IN THE CASE OF: BOARD DATE: 16 February 2023 DOCKET NUMBER: AR20220004476 APPLICANT REQUESTS: This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States Court of Federal Claims. The Court directs the ABCMR to consider the applicant's request for correction of his records. Specifically, for: * Recover the applicable pay and allowances between private (PVT)/E-1 pay and master sergeant (MSG)/E-8 pay for the period 11 January 2018 through 29 March 2018 * Recoup pay for the rank/grade of private (PV2)/E-2 with applicable back pay and allowances, effective 29 March 2018 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Court Remand * U.S Court of Federal Claims Docket Number * ABCMR Docket Number AR20180013978 * Applicant declaration * Leave and Earnings Statement (LES) * ABCMR Docket Number DD Form 149 (Application for Correction of Military Record) and allied documents FACTS: 1. The applicant filed his original ABCMR application in 2018. At that time his request to correct his record to show he was separated in the grade of E-2 was denied based upon the provisions of Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), which provided any Soldier reduced for misconduct must be fully qualified (without a waiver) for promotion to the next rank. The applicant then filed the instant lawsuit. Therefore, the parties asked to remand the case for the ABCMR to hear and reconsider the promotion issue. Both parties requested that the Court grant the motion to voluntarily remand the case to the agency for further action and stay proceedings until a determination is rendered by the ABCMR. A federal agency's motion for a voluntary remand is commonly granted because it allows an agency to correct its own potential errors without expending the resources of the court in reviewing a record that may be incorrect or incomplete. 2. Counsel contends in part, on 16 and 30 October 2013 and 6-10 January 2014, a general court-martial composed of officer and enlisted members tried the applicant. Contrary to his pleas, the panel convicted him of aggravated sexual contact with a child, indecent liberties with a child (three specifications), aggravated assault, assault consummated by a battery upon a child under the age of 16 years (two specifications), indecent language, indecent assault, indecent act with a child, and conduct to the prejudice of good order and discipline and of a nature to bring discredit upon the armed forces (three specifications), in violation of Articles 120, 128, and 134, Uniform Code of Military Justice (UCMJ), Title 10, United States Codes, section 920, 928, 934 (2012). The panel sentenced him to confinement for eight years, total forfeiture of all pay and allowances for the duration of confinement, and reduction to the grade of PVT/E-1. a. On 15 November 2016, the Army Court of Criminal Appeals [hereinafter Army Court] affirmed, in part, the findings, while dismissing one specification of assault consummated by a battery upon a child under the age of 16 years, and two specifications of general disorder; and, while conditionally dismissing one specification of assault consummated by a battery upon a child under the age of 16 years and one specification of committing an indecent act. The Army Court affirmed seven years and eight months of the sentence to confinement and the remainder of the sentence. b. On 12 December 2017, the Court of Appeals for the Armed Forces [hereinafter CAAF] affirmed in part and reversed in part the previous decision of the Army Court. CAAF affirmed the findings as to Specifications 2, 3, and 5 of Charge I, Specification 1 of Charge II, Specification 3 of Charge III, and Specification 2 of Additional Charge II. CAAF set aside the finding as to Specification 1 of Charge I. CAAF further set aside the findings of Specifications 1 and 5 of Charge III. Additionally, CAAF set aside the sentence. c. On 31 January, 26 February, 14-15 March 2018, a military judge sitting as a general court-martial on remand re-tried the applicant as to Specification 1, Charge I (Aggravated Sexual Assault of a Child). The military judge acquitted him of that charge and its specification. The military judge re-sentenced him as to the remaining Charges and Specifications (from the initial court-martial) to 55 months of confinement, total forfeiture of all pay, and allowances during the period of confinement, and reduction to the grade of E-1. The convening authority approved the sentence to confinement as already served and approved the rest of the sentence. d. On 23 November 2018, the Army Court summarily affirmed the remaining findings and the sentence. Plaintiff petitioned CAAF for a grant of review, which that court granted on 18 April 2019. On 15 January 2020, CAAF issued a decision in which it denied to petitioner any relief under Article 13, UCMJ, holding that any relief must be in the form of monetary compensation which it did not have authority to order because this court has authority to order monetary relief. e. The applicant received no pay from the time of the announcement of the original sentence until 11 January 2018 because he was in confinement pursuant to that sentence and then, in pre-trial confinement once the original sentence was set aside. On 11 January 2018, a Military Magistrate ordered the applicant's release from pre-trial confinement and return to duty pending re-hearing of his case, finding that he was neither a flight risk nor at risk for committing a further offense. The applicant was not the subject of any sentence from the time the Convening Authority received the record of trial on remand and set aside the original sentence pursuant to CAAF's mandate. He wore MSG/E-8 rank and performed MSG duties in between 11 January 2018 and 29 March 2018, when the reduction in rank adjudged by the re-hearing took effect. Despite his status as an E-8 during this period, he was paid as an E-1. f. The applicant completed the entirety of his sentence on 18 March 2018. Despite this fact, he was never further promoted. He entered retirement on 13 September 2018. On 26 July 2021, the ABCMR declined to correct his military records in any way. 3. The entire court remand is provided in the supporting documents for the Board's review. 