BOARD DATE:	  30 December 2014

		DOCKET NUMBER:  AR20140005339 


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 that his rank and pay grade be advanced equal to that of his peers.  He also requests additional awards of the Army Good Conduct Medal (AGCM), due to his years of honorable service.  

2.  He states:

	a.  He held pay grade E-5 and he had over 9 years of honorable service.  He was convicted by a court-martial in November 2009 and sentenced to be incarcerated for 5 years at Fort Leavenworth, KS.  He served his entire sentence less time credited for good conduct and work abatement.  He continually maintained he was innocent.  He appealed his case, his conviction was set aside, and the charges were dismissed.  

	b.  He should be advanced in rank/pay grade because his court-martial sentence was "set aside, reversed, and dismissed in whole."  There were no instances of misconduct prior to or after his conviction.  As stated by the court-martial convening authority, all rights and privileges of which he had been deprived were to be restored.  He was deprived of the opportunity for advancement in rank and grade and therefore should be promoted to a rank and grade equivalent to the highest rank among his peers.  He should also receive all awards of the AGCM he is entitled to for his years of honorable service.  

3.  He provides a self-authored statement and a general court-martial order.  


CONSIDERATION OF EVIDENCE:

1.  The applicant has requested retroactive awards of the AGCM.  

	a.  Army Regulation 600-8-22 (Military Awards) states that requests for retroactive awards of the AGCM for Soldiers who were discharged after 1 October 2002 should be submitted to the U.S. Army Human Resources Command (HRC).  There is no evidence that the applicant has submitted a request to HRC or that such a request was denied.  

	b.  Paragraph 2-5, Section II, Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that an applicant has not exhausted all available administrative remedies.  The applicant is advised that he may submit a request for additional awards of the AGCM to HRC at the following address:  U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  If his request is denied, he may submit a new application to this Board with evidence of the denial attached to his application.  Additional awards of the AGCM will not be discussed further in these proceedings.  

2.  On 8 June 2004, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 91B (Wheeled Vehicle Mechanic).  Effective 1 September 2007, he was promoted to sergeant (SGT)/E-5.  

3.  His Official Military Personnel File contains Noncommissioned Officer Evaluation Reports (NCOER) for the periods ending 31 July 2008 and 31 July 2009.  

	a.  On each NCOER, his rater rated his overall potential for promotion and/or service in positions of greater responsibility as "Fully Capable."  

	b.  For the period ending 31 July 2008, his senior rater gave him a "3" (Successful) rating for his overall performance and a "2" (Superior) rating for his overall potential for promotion and/or service in positions of greater responsibility.  The senior rater made the following comments:

* continue to promote to positions of greater responsibility; send to BNCOC [Basic Noncommissioned Officer Course]
* total team player; willing to go the extra mile for mission accomplishment
* demonstrates the potential for higher levels of responsibility
	c.  For the period ending 31 July 2009, his senior rater gave him a "3" (Successful) rating for his overall performance and a "3" (Superior) rating for his overall potential for promotion and/or service in positions of greater responsibility.  The senior rater made the following comments:

* do not promote
* do not send to BNCOC
* do not retain
* Soldier is confined and unavailable for signature

4.  On 3 May 2010, the U.S. Army Combined Arms Support Command and Fort Lee, Fort Lee, VA, issued General Court-Martial Order Number 6.  The order shows the applicant was found guilty of wrongfully soliciting another Soldier to commit premeditated murder.  He was sentenced to be reduced to pay grade 
E-1, to be confined for 5 years, and to be discharged from the service with a dishonorable discharge.  He was credited with 202 days of confinement against the sentence to confinement.  The sentence was approved and, except for the part of the sentence extending to the dishonorable discharge, was ordered to be executed.  

5.  A DA Form 4187 (Personnel Action), dated 5 March 2013, shows his duty status was changed from confined by military authorities to present for duty effective 18 February 2013.  The form shows he had been released from confinement at the U.S. Disciplinary Barracks.  

6.  On 14 August 2013, the U.S. Court of Appeals for the Armed Forces set aside the finding of guilty and the sentence.  The decision shows a rehearing was authorized.  

7.  On 9 January 2014, the Commander, U.S. Army Combined Arms Support Command, Sustainment Center of Excellence and Fort Lee, dismissed the charges and specifications against the applicant.  He noted that a rehearing was authorized but was not practicable.  He ordered restoration of all rights, privileges, and property of which the applicant had been deprived by virtue of the findings of guilty and the sentence.

8.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 28 January 2014 by reason of completion of required active service.  The form shows in:

* item 4a (Grade, Rate or Rank) – SGT
* item 4b (Pay Grade) – E05
* item 12c (Net Active Service this Period) – 9 years, 7 months, and 21 days
* item 12i (Effective Date of Pay Grade) – 1 September 2007
* item 14 (Military Education), in part – he completed the Warrior Leader Course (WLC) in 2006

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.  

   a.  Table 3-4 (Eligibility Criteria for Promotion) provides the criteria a Soldier must meet to be promoted to staff sergeant (SSG)/E-6 once they have been recommended for promotion.  The criteria require, in part, that a Soldier must have completed WLC and must have 72 months of time in service and 
10 months of time in grade.  

	b.  Paragraph 10–14 states grade restoration may result from restoration of all rights, privileges, and property to a Soldier who fulfilled a court-martial sentence when the reduction sentence or other sentence resulting in reduction is set aside or disapproved.  A commander authorized to promote to a higher grade may:  

		(1)  Restore grade under applicable provisions of the Uniform Code of Military Justice.

		(2)  Direct the Soldier to be promoted one grade higher than the one held before his or her reduction, if he or she would have attained the higher grade had he or she not been tried and convicted by a court-martial.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his rank and grade be advanced equal to that of his peers.  To say that he would have been promoted at the same rate as his peers would be purely speculative.  Speculation is not an acceptable basis for correction of a military record.  Army Regulation 600-8-19 does, however, provide the policy for addressing restoration and promotion when a court-martial sentence is set aside.   

2.  The governing regulation does not require that a Soldier in the applicant's situation be restored or promoted to one grade higher than the grade held before reduction.  It states the commander with promotion authority may restore the rank/pay grade and promote the individual one pay grade higher than the pay grade held before reduction.  

3.  In this case, the evidence of record shows the applicant was restored to the rank/grade of SGT/E-5.  In the absence of evidence showing otherwise, it must be presumed that the promotion authority was aware of the option to promote him one grade higher and determined that option was not appropriate.  There is no evidence of error, injustice, or inequity in the fact that he was not promoted one grade higher.  

4.  In view of the foregoing, there is an insufficient basis upon which to grant the requested relief.  

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)                                         AR20140005339



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ABCMR Record of Proceedings (cont)                                         AR20140005339



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