RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2007
      DOCKET NUMBER:  AR20060010901


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

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. John G. Heck                  |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his rank and grade of Staff Sergeant (SSG),
E-6 be restored.

2.  The applicant states there was no evidence to support his reduction
[for inefficiency].

3.  The applicant provides the front page of a noncommissioned officer
evaluation report (NCOER) for the period ending October 2000; his NCOER for
the period ending November 1996; active duty orders dated 3 March 2004;
stateside deployment orders dated 23 March 2004; the front page of a DA
Form 4856 (Developmental Counseling Form), date of counseling 25 April
2004; pages 1 (a cover sheet), 2 and 3 (a Sworn Statement), 5 (Ft.
McPherson Gate Duty Report), and 6 (Military Police Patrol Report) of a 6-
page fax; the front page of a DA Form 4856, date of counseling 14 May 2004;
the back page of a DA Form 4856, dated 17 May 2004, possibly part of the DA
Form 4856 dated 14 May 2004 and two separate statements, identified as
“Sheet 1” and “Sheet 2,” also possibly part of the DA Form 4856 dated 14
May 2004; a memorandum for record, dated 14 May 2004; the front page of a
DA Form 4856, date of counseling 8 June 2004; and a DA Form 4856, date of
counseling 18 June 2004.

4.  The applicant also provides a memorandum, dated 22 July 2004; a Fort
McPherson Shift Sheet and Fort McPherson Gate Duty Report, dated 18 August
2004; a Vehicle/Pedistrian (sic) Log Sheet, dated 18 – 19 August 2004; the
front pages of two DA Forms 4856, dates of counseling unknown, but one for
an incident on 23 August 2004, the counselee Specialist F___; a DA Form
4856, date of counseling 24 August 2004, the counselee Sergeant S___; the
front pages of two DA Forms 4856 (almost identical), date of counseling
(day not listed) September 2004; the front page of a DA Form 4856, date of
counseling  23 September 2004; the front page of a DA Form 4856, date of
counseling        24 September 2004; a memorandum from the applicant’s
commander to the applicant, dated 29 September 2004; an acknowledgement of
receipt, undated; and a memorandum from the applicant to his commander,
dated 29 September 2004.

5.  The applicant also provides a DA Prototype Form 1559-E (Inspector
General Action Request), dated 1 October 2004; a memorandum from the
applicant’s commander to the applicant, dated 13 October 2004; a DA Form
4856, date      of counseling 13 October 2004; four DA Forms 4856, dates of
counseling          21 October 2004, counselees Private First Class F___,
Private First Class J___, Specialist L___,   and Specialist F___; the front
page of a DA Form 4856, date of counseling 26 October 2004; a DA Form 4856,
date of counseling 26 October 2004; a DA Form 4856, date of counseling
unknown, but date of incident            26 October 2004; an email, dated
26 October 2004; and the front page of a DA Form 4856, date of counseling
27 October 2004.

6.  The applicant also provides three DA Forms 4856, dates of counseling
       29 October 2004, counselees Specialist D___, Specialist M___, and
Specialist B___;   two DA Forms 4856, dates of counseling 1 November 2004,
counselees Specialist D___ and Specialist P___; one page of a memorandum
dated             8 November 2004; a memorandum, dated 23 November 2004;
and a memorandum, dated 24 November 2004.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s rank of SSG be
restored and/or that he be advanced to the highest grade held while on
active duty.

2.  Counsel states the applicant had a diligent work history of 22 years
before retiring.  Unfortunately, he received a “reduction in force penalty”
demoting his grade to E-5.  Counsel states a hearing was held in this case,
and no evidence was presented to prove that the demotion was merited.
However, the “Appeal Board” upheld the demotion.

3.  Counsel provides the applicant’s DA Form 2-1 (Personnel Qualification
Record); the front pages of the applicant’s NCOERs for the periods ending
November 1998 and November 1999; and the applicant’s NCOERs for the periods
ending October 2001 and October 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 23 April 1963.  After having had prior
service in  the U. S. Marine Corps and U. S. Marine Corps Reserve, he
enlisted in the   Army National Guard on 14 May 1987 for training as an 11B
(Infantryman).  In 1995, he was awarded primary military occupational
specialty (MOS) 13B (Cannon Crewmember).  He was assigned to Battery C, 2d
Battalion, 115th Field Artillery on 1 September 1995.  He was promoted to
SSG, E-6 on 5 July 2000.  His notification of eligibility for retired pay
at age 60 (his 20-year letter) is dated    20 February 2004.

