MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 7 May 2002
         DOCKET NUMBER: AR2001066044


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Kenneth W. Lapin		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
                  Records

         Exhibit B - Military Personnel Records (including
                  advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by restoring his rank of SSG/E-6.

APPLICANT STATES: In effect, that he was assigned to a full-time management position in accordance with the State of Oklahoma Military
Department Orders 114-13, dated 14 June 1982. He was administratively reduced to SGT/E-5 on 10 January 1984, and was assigned as a maintenance supervisor under paragraph 117, line number 02. He also states that according to Oklahoma Military Department (OMD) Pamphlet 600-5, Additive Full-Time Manning (AFTM) personnel were not allowed to assume a modified table of organization and equipment (MTOE) position. He submits copies of: OMD Pamphlet 600-5, AFTM Program, chapter 2 and 6; Position Description, AFTM Unit Maintenance NCO; State of Oklahoma Military Department Orders 114-13, dated 14 June 1982; and State of Oklahoma Military Department Orders 15-18, dated 23 January 1984, to substantiate his case.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the Board's previous consideration of the case AR1999022976 on 3 November 1999.

The Board originally concluded that that the applicant’s administrative reduction was voluntarily and accomplished in accordance with applicable regulations. The record shows that the applicant voluntarily requested reduction in order to be assigned to a specific AGR position and to remain in an AGR status. In addition, he continued to serve in the grade of SGT in various AGR positions for over 10 years subsequent to his administrative reduction without ever serving in a position which authorized a higher grade. The Board also concluded that the applicant was not eligible for advancement on the retired list to the highest grade held until his active service plus his service on the retired list totaled 30 years.

The letter provided by the Oklahoma Senator to the ABCMR, dated 14 November 2001, states that the applicant’s claim was reviewed and denied by the Board in 1999. Evidence submitted by the applicant was not reviewed and considered in that decision. The applicant had requested answers from the Board to include; non-review of pertinent evidence/documentation in the orders submitted. These orders appear to justify that he should not have been reduced to SGT in 1984.

The applicant entered the Active Guard Reserve (AGR) Program on 30 May 1980 for the Oklahoma Army National Guard (OKARNG) and remained on active duty in that status until his retirement on 31 August 1994, in the rank of SGT.



The applicant has provided a copy of Orders 114-13, dated 14 June 1982, which ordered him to a new AGR tour and to a technical position as a unit maintenance NCO. He was placed in a Table of Organization and Equipment (TOE) position of Motor Sergeant, in MOS 63B, with an authorized grade of SFC as stated in his previous decisional document.

The applicant provided a copy of OMD Pamphlet 600-5, chapter 2, AFTM Program. It states, in pertinent part, that this program provided special positions for selected units, in addition to the civilian technician force (including civilian-full time manning (CFTM) personnel) and in addition to the MTOE/ table of distribution and allowances (TDA) positions of those units. It also stated that special TDA positions were created for the program. These positions were located in the TDA for Command and Control Headquarters – OKARNG.

AFTM personnel provided by the OKARNG from its own personnel resources
would be assigned to the 45th Troop Command, and attached to the OKARNG unit where their AFTM positions existed. Such personnel must occupy the specific position in the Command and Control (CAC) TDA, which had been designated for the AFTM position concerned. AFTM personnel would not be transferred within the OKARNG except to fill another AFTM position, or upon termination of a tour of duty and relief from the program. AFTM personnel do not supersede, or take the place of, any members of the civilian work force of the ARNG, nor do they assume positions within the MTOE command structure.

Chapter 6 of OMD Pamphlet stated that AFTM enlisted personnel who hold the grade specified for their positions in the TDA for CAC Headquarters – OKARNG may be promoted one grade above the specified grade, providing they met all normal prerequisites for promotion and have served in the AFTM Program for one year or more. A special position in the OKARNG TDA had been designated for each authorized AFTM space in the OKARNG.

