BOARD DATE: 25 September 2014
DOCKET NUMBER: AR20140003932
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 her former grade/rank of master sergeant (MSG)/E-8.
2. She also requests to be advanced on the Retired List in the highest grade satisfactorily held while on active duty.
3. The applicant states:
* she served on active duty for 20 years and performed superbly in various leadership positions, from squad leader to first sergeant
* in December 2011, she was convicted and sentenced to one year and one day of confinement
* her chain of command initiated separation action against her for civil conviction but a separation board recommended her retention
* she was allowed to stay until retirement through February 2013 but was placed on the Retired List as a private (PVT)/E-1
* she was administratively reduced from E-8 to E-1 based on her civil conviction and confinement sentence
* she was not confined for 1 year or more and based on the change to the confinement period, she wants her grade restored
* she would also like to say that she was not court-martialed; however, her pay records at the Defense Finance and Accounting Service (DFAS) stated they have this in her records and it is top fed by the U.S. Army Human Resources Command (HRC)
4. The applicant provides:
* Multiple letters of recommendation and/or character reference letters
* Academic transcripts
* Awards and decorations
* Service school evaluation reports
* Noncommissioned Officer Evaluation Reports (NCOER)
* Retirement calculator and orders
* Military photograph
CONSIDERATION OF EVIDENCE:
1. The applicant's records show she enlisted in the Regular Army on
24 February 1993 and she held military occupational specialties 36B (Financial Management Specialist) and 94F (Computer Detection Systems Repairer).
2. She served through multiple reenlistments in a variety of stateside or overseas assignments, including Turkey, Yugoslavia, Hawaii, Republic of Philippines, Afghanistan, and Kuwait.
3. She was awarded multiple individual and unit awards, decorations, and badges, including (but not limited to) the Bronze Star Medal, Meritorious Service Medal, and Army Commendation Medal, as well as other DOD (joint) awards.
4. She completed various civilian and/or military courses including (but not limited to) the senior leader course and the first sergeant course. She was promoted to sergeant first class on 1 April 2007 and MSG/E-8 on 1 March 2011.
5. She was assigned as a company 1SG to the 33rd Financial Management Company, 10th Special Troops Battalion, 10th Mountain Division, Fort Drum, NY.
6. The complete facts and circumstances surrounding her misconduct, notification of separation memorandum, acknowledgement and election of rights, chain of command's recommendations, and verbatim administrative separation board findings and recommendations are neither available in her service records nor provided by her. The available evidence consists of and shows:
a. The "Findings and Recommendations" page of an administrative separation board proceedings. It shows an administrative separation board convened on an unknown date in August 2012 to determine if the applicant should be separated for misconduct under the provisions of chapter 14 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) by reason of civil conviction.
b. After carefully examining the evidence before it, the administrative separation board found that the allegations that the applicant, while acting as a public official, knowingly and unlawfully, directly and indirectly, corruptly sought, received, accepted, and agreed to receive and accept things of value in return for being influenced in the performance of official acts, in return for being influenced to commit and aid in committing and to collude in and allow fraud on the United States, and in return for being induced to do and omit to do acts in violation of her official duties; that is, she corruptly sought, received, and accepted approximately $30,000.00 in U.S. dollars, are supported by a preponderance of the evidence.
c. The administrative separation board recommended her retention in the Army. The board president approved the findings and recommendations on 12 August 2012.
7. On 11 October 2012, she was counseled by her battalion command sergeant major of the administrative reduction to PVT/E-1 in accordance with paragraph 10-3a and Table 10-2, Rule 1, of Army Regulation 600-8-19 (Enlisted Promotions and Reductions). The counseling form states she was convicted by the Northern Federal District Court of Illinois on 5 December 2011 and she was sentenced to confinement for one year and one day (not suspended), one year of supervised release, and $30,000 in restitution.
8. On 16 October 2012, Headquarters, 10th Sustainment Brigade, Fort Drum, NY, published Permanent Orders 285-1 reducing her to E-1 effective 16 October 2012 by reason of civil conviction resulting in confinement of one year or more in accordance with Army Regulation 600-8-19, paragraph 10-3a and 10-2, Rule 1.
9. On 23 July 2013, by memorandum, the Director, Military Personnel Management, informed her that her request to allow the general court-martial convening authority to determine a reduction in grade based on conviction by a civil court with confinement exceeding one year is disapproved. The gravity and severity of the offense warrants such reduction. The records indicate that she was afforded an avenue to retire and was transferred to the retired rolls effective 1 March 2013.
10. She provides a Notice of Release and Referral issued by the U.S. Department of Justice, Federal Bureau of Prisons, indicating her release date of 1 November 2013.
11. On 2 January 2014, she petitioned the Army Grade Determination Review Board (AGDRB) to advance her on the Retired List to the grade of E-8.
12. On 29 January 2014, an official at the AGDRB informed her that neither HRC nor DFAS have a suspense system that allows the AGDRB to conduct a grade determination review board prior to her 30-year point. In order to be advanced on the Retired List to the grade of E-8 under the provisions of Title 10, U.S. Code, section 3964, she must wait until around February 2023 to apply to the AGDRB for advancement on the Retired List.
13. Army Regulation 600-8-19 provides for the promotion and reduction of enlisted Soldiers.
a. Paragraph 10-3a (Reduction for Misconduct), a Soldier convicted by a civil court (domestic or foreign) or adjudged a juvenile offender by a civil court (domestic or foreign) will be reduced or considered for reduction according to Table 102.
b. Table 10-2 (Rules for reduction for misconduct), Rule Number 1 states if a Soldiers sentence includes death or confinement of 1 year or more that is not suspended; and/or Soldier is serving in any enlisted grade above PV1, then the Soldier will be reduced to the lowest enlisted grade without referral to a reduction board. Appeal is authorized only to correct an erroneous reduction.
DISCUSSION AND CONCLUSIONS:
1. The applicant was convicted by civil court for what appears to be bribery and she was sentenced to confinement for one year and one day (not suspended), one year of supervised release, and $30,000 in restitution.
2. As required by the governing regulation, she was reduced to the lowest enlisted grade, albeit allowed to stay on active duty until her retirement in February 2012. The fact that she may have been released earlier than her sentence does not change the fact that she was sentenced to 1 year or more that was not suspended. It is the adjudged sentence that drives the reduction, not the actual length of time spent in confinement. Therefore, she is not entitled to the requested relief.
3. As for placement on the Retired List in the highest grade satisfactorily held, her request is premature and is addressed to the wrong Board. As previously informed, in order to be advanced on the Retired List to the grade of E-8 under the provisions of Title 10, U.S. Code, section 3964, she must wait until around February 2023 to apply to the AGDRB for advancement on the Retired List.
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) AR20140003932
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ABCMR Record of Proceedings (cont) AR20140003932
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