MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 October 2002
         DOCKET NUMBER: AR2002078787

         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
Mr. Joseph A. Adraince		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Arthur A. Omartian		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)

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APPLICANT REQUESTS: In effect, reinstatement of his rank to staff sergeant (SSG).

APPLICANT STATES: In effect, that he served the Army for over 26 years, which includes service in the Republic of Vietnam (RVN). He trained thousands of soldiers and has instilled the highest degree of professionalism in both his peers and subordinates. He states that he has supported every soldier in every command to which he was assigned, and expected nothing in return. He states that it pains him greatly to request that which he believes he should have never lost. He indicates that in his first 15 years of service, he was assigned to the same unit. During his tenure in this unit he receive numerous awards, the most notable, which is sadly missing from his separation document (DD Form 214) is the SPURS award. This award was awarded to the best non-commissioned officer in the 107^th Armored Cavalry Regiment, which has since been disbanded.

The applicant states that his next assignment was with a maintenance company that was logistically and operationally in a state of disarray. A complete inventory and restructuring of all the property was necessary, and upon his assignment, he began to do just that. In May 1997, he fell off the side of a large wrecker, and unfortunately suffered from many complications both personally and professionally as a result of this incident. Numerous injuries surfaced and he was placed on light duty as a result. At this time, it became obvious that his work was suffering due to his injuries, as well as the lack of support from the rest of the company. For the benefit of the company, he accepted a new assignment and consented to an administrative reduction in rank after being informed that he would still retire in the highest grade held. There were many problems in filling the position he had vacated, and as soon as the position was filled, it was vacated. As a result, on several occasions, he was directed to assist in his former assignment, despite having taken another assignment as well as the rank reduction.

The applicant indicates that his medical problems began to surface in May 1997, when he was treated for back pain. In March 1998, he began psycho-therapy for an Acute Stress Disorder, and in September 1998, he had surgery on his right knee. In May 1999, he had back surgery and in June 1999, he underwent neck surgery. In August 1999, more surgery was required on his knee and in December 1999, his left knee required surgery. In March 2000, he experienced post operative problems in his right shoulder and in August 2000, further back surgery was required. With the recovery time from each of these surgeries, being placed on light duty, and the difficulties filling his previous position, as well as other changes in the full time staffing of the company, he was identified as a problem.

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The applicant claims that upon his return from his last knee surgery, in December 1999, the newly assigned supply sergeant went through a change of command inventory. He was directed to do a Report of Survey on equipment that remained on sight. He told the replacement that this could not be done and he replied that he was ordered to do it, and he was going to do it. At that time, the applicant called the Department of Defense (DOD) Hotline. He was given a case number and later received a letter that informed him that the issues he raised would be resolved in 180 days. To date, he has never received a further reply. He finally contends that his command was made aware of his communication with the
DOD Hotline and as a result he was consistently harassed.

Finally, the applicant indicates that the reduction in rank has placed a severe hardship on his wife and disabled daughter, and he hopes that his situation will be considered and that his retired rank will be reinstated to
SSG/E-6.

EVIDENCE OF RECORD: The applicant's military records show:

That he was serving on an Active Guard Reserve (AGR) active duty tour with the Ohio Army National Guard (ARNG), in the rank and pay grade of specialist/E-4 (SPC/E-4), at the time of his release from active duty (REFRAD) on 31 March 2002, for the purpose of retirement.

On 21 February 1997, Orders Number 035-107, published by The Adjutant General’s Department, Columbus, Ohio, authorized the applicant’s administrative reduction from staff sergeant/E-6 (SSG/E-6) to sergeant/E-5 (SGT/E-5).

On 16 February 2000, the applicant received a response to the complaint he submitted through the DOD Hotline from the Assistant Director, DOD Hotline. It indicated that inquires were normally completed within 180 days. He was advised that he could obtain information regarding the status of his case by writing or calling the Defense Hotline and citing his case number. He was also informed that to obtain a copy of the case file documentation, he could file a request under the Freedom of Information Act, and he was provided the procedures for completing this request. There is no other evidence on file or provided by the applicant to show that he ever sought out any additional information on the inquiry or that he requested a copy of the case file under the Freedom of Information Act.

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On 21 February 2001, the applicant’s battalion commander notified the applicant of his intent to initiate involuntary separation action against him. The commander indicated that he had determined that the applicant had engaged in a pattern of serious misconduct and defiance of military authority, which warranted his immediate separation from the AGR program. The commander further indicated that the applicant’s record revealed a documented history of substandard duty performance over the past several years, and it had reached a point where his continued service in the AGR would be detrimental to his unit’s mission accomplishment as well as good order and discipline.

On 27 February 2001, the applicant’s battalion commander advised the applicant that he was initiating procedures to reduce him in grade to private first class/E-3 based on his misconduct. In support of this action, the commander listed several incidents of the applicant’s misconduct. The applicant completed the notice of intent to demote form provided with the commander’s memorandum, and indicated that he read the notice of intent to demote and he acknowledged its receipt.