4. A review of the applicant's official record shows the following: a. On 17 May 1994, the applicant enlisted in the Regular Army and served continuously. b. On 21 July 2011, Orders Number 202-12 issued by the U.S. Army Human Resources Command, Fort Knox, KY, promoted the applicant to the rank of MSG, effective on with a date of rank of 1 August 2011. c. On 12 February 2015, he was arraigned by general court-martial convened by the Commander, Headquarters, III Corps and Fort Hood, TX, and was tried for violating the UCMJ. The court found him guilty (or not guilty) of the following charges; (1) Charge I, Article 120. Plea: Not Guilty. Finding: Guilty. (a) Specification 1: Did, in between on or about 1 June 2008 and on or about 30 June 2008, engage in a sexual contact, to wit: touching of genitalia with his finger, a child who had not attained the age of 12 years. Plea: Not Guilty. Finding: Not Guilty. (b) Specification 2: Did, in on divers occasions, between on or about 1 October 2007 and on or about 23 July 2009, take indecent liberties in the physical presence of a female under 16 years of age, not the wife of the accused, by communicating the words: to wit: that [Applicant] would drop off at a strip club called that she could work there and get money, and that [Applicant] would watch her, or words to that effect, with the intent to arouse, appeal to, and gratify the sexual desire of [Applicant]. Plea: Not Guilty. Finding: Guilty. (c) Specification 3: Did, in between on or about 1 October 2007 and on or about 23 July 2009, take indecent liberties in the physical presence of a female under 16 years of age, not the wife of the accused, by communicating the words: to wit: asking whether shaved her vagina, or words to that effect, with the intent to arouse, appeal to, and gratify the sexual desire of [Applicant]. Plea: Not Guilty. Finding: Guilty. (d) Specification 4: Did, in between on or about 1 October 2007 and on or about 23 July 2009, take indecent liberties in the physical presence of a female under 16 years of age, not the wife of the accused, by rubbing and touching thigh with his hand, with the intent to arouse, appeal to, and gratify the sexual desire of [Applicant]. Plea: Not Guilty. Finding: Not Guilty. (e) Specification 5: Did, in between on or about 1 October 2007 and on or about 23 July 2009, take indecent liberties in the physical presence of a female under 16 years of age, not the wife of the accused, by communicating the words, to wit: asking what sexual acts she has performed and engaged in, or words to that effect, with the intent to arouse, appeal to, and gratify the sexual desire of [Applicant]. Plea: Not Guilty. Finding: Guilty. (f) Specification 6: Did, in between on or about 1 November 1994 and on or about 1 January 1996, rape Plea: Not Guilty. Finding: Not Guilty. (g) Specification 7: Did, in between on or about 15 April 2008 and 17 June 2010, engage in sexual contact with to wit: push his penis on her buttocks, by causing bodily harm upon her: to wit: an offensive touching. Plea: Not Guilty. Finding: Not Guilty. (h) Specification 8: Did, in between on or about 15 April 2008 and 17 June 2010, engage in sexual contact with to wit: wrongfully push his penis on her buttocks, and such sexual contact was without legal justification or lawful authorization and without the permission of Plea: Not Guilty. Finding: Not Guilty. (2) Charge II: Article 128. Plea: Not Guilty. Finding: Guilty. (a) Specification 1: Did, in between on or about 1 October 2007 and on or about 23 July 2009, unlawfully rub and touch a child under the age of 16 years, on the thigh with his hand. Plea: Not Guilty. Finding: Guilty. (b) Specification 2: Did, in between on or about 1 October 2007 and on or about 23 July 2009, unlawfully touch a child under the age of 16 years, on the body with his hands. Plea: Not Guilty. Finding: Dismissed. (On 15 November 2016, United States Army Court of Criminal Appeals dismissed Specification 2 of Charge II.) (c) Specification 3: Did, in between on or about 15 April 2008 and 1 June 2010, unlawfully touch on her buttocks with his penis. Plea: Not Guilty. Finding: Not Guilty. (3) Charge Ill: Article 134. Plea: Not Guilty. Finding: Guilty. (a) Specification 1: Did, in between on or about 15 April 2008 and on or about 15 June 2010, wrongfully ask a player under 18 years of age on his soccer team that he was coaching, about her sexual experiences, what sexual acts she had done, told her she had a nice body, and make other sexual comments to her, making her uncomfortable, which conduct, under the circumstances, was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces. Plea: Not Guilty. Finding: Dismissed. (On 12 December 2017, United States Court of Appeals for the Armed Forces dismissed Specification 1 of Charge Ill.) (b) Specification 2: Plea: Did, in between on or about 15 April 2008 and on or about 15 June 2010, ask females under the age of 18, to be his friend on facebook, send messages on facebook to females under the age of 18, and make inappropriate comments to females under the age of 18, without their parents knowledge or permission, which conduct, under the circumstances, was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces. Not Guilty. Finding: Dismissed. (On 15 November 2016, United States Army Court of Criminal Appeals dismissed Specification 2 of Charge Ill.) (c ) Specification 3: Did, in between on or about 15 April 2008 and on or about 15 June 2010, orally communicate to certain indecent language, to wit: that she had a nice ass, or words to that effect, which conduct, under the circumstances, was to the prejudice of good order and discipline and was of a nature to bring discredit to the armed forces. Plea: Not Guilty. Finding: Guilty. (d) Specification 4: Did, in between on or about 15 April 2008 and on or about 15 June 2010, say to that she had a nice ass, or words to that effect, which conduct, under the circumstances was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces. Plea: Not Guilty. Finding: Dismissed. (On 15 November 2016, United States Army Court of Criminal Appeals dismissed Specification 4 of Charge Ill.) (e) Specification 5: Did, in between on or about 15 April 2008 and on or about 10 July 2008, tell while she was assisting him with his soccer team, while she was under 18 years of