IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080004505 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect that his rank of master sergeant (MSG/E-8) be restored in accordance with Army Regulation 140-158.

2.  The applicant states, in effect, that after completion of his active duty for the AGR (Active Guarded Reserve) in the rank and pay grade of SFC/E-7, his rank was supposed to be restored to MSG/E-8 for retirement. 

3.  The applicant provides a copy of his promotion orders, a copy of orders ordering him to active duty, and copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he enlisted in the US Army Reserve (USAR) on 24 April 1993, in the pay grade of E-4, with prior Regular Army and National Guard service.  

2.  The applicant was promoted to SFC/E-7 with an effective date and date of rank (DOR) of 1 June 1999.  He was promoted to MSG/E-8 with an effective date and DOR of 1 June 2002.

3.  The applicant was ordered to active duty on 19 October 2001 in support of Operation Noble Eagle in the rank and pay grade of MSG/E-8.  He was released from active duty on 18 October 2002.


4.  The applicant was transferred between TPUs (troop program unit) on 19 October 2002.

5.  The applicant was reduced from MSG/E-8 to SFC/E-7 with a DOR of 1 June 1999 and effective date of 2 September 2003. 

6.  The applicant was ordered to active duty in the AGR in the rank of SFC with a reporting date of 24 September 2003, for 3 years, as a senior personnel sergeant.  He was ordered to go TDY (temporary duty) en route from 14 September 2003 to 20 September 2003, at Fort Sam Houston, Texas, prior to reporting to his unit of assignment.

7.  On 10 March 2005, the Army Human Resources Command (AHRC) notified the applicant that he had completed the required years of service to be eligible for retired pay, on application, at age 60 (20-Year Letter).

8.  On 21 February 2006, a bar to reenlistment was initiated on the applicant.  Item 8 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) of his DA Form 8028-R (US Army Reserve Bar to Reenlistment Certificate) indicates that he was counseled on 6 May 2005 for failure to maintain mandatory duty hours; on 1 December 2005 he disobeyed orders from the Battalion Commander; he was disrespectful towards the acting Battalion CSM (Command Sergeant Major); lied to the Battalion Commander about conducting PT (Physical Training), while not at work during duty hours; failed to adequately perform his assigned duties after repeated corrections; and on 27 February 2004, he received a Letter of Reprimand for illegal drug use.

9.  On 7 May 2006, a plan of action counseling to overcome the bar to reenlistment pertaining to the applicant was prepared.  The applicant was given guidance about working to overcome the bar to reenlistment initiated on him.

10.  On 5 June 2006, the applicant requested a no-cost local reassigment/ reattachment/SWAP (exchange of assignment) with another Soldier in the AGR Program with a reporting date of 30 June 2006.  The commander recommended approval.  

11.  The applicant’s SMS (Soldier Management System) file contains a copy of an email from the Supervisory Staff Administrator, RRC (Regional Readiness Command) to personnel within the command, regarding the applicant's separation upon ETS (expiration of term of service).  He states, in effect, that the applicant had submitted a DA Form 4187 (Personnel Action), a copy of which was enclosed requesting separation from his AGR tour upon completion of his current tour.  This action would not stop the bar to reenlistment currently being processed and that they would concur with the applicant reenlisting in a TPU status only.

12.  The applicant was honorably discharged from the AGR Program on 13 September 2006 in the rank and pay grade of SFC/E-7.

13.  An email was provided by the Senior Human Resources Sergeant, of the  655th RSG (Readiness Support Group), 316th Support Command, who informed this agency that the bar was approved; however, he could not find the approved bar.

14.  The applicant's Chronological Statement of Retirement Points shows that he had completed 20 years and 1 day of qualifying service for retirement purposes.

15.  Army Regulation 140-158 prescribes policy and procedures pertaining to the classification, promotion, reduction, and grade restoration of enlisted soldiers 
of the US Army Reserve (USAR).  Chapter 7 outlines policy and procedures governing grade reduction and restoration of USAR soldiers.  

16.  Paragraph 6-2 pertains to special promotions authorized.  Subparagraph    6-2g states that Soldiers reduced under paragraph 7-12b (except paragraph      7-12b(2)) may be promoted to their former grade under the conditions cited below provided they are in a promotable status.  The DOR of the grade to which restored will be adjusted to reflect the previous period served in the grade to which restored.  The effective date of the promotion will be the date of the promotion order restoring the grade.  Grade restoration is authorized only when the Soldier is:  (1) assigned to the Selected Reserve (TPU, AGR, or IMA (Individual Mobilization Augmentee) or the Standby Reserve (Active List) on release from active duty or Selected Reserve assignment; (2) transferred to the Retired Reserve; (3) assigned to a TPU or IMA position authorized the Soldier's former grade or higher; and (4) assigned to the Selected Reserve (TPU, AGR, or IMA) or the IRR or Standby Reserve (Active List) and has been promoted to their former grade as a result of promotion board selection.

17.  Paragraph 7-5 pertains to date of rank on reduction and restoration.  It states that in pertinent part, that for USAR Soldiers, except AGR personnel, the date of rank will be computed by restoring the former pay grade for a Soldier voluntarily reduced under paragraph 7-12b(1) and 3.  On advancement to a previously held higher grade, the date of rank will be according to paragraph 6-2g.



18.  Paragraph 7-12 covers other reasons for reduction.  Paragraph 7-12b pertains to voluntary reductions.  It states that a Soldier on AGR status may request a voluntary reduction to one pay grade below that currently held to qualify for a tour position offered by the CG (Commanding General) ARHC-St. Louis.  This is when the Soldier’s current tour position is not scheduled for renewal and no other tour position in the Soldier’s grade and MOS (military occupational specialty) is available.  It may also be to provide the Soldier an opportunity to continue on tour in the current assignment.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was promoted to MSG/E-8 with a DOR and effective date of 1 June 2002.  He was voluntarily reduced from MSG/E-8 to SFC with a DOR of 1 June 1999 and an effective date of 2 September 2003 under the provisions of Army Regulation 140-158, paragraph 7-12b, to accept a tour position in the AGR. 

2.  While serving on his tour, the applicant was barred from reenlistment and a plan of action counseling was prepared.  He was given guidance about working to overcome the bar.  He requested a SWAP assignment with a reporting date of 30 June 2006 which was approved by his commander.  

3.  A review of the applicant's SMS indicates that he requested separation from the AGR tour upon completion of his current tour.  He was informed that his request would not stop the bar to reenlistment currently being processed and that the command would concur with the applicant reenlisting in a TPU status only. 

4.  An email was provided by the Senior Human Resources Sergeant, 655th RSG, 316th Support Command, who informed this agency that a bar to reenlistment was approved; however, he was unable to locate the approved bar. In the absence of evidence to the contrary, Government regularity is presumed that the bar was approved.

5.  The applicant was honorably discharged at the completion of required period of active service on 13 September 2006 in the rank and pay grade of SFC/E-7.  He was not assigned to a USAR Group other than the AGR, or IMA, or the Standby Reserve on his release from active duty.  According to regulation, the applicant was not entitled to restoration of his rank and pay grade of MSG/E-8.  

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  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.




       _    _______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004505



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ABCMR Record of Proceedings (cont)                                         AR20080004505



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