IN THE CASE OF:	  

		BOARD DATE:  8 March 2012

		DOCKET NUMBER:  AR20110011095 


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 correction of his records to show he was promoted to the grade/rank of sergeant (SGT)/E-5 on 15 November 2006 and the issuance of back pay from 15 November 2006 to 4 December 2007.  He also requests that he be issued a new DD Form 214 (Certificate of Discharge or Release from Active Duty) listing his grade/rank as SGT/E-5 and showing his date of rank as 15 November 2007.

2.  The applicant states he was not promoted to SGT in accordance with his promotion orders, dated 8 November 2006.  He is requesting back pay to reflect the difference in pay between specialist (SPC)/E-4 and SGT from 15 November 2006 to 4 December 2007.  

3.  The applicant provides Orders Number 312-019, issued by the Virginia Army National Guard (VAARNG).

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, having had previous enlisted service in the ARNG and U.S. Army Reserve, enlisted in the VAARNG on 11 June 2005, and held military occupational specialty 96B (Intelligence Analyst).

3.  His records contain Orders Number 312-019, issued by the VAARNG, Joint Forces Headquarters-Virginia, Fort Pickett, VA, dated 8 November 2006.  These orders promoted him from SPC to SGT effective 15 November 2006.

4.  His records contain Orders Number 057-001, issued by Headquarters Task Force Red Dragon, Multinational Brigade (East) Kosovo Peace-Keeping Force 8, Camp Bondsteel, dated 26 February 2007.  These orders demoted him from SGT to SPC, effective 16 February 2007, in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 10-3 (Reduction for Misconduct).  

5.  The facts and circumstances involving the misconduct are not available.

6.  His DD Form 214 shows he was honorably discharged from active duty, on 
4 December 2007, in the rank/grade of SPC/E-4.  This form shows the effective date of pay grade as 16 February 2007 and the narrative reason for separation as personality disorder.

7.  On 30 January 2012, an advisory opinion was obtained in the processing of this case.  An official at the Personnel Policy Division, National Guard Bureau (NGB) stated that after a review of the evidence, there is no basis for error or injustice regarding the applicant's request.  The official further stated that according to VAARNG promotion Order Number 312-019, the applicant was promoted to the rank/grade of SGT/E-5, effective 15 November 2006.  He was reduced to SPC effective 16 February 2007 due to misconduct.  He was paid at the grade of E-4 until he was discharged on 2 March 2008.

8.  The Master Military Pay Account provided by the VAARNG, U.S. Property and Fiscal Office, shows the applicant was paid at the grade of E-5 from 
15 November 2006 through 15 November 2007.

9.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 10-3 states that a Soldier convicted by a civil court (domestic or foreign) will be reduced or considered for reduction according to table 10–2.  On receipt of documents establishing a sentence (imposed or vacation of a suspended sentence) or a finding of guilty with sentence to be established at a later date, action will be taken according to appropriate rule shown in table 10–2.  A Soldier may be reduced even though an appeal is pending or has been filed.  When a reduction board is required, it will convene after receipt of documentary evidence and before separation or retention is considered (Army Regulation 635–200) unless the Soldier waives it in writing.  Commanders will publish orders and enter the reduction in the military records of the Soldier.  The authority for reduction will be the appropriate rule from table 10–2 and will be cited in the order.  The Soldier will be notified, in writing, of the right to appeal the reduction.  The written notification will include the time limits and procedures for an appeal.  If the conviction is reversed, the Soldier will be restored to the former grade.  

DISCUSSION AND CONCLUSIONS:

1.  The facts and circumstances of the misconduct surrounding the applicant's reduction are unclear, it appears he may have had a civil conviction; however, his records contain reduction orders to E-4 and a properly-constituted DD Form 214 listing his rank/grade as SPC/E-4.

2.  The applicant has not provided sufficient evidence to show that an error or injustice occurred.  Absent evidence to the contrary, administrative regularity must be presumed in this case.

3.  The advisory opinion from the NGB and the evidence of record clearly shows he was reduced to pay grade E-4 due to misconduct and he was appropriately paid according to his grade.  The VAARNG pay records also show he was paid as an E-5 from 15 November 2006 to 15 February 2007.

4.  Based on the forgoing, the requested relief is denied.

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)                                         AR20110011095



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ABCMR Record of Proceedings (cont)                                         AR20110011095



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