ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 June 2021 DOCKET NUMBER: AR20190004473 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in: * Blocks 4a (Grade, Rate or Rank) and 4b (Pay Grade) from specialist (SPC)/E-4 to staff sergeant (SSG)/E-6 * Block 11 (Primary Specialty), from "27D14 PARALEGAL SPECIALIST" to "27D34 PARALEGAL NONCOMMISSIONED OFFICER" * Block 19a (Mailing Address After Separation) from * Block 26 (Separation Code) from JBK to another code * Block 27 (Reentry (RE) Code) from RE-3 to another code APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement * Report of Proceedings by Investigating Officer * United States versus Applicant, in a General Court-Martial of the United States, U.S. Army Trial Judiciary, Fifth Judicial Circuit * Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) * Legal Review of AR 15-6 * Sworn Statements * Substantial Number of Email Exchange * Ruling of Mistrial * Post-Trial Hearing * Additional Matters * DD Form 214 ( FACTS: 1. The applicant states * A false allegation of sex assault was made against him on 19 August 2016 by the mistress of a military member who was in a motorcycle gang * Charges were preferred against him; he was charged with two specifications of sex assault and he was subjected to court-martial on 16 May 2018 * He was found not guilty of sex assault but guilty of the uncharged "lesser included offense" of assault consummated by battery * He was sentenced to reduction from E-6 to E-4, 60 days of restriction to base, and 30 days of hard labor. * No action was taken by the convening authority on his court-martial * In accordance with Article 57a (l), UCMJ, he was reduced to E-4 even though no action had been taken on the court-martial. * Immediately following the court-martial, it was discovered that one of the court- martial panel members, who was also the Command Sergeant Major of US Army Garrison Bavaria, was a member of this motorcycle gang and was suspected to have infiltrated the court-martial panel * A formal investigation was initiated and was substantiated. The commanding general, the general court-martial convening authority, referred the investigation to a post-trial 39a session on 16 October 2018 * A post trial 39a session was conducted over the course of three weeks in January 2019. More serious misconduct of the Garrison Command Sergeant Major was uncovered. The defense immediately filed a motion for mistrial * On 14 February 2019, the Military Judge granted the motion for mistrial which served as the restorative agent for his reduction in grade * The attached mistrial declaration serves as the substantiating document that will justify the correction of blocks 4a, 4b, 11, 19a, 26, and 27 on his DD Form 214 2. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 8 June 2004. He completed training and was awarded military occupational specialty (MOS) 27D (Legal Specialist) on or about 1 December 2004. b. He served through multiple reenlistments in a variety of stateside or overseas assignments, including Hawaii, Iraq, and Germany. He was advanced to sergeant (SGT)/E-5 (27D2O) on 1 February 2008 and to SSG/E-6 (27D30) on 1 February 2011. [He was also assigned Skill Qualification Identifier (SQI) "4" indicating Non-Career Recruiter (Army Regulation 614–200, Assignments, Details, and Transfers Enlisted Assignments and Utilization Management). c. He last reenlisted, indefinitely, on 6 August 2014. He was assigned to Hohenfels, Law Center, Germany, between February 2015 and March 2018. d. The events that led to his court-martial: (1) On 2 August 2016, the applicant joined the of the Combat Veteran Motorcycle Associate (CVMA). After his acceptance, he was given a back patch, signifying membership. The applicant's standing with the association/club quickly plummeted. Testimonies showed the applicant began to do things that, “put him under a microscope” of other members. A chapter member testified he was aware that the applicant had been calling their organization a “gang” and “club” around post, which upset a lot of them. (2) In August of 2016, association members found out the applicant was under CID investigation for allegedly sexually assaulting who had a close relationship with who was a member of the board. When became aware of these allegations, he told the other members of the association board. He told them the applicant was being accused of sexually assaulting a girl who went on a ride with him. The sexual assault allegation upset the members of the board. One member sent the applicant an email informing him that the association board would look into these allegations and provided him with his rights and options as a member of their organization. (3) The applicant perceived the email as threatening and was concerned that the association would try to coerce him into making a statement about the case. He forwarded the email to Hohenfels CID Field office. After receiving this information, CID began investigating the association and other member of the chapter to determine if they were obstructing justice and or committing