BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120014213 


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 from sergeant first class (SFC/E-7) to master sergeant (MSG/E-8).

2.  The applicant states:

   a.  on 7 April 2011, he received a letter recommending he receive non-judicial punishment (NJP) and reduction by one grade;
   
   b.  on 20 April 2011, he received a notification of intent to reduce him which included an election of rights memorandum;
   
   c.  after a conversation between his trial defense counsel and the prosecuting counsel, he was informed that it was agreed he would be allowed to retire early with all pay and benefits in the rank of MSG instead of a trial by court-martial or reduction;
   
   d.  on 29 April 2011, he signed a letter stipulating the agreement along with his trial defense counsel, brigade commander, and The Adjutant General (TAG);
   
   e.  on 5 October 2011, while out-processing at Fort Huachuca, Arizona, he was questioned regarding not having sufficient time (24 months) in grade and rank to retire as an MSG/E-8, and he presented his retirement agreement to the out-processing clerk who likewise showed it to another official who said “it was good to go”;
   
   f.  he was issued a DD Form 214 which listed his rank and grade as
MSG/E-8, and his date of rank as 21 May 2010;
   
   g.  on 24 January 2012, he received a DD Form 215 (Correction to the DD Form 214) in the mail which corrected his original DD Form 214 to show his rank and grade as SFC/E-7 and his effective date of rank as 11 February 2004;
   
   h.  he returned to the out-processing office to inquire why the change was made and was informed that TAG did not have the authority to approve his retirement in the rank of MSG/E-8 and only thought he approved him to retain his rank until he retired from the Army but not during retirement;
   
   i.  he was also informed that a waiver was never completed and processed to the National Guard Bureau (NGB) to grant his approval to retain his MSG/E-8 rank and grade throughout his retirement;
   
   j.  he respectfully requested early retirement and all benefits in his current rank of MSG/E-8, which was approved by his brigade commander and TAG, and if these officials were not aware of what they were approving, they should have asked questions and verified what they were signing; and
   
   k.  it is not right to now indicate you were not aware of what you signed nine months after the fact.
   
3.  The applicant provides:

* Army Review Boards letter dated 7 March 2012
* DA Form 2823 (Sworn Statement)
* Headquarters, 158th Maneuver Enhancement Brigade (MEB) Memorandum dated 7 April 2011
* Memorandum, Notice of Intent to Reduce dated 20 April 2011
* Rights Election Memorandum dated 20 April 2011
* Self-Authored Memorandum dated 29 April 2011
* Retirement Order
* Self-Authored Memorandum dated 16 April 2012
* Arizona Army National Guard (AZARNG) TAG Memorandum dated 
           11 June 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows, after having prior Reserve component and active duty service, he reentered active duty as a member of the Army National Guard of the United States (ARNGUS) on 17 September 1995.  He was promoted to the rank and grade of MSG/E-8 on 21 May 2010.

2.  On 7 April 2011, the AZARNG commander, a colonel (COL/O-6), recommended TAG AZARNG (a major general) administer the applicant non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for his patterns of misconduct and inefficiency.  He recommended the applicant be reduced one grade from MSG to SFC/E-7.

3.  On 20 April 2011, the AZARNG commander notified the applicant he initiated reduction proceedings against him based on inefficiency only.

4.  On 25 April 2011, the applicant acknowledged receipt of the reduction action. He consulted with legal counsel and was advised of the basis for the contemplated action to reduce him for inefficiency under the provisions of Army Regulation 600-8-19 and the effects of the rights available to him and the effect of any action taken to waive his rights.

5.  On 29 April 2011, the applicant, with the assistance of consulting counsel, initiated a request for early retirement in lieu of the reduction action taken against him.  It shows:

   a.  the applicant requested early retirement in the rank of MSG/E-8, to include all retirement pay and benefits with respect to this rank and grade, in lieu of any pending administrative reduction proceedings under Army Regulation 600-8-19, paragraph 10-5;

   b.  if granted early retirement in lieu of reduction proceedings, he respectfully requested to complete this calendar year in his current duty assignment within the 98th MEB;
   
   c.  his request did not serve as a waiver of his right to an administrative board; and

   d.  he received counsel and his consulting counsel reviewed his request regarding early retirement in lieu of administrative reduction.

6.  On 2 May 2011, the AZARNG commander signed off on his request.  On 2 May 2011, TAG AZARNG approved his request.

7.  On 7 June 2011, the Department of the Army and the Air Force, Joint Force Headquarters-Arizona, issued Orders Number 158-0002.  They directed the applicant's release from active duty for the purpose of retirement on 31 December 2011 and his placement on the retired list on 1 January 2012, in the rank and grade of MSG/E-8.

8.  On 5 October 2011, the applicant's DD Form 214 was issued showing the following entries in the items indicated:

* items 4a (Grade, Rate or Rank) – MSG
* item 4b (Pay Grade) - E-8
* item 12i (Effective Date of Pay Grade) - 2010 05 21

9.  On 28 December 2011, the Department of Army and the Air Force, Joint Force Headquarters – Arizona, issued the following two orders as indicated:

   a.  Orders Number 362-605 which announced the applicant's reduction from MSG/E-8 to SFC/E-7, effective 31 December 2011, with a date of rank of 
11 February 2004;
   
   b.  Orders Number 362-606 which directed the applicant's honorable discharge from the ARNG in the rank of SFC/E-7 on 31 December 2011, and his placement on the retired list on 1 January 2012.

10.  On 31 December 2011, the applicant was retired from active duty having completed a total of 20 years, 9 months, and 22 days of creditable military service.  He was not issued a new DD Form 214.

