IN THE CASE OF: BOARD DATE: 16 February 2023 DOCKET NUMBER: AR20220004625 APPLICANT AND COUNSEL REQUESTS: the applicant's retirement rank be upgraded from staff sergeant (SSG)/E-6 to sergeant first class (SFC)/E-7. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant's statement, 28 March 2022 * Counsel's memorandum to the Board, 30 March 2022 * Army Good Conduct Medal Permanent Orders, 22 February 2002, 18 March 2005, 21 February 2014, and 3 March 2020 * Army Commendation Medal certificates, 25 November 2005, 30 December 2005, and 16 October 2013 * Announcement of Recruiter Incentive Awards, 30 October 2008 and 7 April 2009 * Certificates of Achievement * court document listing applicant's offenses, pleas, fines and disposition * State Warrant for Arrest, 17 August 2018 * Completion of Anger Management Workshop certificate, 31 August 2018 * stating protective services no longer needed, 1 October 2018 * Completion of Parenting Workshop certificate, 5 October 2018 * Counseling Services Clinical Director's statement, 6 November 2018 * Doctor's statement pertaining to child's injuries, 16 December 2019 * Court Order for felonious child abuse, inflicting serious bodily injury/misdemeanor child abuse, 15 April 2019, 6 October 2020 * Orders Number 079-01, 27 March 2020 * Orders Number 271-01, 28 September 2020 * State of Judgement/Order or Other Disposition, 6 October 2020 * State of Transcript of Plea, 6 October 2020 * Noncommissioned Officer Evaluation Reports (NCOERs), covering the period of October 2002 to June 2020 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 30 June 2021 * Character reference letters, 8 and 9 March 2022 * Wife's statement * Sibling's statement * Child's statement * Military Compensation for Career and Retirement Benefits document FACTS: 1. The applicant and counsel state: a. The applicant's reduction in rank prior to retirement was unjust due to his 10 years of exemplary service as a SFC prior to the alleged misconduct and his Alford plea in civilian court not being an admission of guilt and made under the pressure of extraordinary delay and needs of his family. The attached petition explains why an upgrade in retired rank is deserved. b. The applicant retired from the U.S. Army as a SSG in 2021, having served for 22 years and 5 months. He undeniably served with honor and distinction from 1999 until he was alleged to have committed child abuse during the summer of 2018. His military and civilian records up to that point were entirely clear of misconduct, excepting a traffic citation, and his NCOERs showed exemplary performance. From his promotion to sergeant in 2002, his evaluations speak of his limitless potential and his care for the Soldiers he led. The applicant rose rapidly through the ranks and was promoted to SFC in 2008. c. The applicant and his wife decided that the best way to move on with their lives was to enter an Alford plea and, at long last, bring an end to the civilian court case. An Alford plea is type of plea in which the defendant accepts punishment for an offense without accepting guilt. With the flag for the pending civilian case removed, the applicant submitted his request for retirement in September of 2020. d. The Division leadership team, having spoken with the District Attorney about the applicant's case, allowed the retirement packet to proceed. However, the Combat Aviation Brigade Commander, who had such a negative opinion of the applicant, immediately revoked his attachment orders, and brought him back to the Brigade, pulled the retirement packet, and initiated the Grade Determination Board, which ultimately reduced the applicant's rank from SFC to SSG. The applicant finally retired in February of 2021, with a final separation date of 6 June 2021. e. The applicant deserves to be retired as a SFC due to the nature of the plea he made in civilian court, the reasons for his Alford plea, improper elements of the Grade Determination Board, his long and satisfactory service as a SFC, and the fact that, absent the Combat Aviation Brigade Commander's revocation of his attachment orders and retirement packet, the applicant would have been allowed to retire by the leadership of Headquarters and Headquarters Battalion, 82nd Airborne Division. f. A court never found, and the applicant never admitted, that he committed the offense of child abuse. He pled via an Alford plea, which is a type of plea in which the defendant accepts punishment without admitting guilt to the alleged offense. The applicant's agreement to accept the punishment for the alleged offense without accepting guilt was accepted both by the prosecutor, who could have insisted upon a full guilty plea or a trial, and the judge in the case. g. Perhaps most importantly, he made the decision to make the Alford plea with the understanding that his leadership at the 