age, that he and his wife were swingers, meaning [Applicant] and his wife were conducting sexual acts with others at the same time, which conduct, under the circumstances, was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces. Plea: Not Guilty. Finding: Dismissed. (On 12 December 2017, United States Court of Appeals for the Armed Forces dismissed Specification 5 of Charge Ill.) (4) Additional Charge I: Article: 128. Plea: Not Guilty. Finding: Dismissed. The Specification: Did, in between on or about 1 June 2006 and on or about 1 September 2007, unlawfully grab child under the age of 16 years, on her pants with his hands. Plea: Not Guilty. Finding: Dismissed. (On 15 November 2016, United States Army Court of Criminal Appeals, conditionally upon final judgement, dismissed The Specification of Additional Charge I.) (5) Additional Charge II: Article 134. Plea: Not Guilty. Finding: Guilty. (a) Specification 1: Did, in between on or about 1 June 2006 and on or about 1 September 2007, commit an indecent assault upon a person not his wife, by grabbing her pants with his hands trying to open them, with intent to gratify his lust and sexual desires, and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces. Plea: Not Guilty. Finding: Dismissed. (On 15 November 2016, United States Army Court of Criminal Appeals, conditionally upon final judgement, dismissed Specification 1 of Additional Charge II.) (b) Specification 2: Did, in between on or about 1 June 2006 and on or about 1 September 2007, commit an indecent act upon the body of a female under 16 years of age, not the wife of the accused, by placing his hands upon the top of her pant trying to open them and saying to her that he would not let her leave the room until she showed him some part of her body, after locking the hotel room door, with intent to arouse, appeal to and gratify the lust, passion and sexual desires of the accused, and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces. Plea: Not Guilty. (At the original trial, After pleas, but before findings, the Military Judge granted the Defense's motion to dismiss the language "and saying to her that he would not let her leave the room until she showed him some part of her body".) Finding: Guilty. d. The Court found him guilty of: * Indecent liberties of a female under 16 years of age (four specifications) * Unlawfully rub or touch a child under the age of 16 years of age * Orally communicate certain indecent language Commit and indecent act upon a female under the age of 16 years of age e. The court sentenced him to reduction to the lowest enlisted grade of E-1, confinement for 55 months, forfeiture of all pay and allowances. 5. On 15 November 2016, the U.S. Army Court of Criminal Appeals dismissed Specification 2 of charge 2 and Specifications 2 and 4 of charge 3; conditionally dismissed the Specification of the additional charge and Specification 1 of additional charge 2; affirmed the remaining charges and reassessed the sentence affirming only so much of the sentence as applied to confinement for seven years and eight months, forfeiture of all pay and allowances, and reduction to the rank/grade of PVT/E-1. 6. On 12 December 2017, the U.S. Court of Appeals for the Armed Forces affirmed in part and reversed in part and authorized a rehearing on specification 1 of charge 1 (touching the genitalia of a child who had not attained the age of 12 years) and a sentence rehearing on the affirmed findings of guilty as to specifications 2,3, and 5 of charge 1. Specification 1 of charge 2; Specification 3 of charge 3 and the Specification of additional charge 2. approved and ordered the sentence executed. The applicant was credited with 1,465 days of confinement against the sentence of confinement. The portion of the sentence extending to confinement had already been served. All rights, privileges, and property of which the applicant had been deprived by virtue of the findings of not guilty of specification 1, charge 1 on retrial are restored. 7. On 30 September 2018, the applicant was retired from active duty by reason of sufficient service for retirement. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in item 4a (Grade, Rate or Rank) PV1, item 12i (Effective Date of Pay Grade) shows 29 March 2018, item 29 (Dates of Time Lost During this Period) shows 10 January 2014 through 11 January 2018. 8. On 22 May 2019, the U.S. Army Human Resources Command provided an advisory opinion in support of ABCMR Docket Number AR20180013978 which stated: a. The records available to the Junior Enlisted Promotion section indicate that the applicant was reduced from MSG/E-8 to PVT/E-1 with an effective date of rank of 29 March 2018. In accordance with AR 600-8-19, paragraph 2-3 c (4), any Soldier previously reduced for misconduct must be fully qualified (without a waiver) for promotion to the next rank. b. AR 600-8-19, paragraph 2-3 d further states that if a commander elects not to recommend a Soldier for promotion on the automatic promotion date, he must annotate "no" on the Enlisted Advancement Report (AAA-117) to deny the promotion. The enclosed report for the month of September 2018 indicates that the commander did not want the applicant promoted to PVT/E-2. 9. The Department of the Army, Office of the Deputy Chief of Staff, G-1 provided an advisory opinion pertaining to the applicant's Court Remand. It states in pertinent part: a. Should the applicant have been paid as a MSG/E-8 if, during the relevant time period he performed duties normally performed by a MSG and wore MSG rank? No, as addressed by the Assistant Counsel, DFAS Office of General Counsel, DFAS' practice (based on case law) is to pay a member at the reduced rate when the outcome of a re-trial institutes the same punishment (rank reduction) previously set aside. Counsel's opinion was that restoration of pay at a previously held pay grade is not payable unless, upon re-hearing, the Soldier's new punishment excludes a punitive grade reduction. This was not the case with the applicant. b. Should the applicant have been paid as a MSG during the time period between his release from confinement in December 2017 and the effective date (29 March 2018) of his reduction to PVT/E-1 adjudged at his Court-Martial re-hearing? This question should be