11.  On 23 January 2012, a DD Form 215 (Correction to the DD Form 214) was issued to correct the following items on the applicant's DD Form 214 to show the indicated entries:

* item 4a – SFC
* item 4b – E-7
* item 12i – 11 February 2004

12.  On 12 April 2012, the applicant appealed to TAG AZARNG for a review of his retired rank and grade.  He:

   a.  restated the history and final outcome regarding his recommendation for reduction;
   
   b.  stated that on 24 January 2012 he was informed TAG AZARNG had no authority to grant his retirement in the rank of MSG/E-8 as this authority lay within NGB; and
   
   c.  stated his request should now be retroactively processed through the G-1 to the NGB for approval in accordance with the previous agreement made which he relied upon instead of receiving due process through an administrative reduction board wherein he could have presented his case against the command's accusations against him at that time.
   
13.  On 11 June 2012, TAG AZARNG issued the applicant a memorandum stating:

	a.  when he initialed the applicant's request dated 29 April 2012 and wrote in the word "approved," he only approved his early retirement in lieu of disciplinary actions;

   b.  he did not approve his request for retirement in the rank and grade of MSG/E-8 because he did not have the authority to waive the minimum time in grade requirement;
   
   c.  the applicant's request did not include a request for a waiver of his time in grade which would have to have been processed to the NGB prior to his date of discharge.
   
14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the Army’s policy and procedure for the administrative separation of enlisted Soldiers.  Chapter 12 provides the policies and procedures for voluntary retirement.  It states that retirement will normally be in the regular or reserve grade the Soldier holds on the date of retirement, as authorized by Title 10 of the U.S. Code, section 3961.

15.  Paragraph 12-8 of the same regulation provides guidance on service obligations and indicates that Soldiers who are promoted to the pay grades of
E-7, E-8, or E-9 incur a 2-year service obligation before they can voluntarily retire.  However, it also stipulates that a promoted individual may not be administratively reduced to terminate a promotion service obligation.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. 
   
   a.  Paragraph 4-8e states a promoted Soldier may not, at his or her own request, be reduced to terminate the required service requirement;

   b.  Paragraph 7-8c states individuals who accept promotions will fulfill their service remaining obligations in the ARNG.  Those who do not meet their service remaining obligation will be administratively reduced without board action or appeal on the date separated unless granted an exception to policy by the Chief, NGB for the good of the service;

   c.  If a Soldier submits a request for voluntary retirement before fulfilling his/her service remaining obligation in the ARNG, the Chief, NGB can deny the request, or accept the request and waive the service remaining requirement if waiver is in the best interest of the Army or when substantial hardship would result; and
   
   d.  Section III, paragraph 10-5 provides guidance on reduction for inefficiency. It states inefficiency is a demonstration of characteristics that shows that the person cannot perform duties and responsibilities of the grade and MOS. Inefficiency may also include any act or conduct that clearly shows that the Soldier lacks those abilities and qualities normally required and expected of an individual of that grade and experience. Commanders may consider misconduct, including conviction by civil court, as bearing on inefficiency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have retired in the rank and pay grade of MSG/E-8 was carefully considered and found to have merit.

2.  The evidence of record confirms the applicant was promoted to MSG/E-8 on 
21 May 2010.  He requested retirement in lieu of the reduction action contemplated against him on 29 April 2011, and the approval authority approved his request on 2 May 2011, at which time he only accrued 11 months time in grade as a MSG/E-8.  His retirement order was prepared on 7 June 2011 and his DD Form 214 was later issued on 5 October 2011.  Effective on the date of his retirement, the applicant was administratively reduced to SFC/E-7 on 31 December 2011, for failing to satisfy the 24 month time in grade active duty service obligation (ADSO), which would have terminated 20 May 2012.

3.  By law and regulation, an enlisted Soldier may not be administratively reduced to terminate an ADSO, but waivers of promotion ADSOs may be granted for the good of the service or based on hardship.  In effect, as it relates to the applicant's request for early retirement in lieu of reduction proceedings, the Army had two options in the applicant’s case:  first, to grant a waiver of the promotion ADSO and allow the applicant to retire in the rank and pay grade MSG/E-8; or second, disapprove the applicant’s retirement request, require him to remain on active duty to complete the 2-year promotion ADSO and/or pursue reduction proceedings.  The Army did not have the option to administratively reduce the applicant and allow him to retire in a lower grade.

4.  In view of the facts and circumstances of this case, it would be appropriate to correct the applicant’s record to show he was granted a waiver of his promotion ADSO in conjunction with the approval of his retirement request; that he was retired in the rank and pay grade MSG/E-8 on 31 December 2011; and that he was placed on the Retired List in the rank and pay grade MSG/E-8 on 1 January 2012.  Further, it would also be appropriate and serve the interest of justice and equity to provide the applicant all back retired pay due as a result of these corrections.

BOARD VOTE:

__x___  __x______  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by:

      a.  showing he was granted a waiver of the 2-year promotion ADSO in conjunction with the approval of his retirement request; 
      
      b.  showing he held the rank and pay grade MSG/E-8 on the date he was retired, 31 December 2011; 
      
      c.  showing he was placed on the Retired List in the rank and pay grade MSG/E-8 on 1 January 2012; 

		







   d.  providing him a corrected separation document that reflects his rank and pay grade as MSG/E-8; and

      e.  providing him all back retired pay due as a result of these corrections. 


      
      
      _________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)                                         AR20120014213





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ABCMR Record of Proceedings (cont)                                         AR20120014213



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