other crimes. e. On 18 April 2017, general court-martial charges were preferred against the applicant for two specifications of sexual assault in violation of Article 120, UCMJ. The charges were based on allegations made by f. Between October 2017 and November 2017, Command Sergeant Major (CSM) joined the Germany Chapter of the association. Sometime between March 2018 and April 2018, during a car ride to a meeting with other European chapters of the association, one of the members briefed about the applicant's situation. Additionally, sometime between the end of April 2018 and early May 2018, another member briefed the board members (to include who was present for the meeting) at the monthly meeting regarding the applicant's situation. The applicant's patch was outstanding and no one was to do anything about it until after the court- martial for the allegation was resolved, but not to forget about it. g. On 14-16 May 2018, a General Court-Martial composed of enlisted members tried the applicant. was selected as a member for the court-martial. During preliminary questioning, the military judge asked the members if they knew the accused and if anyone had any prior knowledge of the facts or events in the case. Defense asked if there was anything that would prevent him from being fair and impartial and if there was anything that would prevent you from considering only the evidence you hear from the witnesses that testify in this court-martial. answered in the negative. He was seated as a member without challenge by the defense. h. The court found the applicant not guilty to both specifications of sexual assault, but guilty of the lesser included offense of assault consummated by battery in violation of Article 128, Uniform Code of Military Justice. The court sentenced him to reduction to SPC/E-4, restriction for 60 days, hard labor without confinement for 30 days. i. The applicant was reduced to SPC/E-4 (MOS 27D1O) on 30 May 2018. j. On 11 July 2018, the applicant submitted a DA Form 4187 (Personnel Actin) requesting a 90-day early separation date due to exceeding his Retention Control Point (RCP) caused by his reduction in grade. His RCP was 30 June 2012 but his current ETS was 2018-12-31. The justification is listed as reduction from SSG to SPC. A quicker separation would allow him to move on from service and allow the unit to request deployable replacement through HR channels. k. On 23 July 2018, Installation Management Command, Bavaria, Germany, published Orders 204-0001 ordering the applicant's discharge from active duty effective 31 August 2018, in the rank of SPC, with entitlement to full separation pay. l. The applicant was honorably discharged from active duty on 31 August 2018. His DD Form 214 shows he was discharged in accordance with National Guard Regulation (NGR) 600-4, paragraph 6-4, due to completion of his required active service. His DD Form 214 show he completed 14 years, 2 months, and 23 days of active service and he received full separation pay. His DD Form 214 also shows in: * Blocks 4a (Grade, Rate or Rank) and 4b (Pay Grade) specialist (SPC)/E-4 * Block 11 (Primary Specialty), "27D14 PARALEGAL SPECIALIST" * Block 12i (Effective Date of Pay Grade) 2018-05-30 * Block 19a (Mailing Address After Separation), * Block 26 (Separation Code) JBK * Block 27 (Reentry (RE) Code) RE-3 5. Shortly before the applicant's separation, on 21 June 2018, contacted the applicant's company commander, and asked him to approach the applicant and request that he return his patch. During this conversation, the commander and CSM also discussed how the command could facilitate the applicant's hard labor sentence. The CSM's request alerted the applicant that he was a member of the association and led him to file matters claiming that was biased against him, and therefore was not an impartial member of the court-martial. This led to a series of events: a. On 3 August 2018, the applicant submitted a statement to the Commanding General, 7th Army Training Command, seeking answers to four questions: * Is CSM or has he ever been a member of the club? * Is he friends with or affiliated with any member of the club and/or any individual who participated in these court martial proceedings or in my case? * Why did he attempt to contact [Applicant] after the court martial to request the club back patch? * Was it appropriate for a member of a court martial panel to directly contact the accused in the court martial proceeding on behalf of a party to the court martial after the court martial? b. On 14 September 2018, an investigating officer was appointed for Administrative Investigation• Allegation of Bias by a Court-Martial Panel Member, Command Sergeant Major (CSM) U.S. Army Garrison-Bavaria, pursuant to AR 15-6 to conduct an administrative investigation into the facts and circumstances surrounding an allegation that CSM, a court-martial panel member in [Applicant's] trial from 14-16 May 2018, had a bias against the accused. Specifically, the IO would inquire: * whether had any personal familiarity or relationship with [Applicant] prior