RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  08 January 2008
	DOCKET NUMBER:  AR20070010745 


	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

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Frank C. Jones, II

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. Flynn

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, in effect, advancement to the grade of staff sergeant (SSG)/E-6 on the Retired List.

2.  The applicant states, in pertinent part, that he spent 12 years on active duty and then transferred to the Mississippi Army National Guard.  He was promoted to SSG in June 1980.  He participated in a Department of Veterans Affairs truck driver certification-training program, which required him to be on the road.  He states he spoke with his unit personnel sergeant and requested a transfer to the Army Reserves because he could not attend the monthly unit training assemblies or annual training because of his civilian work conflict.  The unit personnel sergeant did not act on his request and he was reduced in rank and separated.  While serving as a member of the United States Army Reserve (USAR) on active duty in direct support of Operation Desert Storm, he was promoted to sergeant (SGT). 

3.  The applicant provides the following documents in support of his application:

     a.  a letter from the applicant's Congressman dated 7 July 2007; 

     b.  a self-authored personal statement;

     c.  Orders P12-592420, dated 22 December 2005, published by US Army Human Resources Command-St Louis;

     d.  letter, dated 12 June 1996, from USAR Personnel Center congratulating the applicant on his retirement from the USAR;

     e.  DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) correcting his DD Form 214 with a separation date of 17 July 1991;

     f.  DD Form 214 with a separation date of 17 July 1991 releasing him from active duty;
 
     g.  NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) with a separation date of 14 May 1987;

     h.  DD Form 214 (Report of Separation from Active Duty) with a separation date of 8 May 1978;

     i.  DD Form 214 with a separation date of 14 May 1974;
   
     j.  DD Form 214 with a separation date of 26 May 1969; and

     k.  Department of Veterans Affairs File Number 24-990-319 which shows his monthly disability compensation rate of $539.00 a month effective 1 January 2006. 

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 in the Regular Army on 29 July 1966.  He completed basic and advanced individual training and was awarded the military occupational specialty (MOS) 95B (Military Policeman).  He served honorably for 2 years, 9 months, and 38 days with a foreign service tour in Vietnam for 11 months and 26 days.  He was released from active duty and transferred to the USAR Control Group on 26 May 1969.

3.  On 12 August 1971, the applicant enlisted in the Regular Army for a period of 3 years.  He reenlisted on 15 May 1974 without a break in service.  He was honorably discharged from the Regular Army on 8 May 1978.  The DD Form 214 he was issued shows in Item 6a (Grade, Rank or Rank) the entry Sergeant and in Item 6b (Pay Grade) E-5.  Item 7 (Date of Rank) shows the entry 1 May 1972.  This same DD Form 214 shows his total active service as 9 years, 6 months, and 25 days.

4.  On 16 June 1978, the applicant enlisted in the Army National Guard (ARNG) of the State of Mississippi.  


5.  Orders 11-1, dated 15 April 1987, published by Headquarters, 2nd Battalion, 144th Field Artillery, 155th Armored Brigade, ARNG reduced the applicant in grade from SSG to SGT.  The reason for his reduction noted on the reduction order was misconduct, willful and continued absence from unit training assemblies.  The effective date of rank to SGT was 15 April 1987.

6.  Orders 12-1, dated 16 April 1987, published by Headquarters, 2nd Battalion, 144th Field Artillery, 155th Armored Brigade, ARNG reduced the applicant in grade from SGT to Specialist Four (E-4).  The reason for his reduction noted on the reduction order was for misconduct, willful and continued absence from unit training assemblies.  The effective date of rank to specialist four was 16 April 1987.

7.  On 14 May 1987, the applicant was released from the MSARNG and transferred to the USAR Control Group (Annual Training).  The NGB Form 22 issued on that date shows the authority and reason for his discharge as paragraph 8-27g, National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) and the reason as unsatisfactory performance.  This same discharge document shows the applicant's character of service as general, under honorable conditions.

8.  On 15 May 1987, the applicant was relieved from the USAR Control Group (Annual Training) and transferred to the USAR Control Group (Reinforcement) by Orders C-09-037528, published by the USAR Personnel Center (ARPERCEN).

9.  On 6 August 1990, the applicant was ordered to active duty for training by ARPERCEN through publication of Orders T-07-024846.  He was ordered to active duty for 12 days at Fort Polk, Louisiana.

