BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120019238 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty), Honorable Discharge (HD) Certificate, and Enlisted Record Brief (ERB) to show his rank/grade as sergeant first class (SFC)/E-7 instead of staff sergeant (SSG)/E-6.

2.  The applicant states:

   a.  He was mistakenly and wrongfully administratively reduced.  The attached documents and narrative will indicate this undeniable fact.  He believes the military record in question, his DD Form 214, to be wrong.  

	b.  In May of 2012, he began his separation process at direction of Mr. Wxxxxxx Mxxxxxx, a transition counsel.  He was immediately informed by Mr. Mxxxxxx that he did not meet the Service Retention Requirement (SRR) necessary to transition into the Army National Guard (ARNG) with his SFC rank.  He explained to Mr. Mxxxxxx there was an "Exception to Policy (ETP)" to the SRR allowing a Soldier to separate with his rank intact despite not entirely fulfilling the SRR which could be requested at the lieutenant colonel level.  Mr. Mxxxxxx replied this was not true and assured him that he would not be issued expiration of term of service (ETS) orders until he agreed to the reduction in rank.

	c.  At this time, he issued the necessary documents through SFC Exxx, the U.S. Army Retention Noncommissioned Officer In Charge (NCOIC), to generate the ETP request letter with the full support of his chain of command from top to bottom.  SFC Exxx was very helpful, but stated the process was tragically slow due to the many documents requiring review by personnel at the U.S. Army Human Resources Command (HRC).  SFC Exxx generated the necessary letter and instructed him to have it signed by his battalion commander and return it as soon as possible.  His battalion commander was downrange visiting troops and immediately signed the request upon his return in July.  The request was then immediately returned to SFC Exxx who then forwarded the request to the Chief of Transition, HRC, to review and approve.  

   d.  During this timeframe, his allotted three-month period to attend all separation briefs had dwindled down to mere days.  Mr. Mxxxxxx still held his ETS orders because he had refused to sign a Declination of Promotion document to have him reduced.  The ETS orders are absolutely crucial to begin the separation process.  With time running out, his ETP letter still had not been approved.  He explained to Mr. Mxxxxxx that the ETP letter was in the process of being approved and he needed his ETS orders to begin the process or there was no way he could complete the process before his final day.  Mr. Mxxxxxx told him that he didn't believe the ETP existed and that he would continue to withhold his ETS orders until he signed the declination form. 
   
   e.  Mr. Mxxxxxx's withholding of a document absolutely crucial to his separation process and rightfully his in lieu of signing a document for him which he knew was wrong is the definition of coercion.  Under serious pressure, an unreal time constraint, and having not heard back from the Chief of Transition, he reluctantly was coerced into signing the Declination of Promotion document in order to receive his ETS orders that were held in a quid pro quo fashion.  
   
   f.  A few days later he received his contract from Mr. Mxxxxxx, who was very apologetic and had a surrendering tone under order of the chain of command to allow him to separate with his SFC rank in place without any declination or further immoral acts he had already executed upon him.  In remorse, Mr. Mxxxxxx told him to bring in the ETP letter as soon as it was received and he would help him have the issue corrected and have him reinstated.  Mr. Mxxxxxx, due to misinformation and disbelief, had him wrongfully stripped of his rank, pay, and respect.  Mr. Mxxxxxx went from being the executor of his demise to the primary champion of him having everything reversed back to its rightful denotation.
   
   g.  Mr. Cxxxxxx Bxxxxx, HRC, Senior Promotions, stated he could not reverse the process even if he was coerced into signing the declination.  Mr. Bxxxxx stated the ETP is approved to keep the rank "unless reduced by the appropriate authorities" and reassured him that he was the appropriate authority and he himself had reduced him. 
   
   h.  Coercion was and is illegal and thus rendered the document erroneous under Army Regulation 600-8-19 (Enlisted Promotions and Reductions).  It was suggested he contact The Judge Advocate General's (JAG) office.  The JAG office suggested he have Mr. Mxxxxxx write a sworn statement citing why he should be reinstated and also swearing to his own wrongful actions which would render the declination erroneous.  Mr. Mxxxxxx willing wrote the statement, along with a narrative of the situation, and sent it to Mr. Mcxxxx, Mr. Bxxxx's supervisor.
   