to trial; * whether knew [Applicant] was the subject of a CID investigation or had knowledge of the allegations against him prior to trial * whether was involved in, or had knowledge o, an Early Release of Dependents (EROD) request pertaining to [Applicant's] family members * whether contacted or attempted to contact [Applicant], either directly or through an intermediary, at any time before, during, or after trial; and, if so, for what purpose c. On 27 September 2018, the IO submitted his findings and recommendations to the appointing authority. The IO found insufficient evidence that or [Applicant] ever knew each other prior to the trial; insufficient evidence that knew the applicant was the subject of a CID investigation or had any knowledge of the allegations against the applicant; insufficient evidence that the CSM was involved in, or did have knowledge of, any early return of dependents pertaining to applicant's family members in his capacity as CSM, and insufficient evidence the CSM interacted with the applicant or an intermediary before the trial. The IO recommended to close this investigation and drop allegations of bias on. d. On 15 October 2018, a Staff Judge Advocate conducted a legal review of the investigation and found it the investigation fails to comply with legal requirements under AR 15-6 and those established in the memorandum of appointment. Specifically, (1) The investigation raises questions that it leaves unanswered, fails to resolve internal inconsistencies, and fails to reconcile contradictory witness statements: (2) The investigation contains substantial errors. (3) The IO's findings are not supported by a greater weight of the evidence than supports a contrary conclusion. (4) Despite the investigation's legal insufficiency, the IO has gathered sufficient facts to warrant further inquiry in a post-trial Article 39(a) session IAW Rule for Courts- Martial (R.C.M.) 1102(b)(2). The SJA recommended the appointing authority disapprove the findings and recommendations of this investigation, and based on the evidence gathered, he recommended that the appointing authority direct a post-trial Article 39(a) session, IAW R.C.M. 1102(b)(2). e. The appointing general officer disapproved the findings and recommendations of the IO and directed a post-trial hearing for further inquiry and resolution of these issues. On 16 October 2018, by memorandum to the 5th Judicial Circuit, United States Legal Services Agency, Germany, he directed a post-trial Article 39(a) to be conducted in the case of U.S v Applicant. The purpose of this hearing is to inquire into and resolve the alleged impropriety of as outlined in the enclosed memorandum submitted by the applicant on 3 August 2018. f. On 14 February 2019, the United States Army Trial Judiciary, Fifth Judicial Circuit Germany, in United States v. [Applicant] issued a Ruling on Defense Motion for Mistrial. The applicant, by and through counsel, requested this Court to declare a mistrial based on a member's misconduct for failing to be candid with the Court. The Circuit Judge granted defense motion for mistrial. g. On 19 March 2019, the Commanding General, 7th Army Training Command, ordered the Withdrawal of Court-Martial Charges in United States v. [Applicant]. In his memorandum, he stated pursuant to Rules for Courts-Martial 401(c)(1) and 604(a), all charges and their specifications in the above-referenced case, referred to a General Court-Martial on 25 August 2017, are hereby withdrawn and dismissed. 6. The Manual for Courts-Martial (MCM) is the official guide to the conduct of courts- martial in the United States military. Rules govern the procedures and punishments in all courts-martial and, whenever expressly provided, preliminary, supplementary, and appellate procedures and activities. These rules are cited as the Rules for Courts- Martial (R.C.M). These rules are intended to provide for the just determination of every proceeding relating to trial by court-martial. a. Rule 401. Forwarding and disposition of charges in general. Only persons authorized to convene courts-martial or to administer non-judicial punishment under Article 15 may dispose of charges. Unless the authority to do so has been limited or withheld by superior competent authority, a commander may dispose of charges by dismissing any or all of them, forwarding any or all of them to another commander for disposition, or referring any or all of them to a court-martial which the commander is empowered to convene. Rule 401 (c)(1) Dismissal. When a commander dismisses charges, further disposition under R.C.M. 306(c) of the offenses is not barred. b. Rule 604. Withdrawal of charges. (a) Withdrawal. The convening authority or a superior competent authority, may for any reason, cause any charges or specifications to be withdrawn from a court-martial at any time before findings are announced. c. Rule 1102. Post-trial sessions. In general, Post-trial sessions may be proceedings in revision or Article 39(a) sessions. Such sessions may be directed by the military judge or the convening authority