10.  On 12 September 1990, the applicant was promoted to the rank and grade of SGT/E-5 by Orders 148-25, published by US Total Army Personnel Command (TAPC).  The applicant was a member of the USAR Control Group (Reinforcement) when he was promoted to SGT.

11.  On 18 December 1990, the applicant was ordered to active duty in support of Operation Desert Shield and directed to report to Fort Stewart, Georgia.  Orders A-12-012437, published by TAPC, ordered him to active duty for 179 days.  This order shows the applicant's rank as specialist.

12.  On 17 July 1991, the applicant was released from active duty, not by reason of physical disability, and transferred to the 2nd Field Artillery Battalion at Fort Sill, Oklahoma.  The rank on the DD Form 214 issued on this date shows the applicant's rank in Item 4a (Grade, Rate or Rank) as Specialist and in Item 4b (Pay Grade) as E-4.  His characterization of service for this period of active duty was honorable.  He served for 7 months during this mobilization period. 

13.  On 21 August 1992, the applicant was released from the USAR Control Group (Reinforcement) and assigned to the 302nd Military Police Company, a USAR troop program unit in Fort Worth, Texas.

14.  On 27 September 1994, the applicant was released from the 302nd Military Police Company and assigned to the USAR Control Group (Reinforcement).  The reason for reassignment provided on Orders 062-038, published by 90th USAR Command, was for unsatisfactory participation.  The authority given was Army Regulation 140-10, paragraphs 4-2b(2) and 4-15.  The rank shown on this reassignment order was SGT.

15.  On 2 March 1995, a DD Form 215 was issued which shows that the DD Form 214 with a separation date of 17 July 1991 was corrected to show the entries in Item 4a (Grade, Rate or Rank) as SGT, Item 4b (Pay Grade) as 
E-5, and Item 12h (Effective Date of Pay Grade) as 12 September 1990.

16.  On 12 June 1996, the applicant received a letter from ARPERCEN congratulating him on his retirement from the USAR.  Records show the applicant had 20 years, 9 months, and 11 days of creditable service for retired pay and that his grade upon retirement was SGT. 

17.  National Guard Regulation (NGR) 600-200, Chapter 6, Section V in effect at the time governs the reduction of enlisted Soldiers within the ARNG program.  Paragraph 6-32, states in pertinent part, that commanders who have the authority to promote enlisted personnel also have the authority to reduce enlisted personnel. Further guidance states that the administrative procedures provided in Army Regulation 600-200 (Enlisted Personnel Management) will be used as a guide and these procedures must be strictly followed when individuals are reduced for inefficiency.

18.  Army Regulation 600-200, in effect at the time, prescribed policies and procedures pertaining to career management, classification and reclassification, utilization, reenlistment, testing, evaluation, and promotions and reductions of enlisted personnel.  

19.  Chapter 6 of this regulation prescribed the procedures for reduction in grade. Paragraph 6-4 defined misconduct as any act or conduct which clearly showed that the Soldier lacks those abilities and qualities required and expected of a person of that grade and experience.  Commanders considered misconduct, including conviction by civil court, as bearing on efficiency.  An assigned Soldier, who had served in the same unit for at least 90 days, could be reduced one grade for inefficiency.  The reduction authority for the grade, or a higher commander who had authority, could reduce him.  The commander starting the reduction action presented documents showing the Soldier's inefficiency to the reduction authority.  Reduction included statements of counseling and documented attempts at rehabilitation by the chain of command or supervisors; copies of special Enlisted Evaluation Reports submitted due to inefficiency; and record of misconduct during the period concerned.  The documents were designed to establish a pattern of inefficiency rather than identify specific incidents.  Reduction for inefficiency could not be used to reduce Soldiers for actions for which they had been acquitted because of Court-Martial proceedings; in lieu of Article 15, UCMJ; or to reduce a Soldier for a single act of misconduct.

