IN THE CASE OF: BOARD DATE: 3 May 2021 DOCKET NUMBER: AR20190014077 APPLICANT REQUESTS: * completion of his suspended physical disability processing and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect a narrative reason of medical retirement due to physical disability of 30 percent or greater * expungement of the defective administrative separation board proceedings from his Army Military Human Resource Record (AMHRR) * promotion to rank/grade of staff sergeant (SSG)/E-6 effective 1 April 1997 * back pay and allowances from the date of promotion of 1 April 1997 through the date of his discharge on 6 June 1998 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Counsel's Letter (Regarding Application for the Correction of the Military Record of (Applicant)), 11 October 2019, with 97 enclosures FACTS: 1. The portion of the applicant's request for completion of his suspended physical disability processing and correction of his DD Form 214 to reflect a narrative reason of medical retirement due to physical disability of 30 percent or greater, and his counsel's statements/argument regarding that portion of the request, will receive no further action as a higher appeal authority has denied his request. The U.S. Court of Federal Claims Order, 4 August 2011, ordered denial of the applicant's claim for disability separation or retirement and entered a final judgment of dismissal of his complaint. Further appeals should be directed to the U.S. Court of Federal Claims. 2. The applicant states adverse information maintained in his AMHRR is inequitable in light of the Army Discharge Review Board's (ADRB's) previous findings. His promotion to the rank/grade of SSG/E-6 was improperly withheld and he should be promoted as ordered. 3. Counsel states: a. The applicant's 1 April 1997 promotion to the rank/grade of SSG/E-6 was improperly withheld and the continued maintenance of any documents in his AMHRR which refer to "misconduct" as a basis for separation or to the proceedings and findings of the administrative separation board which considered "misconduct" as the basis are improper because of the defects with those proceedings, or is at least inequitable in light of the final decision of the ADRB. b. The applicant had been recommended for promotion by his commanding officer (with necessary points to make the cutoff score), had been recommended for promotion by a promotion board, and was scheduled to be promoted on 1 April 1997. There is no documentation reflecting that he was notified at any point that his record was flagged from positive personnel actions or that his promotion had been placed on hold. c. When the applicant previously petitioned the ABCMR for relief on his withheld promotion, the Board acknowledged that, after a thorough review of his military record, there was no evidence of record to substantiate that a flag had ever been initiated to suspend him from favorable personnel actions. His DA Form 2A (Personnel Qualification Record – Part I) showed his promotable indicator remained a "P," indicating his commander had recommended him to a promotion board and the board had recommended him for placement on the Centralized Promotion List. d. Because the record is devoid of any action by proper authority to withhold the applicant's promotion to SSG/E-6 and all evidence indicates the withholding of his promotion and/or his transfer to another unit while on a Centralized Promotion List was executed in a prejudicial manner by his battalion commander without authority or compliance with regulatory requirement, he should have been promoted on 1 April 1997. e. At the time the ADRB decided to upgrade the applicant's service characterization to honorable and to change the narrative reason for his separation to "Secretarial Authority." The Board's conclusion reflected markings that the discharge was proper, but was inequitable as to characterization and reason. After considering his faithful and honorable service, deployments, awards, and decorations, the ADRB determined the record of his honorable service outweighed the discrediting entries in his AMHRR. f. The applicant is entitled to the requested relief based on the procedures to administratively separate him were replete with error and plainly defective, sufficiently so to negate any presumption of regularity; the maintenance of adverse material in his AMHRR is both erroneous and inequitable; and his promotion was withheld. A proper review would take into consideration of the fact that his separation was defective or, in the alternative, even if his separation proceedings are found to have been proper, the allegation of sexual harassment was unsubstantiated and the only allegation which the administrative separation board substantiated was cheating on an examination. 4. The applicant was serving in the Regular Army in the rank/grade of sergeant/E-5 when he became the subject of a U.S. Army Criminal Investigation Command (CID) investigation. 5. The applicant's records contain no evidence of a DA Form 3355 (Promotion Point Worksheet) with promotion authority's approval, recommended promotion list, or a promotion order for the applicant's promotion to the rank/grade of SSG/E-6 in his AMHRR for review by the Board. 6. The 12th Military Police Detachment (CID) memorandum (CID Report of Investigation – Final), 9 May 2017, named the applicant as the subject for violations of Article 132 (Fraud), Uniform Code of Military Justice (UCMJ), and Article 81 (Conspiracy), UCMJ. a. The basis for the investigation consisted of cheating on College Level Examination Program tests. b. Coordination with the Staff Judge Advocate shows the staff judge advocate opined there was probable cause to believe that applicant committed the offense of fraud and conspiracy. 7. The 7th Transportation Group (Composite) memorandum (Appointment as an Investigating Officer), 27 May 1997, appointed an investigating officer under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) to investigate the allegations of sexual harassment made against the applicant. 8. The DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), 2 July 1997, shows in: a. Section IV (Findings), Specialist R____ alleges the applicant made unwanted sexual comments by explaining his sexual activity and describing his anatomy. Based on her statement and the statements of Private First Class (PFC) S____, PFC M____, and PFC B____, a pattern has developed and that this did occur; b. Section V (Recommendations), the applicant should be separated from military service for the good of the Army; if not acceptable, he should receive nonjudicial punishment under Article 15, UCMJ; and c. Section VIII (Action by Appointing Authority), the commander approved the findings and recommendations. 