addressed without consideration of whether the applicant wore MSG or performed MSG duties. No, as addressed by the Assistant Counsel, DFAS Office of General Counsel, DFAS' practice (based on case law) is to pay a member at the reduced rate when the outcome of a re-trial institutes the same punishment (rank reduction) previously set aside. Counsel's opinion was that restoration of pay at a previously held pay grade is not payable unless, upon re-hearing, the Soldier's new punishment excludes a punitive grade reduction. This was not the case with the applicant. c. Should the applicant have been promoted from PVT/E-1 to Private 2 (PV2)/E-2 on or about 29 March 2018? The applicant and his counsel claim that the company commander's failure to counsel the applicant PV1 (E-1) as to why he (the company commander) disapproved his promotion negated the company commander's attempt to thwart his promotion. Assuming the company commander failed to conduct the counseling, is this claim meritorious? No. (1) Per Army Regulation (AR) 600-8-2 (Suspension of Favorable Personnel Actions), dated 11 May 2016, paragraph 2-3a, (version of the regulation in effect at the time) a flag is required whenever a Soldier is in the "punishment phase" following nonjudicial punishment, or a Court-Martial. Commanders have a non-discretionary duty to impose such a flag. Pursuant to AR 600- 8-2, paragraph 2-1a, the purpose of a flag is to "prevent and/or preclude… [e]xecution of favorable actions to a Soldier." As detailed below, "favorable action" includes promotion. (1) In the event that the company commander failed to counsel the applicant, AR 600-8-2, paragraph 2-4 provides additional guidance. The regulation states, "[f]ailure to counsel within prescribed times does not invalidate the flag." (2) The regulation further provides that the effective date of the flag is "the date that the circumstances requiring the flag occurred, not the date the flag was initiated." In the current case, the applicant was "found guilty at trial by general court-martial on 15 March 2018. At trial, the applicant was sentenced to "confinement for fifty-five months, forfeiture of all pay and allowances, and reduction to… E-1."1 See U.S. v.. Accordingly, by regulation he was "flagged" as of that date due to the punishment meted out by the Military Judge, and was not in a promotable status." d. (2) Per AR 600-8-19 (Enlisted Promotions and Reductions), dated 25 April 2017, paragraph 1-10, (version of the regulation in effect at the time) states a Soldier is "non-promotable to the next rank when one of the following conditions exists… (7) [a] Soldier is denied favorable personnel actions under the provisions of AR 600-8-2."2 The regulation goes-on to state, "[f]ailure to initiate a DA Form 268 (Report to Suspend Favorable Personnel Actions) does not affect the Soldier's non-promotable status if a circumstance exists that requires imposition of a suspension of favorable personnel actions…." Given the applicant's circumstances at the time, such a condition existed, and he could not be promoted under Army Regulation – irrespective of his Command's intent and any counseling or lack thereof. e. (3) Outside of any other regulatory provision cited above, AR 600-8-19, paragraph 1-10a(2) specifically prohibits promotions for Soldiers "within 12 months following a court-martial conviction." Again, based upon the specific facts of the applicant's case — he could not be promoted, and the Commander did not even have discretion to promote him. f. Regarding the question of promotion from PVT/E-1 to PV2/E-2, it appears the company commander may have removed the applicant from the promotion list based upon the misconduct that resulted in his Court-Martial convictions and/or the Court-Martial punishments that resulted from the misconduct, including the reduction to PVT/E-1. The misconduct and convictions pre-dated the applicant's post confinement tenure as a PVT/E-1. Is misconduct or poor performance that occurred prior to a Soldier's tenure as a PVT/E-1 an appropriate basis for denying automatic promotion to PV2/E-2? Yes. The commander's intent and/or reasoning is immaterial due to the regulatory prohibition regarding the promotion of Soldiers within 12 months of a Court- Martial conviction. In the present case, the conviction — standing alone — is a regulatory bar to promotion. 10. On 1 February 2023, counsel responded to the advisory opinion and stated: a. This board should reject the U.S. Army Human Resources Command (HRC) [sic] opinion concerning his entitlement to E-8 pay between his release from confinement and re-hearing and as to his promotion to E-2. b. The applicant was qualified for promotion to E-2 under AR 600-8-9, paragraph 1- 10 in August 2018: The HRC opinion incorrectly suggests that the applicant was ineligible for promotion because of his re-sentencing in March 2018, for a conviction which he received in 2014. A Soldier is ineligible from promotion "within 12 months following a Court-Martial conviction." AR 600-8-9, paragraph 1-10(a)(2)(emphasis added). The regulation does not make a servicemember's eligibility for automatic promotion contingent upon the date of his sentencing. Here, the applicant's conviction was in 2014, which was more than one year prior to the completion of his sentence. As the date of his conviction was in 2014, more than a year from the date of his re- sentencing, he was therefore eligible from promotion to E-2 in August 2018. c. The applicant was not in the punishment phase of his conviction following rehearing and was not within 12 months of the punishment phase following rehearing: the applicant was not in the punishment phase of his conviction. The applicant had already served the entirety of his sentence following rehearing. The "portion of the sentence extending to the sentence has already been served." Convening Authority Action, 11 June 2018. d. The G-1 is apparently unaware that military confinees receive good behavior credits and work abatements towards their sentence. Prior to his re-hearing, the applicant had earned 162 days of abatement and 460 days of good conduct time (See attached sentence credit worksheet). These credits meant that he had satisfied the entirety of his confinement at resentencing. The G-1 is incorrect