BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140011142 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to reflect reinstatement of the applicant's rank/grade to sergeant first class/E-7.

2.  Counsel states:

* the applicant was convicted in a civilian court of Internet stalking under Arkansas state law
* he received a 24-month suspended sentence
* Army Regulation 600-8-19 (Enlisted Promotions and Reductions), table 10-2 (Rules for Reduction for Misconduct), line 2, only permits the reduction authority to reduce the applicant from master sergeant to sergeant first class without a reduction board
* in contravention with the regulatory guidance, he was reduced to the rank/grade of private/E-1 without a reduction board
* he completed 20 years of service for Reserve retirement purposes
* he was discharged per Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) and given a general under honorable conditions character of service
* Army Regulation 135-178 refers the separation authority to Army Regulation 600-8-19, chapter 10, for reductions in grade
* chapter 10, table 10-2, dictates the circumstances under which a Soldier may be reduced in grade
* table 10-2, rules 1(a-c) do not apply to the applicant as he was sentenced to confinement for 24 months but all 24 months were suspended
* table 10-2, rule 2, applies to the applicant as he was serving in the rank of sergeant or above and he was sentenced to 1 year or more but his sentence was suspended
* table 10-2, rule 2, only permits a reduction of one grade without a board action, thus the applicant should have only been reduced to the rank/grade of sergeant first class/E-7
* law dictates that although the military has wide latitude in making administrative decisions, those decisions can be challenged if there is a constitutional, statutory, or regulatory violation

3.  Counsel provides:

* supplemental statement
* U.S. Army Human Resources Command Notification of Eligibility for Retired Pay at Age 60, dated 9 September 2010
* Headquarters, 81st Regional Support Command, Orders 10-256-00027, dated 13 September 2010
* Arkansas Circuit Court of Saline County, 22nd Judicial District, 2nd Division, Judgment and Commitment Order, dated 3 September 2008
* excerpts from Army Regulation 600-8-19

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 enlisted for 8 years in the Tennessee Army National Guard on 9 August 1988.  On 20 February 1993, he enlisted in the U.S. Army Reserve and attained the rank of master sergeant on 1 March 2005.

3.  On 1 June 2006, he engaged in a sexually-explicit chat on the Internet with someone he thought to be a 13-year old girl.  He then arrived at a prearranged location to meet her and was arrested.  On 3 September 2008, the applicant was convicted in the Arkansas Circuit Court of Saline County of the felony offense of Internet stalking, to which he pled guilty.  He was sentenced to the Arkansas Department of Corrections (ADOC) for a term of 24 months and was required to register as a sex offender.

4.  Records show the applicant was an inmate at the ADOC from 5 September 2008 through 26 January 2009, amounting to 4 months and 21 days.  He was released from the correctional facility prior to the completion of the overall sentenced term due to a suspension of the sentence for a period of 96 months.

5.  On 5 August 2009, the applicant was reduced in rank/grade from master sergeant/E-8 to private/E-1 under the provisions of Army Regulation 
600-8-19, paragraph 10-3b and table 10-2, effective 2 September 2008 based on his civil conviction with an unsuspended sentence in excess of 1 year.

6.  Based on the recommendation of an administrative separation board, the applicant was issued a general discharge under honorable conditions from the U.S. Army Reserve with an effective date of 18 September 2010 under the provisions of Army Regulation 135-178, chapter 12-2, by reason of conviction by a civil court.

7.  Army Regulation 600-8-19 prescribes policies and procedures governing the promotion and reduction of Army enlisted personnel and applies to the Active Army, U.S. Army Reserve, and Army National Guard.

	a.  Paragraph 10-1 states that a reduction board is required for Soldiers in the rank of corporal/specialist (when being reduced more than one grade) and for Soldiers in the ranks of sergeant through sergeant major for any reduction for misconduct (civil conviction) under paragraph 10-3 (except under table 10-2).

	b.  Paragraph 10-3 states 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 10-2.



	c.  Table 10-2 states:

		(1)  Rule 1a:  If a Soldier's sentence includes death or confinement of 1 year or more that is not suspended and the Soldier is serving in any enlisted rank/grade above private/E-1, then the Soldier will be reduced to the lowest enlisted grade without referral to a reduction board.

		(2)  Rule 2a:  If a Soldier's sentence is confinement for more than 30 days but less than 1 year (not suspended) or the sentence is confinement for 1 year or more but is suspended and the Soldier is serving in the rank of sergeant or above, then the reduction authority may reduce the Soldier one grade without board action.  Reduction of more than one grade must be referred to a reduction board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show reinstatement to the rank/grade of sergeant first class/E-7 was carefully considered and found to have merit.

2.  For Soldiers serving in the rank of sergeant or above whose sentence is confinement for 1 year or more but the sentence is suspended, regulatory guidance allows for their reduction of only one grade without referral to a reduction board.  Referral to a reduction board is required for the reduction of more than one grade for Soldiers fitting those criteria.

3.  The evidence of record shows the applicant was convicted by a civil court to a sentence of over 1 year to be served at the ADOC, but his sentence was suspended and he ultimately served roughly 4 months in confinement.

4.  Due to the suspension of his sentence and his rank/grade at the time of master sergeant/E-8, the applicant should have been referred to a reduction board prior to his reduction of more than one rank to private/E-1.  As he was not referred to a reduction board as required by regulatory guidance, the applicant should not have been reduced in rank below the rank/grade of sergeant first class/E-7.

5.  Therefore, there is sufficient basis for granting the requested relief.



BOARD VOTE:

____x____  ____x____  _x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was reduced to the rank/grade to sergeant first class/E-7 with an effective date and date of rank of 2 September 2008.




      ___________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)                                         AR20140011142



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ABCMR Record of Proceedings (cont)                                         AR20140011142



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