20.  The commander reducing the Soldier is required to inform him, in writing, of the action contemplated and the reasons.  The soldier is required to acknowledge receipt of the letter, by endorsement, and may submit any pertinent matters in rebuttal.  Soldiers in the grades of E-5 through E-9 could request to appear before a reduction board.  If they declined appearance, they did so in writing and were considered to have accepted the reduction action.  A reduction board, when required, would be convened within 30 days after the individual was notified in writing.  The reduction authority could extend the 30 workday limitations for good cause.  A written justification was included in the file if an extension was granted.  The convening authority ensured the board met regulatory requirements regarding composition and membership.  For inefficiency cases only, at least one board member would be thoroughly familiar with the Soldier's field of specialization.  The reduction board convened within 30 workdays after the soldier was notified, in writing, by the reduction authority of the proposed action.  Soldiers appearing before the board were given at least 16 working days written notice before the date of the hearing so that the Soldier or his counsel had sufficient time to prepare the case.  Any Soldier in the grade E-5 to E-9 could decline, in writing, to appear before the board or he could appear in person with or without counsel at all open proceedings. 

21.  National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) governs procedures for enlisted personnel of the Army National Guard.  Chapter 7 of NGR 600-200 covers, in pertinent part, discharge and separation of enlisted personnel due to unsatisfactory participation and refers to Army Regulation 135-178.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  
Chapter 7 of the regulation, in effect at the time, governed separation for acts or patterns of misconduct, including unsatisfactory participation.  The regulation provided that the separation authority could disapprove the commander’s recommendation for discharge for misconduct and direct disposition by other means, disapprove the recommendation for separation for misconduct and direct separation for unsatisfactory performance, or convene a board of officers to determine whether the service member should separated for misconduct.  When discharged under this provision, the characterization of service was normally under other than honorable conditions.  The regulation also permitted the characterization of service as under honorable conditions, but did not authorize the characterization of service as honorable.

22.  Title 10 of the Untied States Code, section 12731 provides the legal authority for age and service (non-regular) retirements.  Section 1406 provides the legal authority for establishing the retired pay base for members who first become member before September 8, 1980.  Paragraph (b)(2) contains guidance on non-regular service retirement.  It states, in pertinent part, that in the case of a person who is entitled to retired pay under section 12731 of this title, the retired pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at any time in the Armed Forces.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was unfairly reduced and that his record should be corrected to show advancement to the grade of staff sergeant (SSG)/E-6 on the Retired List. 

2.  The applicant's record shows he served on active duty for 9 years, 6 months, and 25 days in the rank of SGT with a date of rank of 1 June 1972 when he was discharged from the Regular Army on 8 May 1978.  His characterization of service was honorable.

3.  Evidence of record further shows that he was released from the MSARNG on 14 May 1987.  Records show his rank at the time of his separation from the ARNG was specialist and that his date of rank was 15 September 1979.  His characterization of service upon his release from the ARNG was under honorable conditions and he was released due to unsatisfactory performance.  Reduction orders show that he was reduced from SSG to SGT effective 15 April 1987 with 
his date of rank shown as 15 April 1987.  He was furthered reduced in a separate 
order to the rank of specialist four (E-4) with a date of rank of 16 April 1987.  The reason stated on each reduction order was for misconduct due to the willful and continued absence from unit training assemblies.

4.  The applicant was ordered to active duty on 18 December 1990 in support of Operation Desert Shield from the USAR Control Group.  When he was ordered to active duty, his records show he was a specialist in pay grade E-4.  Upon completion of this period of active duty, he was released to the USAR and the DD Form 214 issued on 17 July 1991 shows his rank as specialist/pay grade E-4. The applicant's electronic records contain a promotion order from TAPC promoting him to the rank of SGT with a date of rank of 12 September 1990.  On 2 March 1995, a correction was made to his DD Form 214 with a separation date of 17 July 1991, which corrected his rank, pay grade, and date of rank upon his release from active duty.  Records show the applicant's rank is SGT, his pay grade is E-5, and his date of rank to SGT is 12 September 1990.

5.  There are no promotion orders to the rank of SSG/pay grade E-6 in the applicant's official personnel files.  Therefore, there is no basis in which to grant the applicant's request to change his rank to SSG on the Retired List.  Records clearly show the applicant was a SGT upon his release from active duty in support of Operation Desert Shield.  Records also show the applicant had an unfavorably history of unsatisfactory participation with both the ARNG and the USAR troop program units to include being released from both programs as an unsatisfactory participant. 

6.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  In view of the foregoing, there is no basis for granting the applicant's request and therefore the applicant is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__FCJ___  __LMD__  __MJF___  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.




___Frank C. Jones  ___
      CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080108
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.