IN THE CASE OF: 

		BOARD DATE:	    29 July 2014

		DOCKET NUMBER:  AR20130017885 


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 her rank of sergeant (SGT)/
E-5 and promotion to staff sergeant (SSG)/E-6.

2.  The applicant states:

	a.  She was reduced to specialist (SPC)/E-4 on 4 February 2012 for something that both the U.S. Army Human Resources Command (HRC) and senior leaders stated she should not be reduced for.  There is no record of her military contract to show she should have been on active duty when she was serving on active duty during the last year.  She also has documentation from HRC stating that she should have been promoted, not reduced.

	b.  At the time, she was also a victim of domestic violence/sexual assault and she did not have the strength to fight her chain of command.  It was brought to her attention that her contract could not be found for this time frame.  She knows that she was supposed to have a contract and hopes that one can be obtained.  She also knows that she should have been promoted.  Getting reduced stopped her from continuing her military career and moving forward even as an Active Guard Reserve (AGR) Soldier.  She was and continues to be an outstanding Soldier.  If there is anything she can do to move on with her career she would love to.  She is not requesting back pay, but only to move forward as a SGT/SSG in the U.S. Army.


3.  The applicant provides copies of the following:

* 2007 DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* Corrected By Name List – Headquarters, Department of the Army, Monthly SGT/SSG Promotion Selection Name List
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* email correspondence between HRC and herself
* excerpts of Army Regulation 600-8-19 (Enlisted Promotions and Reductions)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 23 April 2003.  She was discharged from the DEP and enlisted in the Regular Army (RA) on 19 May 2003.  She served as a human resources specialist.

2.  She reenlisted in the RA on 12 April 2006 and was honorably discharged on 16 December 2007 for the purpose of immediate reenlistment.  She again reenlisted in the RA, in pay grade E-4, on 17 December 2007, for 4 years.  She was promoted to SGT/E-5 on 1 February 2008.

3.  She provided copies of the following with her application and rebuttal to the advisory opinion:

	a.  Two DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard) which show the following:

* 14 February 2014 – record pass
* 5 April 2012 – record pass
* 16 May 2012 – record fail
* 17 May 2012 – record pass

	b.  A Corrected By Name List – Headquarters, Department of the Army, Monthly SGT/SSG Promotion Selection Name List, dated 28 June 2012, which shows her name listed as being qualified for promotion to SSG/E-6 on 1 July 2012.

	c.  A DA Form 4856, dated 29 June 2012, which shows she received counseling for the initiation of an investigation after her chain of command was notified of the potential possibility that she had adjusted her APFT score to reflect a record APFT taken in June 2011 in place of a current record APFT score taken in February 2012.

	d.  Five DA Forms 3881 (Rights Warning Procedure/Waiver Certificate) and DA Forms 2823 (Sworn Statement), wherein the individuals submitted sworn statements.  The individuals stated the following when questioned of their knowledge of an APFT score entered into eMILPO by SPC W____:

		(1)  SPC L. W____, on 27 June 2012, stated that he changed one for the promotion board.  He also changed a physical training (PT) score because the orderly room clerk entered the wrong score in the system which knocked her [applicant] off her promotable status.  After being entered in the system, her status changed back to promotable.  He also entered another PT score once she received her updated PT score and because her PT was due to expire sometime in June.

		(2)  SPC L. W____, on 28 June 2014, stated that he updated the PT score because that was the one he was handed to update for the Soldier who was promotable.  The Soldiers never really gave him a reason for updating PT or weapons.  He really never would ask unless he was real busy and he could not do it at the time.

		(3)  SGT R. M. M____, on 28 June 2012, stated that he was informed of this when he was attending school.  At that point SPC W____ advised him to add up the push-ups and sit-ups, divide the total by two, then add the score up that way.  Since he was new, he did not know about Soldiers on a promotion list being scored differently.

		(4)  SPC K. L____, on 28 June 2012, stated that she had a vague memory of someone stating their promotable status had dropped.  SPC W____ figured out it was because of SGT M____ taking the score from its promotable score since it was a P2 profile for walking.  SPC W____ checked if this happened to other people, but was not sure if he had updated at that point or if it was at a later date.

		(5)  SGT W____ (applicant), on 28 June 2012, stated when she was boarded in March she used the February APFT card.  Sometime in April, she lost her promotable status due to an error from the Headquarters and Headquarters Company training room.  The noncommissioned officer (NCO) updated her Enlisted Record Brief (ERB) with an APFT in April (she thinks) and did not enter the correct information.  It seemed very accidental and that NCO was extremely tasked so she used an APFT that was in her email to update her ERB to re-board.  The NCO then entered that PT card, but did not average the score as the regulation stated.  She was informed it had to be corrected, but did not push the issue.  Due to a redeployment mission she needed her ERB that the training room NCO messed up.  She did not do anything illegal.  She felt extremely targeted at that time and that investigation should be much larger.  She would not make another statement until her attorney could assist her.

	e.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) which shows the form was completed on 15 August 2012 for the applicant's nonjudicial punishment (NJP) for wrongfully soliciting SPC W____ to increase her promotion points by inputting an APFT score that was not current into the eMILPO system between 4 and 20 June 2012.

	f.  A DA Form 2627 which shows that on 13 September 2012 she accepted NJP for instructing, with intent to deceive, SPC W____ to enter a DA Form 705, dated 1 June 2011, into her record in the eMILPO system, which record was false in that the data was not her most current APFT, on 18 April 2012.  Her punishment included a reduction to pay grade E-4.  The form shows she elected not to have a trial by court-martial.  On 27 November 2012, the imposing officer directed the Article 15 be filed in the performance section of her official military personnel file.  She elected to appeal and submit additional matters.

	g.  An appeal of the Article 15, dated 29 November 2012, wherein she requested through counsel dismissal of the Article 15 in its entirety or, in the alternative, that the punishment be set aside and her rank be restored to E-5, period of suspension be removed, and that the extra duty be rescinded.  Her record is void of the outcome of this appeal.

