BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20100026074 


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 that she be reinstated to the rank of sergeant (SGT).

2.  The applicant states that she was unjustly reduced from the rank of SGT to specialist and was denied her due process rights to a hearing.  She goes on to state that she was never counseled by her unit for the reduction or given the opportunity to attend a hearing or appeal the action.  Additionally, she was charged with missing battle assemblies and she was in fact sick and provided a doctor’s note to that effect.  

3.  The applicant provides a note from a physician dated 8 November 2009 indicating that he saw the applicant on 4 November 2008.  

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 U.S. Army Reserve (USAR) on 22 January 1998 for training as a motor transport operator and an enlistment bonus.    

3.  She completed her training and was assigned to a Troop Program Unit (TPU) at Fort Totten, New York.  She was advanced to the pay grade of E-4 on 
9 December 2000.  She was ordered to active duty on 1 November 2002 and deployed to Kuwait/Iraq from 27 November 2002 to 23 July 2003.  She was honorably released from active duty on 24 August 2003. 

4.  She attended and completed the Primary Leadership Development Course (PLDC) from 27 March to 10 April 2004.   

5.  On 15 August 2004 she was promoted to the rank of SGT.  Her orders specified that the promotion was not valid and would not be effective if the Soldier was not in a promotable status on the effective date of promotion.  

6.  On 30 August 2007 the applicant was reassigned to another TPU at Fort Totten that was part of the 77th Regional Readiness Command at Fort Totten that was disestablished in 2008.

7.  On 24 November 2008 orders were published by Headquarters, 316th Sustainment Command (Expeditionary) in Coraopolis, Pennsylvania which reduced the applicant to the rank of specialist (SPC) effective 1 October 2008 with a date of rank (DOR) of 15 August 2004.  The orders cited as the authority for the reduction Army Regulation 600-8-19, paragraphs 10-16, 10-17 and 10-18 (a, b, c, d, e, g, and h).    

8.  A review of the applicant’s official records failed to contain any indication of any action related to the reduction in rank. 

9.  In the processing of this application a staff advisory opinion was obtained from the Headquarters, U.S. Army Reserve Command (USARC) at Fort McPherson, Georgia which recommends disapproval of the applicant’s request. Officials at USARC opine that the applicant was reduced for unsatisfactory participation due to eight unexcused absences.  Officials also indicate that the headquarters that would have conducted the reduction board was inactivated and the documentation surrounding the reduction board can no longer be located.  After further review it was also determined that the applicant had been erroneously promoted to the rank of sergeant on 15 August 2004 because she had failed her Army Physical Fitness Test (APFT) on 10 July 2004.  However, her pay was not recouped for the erroneous promotion.  

10.  The advisory opinion was provided to the applicant and she responded to the effect that she was never counseled or provided proper notice of being reduced for unsatisfactory participation nor was she informed of a reduction board.  Additionally, she was not provided a copy of the failed APFT or any counseling regarding unsatisfactory participation and she contacted a Judge Advocate General (JAG) officer in January 2009 to assist her in her case.   

11.  Army Regulation 600-8-19 serves as the authority for the promotion and reduction of enlisted personnel.  Paragraph 10-17 of that regulation provides for the reduction of enlisted personnel for unsatisfactory participation and provides that reductions under this paragraph are discretionary and a Soldier may be reduced one grade for unsatisfactory participation.  A commander may initiate reduction proceedings by presenting documentary evidence of unsatisfactory participation to the appropriate reduction authority.  The commander reducing the Soldier will inform the Soldier in person or by Certified mail of the action contemplated and reasons.  The Soldier will acknowledge receipt of the memorandum in writing and may submit any pertinent matters in rebuttal.  Soldiers serving in the rank of SGT and above may appear before a reduction board.  If a Soldier declines appearance it will be in writing and will be considered as acceptance of the reduction action.   

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s claim is not in doubt, she has failed to provide sufficient evidence to overcome the presumption of regularity that must be presumed in the absence of evidence to the contrary. 

2.  The applicant was reduced in grade in November 2008 and she has provided no evidence to show that she pursued the matter through her chain of command or other channels such as the inspector general’s office. 

3.  It is also noted that her command was inactivated and she has provided no evidence from individuals in her chain of command to support her contention that she was unaware of the actions being taken against her.  This is especially difficult to understand if she was actively participating in her unit as she claims.    

4.  Unfortunately, the inactivation of her command and the lack of availability of the documents related to her reduction, coupled with no evidence from the applicant to support her position, mandates that the Board rely on the presumption that the command properly effected the reduction in this case.

5.  It is also noted that the command determined that the applicant had been erroneously promoted to begin with due to her having failed an APFT just prior to her being promoted.  Therefore, lacking evidence to dispute her July 2004 failure of her APFT, it appears that her promotion was properly voided.

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)                                         AR20100026074





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ABCMR Record of Proceedings (cont)                                         AR20100026074



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