BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20120018207


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 record to show his rank/grade as sergeant first class (SFC)/E-7 instead of private (PV1)/E-1.

2.  The applicant states his unit lowered his grade during the world's largest natural disaster and discharged him without notification.

3.  The applicant, a former service member (FSM), died on 29 October 2012.  His spouse (now the applicant), in a subsequent application, resubmitted the FSM's request.  She states, due to reduced staffing after Hurricane Katrina and by way of fraud, Soldiers were reduced in rank and their separation dates were pushed back.  (Hurricane Katrina officially made landfall in New Orleans, LA on
29 August 2005.)

4.  The applicant provides:

* Defense Finance and Accounting Service (DFAS) Account Statement dated 20 October and 22 November 2011
* Reduction/Discharge Order
* 8 Self-Authored (Applicant) Statements
* U.S. Army Human Resources Command (HRC) letter, dated 30 August 2012
* General Power of Attorney
* U.S. Army Reserve Command (USARC), Fort Bragg, NC letter, dated
3 July 2012
* 
Blank Privacy Act Statement
* FSM's Certificate of Death
* Facsimile Cover Sheet
* 2 Self-Authored Email documents
* FSM's Email Document
* USARC, Fort McPherson, GA letter, dated 26 October 2006
* Department of Veterans Affairs (VA) letter, undated

CONSIDERATION OF EVIDENCE:

1.  The FSM initially enlisted in the Regular Army on 5 April 1974 and he served until he was honorably released from active duty (REFRAD) in the rank/grade of specialist four (SP4)/E-4 on 2 April 1976.  On 3 April 1976, he was transferred to the USAR and intermittently served in the Reserve component.

2.  On 15 November 2002, he was ordered to active duty in support of Operation Enduring Freedom in the rank/grade of staff sergeant (SSG)/E-6.  He was subsequently promoted to SFC/E-7 on 1 March 2004.

3.  On 2 January 2005, the FSM was honorably REFRAD at the completion of required active service in the rank of SFC.  His DD Form 214 shows he completed 2 years, 1 month, and 18 days of net active service this period for a total of 4 years, 7 months, and 12 days of creditable active service.  It also showed he completed 14 years and 4 months of prior inactive service.

4.  On 20 March 2006, the FSM reenlisted in the USAR indefinitely, in the rank of SFC.

5.  His Army Military Human Resource Record (AMHRR) contains a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) that shows he was last evaluated as an aircraft maintenance supervisor during the period 1 May 2007 through 30 April 2008.  The senior rater rated his overall potential as "superior" in the number "3" block and his overall performance as "successful" in the number "3" block.  His AMHRR contains no additional documents beyond this date to show any additional service.

6.  Orders 11-096-00021, issued by Headquarters, 81st Regional Support Command, Fort Jackson, SC, dated 6 April 2011:

	a.  reduced the FSM from SFC/E-7 to private (PVT/E-1) effective 6 April 2011 under the provisions of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-15; and

	b.  discharged the FSM from the USAR under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations), with an under other than honorable conditions discharge.

7.  During the processing of this case, on 25 September 2013, an advisory opinion was obtained from the Chief, Personnel Management Division, USARC, Fort Bragg, NC.  The advisory official recommended disapproval of the applicant's request based on the following:

	a.  in accordance with Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), Army Reserve Troop Program Unit Soldiers are required to participate in at least
48 scheduled inactive duty training (IDT) periods, and not less than 14 days of annual training, unless excused by the unit commander or granted a leave of absence.  A Soldier may be declared an unsatisfactory participant when he or she accrues nine or more unexcused absences from scheduled IDT in any one-year period.  Once declared an unsatisfactory participant, the Soldier may be processed for involuntary separation from the Army Reserve.

	b.  In accordance with Army Regulation 135-178, when a Soldier is to be discharged with an under other than honorable conditions character of service, the separation authority will direct an immediate reduction to PV1/E-1 in accordance with Army Regulation 600-8-19.

	c.  USARC records indicate the FSM's last duties were performed on 4 May 2008 and he accrued in excess of nine unexcused absences within a 12-month period.  On 6 November 2008, the 377th Theater Sustainment Command (TSC) sent, by certified mail, notification of separation action the FSM's recorded home address.  The FSM failed to respond to the certified mail notification with the specified suspense date.  That constitutes a waiver of his rights.  Therefore, his commander declared him an unsatisfactory participant and initiated separation action.  Additional investigation indicates the command telephonically contacted the FSM numerous times regarding his requirement to attend training.  On
25 March 2011, the Commanding General (CG), 377th TSC, approved the FSM's involuntary separation with an under other than honorable conditions discharge and consequentially, he was reduced to PV1/E-1.

8.  On 25 October 2013, the applicant provided a rebuttal to the advisory opinion, wherein she primarily summarizes the events that befell her and the FSM after Hurricane Katrina.  She stated the:
* 
FSM's unit refused to provide them assistance after Hurricane Katrina after he devoted his life to the military
* FSM returned from a deployment to Egypt one day after the hurricane hit, with no place to live and having inquired, she was denied temporary housing
* FSM moved to Florida where he drilled with the 196th Engineer Battalion and the 320th Military Police
* FSM suffered from post-traumatic stress disorder (PTSD) after serving three consecutive years in Iraq
* FSM did not authorize the drills, was diagnosed as 100 percent disabled
* unit should have known mail was not being delivered after the hurricane as it should have been returned to sender
* FSM devoted his life to the military

9.  Army Regulation 135-91 defines Army National Guard of the United States (ARNGUS) and USAR service obligations.  It prescribes policies and procedures governing the various types of service obligations and participation requirements. Soldiers will be charged with unsatisfactory participation when, without proper authority, they accrue in any one-year period a total of nine or more unexcused absences from scheduled IDTs.

10.  Army Regulation 135-178 sets the policies, standards, and for the orderly administrative separation of ARNGUS and USAR enlisted Soldiers for a variety of reasons.  Chapter 9, in effect at the time, provided for the separation of USAR members for unsatisfactory performance.  An under other than honorable conditions discharge was normally considered appropriate for members separated under this provision of the regulation.

11.  Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  Paragraph 10-15 states when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.  Further, board action is not required for this reduction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's rank should be restored to SFC/E-7 because he was fraudulently reduced to PV1/E-1 as a result of reduced staffing following Hurricane Katrina.  The applicant's contention was carefully considered; however, there is no evidence of record to support this claim.

2.  The evidence of record confirms the FSM's last duties were performed on 4 May 2008, over 2 1/2 years after Hurricane Katrina made landfall in New Orleans on 29 August 2005.  He continued to successfully serve in the USAR after this disaster as evidenced by his reenlistment in the USAR on 20 March 2006, and his NCO Evaluation Report that rated him from 1 May 2007 through 30 April 2008.

3.  His AMHRR documents no additional service beyond 4 May 2008.  Accordingly, notification was sent to the FSM on 6 November 2008, informing him he accrued in excess of 9 unexcused absences and his command telephonically contacted him numerous times regarding his requirement to attend training.  Subsequently, the FSM was declared an unsatisfactory participant by his commander, involuntarily discharged from the USAR with an under other than honorable conditions discharge, and reduced to the lowest enlisted rank/grade of PV1/E-1 in accordance with existing regulations.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120018207



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ABCMR Record of Proceedings (cont)                                         AR20120018207



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