IN THE CASE OF:	  

		BOARD DATE:	    3 September 2013

		DOCKET NUMBER:  AR20130001008 


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 restoration of his original date of rank (DOR) to master sergeant (MSG)/E-8 effective 1 October 2006.  In his modified application, he further requests vacation of that portion of his summary court-martial sentence which reduced him in rank from MSG/E-8 to sergeant first class (SFC)/E-7 on 30 November 2007, thereby restoring his effective date of promotion and DOR to MSG/E-8 to 1 October 2006.

2.  The applicant states he is currently serving as a first sergeant (1SG) at Fort Stewart, Georgia.  He respectfully requests restoration of his original date of rank to MSG to 1 October 2006 based upon:

	a.  the unjust manner his rank was removed by a Reserve summary court-martial officer;

	b.  his subsequent record of service these past 5 years;

	c.  his efforts to deal with post-traumatic stress disorder (PTSD), demonstrating the true character of his soldiering; and

	d.  his being promoted to MSG again on 1 November 2012.

3.  He states he will not have enough time in service remaining to compete for promotion to sergeant major (SGM) after completing his 1SG time, as he will only have 2 years remaining before mandatory retirement.  Thus, adjusting his DOR will allow him to compete for SGM in 2014 and serve another 6 years if he is promoted.

4.  The applicant provides a self-authored memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving on active duty in the Regular Army in the rank of 1SG/E-8 at the time of his application.

2.  His records show that Order Number 261-22 issued by the U.S. Army Human Resources Command (HRC) promoted him to the rank of MSG effective 1 October 2006.

3.  His Army Military Human Resource Record is void of any summary court-martial proceedings or orders reducing him from the rank of MSG to SFC.

4.  His NCOER's for the periods ending 22 August 2008, 15 February 2009, 13 October 2009, 13 October 2010, 3 October 2011, and 9 April 2012 show his rank as SFC with a DOR of 30 November 2007.

5.  His records are void of subsequent orders promoting him to the rank of MSG.  The Integrated Total Army Personnel Database shows his rank as 1SG with a DOR of 1 November 2012.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Department of the Army Promotions Branch, HRC, dated 22 February 2013.  The advisory official stated the applicant was reduced in rank from MSG to SFC on 30 November 2007 as a result of a summary court-martial.  The applicant was subsequently promoted to MSG on 1 November 2012.  The advisory official further stated that Army Regulation 600-8-19 (Enlisted Promotions and Reductions) does not allow for an administrative restoration of a DOR for a Soldier reduced by a summary court-martial.

7.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He stated in his response that he apologizes for the inadequate language in his initial application and states he was not seeking an administrative restoration of his DOR; rather, he requests that the Board vacate the portion of his sentence which reduced him in rank to SFC.

8.  He further states that he was assigned to the Southern European Task Force (SETAF) in Vicenza, Italy, over 5 years ago.  On 16 October 2007 while on a morale, welfare, and recreation trip in Romania, he excessively drank hard liquor.  He later learned that at the time of the incident he had PTSD from a prior Iraq deployment.  He then became disorderly off and on for several hours and has no recollection of his unbecoming behavior.  This resulted in his summary court-martial on 14 November 2007 and his reduction to SFC.  He takes full responsibility for his actions – he chose to drink too much alcohol.  His conduct was clearly unbecoming and something totally out of character for him.  The attached record shows he has done everything possible to make up for his wrongdoing, including undergoing 9 months of counseling and PTSD treatment, serving three additional tours in combat, and using his past incident/issues as a lesson-learned tool to help countless Soldiers deal with personal and professional issues.  His continued duty performance noted in the attached evaluations helped in his promotion to MSG again on 1 November 2012.

	a.  The summary court-martial was not processed within American standards of justice.  After the court-martial proceedings he learned that Major (MAJ) M____, a Reserve MAJ serving as the summary court-martial judicial officer, was a Federal civilian employee in Germany at the time of appointment and was long known for seeking his dream civilian job with the SETAF Staff Judge Advocate (SJA) Office in Vicenza.  The hostile treatment directed at his character witnesses and at him demonstrated MAJ M____'s bias.  MAJ J____'s attached statement described how he perceived the court officer to have "already decided on [Applicant's] punishment before I began to give my testimony."  1SG W____'s attached statement says, "I truly believe all the evidence from his Character Witnesses was not thoroughly examined, nor was it seriously scrutinized in an objective manner by the Summary Court Martial Officer."  SFC A____ H____ wrote, "I do not feel the Summary Court Martial Officer properly considered the witness statements before deciding his punishment.  I felt like the Summary Court Martial Officer was badgering and trying to intimidate me.  In my sixteen years of military service, I have never been so upset with an officer."  The reduction in rank became clear to him – MAJ M____ wanted to impress the SJA over his case enough to be offered the dream job vacancy that would be announced a few months later.  The vacancy was in fact announced and MAJ M____ was offered the job as shown in attached appeal record.  He believes all Soldiers deserve fair treatment "under the values we all fight and defend" for this great Nation.