in his statement that, following resentencing, the applicant had additional time to serve. He did not. e. The applicant's sentence following rehearing was 55 months, or 1670 days. He had previously earned abatements and good conduct credit totaling 622 days (162 abatement plus 460 good conduct). He therefore had 1,048 days of confinement under his new sentence (1670 days minus 622). He thus completed his new sentence on 23 November 16, or 1,048 days after he entered confinement on 10 January 2014. f. At the time his company commander denied him promotion without counseling him, the applicant was not within one year of conviction, was not in the punishment phase of his conviction, was not within one year of completing the punishment phase of his conviction and was not flagged. "Remove the Flag… when punishment from Court- Martial, civilian trial, or nonjudicial punishment is completed." AR 600-8-2, paragraph 2- 9(b)(1)(dated 11 May 2016). Once his re-hearing adjourned on 29 March 2018, the applicant was not flagged because he had completed his punishment and was not pending further disciplinary action. Therefore, the Board should disregard the G-1 opinion because it is based upon the incorrect premise that his confinement continued after the re-hearing and that he remained flagged. g. The applicant objects to any consideration of an opinion of "Assistant Counsel, DFAS Office of General Counsel" which is not included within the G-1 response: the applicant has the regulatory right to respond to advisory opinions. The G-1 references an opinion by a DFAS Assistant General Counsel which G-1 did not provide to the applicant. He cannot comment upon it because he has not seen it. Therefore, the Board should disregard the G-1's advisory opinion concerning his pay between 18 January 2018, the date of his release from confinement, until 29 March 2018, the date on which the reduction became effective as a result of his re-hearing. h. Even if G-1 had provided to the applicant the opinion of an Assistant General Counsel, the opinion would be wrong. The Assistant General Counsel is not a court. The military courts have ruled that it is unlawful to pay a servicemember pending re- hearing at the E-1 pay rate. Rather, that servicemember should be paid at his ordinary rate until the completion of Court-Martial re-hearing proceedings. (C.A.A.F. 2016). Here, the applicant was performing an E-8's duties while pending re-hearing, but was paid as an E-1. This is both and injustice and in violation of the ruling of the Court of Appeals for the Armed Forces, which held in that DFAS's practice was unlawful. BOARD DISCUSSION: 1. The Board finds that the applicant should have been paid at the grade of MSG (E-8) during the period that started with his release from confinement on 11 January 2018 and ended on the date the second adjudged punitive reduction to PVT (E-1) became effective (29 March 2018). Although the advisory opinion from Army G-1 emphasizes DFAS’s policy of not paying a Soldier’s pay and allowances at the Soldier’s previous pay grade when released from confinement and awaiting re-hearing, the Board is persuaded that the Court of Appeals for the Armed Forces’ (CAAF) opinion in United States v. provides better authority on this issue. In CAAF found that if an accused is released from confinement and is awaiting rehearing, “his pay status should be the same as if he had never been tried in the first instance.” Because it was decided by CAAF, the holding in applies to all of the armed services, and not just the Army. The Board found the rationale articulated in the opinion more persuasive than DFAS’s policy, which is articulated in a letter authored by Ms. a DFAS attorney. Consequently, the Board finds that a preponderance of the evidence indicates that the applicant should have received pay and allowances at the grade of MSG (E-8) from his date of release from confinement on 11 January 2018 until and through 28 March 2018. 2. Regarding the applicant’s contention that he should have been promoted from the rank of E-1 to E-2 prior to his September 2018 retirement, the Board finds that relief is not warranted. The Board is persuaded by the advisory opinion submitted by Army G-1 and concurs with that opinion. Additionally, the Board is persuaded that, except for the “punishment phase” reason, each of the reasons Army G-1 advanced for denying the applicant’s request provides a separate and sufficient reason for denying the applicant’s request. The Board found that the company commander’s alleged failure to counsel the applicant about his decision to remove the applicant from the promotion list did not negate, undermine, or render ineffective the removal action itself. Even assuming, for argument, that the company commander failed to counsel the applicant about the removal, the Board found no authority (and the applicant has cited no authority) that directs the remedy for such a failure is to undo the removal action. The Board also found that the applicant was not prejudiced by the company commander’s alleged failure to counsel him. The applicant, in 2018, was a seasoned Soldier with almost two decades of military experience. He must have known, or should have known, the reason why the company commander removed him from the promotion list (i.e., the applicant’s proven proclivity for serious sexual misconduct, including sexual misconduct involving minors.) Consequently, the Board considers the company commander’s error in this regard (assuming it occurred) to be harmless. 