BOARD DATE:	 5 August 2010 

		DOCKET NUMBER:  AR20090021764


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, reinstatement of his rank to sergeant (SGT).

2.  The applicant states he was, without cause, reduced from sergeant to private and discharged from the United States Army Reserve (USAR).  He contends that his platoon sergeant authorized him to make up missed drills.  However, his commander continued to carry him as not present and notified him later that he had been discharged from the unit.  Upon notification, he stopped coming to drills because he was not getting credit or getting paid.  He contacted his platoon sergeant and the unit S-1 and neither was aware he had been discharged.  He electronically mailed (email) his commander to ask for a transfer and later received a letter stating he had been reduced to private and discharged from the USAR.  He contends he had an exemplary record of service and never had any issues at all.  Further, he never received an Article 15 or counseling statement.  He was a great Soldier and his award and evaluations from the same unit confirm it.

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

* Headquarters, 99th Regional Readiness Command, 
Orders 04-328-00059, dated 23 November 2004
* DA Form 2166-8 (NCO Evaluation Report), for the period February 2003 through February 2004, unsigned
* Army Reserve Components Achievement Medal (ARCAM) orders, dated 16 November 2004


* email correspondence, dated 8 October 2004
* memorandum for record, undated

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 complete facts and circumstances of his discharge are unavailable; however, there are sufficient records available to make a fair and impartial decision in this case.

3.  The applicant enlisted in the Regular Army on 27 August 1996.  He was honorably released from active duty on 26 August 2000 and transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation.  He was reassigned to the 18th Field Hospital, Virginia Beach, Virginia, effective 30 January 2001.

4.  Headquarters, 99th Regional Readiness Command, Orders 04-328-00059, dated 23 November 2004, directed the applicant be:

	a.  reduced from SGT to PV1 under the provisions of Army Regulation 
140-158 (Enlisted Personnel Classification, Promotion, and Reduction), paragraph 7-12a, effective 20 November 2004, and

	b.  discharged under honorable conditions from the USAR under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations), paragraph 1-18b(3), effective 23 November 2004.

5.  On 8 October 2004, he contacted his commander to request to transfer to another unit and was informed by his commander that his request was denied and he was being processed for discharge from the USAR.

6.  On 17 November 2005, he requested a waiver for a disqualifying reenlistment code for unsatisfactory participation in order to enter the Pennsylvania Army National Guard (ARNG).  He submitted a personal statement as part of the waiver request which reads, "My last period of service was in the Army Reserve in Virginia Beach, VA.  I was discharged from the unit for unsatisfactory participation and reduced to the rank of PV1/E-1.  I was discharged from the Army Reserve for unsatisfactory participation because I relocated from Virginia to Philadelphia and informed my unit after the fact.  I was able to attend a couple of drills after I moved, then my car was totaled while parked.  I requested a transfer to a closer unit, but was carried as [absent without leave].  I realize my discharge and reduction from SGT to PV1 is my own fault.  I didn't handle the relocation correctly.  I would appreciate it greatly if you could excuse my unprofessional manner and allow me the opportunity to serve again."

7.  A review of his record in the U.S. Army Human Resources Command Integrated Web Services Soldier Management System shows he was involuntarily discharged for unsatisfactory participation.

8.  The following documents were submitted by the applicant:

	a.  an unsigned DA Form 2166-8 which is not part of his official military personnel file;

	b.  a memorandum from his platoon sergeant stating the applicant missed several drills due to job scheduling conflicts, but made every effort to complete the missed drills until he was notified by the commander that he did not need to complete them;

	c.  email addressed to his unit commander requesting a transfer to another unit, dated 8 October 2004.  The commander denied his request and informed the applicant he was being processed for discharge from the USAR; and

	d.  an ARCAM, dated 16 November 2004, awarded for the period 30 January 2001 to 29 January 2004.

9.  Army Regulation 140-158 prescribes the policies and procedures for the reduction of USAR Soldiers.  Paragraph 7-12a provides for the reduction to PV1 of Soldiers approved for discharge from the service under other than honorable conditions.  Board action is not required.

10.  Paragraph 7-10.1 of Army Regulation 140-158 provides that a Soldier may be reduced one grade for unsatisfactory participation.  Unsatisfactory participation is a result of a Soldier's willful refusal to respond to official correspondence or orders, failure to attend or complete annual training, refusal to report for muster duty, or accruing a specified number of unexcused absences from scheduled training assemblies.

11.  Army Regulation 135-178 prescribes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers in the ARNG and USAR who are not performing full-time active duty.  Paragraph 1-18b provides instructions on the benefits of an honorable discharge and states that instruction will be given during the annual orientation of the Soldier's service obligations and participation requirements in accordance with Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), paragraph 4-4.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his grade restored from PV1 to SGT was carefully considered and there is sufficient evidence to grant partial relief.

2.  Effective 20 November 2004, the applicant was reduced from SGT to PV1 under the provisions of Army Regulation 140-158, paragraph 7-12a, by Headquarters, 99th Regional Readiness Command, Orders 04-328-00059, dated 23 November 2004.  However, this action is in direct contravention to the evidence and the regulatory guidance.

3.  The evidence shows, through the applicant's ARNG waiver statement and the personnel action transactions documented in the Soldier Management System, that he was reduced for unsatisfactory participation.  Army Regulation 140-158 prescribes that a Soldier may only be reduced one grade for unsatisfactory participation.

4.  Further, the regulatory authority used to reduce him from SGT to PV1 prescribes that when the appropriate authority determines that a Soldier is to be discharged from the service "under other than honorable conditions" characterization of service, the Soldier will be reduced to PV1.  However, the applicant received an "under honorable conditions" characterization.

5.  Finally, the provisions under which he was discharged are unclear.  Army Regulation 135-178, paragraph 1-18b(3), does not exist.  Paragraph 1-18b provides instructions on the benefits of an honorable discharge and states that instruction will be given during the annual orientation of the Soldier's service obligations and participation requirements.

6.  Given the facts as noted above, the preponderance of evidence shows the applicant's discharge was not properly administered.

7.  In view of the foregoing, he should be granted partial relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x_____  ___x___  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show he was reduced from sergeant to specialist, with an effective date of 20 November 2004 in accordance with Army Regulation 140-158, paragraph 
7-10.1, reduction for unsatisfactory participation.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting the record to restore the applicant's rank to sergeant.



      __________x______________
                 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)                                         AR20090021764



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ABCMR Record of Proceedings (cont)                                         AR20090021764



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