9. The memorandum for record (Army Regulation 15-6 Investigation, (Applicant): Complaint – PFC M____), 7 July 1997, shows the group judge advocate reviewed the subject Army Regulation 15-6 investigation and found it to be legally sufficient. 10. The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows he was reassigned from the 567th Transportation Company, Fort Eustis, VA, to the 551st Transportation Company, Fort Eustis, VA, on 14 August 1997. 11. The applicant's DA Form 2-1A (Personnel Qualification Record – Part I), 26 September 1997, shows in: * item 31 (Promotion Points) – C/Date: 736 – August 1996 * item 32 (Promotion Points) – P/Date: 730 – August 1995 * item 33 (Reenlistment Eligibility/Ineligibility) – Ineligible-Other 9X 12. The 6th Transportation Battalion memorandum (Separation under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14) for the Commander, 7th Transportation Group, 30 September 1997, the applicant's company commander states: a. Description of rehabilitative attempts: None. b. The Report of Medical Examination and Mental Status Evaluation or psychiatric report is attached. c. He recommends waiver of the requirement for a rehabilitative transfer in this case. His recommendation is based on the determination that further duty of the applicant would create serious disciplinary problems or a hazard to the military mission or to the applicant, and rehabilitation would not be in the best interest of the Army. 13. The 6th Transportation Battalion memorandum (Separation under Army Regulation 635-200, Chapter 14), 30 September 1997, notified the applicant of initiation of separation action against him for commission of a serious offense. The reasons for his battalion commander's proposed action consisted of the applicant's actions of sexually harassing several Soldiers over whom he had supervisory responsibility, which constitutes cruelty and maltreatment of subordinates, and he also conspired with another Soldier to cheat on official College Level Examination Program and Defense Activity for Non-Traditional Education Services examinations. 14. In the applicant's memorandum (Separation under Army Regulation 635-200, Chapter 14), 30 September 1997, he states: a. He has been advised by his consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense and its effects; of the rights available to him, and the effect of any action taken by him in waiving his rights. b. He requests consideration of his case by an administrative separation board and an appearance before the board. c. He requests to submit statements in his own behalf. d. He understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. 15. On 30 September 1997, the Commander, 7th Transportation Group, recommended the applicant's discharge from the U.S. Army. He stated the applicant had no potential for useful service under conditions of full mobilization and would prove a detriment to any unit to which he might be assigned. The commander recommended approval of the applicant's request for an administrative separation board and characterization of his service as under other than honorable conditions. 16. On 3 March 1998, Administrative Separation Board, determined the applicant met the requirements for separation in accordance with Army Regulation 635-200, chapter 14, paragraph 14-12c (Commission of a Serious Offense) and recommended issuance of a General Discharge Certificate under Honorable Conditions. 17. The Addendum to Findings Worksheet, 10 April 1998, states this addendum has been created to clarify an ambiguity from the original worksheet by stating the applicant: a. did not commit a serious offense within the meaning of Army Regulation 635-200, paragraph 14-12c, by sexually harassing several Soldiers over whom he had supervisory responsibility; and b. did commit a serious offense within the meaning of Army Regulation 635-200, paragraph 14-12c, by conspiring with another Soldier to cheat on official College Level Examination Program and Defense Activity for Non-Traditional Education Services examinations. 18. He was discharged from the Regular Army on 4 June 1998. His DD Form 214 shows in: * item 4a (Grade, Rate, or Rank) – Sergeant * item 4b (Pay Grade) – E-5 * item 12c (Net Active Service This Period) – 11 years, 6 months, and 15 days * item 12d (Total Prior Active Service) – 2 years, 1 month, and 7 days * item 12h (Effective Date of Pay Grade) – 1 June 1990 * item 24 (Character of Service) – Under Honorable Conditions (General) * item 25 (Separation Authority) – Army Regulation 635-200, paragraph 14-12c * item 27 (Reentry Code) – 3 * item 28 (Narrative Reason for Separation) – Misconduct 19. On 18 September 2000, the ADRB determined the applicant's discharge was inequitable. The ADRB voted to grant relief in the form of an upgrade of his characterization of service to honorable and a change in the narrative reason for separation to Secretarial Authority. 20. His reissued DD Form 214 shows in: * item 18 (Remarks) – Character of Service Upgraded on 22 September 2000 Following Application Dated on 7 July 2000 * item 24 (Character of Service) –Honorable * item 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-3 (Secretarial Plenary Authority) * item 27 (Reentry Code) – 1 * item 28 (Narrative Reason for Separation) – Secretarial Authority 21. The U.S. Army Human Resources Command email, 1 January 2005, (Reply: Cut- Off Scores for Military Occupational Specialty 88H (Cargo Specialist) for Pay Grade E-6, effective 1 April 1997), states the cutoff score was 729 for the primary zone and 772 for the secondary zone. 22. On 19 January 2005, the ABCMR denied the applicant's request for correction of his honorable discharge in pay grade E-5 by reason of Secretarial Authority to show he was discharged in pay grade E-6 by reason of physical disability. The Board determined: a. Notwithstanding the subsequent action of the ADRB to upgrade the applicant's discharge to honorable, the administrative separation board which considered his case and recommended his discharge under honorable conditions (general) was properly convened and functioned in compliance with pertinent regulations. b. Although the applicant failed to show through the evidence submitted or the evidence of record that he was unjustly denied promotion to the rank/grade of SSG/E-6 because he met the cutoff score for 1 April 1997, it is reasonable to presume he was flagged during the period in question and therefore was not eligible for promotion or reenlistment until such time as the flag was favorably removed. c. Accordingly, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights. The type of discharge directed and the reason therefore were appropriate considering all of the facts of the case. 23. A review of the applicant's AMHRR contains the "Case Files for Approved Separations" added on 18 July 1998, which includes his Administrative Separation Board Proceedings, DA Forms 1574, the 12th Military Police Detachment (CID) memorandum (CID Report of Investigation – Final), 9 May 2017, and allied documents. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 2. The Board carefully considered the applicant's statement, his record of service, supporting documents, and evidence in the records to include his character of service having been previously upgraded to honorable. The Board noted that the applicant’s request for his DD Form 214 to reflect a medical retirement due to physical disability was denied by the U.S. Court of Federal Claims and; therefore, not further addressed. Based on the documentation available for review, to include the CID Report which was found to be legally sufficient, the Board concluded that the applicant would have been ineligible for promotion to the rank of staff sergeant (SSG)/E-6 and back pay and allowances inapplicable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. 2. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states investigating officers may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 3. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags), 30 October 1987, prescribed policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function. a. Paragraph 1-11 (Categories of Flags) stated flags will be submitted when an unfavorable action or investigation (formal or informal) is started against a Soldier by military or civilian authorities. Flags are classified into two categories: (1) Non-transferrable. The flag may not be transferred to another unit. (2) Transferable. The flag may be transferred to another unit. b. Paragraph 1-12 (Circumstances Requiring a Non-transferable Flag) stated the specific actions and investigations requiring a non-transferrable flag and the reasons for removing the flag include: (1) adverse actions: elimination; removal from a promotion, command, or school selection list; (2) a referred officer evaluation report; and (3) a security violation. c. The instructions for a flag for an investigation directed removal of the flag when the Soldier is released without charges, the charges are dropped, or the punishment is completed. d. The instructions for a flag for elimination directed removal of the flag when the Soldier is reassigned to a transition point (for separation). e. Paragraph 1-13 (Circumstances Requiring a Transferrable Flag) stated the specific actions and investigations requiring a transferrable flag and the reasons for removing the flag include: (1) a Headquarters, Department of the Army-directed reassignment of a flagged Soldier; (2) movement of an adverse action into the punishment phase; (3) failure to pass the Army Physical Fitness Test; and (4) entry into the Weight Control Program. 4. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), 1 November 1991, prescribed the enlisted promotions and reductions function of the military personnel system. It provided for career progression and rank that is in line with potential, recognizing the best qualified Soldier that will attract and retain the highest caliber Soldier for a career in the Army. a. Paragraph 1-10 (Nonpromotable Status) stated Soldiers are nonpromotable to a higher grade when one of the following conditions exist: (1) investigation; (2) charges, restraint, or investigation by military or civilian authorities; (3) in proceedings that may result in an administrative elimination; and (4) ineligibility for reenlistment. b. Paragraph 3-28 (Rules for Removing a Soldier from a Local Promotion Standing List) stated the promotion authority may remove a Soldier's name from an approved recommended list when an adverse action exists, including a Soldier serving a court- martial sentence, serving punishment under Article 15 of the UCMJ, or when a Soldier is undergoing proceedings that may result in an other than honorable discharge. c. Paragraph 3-34 (Rule for Processing Monthly Headquarters, Department of the Army, Promotion Point Cutoff Scores) stated Soldiers will be eligible for promotion on the first day of the third month following the selection month (for example, a Soldier selected by a promotion board in April 1991 will become eligible for promotion on 1 July 1991). d. Paragraph 3-36 (Rules for Processing Service Remaining Obligations) stated the service remaining obligation is 12 months for promotion to SSG. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 17 September 1990, set policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 5-3 (Secretarial Plenary Authority) stated a separation under this paragraph is the prerogative of the Secretary of the Army. Ordinarily, it is used when no other provision of this regulation applies and early separation is clearly in the best interest of the Army. b. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. c. Paragraph 14-12c (Commission of a Serious Offense) stated Soldiers are subject to separation per this section for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts- Martial. 6. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a table of U.S. Army reentry eligibility (RE) codes. * RE-1 applies to persons completing an initial term of active service who are considered qualified to reenter the U.S. Army if all other criteria are met * RE-3 applies persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable * RE-4 applies to persons separated from their last period of service with a non- waivable disqualification //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014077 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1