3. The Board considered the rebuttal to the Army G-1 advisory opinion submitted by the applicant’s counsel. The Board concurs with the applicant’s counsel’s contention that the applicant was not in the punishment phase of his conviction when the applicant’s company commander denied the applicant’s promotion to E-2. However, with regard to the regulatory prohibition of promoting a Soldier within 12 months of a court-martial conviction, the Board does not agree with the applicant’s counsel’s assertion that Army G-1 was incorrect in interpretating the March 2018 re-hearing as a continuation of the overall criminal prosecution that resulted in the applicant being convicted of multiple UCMJ offenses. In his 11 June 2018 action, the General Court-Martial Convening Authority (GCMCA), MG could have taken favorable action on any qualifying offenses for which the applicant was found guilty, and to otherwise take favorable action on qualifying portions of the applicant’s newly adjudged punishment. In this regard, one may reasonably conclude that the applicant’s convictions were not finalized, and his criminal prosecution not completed, until the GCMCA’s 11 June 2018 action. The Board therefore does not concur with applicant’s counsel in this regard. Irrespective of the soundness of Army G-1’s opinion regarding the 12-month rule, the Board found the balance of the advisory opinion to be persuasive. Indeed, the Board found each of the remaining multiple reasons proffered by Army G-1 to be persuasive, and individually sufficient, reasons for denying applicant’s request for promotion to E-2. These reasons include the flagging action that was, or should have been, imposed against the applicant after he was released from confinement; the company commander’s action removing the applicant from the E-2 promotion list; and the fact that the applicant, at the time, was required to be fully qualified (without waiver) for promotion to E-2 due to his adjudged reduction to E-1 (per AR 600-8-19). Regarding the flagging action, the Board notes a document in the case file, dated 12 June 2018, which removes a previous flag initiated against the applicant. This suggests that the applicant was likely flagged soon after he was released from confinement. 4. The Board noted applicant’s counsel’s objection to Army G-1’s reference to an advisory opinion from DFAS Assistant Counsel, and to Army G-1’s statement that the advisory opinion was considered by a previous ABCMR board prior to that board denying the applicant’s previous application. Unless Army G-1 is referring to the DFAS letter discussed in the first paragraph of this Discussion, this Board is unaware of any such advisory opinion, and consequently did not consider it. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X 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 partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show he was authorized MSG/E-8 pay for the period 11 January 2018 through 29 March 2018. The applicant should be paid any monies he is due as a result of this correction. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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. Army Regulation (AR) 600-8-19, (Enlisted Promotions and Reductions) (25 April 2017), paragraph 2-3, Processing Enlisted and Promotions to Private E-2, Private First Class and Specialist, Rules: a. The AAA–117 for the RA, the Enlisted Promotion Application for the USAR, and DA Form 4187 or promotion orders for the ARNG are the official instruments used by CDRs to recommend Soldiers for promotion to SPC and below. When the CDR denies promotion, he or she may promote the Soldier on the next automated enlisted advancement report, provided the Soldier is otherwise qualified in accordance with paragraph 1–10. b. Promotions to PV2, PFC, and SPC will be made automatically by the eMILPO (RA) and the Regional Level Application Software (RLAS) (USAR) or immediately with promotion orders (ARNG) for posting to the automated personnel file and/or the master military pay file. ARNG and USAR Soldiers on IADT will not be promoted to SPC unless concurrence is obtained from the Soldier's RC unit. DA Form 4187 or promotion orders will be used for all USAR Soldiers and all ARNGUS Soldiers awaiting initial military training (special promotions and split training option-phase II) and all promotions for Soldiers in a Title 10 status (including mobilization). DA Form 4187 will not be used for other automatic promotions. ARNG Soldiers are not required to be MOS qualified for promotion through SPC. c. Eligibility criteria for automatic (RA and USAR) or immediate (ARNG) promotion to PV2, PFC, and SPC will be as follows: (1) Promotion to PV2 is 6 months TIS. (2) Promotion to PFC is 12 months TIS and 4 months TIG. (3) Promotion to SPC is 24 months TIS and 6 months TIG. (4) Soldiers must meet eligibility criteria in paragraph 1–10. (5) Any Soldier previously reduced (for misconduct, inefficiency, or cause) must be fully qualified (without a waiver) for promotion to the next higher rank. d. If a CDR elects not to recommend a Soldier for promotion on the automatic promotion date, the CDR must annotate "NO" on the AAA–117 (RA) or GRA–PO1 (Advancement Eligibility Status Roster) (USAR), then the CDR (or BN HR) must prepare a DA Form 4187 denying the promotion. A DA Form 268 will be submitted no later than the 20th day of the month preceding the month of automatic promotion. The first-line leader must counsel the Soldier, using DA Form 4856 (Developmental Counseling Form). The DA Form 4187 and the DA Form 4856 must be attached to the enlisted advancement report before it is forwarded to the BN S1 HR specialist. The BN S1 HR specialist must submit a Flag transaction in the personnel system to block the promotion as described below. e. Paragraph 1–27 (25 April 2017), Counseling of Soldiers not recommended for promotion: (1). First-line leaders will formally counsel Soldiers, in writing, who are eligible for promotion to PV2 through SSG without a waiver (fully qualified) but not recommended for promotion. Counseling will take place initially when the Soldier attains eligibility, and at least every 3 months thereafter, and include information as to why the Soldier was not recommended and what the Soldier can do to correct deficiencies or qualities that reflect a lack of promotion potential. (2) There are no requirements to counsel Soldiers who are not selected for promotion to SFC through SGM. (3) CDRs and first-line leaders must comply with all counseling requirements (paragraphs 3–13b and 3–23f) for Soldiers eligible for promotion consideration to SGT and/or SSG. (4). See paragraph 7–33 for denying ARNG Soldiers consideration. f. Paragraph 3-27 (25 April 2017). Removal from recommended list (1) Soldier must be informed, in writing, through their chain of command of the removal action. (2) Once the Soldier is removed, the action is final unless reinstated in accordance with this regulation. (3) All Soldiers (including those integrated as a result of command