IN THE CASE OF:.

		BOARD DATE:   15 August 2013

		DOCKET NUMBER:  AR20120022508 


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, in effect, restoration of his rank/grade to master sergeant (MSG)/E-8 for retirement purposes.

2.  The applicant states:

	a.  His reduction in rank to sergeant first class (SFC)/E-7 was unjust due to regulatory infractions by several noncommissioned officers (NCO) in Alaska who failed to place him in an E-8 position despite knowing he would be transferred there.

	b.  Additionally, they ignored Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction) and did not utilize special promotion provisions that would have reinstated his rank when a unit first sergeant (1SG)/
E-8 position opened.

	c.  He provides a chronological sequence of events leading to his reduction in rank.

3.  The applicant provides:

* a self-authored statement, dated 27 November 2013
* a memorandum from the Inspector General, Joint Force Headquarters, Wisconsin Army National Guard (WIARNG), subject:  Inspector General (IG) Action Request, dated 23 September 2005


* a letter from the Office of the IG, National Guard Bureau (NGB), dated
23 September 2005
* a DA Form 2823 (Sworn Statement) from SFC Manfred A. C-----, dated
25 February 2002
* an NGB Form 22-5-R-E (Addendum to DD Form 4 Approval and Acceptance by Service Representative for Interstate Transfer in the Army National Guard), page 2
* Orders 151-327, issued by the State of Texas, Adjutant General Department, dated 31 May 2001
* Unit Manning Report (UMR) pages from four units, all dated 16 October 2001
* An email from Sergeant Major (SGM) Frank Y-----, NGB, dated
29 November 2001
* Orders 233-002, issued by the State of Alaska, Department of Military and Veterans Affairs, dated 21 August 2002
* a memorandum from Headquarters, State Area Command (STARC), Alaska Army National Guard (AKARNG), subject:  Report of Investigating Officer, dated 17 March 2002
* a Bronze Star Medal Certificate, dated 26 December 1970
* an extract of Army Regulation 350-1 (Army Training and Leader Development)
* pages 5-10 through 5-14 of National Guard Regulation 600-200 (Enlisted Personnel Management), dated 1 March 1997

CONSIDERATION OF EVIDENCE:

1.  Having served in the Texas Army National Guard (TXARNG) and the AKARNG, the applicant retired from the WIARNG effective 14 October 2006 in the rank/grade of SFC/E-7.

2.  He provides a self-authored statement that contains a chronology wherein he states:

	a.  He started the transfer process to the AKARNG on or about 20 April 2001.  He was then an SFC, but he informed the Alaskan transfer NCO, SFC
C-----, that he might be promoted.  His transfer was to take effect 15 July 2001 and he kept SFC C----- informed as to the progress of his promotion and requested he look for an E-8 position anywhere within the state.  Alaska has a history that it will utilize a Soldier anywhere within the state as needed.

	b.  On 15 June 2001, he was promoted to MSG/E-8 by the TXARNG in military occupational specialty (MOS) 92A (Automated Logistical Specialist).  He 


notified SFC C----- and asked that he check with the State Command Sergeant Major (CSM).  This was a month prior to the transfer.  He then went on a month-long vacation to facilitate the move to Alaska.

	c.  Prior to 1 July 2001, he was in Anchorage and went by STARC Headquarters.  While there he found out that SFC C----- had assigned him as an SFC.  No action had been taken concerning an E-8 position.

	d.  He reported for drill in August and September 2001, and in October 2001, he began looking for an E-8 position he could transfer into.   According to the UMR's he provided there were four available E-8 positions:  two 1SG positions, an operations sergeant position, and an intelligence sergeant position.  When he brought these positions to the attention of his superiors he was told "We look after our own before we would give a position to an outsider."

	e.  According to Army Regulation 600-200 (Enlisted Personnel Management) 1SG positions were MOS non-specific.  He later learned that Alaska regulations require 1SG positions to be filled by an 11B (Infantryman), except for STARC headquarters.  He could have performed in an 11B position with additional training.

	f.  The officials in Alaska claimed they did not have any 92A or 92Y positions available and at a May 2002 counseling his company commander gave him until July 2002 to find a position.  No drill was held in July 2002 and in August 2002 he received reduction orders, dated 21 August 2002, that were effective 15 July 2002.

