IN THE CASE OF:	

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090012772 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, restoration of his promotion to Sergeant First Class (SFC)/E-7.  

2.  The applicant states, in effect, prior to committing the offenses that resulted in his receipt of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 February 2007, he had never been in trouble or received negative counseling.  He states he has always volunteered for additional duties that others did not want and believes that removing him from the promotion list and taking away his SFC/E-7 rank was extreme. 

3.  The applicant claims that under the advice of trial counsel, he waited until an investigation was completed and then denied the accusation, which forced them to prove the charges.  However, when he was questioned by the investigating officer (IO), he admitted committing the offense and accepted blame in a sworn statement.  The IO recommended he be given a letter of reprimand (LOR) and company grade Article 15 and was told the battalion commander agreed with this recommendation; however, he was later told he would be receiving a field grade Article 15.  He claims to have received his Article 15 after a closed hearing and received a reduction that was suspended for 6 months.  His suspension of favorable personnel actions (FLAG) was removed during the period of suspension in error and as a result, he was erroneously promoted to SFC/E-7.  He claims he notified his local S-1 of the error and they indicated that since it was so close to the FLAG lift date, the erroneous promotion would be overlooked.  


4.  The applicant provides the following documents in support of his application:  Suspension of Favorable Actions Management Reports AAA-095, dated 
28 February 2007 and 4 March 2007; DA Form 2627 (Record of Proceedings Under Article 15, UCMJ); DA Forms 268 (Report to Suspend Favorable Personnel Actions); Electronic Mail (e-mail) Messages; U.S. Army Recruiting Battalion Denver Memorandum, dated 14 May 2007; U.S. Army Human Resources Command (HRC) Order Number 137-1, dated 17 May 2007; and U.S. Army Recruiting Company Arapahoe Memorandum, dated 16 August 2006. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2. The applicant is currently serving on active duty at the Denver Recruiting Battalion, Colorado Springs, Colorado, in the rank of staff sergeant (SSG)/E-6.

3.  On 16 August 2006, a Report of Investigation (ROI) was issued, in which the IO found that the allegations that the applicant had committed a recruiting impropriety in that he had a friend sign a document stating he was the father of an individual's child and would take custody of that child in order for the individual to enlist in the Army were substantiated based on the preponderance of evidence.  The IO recommended that the applicant be given an LOR and that NJP action be taken by the Company Commander and that this commander max out punishments.  He further recommended that the applicant continue his recruiting duty; however, if he stepped outside the boundaries set forth by his commander again, that he be relieved from recruiting and chaptered out of the Army.

4.  On 2 October 2006, a DA Form 268 was initiated on the applicant based on adverse action being taken.  

5.  On 6 February 2007, while serving as a SSG/E-6 (promotable) at Denver, Colorado, the applicant was notified that the U.S. Army Recruiting Battalion, Denver (USARBD) commander, a lieutenant colonel, was considering whether he should be punished under Article 15 of the UCMJ for violating Article 92 of the UCMJ by violating a general regulation by wrongfully providing a false dependency document in order to expedite an enlistment process.

6.  On 14 February 2007, the applicant elected not to demand a trial by 
court-martial and instead chose for the matter to be handled by his battalion commander at a closed hearing.  

7.  On 14 February 2007, the USARBD commander, after having considered all matters presented in defense, mitigation, and/or extenuation at a closed hearing, imposed the following punishment on the applicant:  reduction to sergeant (SGT), (suspended to be automatically remitted if not vacated before 12 August 2007), forfeiture of $1,291.00 per month for two months, 45 extra duty, and a written LOR.  The battalion commander also directed that the DA Form 2627 be filed in the performance (P) portion of the applicant's Official Military Personnel File (OMPF).  The applicant elected to appeal the NJP and to submit additional matters.

8.  On 14 February 2007, the USARBD commander issued the applicant an LOR, which was imposed as punishment in conjunction with the Article 15 action taken. The LOR reprimanded the applicant for assisting an applicant for enlistment to fraudulently conceal disqualifying features in that the applicant intentionally arranged for a third party to pose as the father of the applicant's child.  The battalion commander stated that the applicant's actions had severely tarnished his reputation as a noncommissioned officer and leader and brought disgrace upon the armed forces.  The battalion commander directed the LOR be filed in the  P portion of the applicant's OMPF, along with the Article 15 (DA Form 2627).

9.  On 26 February 2007, the applicant's FLAG was erroneously removed.

10.  On 24 April 2007, the applicant's FLAG was reinitiated.

11.  On 1 May 2007, the applicant was erroneously promoted to SFC/E-7.

12.  On 14 May 2007, the USARBD commander requested revocation of the applicant's promotion to SFC/E-7 based on the fact that the applicant was under a suspension period for an Article 15 he received on 14 February 2007, for misconduct, which was not scheduled to end until 12 August 2007, and on the fact the FLAG action had erroneously been removed, which allowed the applicant's promotion prior to the end of the suspended portion of the punishment.


13.  HRC Order 137-1, dated 17 May 2007, revoked the applicant's SFC/E-7 promotion order. 

14.  On 15 August 2007, the applicant's FLAG was removed with an effective date of 13 August 2007.

15.  On 2 October 2007, the Department of the Army (DA) Enlisted Standby Advisory Board (STAB) considered whether the applicant should be removed from the SFC/E-7 promotion list.  The STAB voted to remove the applicant's name from the FY07 SFC/E-7 promotion selection list and indicated he would again be eligible to compete for promotion in subsequent boards provided he was otherwise eligible. 

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 4, Section IV, contains the policies and procedures for STAB consideration and states, in pertinent part, that STABs are convened to consider records of those Soldiers on whom derogatory information has developed that may warrant removal from a recommended list.  Section V contains the policies and procedures for processing a removal from a centralized promotion list and states, in pertinent part, that HRC will delete, without further board action, the name of any Soldier from the recommended list who is reduced.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his rank of SFC be restored was carefully considered.  However, by regulation STABs are convened to consider records of those Soldiers on whom derogatory information has developed that may warrant removal from a recommended list.  Further, any Soldier on a centralized promotion list who is reduced will be removed from the promotion standing list. 

2.  The evidence of record confirms that while on the centralized promotion standing list for SFC/E-7, the applicant accepted an Article 15 on 14 February 2007 for violating Article 92 of the UCMJ by wrongfully providing a false dependency document in order to expedite an enlistment process.  The punishment imposed included a reduction to SGT/E-5, which was suspended through 12 August 2007, and an LOR.   

3.  The evidence of record further shows that the applicant was erroneously promoted to SFC/E-7 while still under a FLAG, and that this promotion was subsequently revoked.  Further, as a result of the derogatory information documented in the Article 15 and LOR, a STAB was convened to consider his case and voted to remove him from the centralized promotion standing list.  
4.  The revocation of the applicant's promotion to SFC/E-7 and his removal from the centralized promotion standing list were accomplished in accordance with the applicable regulation based on the derogatory information documented in the Article 15 and the resultant reduction and LOR.  Therefore, absent any evidence of an error or injustice related to either of these actions, there is an insufficient evidentiary basis to support granting the requested relief. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _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.

ABCMR Record of Proceedings (cont)                                         AR20090012772



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ABCMR Record of Proceedings (cont)                                         AR20090012772


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