2.  On orders dated 3 March 2004, the applicant was ordered to active duty
as a member of his unit under the provisions of Title 10, U. S. Code,
section 12302(a) and deployed to Fort McPherson, GA.  On 13 March 2004, the
applicant entered active duty.  His unit (or a portion of his unit) was
apparently assigned duty as gate guards at Fort McPherson and Fort Gillem,
GA.
3.  On 14 May 2004, the applicant was counseled because two Soldiers, one
of whom was a Sergeant, E-5, were not present for duty and the applicant
made almost no attempt to find out why they were not present for duty or to
get them up for duty on time; also because when the Sergeant, E-5 arrived
for duty, he arrived without a weapon or ammunition, and the applicant had
a responsibility to ensure he was aware of what was going on with the
people on his shift; and finally because he had sent the on-call Soldier
back to his room when the applicant was not fully staffed for the duty he
was to perform.  (He had apparently misinterpreted a conversation he had
with Second Lieutenant P___.)

4.  In a memorandum for record, dated 14 May 2004, the applicant’s platoon
leader and platoon sergeant noted that they attempted to counsel the
applicant for incidents happening while the applicant was the
noncommissioned officer in charge (NCOIC) of the gates at Fort McPherson,
GA on 12 and on 14 May 2004. They noted that the counseling was not
designed to bring unfavorable action against the applicant.  The intent was
to bring the incidents to light and inform him of areas where he needed to
make improvement.  They stated that from the onset of the counseling
session the applicant was uncooperative and argumentative.  He refused to
continue the counseling session or sign the counseling statement.  The
applicant cited his right to direct his complaints up the chain of command
and to seek grievance with the Inspector General’s office.

5.  On 18 June 2004, the applicant was counseled for two separate incidents
while he was the NCOIC at the Main Gate, Fort McPherson, GA.  Sergeant
Major M___ reported that the applicant acted in an unprofessional manner
towards him (Sergeant Major M___).  In another incident, the applicant
allegedly treated a civilian in a manner that escalated the anxiety the
woman felt over an issue with her dog being sick.  The applicant was
temporarily relieved of his duties working as a Unit Police Soldier at the
gates located at Fort McPherson and Fort Gillem until the incidents were
investigated.  The counseling form noted that the relief action did not
presume he had performed his duties in a negligent manner and was not
punishment.

6.  The applicant responded to the 18 June 2004 counseling by noting that
he was doing his job.  He asked Sergeant Major M___ for his identification
and told the Sergeant Major to have his decal stuck on his window.  The
Sergeant Major had it on a piece of cardboard that went with his other car.
 The Sergeant Major became very angry with the applicant about the matter.

7.  The applicant provided several DA Forms 4856 or partial DA Forms 4856
showing he had counseled other Soldiers.  These were apparently provided to
show he was performing the duties of an E-6 satisfactorily.

8.  On 23 September 2004, the applicant was counseled for dereliction of
duty on 21 September 2004.  He allowed a Soldier under his supervision at
the Main Gate, Fort McPherson, GA to go on a break; and while on break the
Soldier fell asleep on the ground in plain view of traffic arriving onto
Fort McPherson, resulting in the Soldier’s weapon being unsecured.  The
Provost Marshal Sergeant Major noticed the Soldier asleep and brought it to
the applicant’s attention.

9.  By memorandum, dated 29 September 2004, the applicant’s commander
notified him that he was initiating action to reduce the applicant in grade
for inefficiency under the provisions of Army Regulation 600-8-19,
paragraph           7-5.  The reasons for the proposed action were: (1) the
applicant’s reaction on     9 March 2004 regarding counseling a subordinate
Soldier and receiving a counseling statement for being late to formation;
(2) the applicant’s reaction on 14 May 2004 regarding receiving a
counseling statement on the use of on-call Soldiers and his
responsibilities as a section leader; (3) the applicant’s unprofessionalism
toward Sergeant Major M___ and a civilian female while working the gate;
and (4) the applicant’s failure to attend guard mount on the morning of 18
August 2004.  The applicant refused to sign the acknowledgement of receipt
of the notification.  He requested to be present before an administrative
reduction board.