   i.  Mr. McNxxx replied blatantly he didn't know what to do and referred him to his supervisor, Sergeant Major (SGM) Txxxxx Gxxxxxx.  SGM Gxxxxxx replied that he would not be reinstated and cited Army Regulation 600-8-19's SRR paragraph for Soldiers continuing service into the ARNG as he was.  He replied to SGM Gxxxxxx and she didn't respond.  He emailed her a second time and again received no response.  This is a clear case of "passing the buck" until the clock runs out.  Time did run out, his final last day hit, and reluctantly, Mr. Mxxxxxx had him sign his DD Form 214 as an E-6, not an E-7, his rightful rank.  Mr. Mxxxxxx and JAG both advised him to apply to the Army Board of Correction of Military Records with this narrative and supporting documents.
   
   j.  This is a clear case of lack of knowledge driving a transition branch employee into committing coercion and having a Soldier wrongfully reduced in rank.  He is attaching the ETP and Mr. Mxxxxxx's sworn statement and all dialogue exchanged between him and HRC entities.  His final NCO Evaluation Report (NCOER) in the rank of SFC is outstanding and proves the reduction was through no fault of his own.  

3.  The applicant provides 

* 2009, 2010, 2011, and 2012 DA Forms 2166-8 (NCO Evaluation Report)
* 2012 DD Form 4/1 (Enlistment/Reenlistment Document)
* Declination of Promotion
* ETP request memorandum
* ETP approval memorandum
* DA Form 2823 (Sworn Statement)
* DD Form 214
* HD Certificate
* seven emails between him and HRC

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA), in pay grade E-4, on 29 December 2004, for 5 years.  He completed training and was awarded military occupational specialty 18D (Medical Sergeant).  He was promoted to pay grade E-6 on 1 August 2008.  He reenlisted in the RA on 28 August 2009. 

2.  He provides copies of his 2009, 2010, 2011, and 2012 NCOERs which show he received excellence, among the best, and successful assessments.

3.  Order Number 322-37 was issued by HRC, on 18 November 2011, announcing his promotion to SFC with an effective date and date of rank of 1 December 2011.  The order stated "Acceptance of promotion constitutes acceptance of the two-year service remaining requirements from the effective date of promotion."

4.  On 27 April 2012, he completed a DD Form 4/1 for enlistment in the Washington ARNG (WAARNG) in pay grade E-7 for one year.

5.  On 16 May 2012, he declined promotion to pay grade E-7.  He acknowledged this declination was irrevocable.

6.  On 4 June 2012, the Chief, Enlisted Promotions, Promotions Branch, HRC, advised the applicant of the administrative removal of his name from the Fiscal Year 2011 SFC Promotion List due to his declination of promotion in accordance with Army Regulation 600-8-19, paragraph 4-15a(2)(i).  

7.  Order Number 151-7 was issued by HRC, on 30 May 2012, revoking Order Number 322-37 promoting him to SFC in accordance with Army Regulation 600-8-19, paragraph 1-16.

8.  On 31 July 2012, the applicant's battalion commander submitted an ETP for promotion SRR on behalf of the applicant.   He stated that Army Regulation 600-8-19 stipulated that Soldiers must satisfy the required SRR for promotion prior to their ETS or be administratively reduced upon their discharge from active duty.  The applicant had already enlisted into the WAARNG in a valid vacant position.  He requested the applicant be granted an ETP in order to transfer into the WAARNG as an SFC.

9.  On 13 August 2012, the Chief, Transition Branch, HRC, advised the applicant's battalion commander of the approval of the applicant's separation at his normal ETS in his current grade of E-7 unless reduced by the appropriate authorities in accordance with Army Regulation 600-8-19.