list integration) will be immediately removed from a recommended list for all conditions as outlined below: a). Adverse actions as outlined below (indicated by a Flag). Soldiers are automatically removed from the recommended list when a Flag is initiated. Soldiers Flagged for adverse action will be reintegrated by the CDR onto the recommended list if the case is closed favorably (provided otherwise qualified) without re-appearance before a promotion board. b). Conviction by court-martial, including summary court-martial. c). Nonjudicial punishment imposed under UCMJ, Article 15 (not including summarized proceedings), regardless of whether the punishment is suspended. It is not the intent of this regulation to remove Soldiers from a promotion list when punished under the UCMJ, with a summarized Article 15. However, because the Flag removal (closed unfavorably) results in automatic promotion list removal, unit S1s must act to re- integrate these Soldiers to the promotion list upon closure of the Flag. d). Initiation of administrative separation proceedings under AR 635–200 or AR 135–178. Soldiers undergoing medical processing under AR 635–40 will remain on the recommended list unless separated. e). Memoranda of admonition, censure, or reprimand directed to be filed in the Soldier's AMHRR under AR 600–37. f). A qualifying conviction for domestic violence under the Lautenberg Amendment in accordance with AR 600–20. g. Paragraph 1–27 (25 April 2017),1–10. Nonpromotable status (1). Soldiers (SPC through master sergeant (MSG)) are nonpromotable to a higher rank when one of the following conditions exists: a). Has not completed the required NCOES course for the higher rank (see paragraph 1–28). Completion of NCOES must be made a matter of record within HRC automation systems not later than the 8th calendar day of the promotion month to be considered fully qualified for promotion pin-on (for example, to qualify for promotion pin-on selection on the first day of September, NCOES graduation must be made a matter of record not later than the 8th day of August). b). Per AR 350-10, the respective schoolhouse is responsible to post actual outputs (graduation) within two working days (seven working days for ARNG and USAR schools) from the end of each class as announced in class schedules. c). It is ultimately the Soldier's responsibility to ensure that the system of record is reflecting the correct Military Education Level (MEL) and Military Education Status (MES). If for some reason the MEL and MES are not updated within two weeks of graduation, the Soldier should contact HRC Military Schools Branch (AHRC-EPF- S)(usarmy.knox.hrc.mbx.epmd-ncoes-operations@mail.mil). It is imperative for Soldiers who were not fully eligible at the time their sequence number came up because they had not attended the appropriate NCOES course, to contact HRC Military Schools Branch and Sr. Enlisted Promotions Branch upon graduation to update their record. In the event a schoolhouse cannot update ATRRS because of automation issues, every effort (Schoolhouse/Solider concerned) must be made to send a copy of the Soldier's DA Form 1059 (Service School Academic Evaluation Report) to HRC by the 8th calendar day of the month in order for HRC to input the necessary information, preventing a determination that a Soldier is not otherwise fully qualified for promotion. d). Soldiers promoted per the provisions of paragraphs 1–18, 1–19, 1– 20, 3–5d, 3–5e, and 8–3 are not required to complete NCOES to qualify for promotion. (2) Within 12 months following a court-martial conviction. (3) A Soldier is ineligible to reenlist for the following reasons: (a). Absent without leave (AWOL). (b). Pending or has an approved administrative separation. (c). Pending security clearance eligibility determination when it is required for the Soldier's primary military occupational specialty (PMOS). Soldiers will regain promotable status the day they receive the appropriate level of security clearance eligibility approved by the DOD Consolidated Adjudication Facility (CAF). Soldiers who lose their required security clearance eligibility as a result of a denial or revocation determination made by the DOD CAF (and fail to regain eligibility if they have exercised their right to an appeal with the Army Personnel Security Appeals Board), will be removed from the recommended list. (d). Lack of a qualifying Army Physical Fitness Test (APFT) (not applicable to Soldiers affected by paras 1–18, 1–19, 1–20, and 1–22). (e). Approved retirement. (f). Field bar to continued service. (g). Subject to denial of continued service by the Qualitative Management Program. (h). Selected for denial of continued service by the Qualitative Service Program and/or Qualitative Retention Program. (i). Has an approved declination of continued service statement (DCSS). (j). Does not meet regulatory weight standards. (4). A written recommendation has been sent to the promotion authority to reclassify a Soldier for inefficiency or disciplinary reasons. (5). A Soldier fails to reenlist or extend their current enlistment to meet the service remaining requirement within 30 days (RA) and 60 days (USAR) of the announced promotion effective date. The promotion authority will remove the names from the recommended list. (6). A Soldier was punished under the Uniform Code of Military Justice (UCMJ), Article 15, including suspended punishment. Summarized proceedings imposed according to AR 27–10 are excluded and will not result in non-promotable status. The Soldier regains promotion eligibility on the day of completion of the period of correctional custody, suspension, restriction, extra duty, and/or suspended forfeiture of pay, whichever occurs later. For the purposes of determining nonpromotable status, periods of forfeiture of pay will be determined as follows: (a). Periods of forfeiture are to begin on the date that UCMJ, Article 15, punishment is imposed. (b). For UCMJ, Article 15, forfeitures imposed by company grade CDRs, 7 calendar days is the period of forfeiture. For example, punishment is imposed on 28 March 2005. The Soldier is in a nonpromotable status from 28 March through 3 April and regains promotable status on 4 April. (c). For UCMJ, Article 15, forfeitures of 1 month by field grade CDRs, 15 