82nd Airborne Division would allow him to retire. That leadership had spoken to the District Attorney about the allegations and their seriousness and had indicated to the applicant that his retirement would be allowed to process. Misstatements of the law and bias were at play in his Grade Determination Board. The applicant was only sent to the Grade Determination Board after his attachment orders and retirement papers were revoked by the Combat Aviation Brigade Commander. h. Even more importantly, a major legal error was perpetrated by the Government attorney during the applicant's board hearing. The applicant distinctly remembers the Government representative arguing before the board members that his plea in civilian court was the same as him saying "I did it." This is a complete misrepresentation of the law; in its opinion upholding the Alford plea as valid, the Court clearly states that such a plea is a consent to punishment without necessarily admitting guilt, or even while actively asserting one's innocence. This is an inexcusable error by an attorney which should have been caught at the time, but which can be addressed now by undoing the action of that board. i. For the foregoing reasons, counsel and the applicant request that the Board upgrade the applicant's retired rank from SSG to SFC. As the Board makes a decision, please consider these points, as well as the applicant's letter and all of the enclosed evidence and letters of support. 2. The applicant and counsel's statements are available for review in their entirety within the supporting documents. 3. A review of the applicant's official records show the following: a. The applicant enlisted in the Regular Army on 28 January 1999. b. On 14 December 2020, Headquarters, 82nd Combat Aviation Brigade, Fort Bragg, NC, issued Permanent Orders Number 348-001, reducing the applicant from SFC/E-7 to SSG/E-6, effective 11 December 2020 under the provisions of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-3. c. On 9 February 2021, Headquarters, U.S. Army Garrison, Fort Bragg, NC, issued Orders Number 040-0278, retiring the applicant, effective 30 June 2021, and placing him on the retired list in the retired rank/grade of SSG/E-6, effective 1 July 2021. d. On 30 June 2021, the applicant was honorably retired by reason of sufficient service. DD Form 214 shows he completed 22 years, 5 months, and 3 days of net active service. Item 4a (Grade, Rate or Rank) shows SSG and item 12i (Effective Date of Pay Grade) shows 11 December 2020. e. The applicant's records are void of the circumstances related to his reduction in rank. 3. The applicant through counsel provides: a. Army Good Conduct Medal Permanent Orders dated 22 February 2002, 18 March 2005, 21 February 2014, and 3 March 2020 showing he was awarded the Army Good Conduct Medal for exemplary behavior, efficiency, and fidelity for those periods of service. b. Army Commendation Medal certificates dated 25 November 2005, 30 December 2005, and 16 October 2013 showing he was awarded the Army Commendation Medal for various meritorious achievements. c. Announcement of Recruiter Incentive Awards dated 30 October 2008 and 7 April 2009 that show he was award the Gold Recruiter Badge with Two Sapphire Achievement Stars. d. Certificates of Achievement for excellence and outstanding achievements. e. court document listing applicant's offenses, pleas, fines, and disposition for speeding and child abuse. f. State of Warrant for Arrest dated 17 August 2018 showing a warrant for his arrest related to felonious and intentional infliction of serious bodily injury of a 5-year-old child. g. Completion of Anger Management Workshop certificate dated 31 August 2018 showing he completed the 3-hour course. h. letter dated 1 October 2018, stating protective services were no longer needed. i. Completion of Parenting Workshop certificate dated 5 October 2018, showing he completed the 4-week course. j. Counseling Services Clinical Director's statement dated 6 November 2018 that show, he was currently compliant with recommendations of receiving bi-weekly therapy with k. Doctor's statement pertaining to child's injuries dated 16 December 2019, stating during an interview [the child] reported that both his mother and father have spanked him using a phone charger cord and sometimes, a belt. In the doctor's experience, there is no way to definitely date an injury by the color or the markings of the skin. If one sees active bleeding and redness, one could assume it is recent. l. Court Order for felonious child abuse, inflicting serious bodily injury/misdemeanor child abuse dated 15 April 2019 and 6 October 2020, alleging the applicant unlawfully, willfully and feloniously did intentionally inflict serious bodily injury, linear and crescent shaped contusions and lacerations, on who was five years