2. The applicant requests correction of his separation documents (DD Form 214) to show that he was separated from the service in the pay grade of E-5.
3. The applicant states, in effect, that he was unjustly reduced from the pay grade of E-5 to the pay grade of E-4 for inefficiency on 7 September 1993. He goes on to state that his reduction was unjust because he was not afforded the right of a reduction board as required by the applicable regulation and as indicated by the Total Army Personnel Command (PERSCOM) in a letter he submits in support of his application.
4. The applicants military records show that the applicant enlisted on 1 October 1984 and remained on active duty through a series of reenlistments. He was promoted to the pay grade of E-5 on 18 February 1989.
5. On 7 September 1993 the applicant was reduced from the pay grade of E-5 to the pay grade of E-4. The circumstances surrounding the administrative reduction in grade are not present in the available records (to include the reduction order). However, in the processing of this case, a staff member of the board contacted the applicants senior rater (now retired) to ascertain what had occurred in the applicants case. The senior rater indicated that he spoke in the applicants behalf in an attempt to stop the reduction proceedings and specifically remembers the commander reading the entire procedure from the regulation regarding administrative reductions. He further stated that he believed, but could not state definitively, that after consulting with his counsel at Fort Stewart, Georgia, the applicant waived his right to a reduction board. He also indicated that he had no knowledge of whether a reduction board was convened to consider the applicants case.
6. On 29 November 1993 the applicants commander notified him that he was initiating action to separate him from the service for failure to meet Army body fat composition/weight control standards. The applicant was further informed of his right to consult with counsel and his right to appear before an administrative separation board.
7. Although not present in the available records, there is evidence that the applicant submitted an election statement to his commander in connection with the discharge. There is also evidence that the applicant declined the opportunity to consult with counsel.
8. The commander submitted the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 18, based on the applicants failure of the weight control program. The recommendation also indicated that nonjudicial punishment had been imposed against the applicant in April 1993, that he had been relieved from his duties in July 1993, administratively reduced in September 1993, and counseled on numerous occasions (10 documented counseling sessions). The recommendation was approved by the appropriate authority on 1 December 1993.
9. Accordingly, the applicant was honorably discharged in the pay grade E-4 on 21 December 1993. He had served 9 years, 2 months, and 21 days of total active service and was paid one-half separation pay in the amount of $6,367.34.
10. The supporting letter submitted by the applicant from the PERSCOM is a letter responding to a congressional inquiry by the applicants congressman. It indicates that the applicant was not afforded the opportunity to appear before an administrative reduction board which constituted a violation of regulatory requirements.
11. Army Regulation 600-8-19, chapter 6, serves as the authority for the reduction of enlisted personnel. It states, in pertinent part, that a reduction board is required for soldiers in grades E-5 through E-9. However, board appearance may be declined, which will be considered as acceptance of the reduction boards action. A complete copy of the reduction action to include the appeal will be filed permanently in the Official Military Personnel File.
CONCLUSIONS:
1. Although the applicants senior rater believes that the applicant waived his right to appear before an administrative reduction board, he cannot say definitively that such was the case. Additionally, the applicants records do not contain any documents, to include a reduction order, that indicate that a reduction board was convened.
2. Irrespective of whether or not the applicant waived his right to appear, the applicable regulation requires that a board be convened regardless whether or not the individual be considered for reduction appears or not. There is no evidence that such was the case.
3. Inasmuch as the PERSCOM ascertained that the applicant was not afforded the opportunity to appear before a reduction board within 3 months after his separation and 6 months after the reduction occurred, it is reasonable to presume that the information was available at that time (which is no longer available) to determine that such was the case. Consequently, the applicants rank should be restored as requested.
4. In view of the foregoing, it would be appropriate to correct the applicants records as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected:
a. by voiding the reduction to the pay grade of E-4 of the individual concerned on 7 September 1993 and restoring him to the pay grade of E-5 with a date of rank of 18 February 1989;
b. by showing that he was discharged on 21 December 1993 in the pay grade of E-5 with severance pay entitlements for that grade; and
c. by restoring to him all pay and allowances that he would have received had he not been administratively reduced in grade on 7 September 1993.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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