calendar days is the period of forfeiture. (d). For UCMJ, Article 15, forfeitures of 2 months imposed by field grade CDRs, 45 calendar days is the period of forfeiture. (7). A Soldier is denied favorable personnel actions under the provisions of AR 600–8–2 (Suspension of Favorable Personnel Actions (Flag)). (a). Failure to initiate DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) does not affect the Soldier's nonpromotable status if a circumstance exists that requires imposition of a suspension of favorable personnel actions (Flag) under the provisions of AR 600–8–2. (b). The promotion status of a Soldier residing on a centralized selection list with an imposed Flag is controlled by paragraph 1–11. (8). When a Soldier is command-referred and enrolled in the Army Substance Abuse Program (ASAP), the Soldier becomes nonpromotable. Self-referred Soldiers are eligible for promotion while enrolled in ASAP, provided otherwise qualified in accordance with the other provisions of this paragraph. A self-referral who is later command-referred to ASAP based on evidence not protected by the limited-use policy becomes nonpromotable upon command referral to ASAP. (9). A Soldier has a qualifying conviction for domestic violence under the Domestic Violence Amendment to the Gun Control Act of 1968, the Lautenberg Amendment (Title 18, United States Code, Section 922 (18 USC 922)), in accordance with AR 600–20. (10). A Soldier failed, due to his or her own fault as determined by the CDR, to complete scheduled training associated with reclassification to a new military occupational specialty (MOS) and has been awarded additional skill identifier (ASI) 4B as determined by HRC, General Officer Command (GOCOM), major subordinate command (MSC), and/or direct reporting unit (DRU) (for USAR TPU Soldiers) or National Guard Bureau (NGB) (for ARNG Soldiers). This provision applies to Soldiers who cannot attain approved PMOS qualifications (for example, the DOD CAF has determined that the Soldier is ineligible for a security clearance, the Soldier exercised their appeal rights, and the Personnel Security Appeals Board affirmed the DOD CAF determination). The basic combat training (BCT) and/or BDE S1 will track the status of all Soldiers with ASI 4A (promotion eligible) and, when a determination is made that a Soldier failed to attend or to complete training as scheduled, take action to award ASI 4B (ineligible for promotion). (11). A USAR unit Soldier declines promotion and reassignment to a unit position that is within a reasonable commuting distance (as defined in AR 140–10) or elected mileage. The Soldier, after removal from the recommended list, is nonpromotable for 1 year. (12). Is a Reserve Component (RC) Soldier scheduled for mandatory removal because of age, years of service, or nonselection for retention by a qualitative retention board. h. Because HRC and regional support commands (RSCs) administer promotions to ranks SFC through sergeant major (SGM), colonel (COL)-level CDRs are responsible for notifying HRC (AHRC–PDV–PE), or RSCs, when Soldiers in those ranks whose names appear on a recommended list become nonpromotable. When a Soldier has been Flagged under the provisions of AR 600–8–2, COL-level CDRs must forward documentation, to include the initial DA Form 268, explaining the reason for the Flagging action. When the Flagging action is closed, COL-level CDRs must forward a copy of the final DA Form 268, the date the Flag is closed, type of punishment received, date all punishment is completed (including all periods of suspension), and/or date that a memorandum of reprimand was approved for filing. This information (including locally- filed memorandum/letters) will be used to determine the Soldier's eligibility to remain on a centralized selection list by means of the procedures in chapter 4. For all other cases, the HR specialist will provide the Soldier's name and a brief summary of circumstances that caused the Soldier to become nonpromotable. All correspondence will be mailed to Commander, U.S. Army Human Resources Command (AHRC–PDV–PE), 1600 Spearhead Division Avenue, Fort Knox, KY 40122–5407, or to the RSC, and will include the Soldier's sequence number, promotion MOS, and the date the Soldier became nonpromotable. i. For nonpromotable status of ARNG Soldiers, refer also to paragraph 7–4. 2. AR 600-8-2 (Suspension of Favorable Personnel Action (Flags)), 11 May 2016. Paragraph 2–1. General policy: a. The purpose of a Flag is to prevent and/or preclude— (1) Execution of favorable actions to a Soldier who may be in an unfavorable status (not in good standing). (2) Movement of a Soldier when it is in the best interests of the Army for the Soldier to remain in his or her current unit or at his or her current location until cleared of ongoing actions. Should the command determine that it is in the best interests of the Army to PCS the Soldier even though he or she has not been cleared of ongoing actions, the command may do so in accordance with paragraph 2–8: however, the Flag will remain in place. 2 AR 600–8–2, (11 May 2016) Note. Soldiers with nontransferable Flags may be reassigned on a case-by-case basis when the Soldier's personnel management division at HRC or other component headquarters directs the transfer. b. Flags are not to be used for punishment or restriction, but only as an administrative tool. c. The Flag is not the final disposition. A Flag is emplaced during some type of disciplinary or administrative action until that action is concluded. d. The Flag should be initiated within 3 working days after identification of the Soldier's unfavorable status and removed within 3 working days after determination of the final disposition. e. The suspension of favorable actions on a Soldier is mandatory when military or civilian authorities initiate any investigation or inquiry that may potentially result in disciplinary or adverse administrative action. Commanders, general officer staff heads, and heads of HQDA staff agencies (to include the DA Suitability Evaluation Board) must ensure that favorable personnel actions are suspended in accordance with the criteria contained in this regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004476 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1