BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100013357 


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 his reduction from staff sergeant/pay grade E-6 to sergeant/pay grade E-5 during the period of 1 December 1999 to 2 January 2000 be voided.

2.  The applicant states he was illegally reduced from E-6 to E-5 because he was never informed of the proposed reduction.  He states the proposed action was sent to Post Office Box 333 and all previous and subsequent correspondence was sent to him at Post Office (PO) Box 11432.  He states upon reentering the New York Army National Guard (NYARNG) his recruiter told him he had to take an administrative drop in rank to sergeant.  He states he did not know he had received a reduction until about a year ago while searching through his records.

3.  The applicant provides copies of:

* Headquarters, 77th Regional Support Command, Fort Totten, Flushing, NY Orders 18-67, dated 18 January 1997
* a memorandum, dated 27 October 1998, from the New Jersey National Guard
* a memorandum, dated 1 December 1999, from the New York Army National Guard (NYARNG)
* Office of the Adjutant General, State of New York, Latham, NY Orders 154-077, dated 3 June 1999; and Orders 083-061, dated 23 March 2000



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 documents depicting the events surrounding the applicant's reduction from staff sergeant to sergeant were not listed in his official military personnel file (OMPF).  These events are listed based on documents submitted by the applicant.

3.  According the applicant's NGB Form 22 (National Guard Bureau, Report of Separation and Record of Service) with an effective date of 2 January 2000, he enlisted in the NYARNG on 3 January 1997.  He had previously served 2 years, 11 months, and 29 days in the Regular Army and 7 years, 5 months, and 18 days in the U.S. Army Reserve (USAR).  He was promoted to staff sergeant on 
29 December 1993.

4.  Headquarters, 77th Regional Support Command Orders 18-67, dated 
18 January 1997, transferred the applicant to Headquarters New Jew Jersey Army National Guard Detachment, Fort Dix NJ.  These orders list the applicant's address as P.O. Box 11432.

5.  The memorandum from the NJARNG, dated 27 October 1998, to the applicant list his address as P.O. Box 11432.

6.  Office of the Adjutant General, State of New York, Orders 154-077, dated 
3 June 1999, ordered the applicant to active duty for the period 19 June - 30 July 1999.  These orders show the applicant's home of record address as P.O. Box 11432.




7.  The applicant's Army National Guard Retirement Points History Statement shows he did not earn any points for drills or unit training assemblies; he only earned 15 membership points during the period 3 September 1999 to 
12 September 2000.

8.  In a memorandum, dated 1 December 1999, the applicant's commander notified the applicant that he intended to reduce the applicant from staff sergeant/E6 to sergeant/E5.  This memorandum was addressed to the applicant and mailed to P.O. Box 333.  The commander advised him he had the right to:

* decline in writing, or appear in person with or without counsel at all open proceedings
* retain a lawyer at no expense to the Government
* request specific military counsel
* request any reasonably available witnesses
* submit to the board written affidavits and dispositions of witnesses who do not appear
* elect to testify as a witness and submit to examination under oath, make or submit unsworn statements, or remain silent
* challenge or question any witness appearing before the board

9.  He was also advised that failure to respond to this letter to elect to have his case heard before a reduction board constituted a waiver of his rights.

10.  There is no evidence this memorandum was returned to the command as undeliverable or due to an incorrect address.  There are no orders in the applicant's OMPF showing exactly when he was reduced or the effective date of reduction.

11.  On 2 January 2000, the applicant was discharged from the NYARNG.  His NGB Form 22 with an effective date of 2 January 2000 shows his grade at the time of discharge as sergeant/pay grade E-5 with a date of rank of 22 September 1992.  Item 18 (Remarks) indicates a copy of the NGB Form 22 was mailed to the individual's last known address as shown in item 19 (Mailing Address) which shows P.O. Box 11432.

12.  On 6 March 2002, the applicant enlisted in the NYARNG in pay grade E-5 for the State Officer Candidate Enlistment Option.  He initialed in two places indicating he understood he was enlisting in pay grade E-5.

13.  The applicant was promoted to staff sergeant as an Officer Candidate and was subsequently reduced back to sergeant upon disenrollment from Officer Candidate School.  He was discharged from the NYARNG on 27 September 2005 in the rank of sergeant by reason of personality disorder.  He then enlisted in the USAR in pay grade E-5 on 26 September 2006.

14.  In processing of this case an advisory opinion was received from the National Guard Bureau (NGB).  NGB recommended denial of the applicant's request.  The NGB stated the applicant's claim that he did not receive the Notice of Intent for Reduction in Grade was substantiated due to the incorrect address on the notice.  However, the NGB stated the applicant's claim that he did not know until 2008 was not substantiated.  The NGB stated the applicant would have been required to produce evidence of his prior service prior to enlisting in the NYARNG on 6 March 2002.  

15.  The NGB also stated the applicant was fully aware he was enlisting in pay grade E5 on 6 March 2002.  Therefore, he enlisted in pay grade E-5 of his own free will regardless of his claim that he had no knowledge of his reduction from staff sergeant to sergeant.

16.  On 7 July 2010, the applicant submitted a rebuttal to the NGB's advisory opinion.  The applicant stated he was erroneously reduced from the rank of staff sergeant to sergeant because he was not informed of the proposed reduction in accordance with National Guard Regulation 600-200.  He stated if the notice was mailed by certified Mail-return receipt requested, the unit should have been aware that the address was incorrect when it was returned with addressee unknown.  The applicant states he received orders in June 1999 and his discharge in March 2000 which was mailed to the correct address.  

17.  References:

	a.  National Guard Regulation 600-200 (Enlisted Personnel Management), then in effect, stated a commander reducing a Soldier, informs the Soldier in writing, delivered in person or dispatched by certified mail-return receipt requested, of the action contemplated and the reasons.  Failure to respond within 30 calendar days after the date of receipt of written notification constitutes a waiver of the right to a reduction board.

	b.  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.  The 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 contends he was illegally reduced from staff sergeant to sergeant because he was never properly notified.  He contends he did not know he had been reduced until he was searching through his records.  He contends his recruiter told him he had to take an administrative drop in rank to reenter the NYARNG.

2. The applicant's contention that he did not know he had been reduced is not supported by the evidence.  In his rebuttal, he stated in March (2000) his unit sent him his discharge order to the correct address.  His NGB Form 22 also indicates the form was sent to the correct address.  Both his discharge orders and the NGB Form 22 show he was discharged as a sergeant.  These documents would have also been produced when he reentered the NYARNG on 6 March 2003.  

3.  The NGB admitted the applicant's notification of reduction was sent to the incorrect address.  The regulation provides that an individual may also be advised in person of the proposed reduction action.  However, his Army National Guard Retirement Points History Statement shows he attended no drills during the period from 13 September 1999 to the date of his discharge.  Therefore, part of the fault must be shouldered by the applicant.  However, there are no documents available showing the exact date he was reduced or the exact reason.  

4.  Therefore, in view of the lack of the complete record of the events surrounding the applicant's reduction from staff sergeant to sergeant during the period December 1999 and January 2000 it must be presumed that the Army's processing of the reduction was correct.  The applicant has failed to submit evidence that would indicate the contrary.

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)                                         AR20100013357



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ABCMR Record of Proceedings (cont)                                         AR20100013357



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