10.  He also provides a copy of a DA Form 2823, dated 27 August 2012, wherein Mr. Mxxxxxx stated:

	a.  On 8 May 2012, the applicant, then an SFC, attended an ETS orders briefing.  It was noticed that based on his ERB he would not have completed his service requirement for E-7 based on Army Regulation 600-8-19, paragraph 4-8, and Military Personnel Message 12-124.

	b.  This transition center had previously had this happen with another SFC NCO in December 2011.  At that time, he called G-1 and discussed the issue concerning the SRR for E-7.  The applicant was also transitioning into the ARNG upon his separation from active duty.  The G-1 official directed him to Mr. Bxxxx at HRC promotions branch and that he would need to send the applicant's promotion order to have him administratively reduced.  He contacted Mr. Bxxxx and the applicant was administratively reduced due to noncompliance of SRR.  Nothing mentioned an ETP existing for transitioning into the Reserve Components (RC).

	c.  He contact Mr. Bxxxx again on 21 May 2012 without knowing an ETP existed that could have allowed the applicant to transition to the RC without loss of rank based on Army Regulation 600-8-19, paragraph 5-26a, "Obligation Incurred by Accepting a Promotion."  Had he known that could be done he would have directed the applicant to process the ETP through channels prior to issuing ETS orders.

	d.  On 29 May 2012, he received an email from Mr. Bxxxxx which requested the applicant submit a Declination of Promotion.  He submitted the signed declination and received a confirmation on 30 May 2012.  On 6 June 2012, he received a copy of the revocation and removal memorandum.  

   e.  In late July 2012, he had another SFC NCO with an ETS date prior to completion of the SRR for E-7.  However, that NCO had received the same ETP in question issued by HRC-Transition Branch to allow the Soldier to separate prior to completion of the SRR based upon a commitment to the ARNG.  This was the first time his office was made aware of this type of exception.  Had he known, the applicant would have already transitioned to his ARNG unit with his rank intact.

	f.  The applicant was wrongfully forced to sign a Declination of Promotion under erroneous pretense based on the transition's center mistaken information regarding the ETP.  It is his belief under this erroneously imposed action that the applicant should be completely exonerated of his actions regarding his reduction in rank and reinstated to the 2011 SFC Promotion List in accordance with Army Regulation 600-8-19, paragraph 5-29, "Reinstatement to Recommended List."

11.  He was honorably released from active duty on 27 August 2012, at completion of required active service, and he was transferred to a WAARNG unit.

12.  His DD Form 214 shows in:

* Item 4a (Grade, Rate, or Rank) - the rank of SSG
* Item 4b (Pay Grade) - the pay grade E-6
* Item 12h (Effective Date of Pay Grade) – 1 August 2008

13.  The ERB and Honorable Discharge Certificate shows his rank as E-6.

14.  He also provides seven emails, between himself, the transition center, and HRC.  The emails pertained to allowing the ETP to stand so he could enlist in the WAARNG as an E-7.  HRC advised him that he had no regulatory basis for requesting an ETP, his promotion orders had been revoked, and he was administratively removed from the promotion list.  HRC also advised him that the Transition Branch Chief was not the ETP authority for promotion and no further action was required of HRC Promotions.

15.  A review of his Army Military Human Resource Record located on the Integrated Personnel Electronic Records Management System failed to show his promotion orders for SFC and/or orders reducing him from SFC to SSG after June 2012.

16.  In an advisory opinion, rendered in June 2013, the Acting Chief, Enlisted Career Systems Division, Office of the Deputy Chief of Staff, G-1, Personnel Division, approved an ETP for the applicant to retain his SFC rank with an original date of rank of 1 December 2011.  The G-1 official stated the applicant failed to execute a reenlistment contract within either the RA or ARNG to fulfill the SRR dictated by his promotion to SFC.  He also signed a declination of promotion to facilitate his transition into the ARNG.  Notwithstanding these facts, the applicant was granted an ETP by HRC on 13 August 2012 to separate from the RA as an SFC.  As a result, the revocation of the applicant's promotion orders was erroneous.  His promotion will be reinstated and his DD Form 214 will be corrected to reflect his rank as SFC and his date of rank as 1 December 2011.

17.  The opinion was forwarded to the applicant for acknowledgement/rebuttal on 12 June 2013.  He did not respond.

18.  Army Regulation 600-8-19 prescribes the enlisted promotions and reduction function of the military personnel system.  The regulation states in:

	a.  Paragraph 1-16 – Instruments announcing erroneous promotions will be revoked.  When a Soldier has been erroneously promoted and has received pay at the higher grade, a determination of de facto status may be made only to allow the Soldier to keep any pay and allowances received at the higher grade.  

	b.  Paragraph 1-16c – Promotions revoked because of voluntary actions such as a retirement or declination of promotion will not results in de facto status.