old. m. Orders Number 079-01, dated 27 March 2020, showing the applicant was attached to "Headquarters and Headquarters Battalion (WAA6XX) Airborne Division Fort Bragg, NC 28310", effective 1 March 2020. n. Orders Number 271-01, dated 28 September 2020, showing "Permanent Orders, HQs, 82nd Airborne Division, 28 September 2020", pertaining to the reassignment of the applicant were revoked. o. State of Judgement/Order or Other Disposition dated 6 October 2020, showing the applicant was fined $205.00 for the offense of misdemeanor child abuse. p. State of Transcript of Plea dated 6 October 2020, that shows the applicant entered an Alford plea of guilty for the offense of child abuse. q. NCOERs covering the period of October 2002 to June 2020 showing the applicant's principal duties, performance evaluation, professionalism, attributes, competencies, ratings, and senior ratings. r. Character reference letters dated 8 and 9 March 2022 attesting to the applicant's character, honesty, and leadership qualities. s. Wife's statement describing their relationship, the applicant being a great father and a community volunteer. She also spoke about the applicant's court case. t. Sibling's statement describing how the applicant was a father figure to her and how he cared for her and her sister for many years. u. Child's statement describing how the applicant was truly a kind and loving father, and he has always been there for her. also stated the applicant does not lose his temper and taught his kids everything to know about cars. v. Military Compensation for Career and Retirement Benefits document showing earnings of a SSG compared to a SFC. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board noted that AR 600-8-19 states a Soldier convicted by a civil court will be reduced or considered for reduction. Although the proceedings that led to the applicant’s reduction in grade are not available to the Board, the Board found the applicant’s command appears to have acted appropriately upon learning that he had been convicted by a civil court. In the absence of evidence showing otherwise, the Board found it must be presumed that the proceedings that led to his reduction were conducted in accordance with the governing regulation and the applicant received due process during the proceedings. Based on a preponderance of the evidence, the Board determined the applicant’s reduction was not in error or unjust. 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. Army Regulation (AR) 15–185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 2. AR 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Section III, Reduction for Misconduct, paragraph 10– 3 (Rules) states: a. A Soldier convicted by a civil court (domestic or foreign) or adjudged a juvenile offender by a civil court (domestic or foreign) will be reduced or considered for reduction according to table 10–2. Juvenile offender includes adjudication as a juvenile delinquent, wayward minor, or youthful offender. b. On receipt of civil documents establishing a sentence (imposed or vacation of a suspended sentence) or a finding of guilty with sentence to be established at a later date, action will be taken according to appropriate rule shown in table 10–2. A Soldier may be reduced even though an appeal is pending or has been filed. c. When a reduction board is required, it will convene after receipt of documentary evidence and before separation or retention is considered (AR 635-200 or AR 135–178) unless the Soldier waives it in writing. d. Commanders will publish orders and enter the reduction in the military records of the Soldier. The authority for reduction will be the appropriate rule from table 10–2 and will be cited in the order. The Soldier will be notified, in writing, of the right to appeal the reduction. The written notification will include the time limits and procedures for an appeal. e. If the conviction is reversed, the Soldier will be restored to the former rank. f. If the sentence is modified or reassessed (by appellate court or otherwise), action will be taken according to rule 6 or 7 of table 10– 2, and the Soldier will be notified, in writing, of the decision. g. If a Soldier is reduced prior to sentencing and the sentence imposed is less severe than the penalties listed in the rule under which Soldier was reduced, action will be taken as appropriate. The Soldier will be notified, in writing, of this decision. 3. AR 635-8 (Separation Processing and Documents) prescribes the transition processing function of the military personnel system. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. Block 4 (Grade, Rate, or Rank) states to verify that active duty grade or rank and pay grade are accurate at time of separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004625 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1