	b.  The October 2007 incident is the only day in his life as a Soldier that he failed to uphold our standards and values and set the example for others to follow.  He referred himself to mental health counseling and the Army Substance Abuse Program (ASAP) to find out why he acted so out of character and could blackout for such a long time.  While attending weekly treatment for 9 months to 
treat the PTSD issues, he daily continued to soldier on and make sure he did everything possible to never let this happen again.  To further prove his value to the Army, he actively sought deployments and spent 6 months in Iraq and 23 months in Afghanistan.

	c.  All 13 noncommissioned officer evaluation reports (NCOER's) prior to the NCOER covering his court-martial rated him "Among the Best" with a combined total of 51 "Excellence" ratings and ratings of "Successful 1" and "Superior 1" by his senior rater.  He made the Commandant's List for every school attended minus one (Pathfinder) and was the Distinguished Honor Graduate for basic training and the Air Assault School.  Of the seven NCOER's since, three of which are from combat deployments (2008 in Iraq, 2009 and 2010 in Afghanistan), he has again been rated "Among the Best" with a combined total of 20 "Excellence" ratings and ratings of "Successful 1" and "Superior 1" by his senior rater.

	d.  He received ratings of "Fair 4" and Superior 3" from his senior rater for the NCOER immediately following his summary court-martial.  He will never receive an NCOER like this again.  The senior rater for this NCOER even states, "A solid NCO temporarily set back by an unfortunate incident due to a lapse in judgment."  He can swear under oath and promise that he will never let the Army down ever again.

	e.  He states that Lieutenant Colonel (LTC) (Retired) B____ V____, the Clinical Director of the ASAP wrote in a memorandum for his clemency hearing, "I believe that [Applicant's] very unusual; [sic] completely out of character behavior during the alcohol related blackout; [sic] is a treatable medical issue with a favorable prognosis, and not a willful criminal act.  He exercised good judgment in his self-referral to the mental health clinic and to the Alcohol [sic] Substance Abuse Program.  I hope the response to his brief problemIissue does not make him a 'casualty of friendly fire', [sic] with so much invested in his development and so much returned in exemplary service."

	f.  He states that Dr. R____ F. T____, his psychologist, wrote in a memorandum for his appeal, "It became apparent during his counseling sessions that his alcohol tolerance level was very low since he had not had any alcohol for the past two weeks and his drinking had been minimal to none in the previous five and a half years.  It also became apparent that it is likely that his deployment-related PTSD symptoms affected his behavior during the incident."

	g.  He has already learned from his lapse in judgment to help Soldiers under his supervision to deal with PTSD issues, especially Specialist J____ in Italy and Staff Sergeant A____ in Afghanistan, and will do so again if the need arises, as mission accomplishment and the welfare of his Soldiers will always be his main priority.

	h.  He was awarded the Bronze Star Medal (BSM) with "V" Device in Afghanistan for what Major General J____ A. M____ described as "outstanding leadership in successive combat engagements."  He lives to serve his country and our Army that he loves in whatever capacity needed and continues to contribute to the Global War on Terror.

	i.  He was also awarded an Army Commendation Medal with "V" Device in Afghanistan for what Captain J____ T____ described as a "superb display of valor under enemy fire.  Actions led to saving SFC M____'s life and the safety of the Soldiers."  Later he was awarded the Combat Action Badge for another engagement in Afghanistan, the Navy Achievement Medal for directing an Aerial Response Force mission, and another BSM as his end-of-tour medal.

9.  Army Regulation 600-8-19 states a reduction by sentence of a court-martial is announced in appropriate court-martial orders.  Paragraph 10-13 states an enlisted Soldier who has been sentenced by a court-martial to a reduction in grade is not reduced until:

* the record of trial has been prepared and authenticated
* any appropriate legal review has been completed
* the convening authority has approved and ordered the sentence to reduction executed

10.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.

	a.  It states that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

	b.  It states the trial counsel or summary court-martial will prepare a report of the result of trial at the end of the court-martial proceedings.  It will be prepared on a DA Form 4430 (Department of the Army Report of Result of Trial).  A copy of the DA Form 4430 will be included in allied papers accompanying the record of trial.

	c.  Paragraph 3-28 states that normally the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

11.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (ABCMR) is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

12.  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 regulation provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  Though he and others may feel the summary court-martial judicial officer was biased in regard to how he handled the case and the severity of the punishment imposed, this appears to be conjecture.  Therefore, there is insufficient evidence to support this claim.

2.  His summary court-martial documents are not available for the Board's review.  However, the Board begins its consideration with a presumption of regularity that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, it is presumed that all requirements of law and regulation were met and his rights were fully protected.

3.  By regulation, the basis for any set-aside action is a determination that under all the circumstances of the case, the punishment resulted in a clear injustice.  There is no such evidence of a legal or factual error that would support setting aside the punishment imposed on the applicant, to include the reduction now in question.

4.  It is understandable that he would like to be eligible for consideration for promotion to the rank of SGM and for potential service beyond that authorized for an MSG/1SG.  However, this does not form the basis of an error or injustice which would warrant restoring his original DOR.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20130001008



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ABCMR Record of Proceedings (cont)                                         AR20130001008



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