	c.  Paragraph 1-24 – A promotion is effective on the date of the promotion instrument.  A Soldier may submit a memorandum of declination any time after being recommended for promotion.  If the Soldier has been promoted, the declination memorandum will be sent through commander no later than 30 days after the effective date of promotion.  

   d.  Paragraph 4-8 - Soldiers promoted to SFC will incur a two-year service requirement effective from the date of promotion unless the Soldier is eligible for retirement, already eligible through prior service for a higher retired grade, and age 62 or older.  
   
   e.  Paragraph 4-15a(2)(i) – HRC will delete, without further board action, the name of any Soldier from the recommended list who declines promotion in accordance with this regulation.

	f.  Paragraph 5-26a – A Soldier who accepts a promotion voluntarily agrees to serve in the duty position to which promoted and serve at least 12 months in the duty position before voluntary reassignment, discharge, or retirement.  An ETP is where the Soldier has a change of residence or civilian employment, or incurs an extreme hardship requiring such reassignment.  This policy does not preclude reassignment for the convenience of the Government to the Ready Reserve, Standby, or Retired Reserve, included IMA or Active Guard Reserve status.

   g.  Paragraph 5-29 – A Soldier removed from the recommended list and later completely exonerated will be reinstated on the recommended list.  To be completely exonerated, the action that caused the initial removal must have been erroneous or should not have been imposed so the Soldier is free or any blame or accusation.  

19.  MILPER Message 12-124, Applied to Army Regulation 600-8-19, chapter 4, paragraph 4-8, Service Obligation for Centralized Promotions (SFC, Master Sergeant (MSG), and SGM) for the Active Army and U.S. Army Reserve AGR), dated 25 February 2011, states:

   a.  Soldiers promoted to SFC, MSG, and SGM will incur a three-year (36 months) service obligation effective the date of promotion unless the Soldier is eligible to retire, already eligible through prior service for a higher retired graded, or age 62 or older.
   
   b.  Soldiers not having sufficient time remaining must reenlist or decline promotion in accordance with paragraph 1-24 of Army Regulation 600-8-19.  If the promotion is delayed for administrative reasons, the service obligation will begin on the original date the Soldier would have otherwise been promoted.
   
   c.  Soldiers have until the end of the promotion month to reenlist to meet the service obligation.  Soldiers who fail to meet the service obligation will be administratively removed from the standing promotion list.  Soldiers administratively removed will not be eligible for reinstatement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and found to have merit.  The evidence of record shows he was selected for promotion to SFC with an effective date and date of rank of 1 December 2011 and incurred a two-year service remaining requirement.  On 27 April 2012, he executed a one-year enlistment in the WAARNG as a SFC.  On 1 May 2012, he declined promotion to SFC.  

2.  On 13 August 2012, the HRC Transition Branch approved an ETP request to allow him to transfer into the WAARNG as a SFC.  The transition center was subsequently advised that the applicant had already been reduced by appropriate authorities.  The transition center then stated that had they known an ETP existed, in effect, the applicant would have transitioned to his ARNG unit with the rank of SFC.  

3.  He was released from active duty on 27 August 2012 and he was transferred to a WAARNG unit.  Notwithstanding his records being void of Orders Number 151-7 which reduced him to pay grade E-6 he was issued a DD Form 214 and Honorable Discharge Certificate showing his rank as SSG/E-6.   

4.  Regulatory guidance provided for an ETP where the Soldier has a change of residence or civilian employment, or incurs an extreme hardship requiring such reassignment.  In June 2013, the Enlisted Career Systems Division approved the ETP for the applicant to retain his SFC rank with his original 1 December 2011 date of rank.  Therefore, he is entitled to correction to his correction of his DD Form 214, HD Certificate, and ERB to show his rank as SFC/E-7 effective 1 December 2011.
BOARD VOTE:

___X__  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* deleting from Item 4a of the applicant's DD Form 214 the entry "SSG" and replacing it with the entry "SFC"
* deleting from Item 4b of his DD Form 214 the entry "E-6" and replacing it with the entry "E-7"
* deleting from Item 12h of this DD Form 214 the entry "08  08  01" and replacing it with the entry "11  12  01"
* amending his Enlisted Record Brief and Honorable Discharge Certificate to show his rank and pay grade as SFC/E-7



      _______ _  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)                                         AR20120019238





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ABCMR Record of Proceedings (cont)                                         AR20120019238



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