10.  On 1 October 2004, the applicant completed an Inspector General Action
Request.  No other information is available concerning this request.

11.  On 13 October 2004, the applicant was granted an extension of time to
prepare for the administrative reduction board.

12.  By memorandum, dated 8 November 2004 (only the first page of the
memorandum is available), the applicant was notified that his
administrative reduction board hearing would take place on 1 December 2004
by video teleconference.

13.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)),
dated 10 November 2004, shows that a flag on the applicant was initiated on
     10 November 2004 due to an unspecified adverse action.

14.  By memorandum, dated 23 November 2004, counsel for the applicant
requested seven witnesses be produced in person for the applicant’s
reduction board, requested three witnesses be produced telephonically for
his board, and requested contact information on an additional five
potential witnesses.  Counsel also requested the names and contact
information on witnesses the command planned to call.
15.  By memorandum, dated 24 November 2004, the applicant’s counsel was
provided the names and contact information on 14 witnesses the command
planned to call in person for his reduction board and two witnesses it
planned to produce telephonically.

16.  The applicant’s administrative reduction board hearing packet is not
available.  Orders, dated 3 December 2004, show the applicant was reduced
from SSG, E-6 to Sergeant, E-5 effective 3 December 2004 by reason of
inefficiency under the provisions of National Guard Regulation 600-200,
paragraph 11-60.

17.  A DA Form 268 dated 10 January 2005 shows the 10 November 2004 flag on
the applicant was removed effective 10 January 2005 due to the case being
closed favorably.

18.  On 28 February 2005, the applicant was honorably released from active
duty upon the completion of his required active service.

19.  On 16 May 2005, the applicant was honorably discharged from the Army
National Guard in the rank and grade of Sergeant, E-5 and transferred to
the Retired Reserve.

20.  National Guard Regulation 600-200 (Enlisted Personnel Management)
applies only to the Army National Guard and Army National Guard of the
United States Soldiers when not in the service of the United States.
Paragraph 11-60 of this regulation states a Soldier may be reduced one
grade for inefficiency.  Inefficiency is defined as technical incompetence
or a demonstrated pattern or one or more acts of conduct that show lack of
abilities and qualities required and expected of a Solder in that grade.

21.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) does not
apply to Soldiers called to active duty for contingency operations under
section 12304 of Title 10, U. S Code (but by implication does apply to
Soldiers called to active duty for contingency operations under section
12303 of Title 10, U. S. Code).  Paragraph 7-5 states inefficiency is a
demonstration of characteristics that shows the person cannot perform
duties and responsibilities of the grade and MOS.  Inefficiency may also
include any act or conduct that clearly shows that the Soldier lacks those
abilities and qualities normally required and expected of an individual of
that grade and experience.  Commanders may consider misconduct as bearing
on inefficiency.

22.  Army Regulation 600-8-19, paragraph 7-6 states the commander starting
the reduction action will present documents showing the Soldier’s
inefficiency to the reduction authority.  Documents may include statements
of counseling and documented attempts at rehabilitation by the chain of
command or supervisors.  Documents should establish a pattern of
inefficiency rather than identify a specific incident.  The commander
reducing the Soldier will inform him or her in writing of the action
contemplated and the reasons.  The Soldier will acknowledge receipt of the
memorandum by endorsement and may submit any pertinent matter in rebuttal.
Paragraph 7-7 states a reduction board, when required, will be convened
within 30 days after written notification is given to the individual.  The
reduction authority may extend the 30 duty day limitation for good cause.

23.  Army Regulation 600-8-19, paragraph 7-11 states appeals of reduction
for inefficiency are authorized to correct an erroneous reduction on
equitable grounds.  This should be based on the facts and circumstances of
the particular case that partial or full restoration of grade is in the
best interest of the Army and the Soldier.  Authorized appeals will be
submitted in writing within 30 duty days of the date of reduction or date
of memorandum notifying the Soldier that he or she will be restored to the
former grade (i.e., reduced).  Final action on appeals will be taken by the
next higher authority above the reduction authority for grades SSG and
below.

24.  Title 10, U. S. Code, section 12731 provides that a non-regular
service member is entitled, upon application, to retired pay if the person
is at least        60 years of age and has performed at least 20 years of
qualifying service.