A portion of the OMD Pamphlet 600-5 provided by the applicant provides the position description for AFTM Unit Maintenance NCO. It states that Army National Guard (ARNG) AFTM personnel may begin duty in this position in a rank no higher than the grade specified in the TDA, 45 Troop Command. In most cases, TDA rank will be Staff Sergeant (E-6) or Sergeant First Class (E-7). Active Army Personnel will in some cases enter duty in a grade one step above the TDA rank. ARNG personnel in the position may be promoted to a grade one step above TDA rank, providing they are otherwise qualified and have served one year in AFTM status.





As stated in the previous decisional document, there were provisions for promotion of members of the ARNG one grade above authorized positions, and that these provisions did not apply to members in an AGR status.

Army Regulation 635-200 sets forth the basis authority for separation of enlisted personnel. Chapter 12 provides policy and guidance on Retirement for Length of Service. Paragraph 12-6, of that regulation states in pertinent part, that retired soldiers who have less than 30 year of active service are entitled, when their active service plus service on the retired list total 30 years, to be advanced on the retired list to the highest grade in which they served on active duty satisfactorily (or, in the case of ARNGUS soldiers, in which they served on full-time duty satisfactorily in accordance with 10 USC 3964. This provision applies to warrant officers, RA enlisted soldiers, and reserve enlisted soldiers who, at the time of retirement, are serving on active duty (or full-time National Guard Duty). Upon completion of 30 years of service, their military personnel records are reviewed to determine whether service in the higher grade was satisfactory.

Grade determination for purposes of advancement on the retired list are made by the Army Grade Determination Review Board, on behalf of the Secretary of the Army, per AR 15-80. Individuals concerned must apply for consideration by writing to US Total Army Personnel Command (PERSCOM), Army Career and Alumni Program, ATTN: TAPC-PDT-R, 200 Stovall Street, Alexandria, Virginia
22332-0400.

Title 10, United States Code (USC), chapter 869, provided requirements for retired grade. Section 8963, in effect at that time, provides for the highest grade held satisfactorily; Reserve enlisted members reduced in grade not as a result of the member’s misconduct. It states that Reserve members under Section 8914 of this titled shall be retired in the highest grade in which the member served on active duty satisfactorily (or, in the case of a member of the National Guard, in which the member served on full-time National Guard duty satisfactorily) as determined by the Secretary of the Army. This section applies to Reserve enlisted member who (1) at the time of retirement is serving on active duty (or in the case of a member of the National Guard, on full-time National Guard duty) in a grade lower than the highest enlisted grade held by the member while on active duty (or full-time National Guard duty); and (2) was previously administratively reduced in grade not as a result of the member’s own conduct, as determined by the Secretary of the Army. This section applies with respect to Reserve enlisted members who are retired under section 8914 of this titled after 30 September 1996.





Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes that the applicant’s contention and the evidence provided; however, his administrative reduction was voluntary and was accomplished in
order to be assigned to a specific AGR position and to remain in an AGR status.

2. The evidence provided by the applicant states that AFTM personnel were not allowed to assume a MTOE position and that they were supplementary personnel, who work within the existing command structure, under supervisors of the existing commanders and technicians. However, these positions did not apply to AGR personnel.

3. The applicant continued to serve in an AGR status until his retirement and never applied or was selected to fill another AGR position in a higher grade or was recommended for promotion to SSG by his chain of command.

4. Chapter 6 of OMD Pamphlet stated that AFTM enlisted personnel who
hold the grade specified for their positions may be promoted one grade above the specified grade, providing they met all normal prerequisites. However, this provision did not apply to AGR personnel. Therefore, once again the applicant was not entitled to promotion or advancement to the rank of SSG prior to his retirement.



5. The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.


BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__sc____ ___kl__ ___jm___ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001066044
SUFFIX
RECON	This applies only to ADRB
DATE BOARDED	20020507
TYPE OF DISCHARGE	HONORABLE
DATE OF DISCHARGE	19910831
DISCHARGE AUTHORITY	AR 635-200 C, 12
DISCHARGE REASON	RETIREMENT
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1. 186
2.
3.
4.
5.
6.