	g.  His contention is that there were E-8 positions he could have been assigned to in accordance with the regulations, but SFC C----- chose not to perform his duties to seek out a position to assign him to.  Officials in Alaska, in violation of the regulation, utilized him in a lower grade for a year in violation of National Guard Regulation 600-200, paragraph 5-34d and c(1) and (5), while paying him E-8 pay.  The officials in Alaska made it virtually impossible for him to find a position by effectively giving him one drill to find a position.

	h.  At his request, the WIARNG IG looked into his promotion situation, but they referred the matter to the NGB IG.  The NGB IG referred that request to the TXARNG on 23 September 2005.  He claims he has not heard anything further on this request.

3.  In a 25 February 2002 Sworn Statement, SFC Manfred A. C-----, the STARC Alaska Inter-Service Transfer Coordinator, states he made contact with the applicant via email on 20 April 2001.  The applicant was moving to Alaska from Texas to take a position with the U.S. Forest Service in Juneau.  The applicant stated that Texas might be promoting him to E-8.  He explained to the applicant that there were no E-8 positions available at that time.  He further states that "In all contacts both telephonically and via email, I am sure, (the applicant) understood that he would be transferring into an E-7 position, and this contact was fairly regular until (the applicant) left Texas."  "At no time did I promise or allude to (the applicant) that we might assign him to an E-8 position, if Texas promoted him."

4.  The applicant's signature appears on page 2 of a 15 July 2001 NGB Form 22-5-R-E that shows in Part I (Soldier Data) his Grade of Rank as SFC/E-7
and in Part III (Soldier Acknowledgment) that "I, (the Applicant) acknowledge that I have been accepted by the State of Alaska for an interstate transfer."

5.  A 17 March 2002 report of investigation was conducted by the AKARNG into the circumstances surrounding a potential erroneous Oath of Extension/
Reenlistment and Inter-State Transfer agreement by the applicant.  The findings show:

	a.  On or about 14 June 2001, the applicant reenlisted in the TXARNG.  However, there were two errors.

		(1)  The DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) was improperly completed.  The applicant did not sign the DA Form 4836.  The officer administering the oath of extension signed both the block for the person administering the oath and the block for the individual extending.

		(2)  Despite repeated tries to obtain the original of the DA Form 4836, TXARNG could not produce the original document.

	b.  The Inter-State Transfer was post-dated.  The NGB Form 22-5-R-E shows it was executed on 15 July 2001, which is the same date the transfer became effective.  The applicant claimed that form was executed on or about 6 June 2001, prior to his promotion to E-8 and he was aware he would be assigned to an E-7 position in the AKARNG.

	c.  There were no promises made by SFC C----- or other members of the AKARNG to the applicant regarding assignment to an E-8 position.

	d.  There were no M-day E-8 positions available within the applicant’s career management field (CMF) at the time of transfer.

	e.  The applicant wanted to be a member of the AKARNG and he had no problems being administratively reduced to E-7.

6.  The applicant provides Orders 233-002, dated 21 August 2002, that reduced him from MSG/E-8 to SFC/E-7, effective 15 July 2002.  These orders contain special instructions that:

* Soldier was promoted while IST (inter-state transfer) to the AKARNG
* E-8/MSG vacancy was not available
* Solider was not eligible to retire as an E-8/MSG
* Soldier MUST serve at least 2 years as an E-8/MSG

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant accepted an interstate transfer from the TXARNG to the AKARNG for an E-7 position.  He was promoted by the TXARNG to E-8 just prior to the transfer, but he was placed in an E-7 position by the AKARNG.  He later attempted to find an E-8 position but was unsuccessful and was administratively reduced to E-7.

2.  He requested assistance from the IG; however, there is no evidence showing the applicant followed-up on the IG request that NGB referred to the TXARNG, even though the point of contact information was provided.

3.  An investigation conducted by the AKARNG shows that no promises were made by representatives of the AKARNG to the applicant regarding assignment to an E-8 position, there were no M-day E-8 positions available within the applicant's CMF at the time of transfer, and the applicant wanted to be a member of the AKARNG and had no problems being administratively reduced to E-7.  The applicant has provided no evidence to refute the AKARNG’s finding.

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)                                         AR20110010831



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ABCMR Record of Proceedings (cont)                                         AR20120022508



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