25.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular
Service), paragraph 2-11c states, in part, that  the Retired Activities
Directorate, U. S. Army Reserve Personnel Center (currently designated the
U. S. Army Human Resources Command – St. Louis) will screen each retirement
applicant’s record to determine the highest grade held by him or her during
his or her military service.  In arriving at the highest grade
satisfactorily held, if the Soldier was transferred to the Retired Reserve
on or after 25 February 1975, the retired grade will be that grade which an
enlisted Soldier held while on active duty or in an active reserve status
for at least 185 days or six calendar months.

26.  Army Regulation 135-180, paragraph 2-11, and Army Regulation 15-80
(Army Grade Determination Review Board and Grade Determinations), paragraph
1-13, state service in the highest grade will not be deemed satisfactory
and the case will be forwarded to the Secretary of the Army’s Grade
Determination Review Board for final determination of the Soldier’s
retirement grade if, during the mandatory review of the Soldier’s records
by the Retired Activities Directorate, it is determined that revision to a
lower grade was expressly for prejudice or cause, or there is information
in the Soldier’s service record to indicate clearly that the highest grade
was not served satisfactorily.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that there was no evidence to support his
reduction for inefficiency has been carefully considered.  However, the
evidence he provided shows he was counseled several times.  He was
counseled in May 2004 for his reaction to a counseling session.  He was
counseled in June 2004 for acting in an unprofessional manner towards a
sergeant major and a civilian.  (While the applicant provided rebuttal
comments regarding the incident with the sergeant major, he provided no
rebuttal regarding the incident with the civilian.)  He was counseled in
September 2004, for dereliction of duty (allowing a Soldier under his
supervision to go on a break, and while on break the Soldier fell asleep on
the ground in plain view of traffic arriving onto Fort McPherson, resulting
in the Soldier’s weapon being unsecured, and not being aware of the Soldier
being asleep until the Provost Marshal Sergeant Major brought it to the
applicant’s attention).

2.  The 29 September 2004 notification memorandum also noted the applicant
had been counseled in March 2004 for being late to formation and in August
2004 for missing guard mount.

3.  Counsel contended that a hearing was held in this case, no evidence was
presented to prove that the applicant’s demotion was merited, and the
“Appeal Board” upheld the demotion.  However, again, the applicant provided
evidence to show he had been counseled for incidents that should not have
been expected from him, a Staff Sergeant, E-6.

4.  The applicant filed an Inspector General Action Request in October
2004; however, he did not provide the results of that request.

5.  The applicant did not provide the testimony from the reduction board
hearing or the action of the approval authority in his reduction for
inefficiency case, so this Board cannot determine how he presented his
defense or how the government presented its case.  His counsel indicated he
appealed the decision to reduce him for inefficiency; however, he did not
provide the appeal documents for this Board to consider.

6.  There is insufficient evidence to show the administrative reduction
board or the approval/appeal authorities failed to consider all of the
circumstances in the applicant’s case or that his reduction was not
unmerited.

7.  It is noted that the applicant’s reduction orders cite the incorrect
authority (National Guard Regulation 600-200 versus Army Regulation 600-8-
19); however, in the absence of sufficient evidence showing the applicant’s
reduction for inefficiency was unmerited, that appears to have been a
harmless administrative error.  The actual reduction board documents that
are available cite the correct authority.

8.  It is noted that a flag was lifted on the applicant on 10 January 2005
due to an adverse case being favorably closed; however, it cannot be
determined what the case was about, and it may or may not have concerned
the reduction for inefficiency action.

9.  Counsel also requested that the applicant be advanced to the highest
grade held while on active duty.  It appears she meant for the applicant to
be advanced on the retired list to the highest grade held while on active
duty.

10.  The applicant will be eligible for placement on the retired list when
he turns age 60 in April 2023.  When he applies for retired pay, he should
ensure his application indicates he had served on active duty as a Staff
Sergeant, E-6.  The appropriate office will then screen his record to
determine the highest grade held by him during his military service.  Based
upon the circumstances of his reduction, his case most likely will be
forwarded to the Secretary of the Army’s Grade Determination Review Board
for final determination of his retirement grade.  If the final
determination is not to his satisfaction, he may then apply to this Board
for consideration of advancement to the highest grade held.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __jlp___  __jgh___  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006367                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070726                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |133.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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