective date of the promotion exceeds this instrument by more than 6 months, the Defense Joint Military Pay System will automatically pay up to 12 months of back pay entitlements. "Your next leave and earnings statement will reflect such payment. If you are due back pay in excess of 12 months, upon receipt of your leave and earnings statement that reflects back pay, provide your servicing finance and accounting office (FAO) with a copy of this memorandum and the enclosure. Your servicing FAO will initiate procedures under the provisions of the Department of Defense Financial Management Regulation 7000.14–R, Volume 7A, table 1–4, rule number 12, which will result in you receiving any additional back pay to which you are entitled. c. Due to the applicant's separation from the Army, he is no longer in the Electronic Military Personnel Office system and a promotion transaction cannot be submitted. He is entitled to back pay. 6. On 1 September 2022, the applicant was provided a copy of the HRC advisory opinion for comments and/or rebuttal. He did not respond. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulations. Upon review of the applicant’s petition, available military records and the HRC, Chief, Enlisted Promotions Branch advisory opinion, the Board concurred with the advisory official finding the applicant was selected for promotion on 1 October 2020 and he was not flagged for Commander's Inquiry until 3 March 2021, this should not have affected his promotion. The Board further noted a search of the Army criminal file indexes utilizing the information provided revealed no records pertaining to the applicant nor charges against him. The Board agreed that there was sufficient documentation to show he should have been promoted rank of Sergeant (SGT) for the time period required; thereby warranting correction in this case. Such relief shall result in back pay from 1 October 2020 to 4 June 2022. 2. Furthermore, the Board determined the applicant's service record did not reflect he was awarded the Army Good Conduct Medal (1st award) and his record shows he received "excellent" conduct and efficiency ratings throughout his service for the period of 13 February 2018 to 4 June 2022. Based on this the Board determined relief was warranted and granted relief for correction of the applicant’s record to show he was promoted to sergeant and award of the Army Good Conduct Medal. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 4 June 2022 by showing: * Block 4a (Grade, Rate or Rank), SGT and Block 4b (Pay Grade), E-5 * Block 12h (Effective Date of Pay Grade) 2020-10-01 and * awarding him the Army Good Conduct Medal (1st Award) for exemplary service from 13 February 2018 to 4 June 2022 and adding the medal to his DD Form 214 for the period ending 4 June 2022 2. The Board further determined that the applicant is entitled to all back pay and allowances from 1 October 2020 to 4 June 2022, the amount of which to be determined by the Defense Finance and Accounting Service. 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. AR 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. In pertinent part: a. Paragraph 1-14f states, for Soldiers promoted to private enlisted two (PV2) through sergeant major (SGM) entitled to a promotion effective date that exceeds 6 months prior to the date of the promotion instrument, the following will be entered in the special instructions: Because the effective date of the promotion exceeds this instrument by more than 6 months, the Defense Joint Military Pay System will automatically pay up to 12 months of back pay entitlements. Your next leave and earnings statement will reflect such payment. If you are due back pay in excess of 12 months, upon receipt of your leave and earnings statement that reflects back pay, provide your servicing finance and accounting office (FAO) with a copy of the instrument. Your servicing FAO will initiate procedures under the provisions of the DOD Financial Management Regulation 7000.14–R, Volume 7A, table 1–4, rule num-ber 12, which will result in you receiving any additional back pay to which you are entitled. b. Paragraph 3-2b states, the promotion authority will promote Soldiers, provided otherwise qualified in accordance with paragraph 1–11 (non-promotable status), when a Soldier's name appears on the monthly Headquarters Department of the Army (HQDA) SGT and/or SSG promotion selection by-name list. For Regular Army and USAR Active Guard/Reserve: the unchallenged total point score equals or exceeds the announced cutoff score and the Soldier's name appears on the monthly SGT and/or SSG promotion selection by-name list. 2. Department of Defense Financial Management Regulation 7000.14–R, Volume 7A, table 1–4, rule number 12, provides that, when an enlisted member is promoted to a higher grade the effective date of increase in pay and allowances is the date cited in orders, or date of orders, whichever is later. Note 5 states, this restriction does not prevent payment to enlisted members for retroactive promotions or advancements that are made pursuant to Title 10 United States Code, section 1552(a)(2) (retroactive promotion or advancement without decision of the Board for Correction of Military Records). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003795 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1