IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100001077 


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 restoration of his rank/grade to staff sergeant (SSG)/E-6.

2.  The applicant states, in effect, he was wrongly reduced to sergeant (SGT)/E-5 as a result of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).  He states that U.S. Army Recruiting Command (USAREC) Pamphlet 600-14 (Handbook for Administration of Active Guard Reserve (AGR) Personnel in the Recruiting Command) does not authorize reductions in grade of a U.S. Army Reserve (USAR) AGR Soldier in the grade of E-6 through sergeant major (SGM).  He states that he believes he is a victim of a misinterpretation of the regulation.

3.  He also states Army Regulation 27-10 (Military Justice) governs Article 15's and that a commander has the authority promote and reduce.  He states the command position was based on legal advice that Army Regulation 600-6-19 (Enlisted Promotions and Reductions) applied to Article 15 punishment and that only sergeants first class (SFC)/E-7 and above may not be reduced.  He states since he is an AGR Soldier, only USAREC Pamphlet 600-14 should apply to him, which clearly states AGR Soldiers falling under the jurisdiction of USAREC in the grade of E-6 may not be reduced under Article 15, UCMJ.  He continues in his 

appeal, he specifically cited the improper reduction issue, but the appeal was denied and the Judge Advocate General (JAG) review found the punishment legal and authorized.

4.  The applicant provides:

* his DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 27 August 2009
* extract of Army Regulation 27-10, dated 16 November 2005
* extract of Army Regulation 600-8-19, dated 20 March 2008
* extract of USAREC Pamphlet 600-14, dated 7 May 2009

CONSIDERATION OF EVIDENCE:

1.  The available records indicate the applicant enlisted in the USAR in February 1997.  On 1 December 2003, he was promoted to SGT/E-5.  He was ordered to active duty in December 2004 and he served in Iraq for a period of 13 months.

2.  In July 2005, he was ordered to active duty in an AGR status and he was subsequently assigned to the U.S. Army Recruiting Battalion, Minneapolis, MN.

3.  On 1 July 2008, he was promoted to SSG/E-6 under the provisions of Army Regulation 600-8-19, chapter 3.

4.  According to the DA Form 2627 the applicant provided in support of his request, he was administered a Field Grade Article 15 for failing to go at the time prescribed to his appointed place of duty on 5 November 2008; for failing to follow his approved plan to conduct P-1 on 7 April 2009; for failing to inform his chain of command of an incident involving the Spencer Police Department on
4 May 2009; for failing to conduct telephone prospecting on 19 May 2009; for, with intent to deceive, entering a knowingly false statement into his Army Recruiting Information Support System (ARISS) system; and, with intent to deceive, making a false official statement.  The punishment imposed was 
"reduction to the grade of E-5.  Forfeiture of $1,414.00 per month for 2 months, suspended to be automatically remitted if not vacated before 26 Feb 10.”  In item 7 of his DA Form 2627 the applicant indicated that he would appeal and submit additional matters.

5.  In a 7 March 2007 (sic) memorandum, the applicant appealed his UCMJ action explaining the circumstances for each charge according to his point of 

view.  However, the memorandum does not show he specifically cited the improper reduction issue or asked that his reduction in rank be revoked under USAREC Pam 600-14, "page" 9(d) and Army Regulation 600-8-19, paragraph 10-3, because he was a USAR AGR Soldier.

6.  Item 8 of the DA Form 2627 notes that on 27 August 2009, the Article 15 appeal was considered by the command JAG, who opined that the proceedings were conducted in accordance with applicable law and regulation and that the punishments imposed were neither unjust nor disproportionate to the offense committed.

7.  Item 9 of the DA Form 2627 shows that on 7 September 2009, the appeal authority, a colonel, denied the applicant's appeal  On 9 September 2009, the applicant acknowledged receipt of the action taken on his appeal.

8.  Army Regulation 600-8-19, chapter 3, governs the E-5 and E-6 promotion system for Active Army and USAR AGR Soldiers.  It states that field-grade commanders in units authorized a commander in the grade of lieutenant colonel (LTC) or higher have promotion authority to grades of E-5 or E-6.  It notes that promotions to E-5 and E-6 are executed in a semicentralized manner and that Headquarters, Department of the Army (HQDA) will handle promotion cutoff scores and the monthly E-5/E-6 promotion selection by-name lists, which are determined and announced monthly.  HQDA and Human Resources Command (HRC), St. Louis, MO (HRC-STL) will determine the needs of the Army by grade and military occupational specialty (MOS).

9.  Army Regulation 27-10 states that the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander.  It notes that for the purposes of this regulation, the imposing commander or any subordinate commander has “promotion authority” within the meaning of Article 15 if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade under Army Regulation 600-8-19.

10.  USAREC Pamphlet 600-14, Table 4 (identified by the applicant as page 9(d)) states that “reduction for misconduct under Article 15, UCMJ, is not authorized for USAR AGR Soldiers in the grades of SSG through SGM.”  It references Army Regulation 600-8-19, paragraph 10-3.


11.  Paragraph 1b of USAREC Pamphlet 600-14 also states that “in any conflict between the contents of this handbook and the provisions of any regulation, the regulation takes precedence.”  

12.  Army Regulation 600-8-19, paragraph 10-3 notes for UCMJ, Article 15, to see Army Regulation 27-10 and that Soldiers in the grades of SFC (emphasis added) through CSM may not be reduced under this provision.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is correct that there is a conflict between USAREC Pamphlet 600-14 and Army Regulation 600-8-19; however, the USAREC pamphlet states that when such conflicts occur the provisions of the regulation take precedence over the pamphlet.

2.  His reduction as a result of his UCMJ action was appropriate.  His argument that USAREC Pamphlet 600-14 precluded such a reduction is without foundation. Clearly the provisions of the Army Regulation 600-8-19 under which he was promoted and which was cited as the reference in USAREC Pamphlet 600-14 permitted reduction from the grade of E-6.  In this case, because there is a conflict between USAREC Pamphlet 600-14, which states that “reduction for misconduct under Article 15, UCMJ, is not authorized for USAR AGR Soldiers in the grades of SSG through SGM,” and Army Regulation 600-8-19 which permits the reduction of Soldiers in grade E-6 and below, Army Regulation 600-8-19 prevails.  

3.  In view of the foregoing, there is no basis for granting his 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.



      ___________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)                                         AR20100001077



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)