in accordance with this rule. (1) Proceedings in revision may be directed to correct an apparent error, omission, or improper or inconsistent action by the court-martial, which can be rectified by reopening the proceedings without material prejudice to the accused. (2) An Article 39(a) session under this rule may be called, upon motion of either party or sua sponte (Latin for "of one's own accord; voluntarily." It is used to indicate that a court has taken notice of an issue on its own motion without prompting or suggestion from another party) by the military judge, for the purpose of inquiring into, and, when appropriate, resolving any matter that arises after trial and that substantially affects the legal sufficiency of any findings of guilty or the sentence. The military judge may also call an Article 39(a) session, upon motion of either party or sua sponte, to reconsider any trial ruling that substantially affects the legal sufficiency of any findings of guilty or the sentence. The military judge may, sua sponte, at any time prior to authentication of the record of trial, enter a finding of not guilty of one or more offenses charged, or may enter a finding of not guilty of a part of a specification as long as a lesser offense charged is alleged in the remaining portion of the specification. Prior to entering such a finding or findings, the military judge shall give each party an opportunity to be heard on the matter in a post-trial Article 39(a) session. d. Rule 915. Mistrial: (1) In general, the military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings. A mistrial may be declared as to some or all charges, and as to the entire proceedings or as to only the proceedings after findings. (2) Procedure. On motion for a mistrial or when it otherwise appears that grounds for a mistrial may exist, the military judge shall inquire into the views of the parties on the matter and then decide the matter as an interlocutory question. (3) Effect of declaration of mistrial. (1) Withdrawal of charges. A declaration of a mistrial shall have the effect of withdrawing the affected charges and specifications from the court-martial. 7. By regulation (AR 635-8), 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. Paragraph 5–6. Rules for completing the DD Form 214: * Block 4: Grade, Rate, or Rank. Verify that active duty grade or rank and pay grade are accurate at time of separation * Block 11: Primary Specialty. Enter the titles of all MOSs awarded and held for at least 1 year during the current period of service and include for each MOS the number of years and months held * Block 12i: Effective Date of Pay Grade. From the most recent promotion document (or reduction instrument), enter the effective date of promotion or reduction to the current pay grade * Block 19a: Mailing Address after Separation. Data source is as provided by the Soldier * Block 25: Separation Authority. Obtain correct entry from regulatory directives authorizing the separation. * Block 26: Separation Code. Obtain the correct entry from AR 635–5–1, which provides the corresponding SPD code for the regulatory authority and reason for separation. * Block 27: Reentry Code. AR 601–210 determines reentry eligibility and provides regulatory guidance on reentry codes. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his military service record and documents provided by the applicant. The Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. During deliberation the Board agreed the RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation. Furthermore, the Board determined there was no evidence to show the applicant’s reduction in rank or his primary specialty was rescinded during the disposition of the applicant accepting a lesser charge. As such, his DD Form 214 properly shows the appropriate rank, pay grade, primary specialty and separation code. 2. The Board determined based on regulatory guidance 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. The Board found, the regulation provides that at separation the service member’s record will be used to enter accurate information when completing their DD Form 214. The Board found no error on the applicant’s DD Form 214 and agreed his separation paperwork was accurate. Therefore, the Board denied relief for correction to the applicant’s records 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. 3/9/2022 X CHAIRPERSON 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. The Manual for Courts-Martial (MCM) is the official guide to the conduct of courts- martial in the United States military. An Executive Order of the President of the United States, the MCM details and expands on the military law established in the statute Uniform Code of Military Justice (UCMJ). a. Rule 101. Scope, title. (a) In general. These rules govern the procedures and punishments in all courts-martial and, whenever expressly provided, preliminary, supplementary, and appellate procedures and activities; and (b) Title. These rules may be known and cited as the Rules for Courts-Martial (R.C.M). b. Rule 102. Purpose and construction. (a) Purpose. These rules are intended to provide for the just determination of every proceeding relating to trial by court-martial. (b) Construction. These rules shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. 2. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. 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. Paragraph 5–6. Rules for completing the DD Form 214: * Block 4: Grade, Rate, or Rank. Verify that active duty grade or rank and pay grade are accurate at time of separation. * Block 11: Primary Specialty. Enter the titles of all MOSs awarded and held for at least 1 year during the current period of service and include for each MOS the number of years and months held. * Block 12i: Effective Date of Pay Grade. From the most recent promotion document (or reduction instrument), enter the effective date of promotion or reduction to the current pay grade. * Block 19a: Mailing Address After Separation. Data source is as provided by the Soldier. * Block 25: Separation Authority. Obtain correct entry from regulatory directives authorizing the separation. * Block 26: Separation Code. Obtain the correct entry from AR 635–5–1, which provides the corresponding SPD code for the regulatory authority and reason for separation. * Block 27: Reentry Code. AR 601–210 determines reentry eligibility and provides regulatory guidance on reentry codes. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures for the separation of enlisted personnel. The Authority for separation (per this regulation) will be included in directives or orders directing Soldiers to report to the appropriate transition center for separation processing. a. Chapter 4, Separation for Expiration of Service Obligation, paragraph 4–1 (Policy): A Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. b. Paragraph 4-3, Indefinite Soldiers who are reduced in grade will not serve beyond the RCP (Retention Control Point) for the lower grade, or 20 years’ active federal service. These Soldiers will not be retained beyond the last day of the month in which they meet the RCP for the lower grade or 20 years of service, whichever comes later. Soldiers with 20 or more years of AFS serving indefinite enlistments who exceed RCP as a result of reduction in grade must retire not earlier than 90 days or later than 180 days after the effective date of the reduction in grade. 3. Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (statutory, regulatory, and Department of Defense (DOD)/Army policy) and reasons for separating Soldiers from active duty. Also, it prescribes when to enter separation program designator (SPD) codes on the DD Form 214 (Certificate of Release or Discharge from Active Duty). a. SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DOD and the Military Services to assist in the collection and analysis of separation data. b. Table 2-3 provides for the specific SPDF Code for enlisted personnel, voluntarily or involuntarily separated. (1) SPD Code JBK applies to Enlisted Soldiers, involuntarily discharged under AR 635-200, for completion of required active service. Except for those with a DCSS (Declination of Continued Service Statement) in force, to be used for RA Soldiers ineligible for, barred from, or otherwise denied reenlistment that are separated on completion of enlistment. Soldiers separated under the Commander's Allocation program will receive an RE–1. (2) SPD Code MBK applies to Enlisted Soldiers, voluntarily discharged under AR 635-200, for completion of active service. To be used for RA Soldiers eligible to reenlist or with a DCSS in force who are released from active duty on completion of enlistment and transferred to the Reserve Components to complete Military Service obligation. Also to be used for Army National Guard of the United States (ARNGUS) or USAR Soldiers who are released from active duty on completion of required Active Service or period for which ordered to active duty. (3) SPD Code LBK applies to Enlisted Soldiers, involuntarily release from active duty under AR 635-200, for completion of required active service. Except for those with a DCSS (Declination of Continued Service Statement) in force, to be used for RA Soldiers ineligible for, barred from, or otherwise denied reenlistment that are separated on completion of enlistment. Soldiers separated under the Commander's Allocation program will receive an RE–1. 4. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program), governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment. a. Paragraph 3-23, Correction of Army reentry eligibility codes: Army prior service personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect. Applicants who have corrected RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized. No requirement to change RE code exists to qualify for enlistment. Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction. b. Table 3–1, U.S. Army reentry eligibility codes, Code Definition (1) RE–1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE–3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. //NOTHING FOLLOWS//