4.  She was reduced to pay grade E-4 on 27 November 2012.

5.  She was honorably released from active duty in pay grade E-4 on 18 April 2013 for completion of required active service.  She was transferred to the USAR.  She was credited with completing 9 years and 11 months of net active service with no time lost.

6.  She also provided copies of the following:

	a.  email correspondence, dated between 2 July and 25 September 2013, between HRC and herself, wherein she requested information on and was advised of:

* her Victim-Witness Liaison
* general court-martial processes
* AGR Program
* Reentry on active duty
* Failure of the AFPT and promotion to SSG
* the addition of her name to the Consideration List for the AGR Program

	b.  Army Regulation 600-8-19, Tables 3-3 and 3-4, dated 30 April 2010, which both specify the eligibility criteria for recommendation and promotion is a current passing APFT score in accordance with applicable regulations and field manuals.

	c.  Army Regulation 600-8-19, Section II, which specifies to be promoted to SGT or SSG the Soldier must have a passing APFT score within 12 months of the date of the promotion order.

7.  In an advisory opinion, dated 9 December 2013, the Chief, Enlisted Promotions, Promotions Branch, HRC, stated: after a review of the applicant's application her request had been disapproved.  The available records of the Junior Enlisted Promotions Section reflected that the applicant was flagged on 27 June 2012 for adverse action, making her ineligible for promotion on 1 July 2012.  The applicant received a field grade Article 15 and was reduced from SGT to SPC effective 27 November 2012.

8.  The advisory opinion was forwarded to the applicant for acknowledgement/
rebuttal on 13 December 2013.  In her undated response, the applicant stated:

	a.  She was flagged on 27 June, but never counseled until 29 June 2012.  She received an Article 15 solely due to the fact she was being promoted.  The reason for the Article 15 is not addressed by HRC.  Had she not been flagged and issued an Article 15 would HRC consider the APFT a valid APFT which she could be promoted for?

	b.  She accepted the mistake of others as the reason she received the Article 15 and honestly she was too emotionally distraught with the rape case to care about anything else other than everything being over.  She knew from the very beginning that the Board would be an option.  She is requesting the Board consider the sworn statements and regulations provided before determining whether she should remain an SPC.

	c.  She requested a trial by court-martial three times to be exact.  She accepted the Article 15 because of the problems it would have caused SPC W____ had she not.  SPC W____, who was initially flagged, never received an Article 15.  She realized she was causing additional problems for everyone by contacting a Member of Congress; therefore, she accepted the Article 15 not believing she had committed a crime.  She believed that one day someone would make a thorough review of her case and provided some restitution.

9.  Army Regulation 600-8-19 sets the enlisted promotions and reductions function of the military personnel system.  The regulation states in paragraph 7-4 that commanders and leaders at all levels will notify the promotion authority when Soldiers whose name appears on a list are nonpromotable.  Soldiers may be advanced or promoted only while in a promotable status.  Soldiers in a nonpromotable status may not be selected from the promotion list until they have regained a promotable status.  A Soldier is in a nonpromotable status and will not be selected, promoted, advanced, or appointed to a higher grade when the Soldier is under a FLAG or has a circumstance that requires a FLAG.  The Soldier is in a nonpromotable status whether the FLAG is actually initiated and completed or not, for example, for failure of APFT.  A Soldier is eligible for selection after the case is favorably closed, unless action has been initiated to remove the Soldier from the promotion list.  Commanders will remove a Soldier who is reduced in grade from the promotion list.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows an investigation was initiated by the applicant's command upon notification of the potential possibility that the applicant had adjusted her APFT score to reflect a record APFT taken in June 2011 in place of a current record APFT score taken in February 2012.  She was counseled on the matter.

2.  She was subsequently punished under Article 15 for instructing another Soldier, with intent to deceive, to enter false data in the eMILPO system.  Her punishment included a reduction to pay grade E-4.  No matter her reason for doing so, the form shows she elected not to have a trial by court-martial.  Upon completion of the hearing, the Article 15 was directed to be filed in the performance folder of her OMPF.  She elected to appeal; however, the record is void of the outcome of that appeal.

3.  Therefore, she was properly released from active duty in pay grade E-4 on 18 April 2013 in accordance with applicable regulations.  There is no evidence of record and she did not provide sufficient showing the DA Form 2627 she was issued for her misconduct was issued in error or were unjust, in whole or in part.

4.  Based on the seriousness of her offense and the absence of evidence showing she was reduced erroneously or unjustly there is an insufficient evidentiary basis to support granting her the request relief.

5.  There is also no evidence of record and she provided none to show she was victim of domestic violence/sexual assault at the time.

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)                                         AR20130017885



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ABCMR Record of Proceedings (cont)                                         AR20130017885



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