On 20 March 2001, a Memorandum of Understanding (MOU) prepared by the applicant’s counsel at this request was signed by the applicant, his commander, and the involved counsel. This signed agreement between the applicant and his unit commander was intended to fully resolve the administrative actions initiated against the applicant, and to resolve any appeals, rights, inquiries, or complaints that the applicant had made or could make in response to the actions.

By signing the MOU agreement, the applicant waived his right to a board hearing with respect to the reduction action initiated by the commander, and he agreed that he would not submit any response or rebuttal to the reduction authority, as was his right under the notice procedure. The applicant acknowledged his understanding that the reduction authority would reduce him to the rank and pay grade of SPC/E-4 for misconduct, effective 1 April 2001, and he agreed to waive his right to appeal the reduction.

The MOU agreement also stipulated that involuntary separation action to remove the applicant from the AGR program would be stayed indefinitely, and that the command would take no further processing action with regards to this action for a period of one year from the date of the agreement. It was understood that the applicant during the next year would satisfy the 20 years of active military service requirement and would make application for immediate retirement. Further, the MOU stated that for the purpose of documenting the misconduct that formed the basis for the reduction, the reduction authority would issue a letter of reprimand.

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Finally, the MOU provided guidance on the applicant’s proper conduct and duty performance for the period he remained on active duty and provisions were included to ensure he was opportunity to complete any and all necessary medical processing prior to his retirement.

On 29 March 2001, Orders Number 016-001, published by the 737^th Maintenance Battalion, Ohio Army National Guard, directed the applicant’s reduction from SGT/E-5 to SPC/E-4, effective 1 April 2001.

On 31 March 2002, he was released from active duty (REFRAD), for the purpose of retirement, after completing a total of 20 years and 16 days of active military service. The separation document issued to and authenticated by him on the date of his separation confirms that he held the rank and pay grade of SPC/E-4 on the date of his REFRAD and that he was accordingly placed on the Retired List in that rank and pay grade on 1 April 2002.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service. Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as directed in 10 USC 3961. As an exception, ARNG soldiers serving on active duty at the time of their retirement, in a grade lower than their highest enlisted active duty grade, who were administratively reduced not as a result of their own misconduct, will retire in the highest enlisted grade in which they served satisfactorily on active duty.

Paragraph 12-6 contains the regulatory guidance on the advancement of enlisted soldiers on the Retired List, as authorized by 10 USC 3964. It states, in pertinent part, that enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily. It indicates that advancement on the Retired List is limited to retired soldiers who held a higher grade and successfully served in that higher grade while on active duty. There are no provisions of law or regulation that provide for the advancement of an enlisted member who served in higher rank and pay grade in a Reserve Component, not on active duty.

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 the applicant’s contention that medical problems impaired his ability to serve and that his reduction to the rank and pay grade of SPC/E-4 was the result of reprisal taken against him for a complaint he made to the DOD Hotline. However, the Board finds insufficient evidence to support these claims.
2. The evidence of record shows that while the applicant submitted a complaint to the DOD Hotline, he never made any effort to determine what the results of the DOD inquiry were. Further, the applicant provides no evidence to show that members of the chain of command reprised against him for making this complaint or that they were even aware of it. Thus, the Board finds no evidence to support this specific allegation of reprisal.

3. The evidence of record also fails to show that the applicant’s medical problems resulted in his being unfairly labeled as a problem by members of his chain of command. Thus, the Board finds insufficient evidence to conclude that his medical problems sufficiently mitigated his misconduct to the extent that would warrant granting the requested relief.

4. By regulation, soldiers retire in the rank and pay grade they hold on the date of their REFRAD for the purpose of retirement. As an exception, ARNG soldiers who were administratively reduced, not due to their own misconduct, may retire in the highest enlisted rank and pay grade in which they satisfactorily served while on active duty. In addition, enlisted members of the Army are entitled, when their active service plus their service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the Army through the Army Grade Determination Review Board (AGDRB).

5. The evidence of record confirms that the applicant was reduced from
SGT/E-5 to SPC/E-4 on 1 April 2001, due to his own misconduct. This reduction was accomplished in accordance with applicable regulations and with the terms of an agreement entered into by the applicant and his commander in an MOU, dated 20 March 2001. This agreement was prepared by the applicant’s legal counsel at his request, and resulted in a stay of a pending separation action against him, which allowed for his ultimate active duty retirement for length of service. Thus, the Board finds no error or injustice related to this reduction action.

6. In view of the facts of this case, the Board concludes that the applicant’s reduction to the rank and pay grade he held on the date of his REFRAD for the purpose of retirement was due to his own misconduct. Therefore, he was not eligible to be retired in the highest rank and pay grade he held on active duty at that time. However, because his previous reduction from SSG/E-6 to SGT/E-5 was for administrative reasons, and not due to his own misconduct, he remains eligible for consideration for advancement on the Retired List when his active duty service and time on the Retired List equal 30 years.

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7. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

8. 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

__RVO__ __MKP _ __AAO __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002078787
SUFFIX
RECON
DATE BOARDED	2002/10/01
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2002/03/31
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 306	129.0400
2.
3.
4.
5.
6.