IN THE CASE OF:	  

		BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20130001466 


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 Army Military Human Resource Record (AMHRR) to show his retired rank as sergeant major, pay grade E-9.

2.  The applicant states, in effect, his "non-punitive" general officer memorandum of reprimand (GOMOR) was used as a basis to reduce his rank and pay grade and to force his retirement as a master sergeant, pay grade E-8.  He further contends that he was unlawfully removed from the Sergeants Major Academy 
2 weeks prior to completion of the course.  His intent was to complete the course of training and to remain in the Army for 32 years in an area of his expertise unaffected by his documented combat injuries, as he had done for the past several years.  He states that because of an unsubstantiated and unjust GOMOR, that is currently being investigated, he was given the choice of being separated under the provisions of the Qualitative Management Program (QMP) or to retire.  This choice forced him to go before the medical evaluation board (MEB) resulting in his retirement due to a physical disability.  He contends that his having to elect a medical retirement was a predetermined punishment as documented on DA Form 4833 (Commander's Report of Disciplinary or Administrative Action). He argues that because a GOMOR is to be used only as a non-punitive measure of correction, his loss of rank and pay grade was unjust punishment.

3.  The applicant provides copies of:

* DA Form 4833
* DA Form 3975 (Military Police Report), Section VII, Narrative
CONSIDERATION OF EVIDENCE:

1.  On 19 May 1986, the applicant enlisted in the Regular Army.  He progressed through the ranks and was promoted to master sergeant, pay grade E-8, with a date of rank of 1 May 2004.

2.  On 10 July 2010, the applicant was assigned for duty as the Battalion Operations/Plans Sergeant Major.  His actual rank at the time was master sergeant, pay grade E-8.

3.  On 6 January 2011, the applicant received a GOMOR from the Commanding General, Special Operations Command Central for stealing 6 carabiners from the Post Exchange (PX) at Camp Liberty East in Baghdad, Iraq.  He was observed on surveillance video taking and concealing them in his pocket.  The GOMOR was imposed as an administrative measure and not as punishment.

4.  On 10 January 2011, the applicant wrote a rebuttal memorandum, wherein he stated that he was sorry for the embarrassment that this situation caused the unit and for the time and resources expended in having to deal with it.  He identified himself as a sergeant major in the memorandum and said he understood the seriousness of this incident and took full responsibility for the situation.  He pointed out inconsistencies with the investigation concerning the matter about how many carabiners were actually taken.  He concluded from the discrepancies that the PX management and military police investigators were unclear as to what, if anything was actually taken from the PX.  He further argued that had he been stopped at the moment he was leaving the store, the issue could have been completely cleared up at that time.

5.  On 13 January 2011, the applicant was relieved for cause.  His DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER) indicates he was caught for shoplifting in the PX in Baghdad, Iraq.  The NCOER identifies his rank as master sergeant, even though he was serving as the battalion operations and plans sergeant major.

6.  A memorandum, dated 19 January 2011, states the commanding general, after careful consideration, directed the GOMOR be filed in the applicant's Official Military Personnel File, now known as the AMHRR.

7.  A memorandum, dated 5 July 2011, from the Chief, Enlisted Promotions, Promotions Branch, U.S. Army Human Resources Command (HRC) informed the applicant, through his commander, that the Fiscal Year (FY) 2011 Sergeant Major Standby Advisory Board (STAB) recommended his administrative removal from the Promotion Selection List, under the provisions of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 4-15 (h).  This memorandum identified the applicant as a master sergeant.

8.  On 13 July 2011, the Chief, Enlisted Promotions, Promotions Branch, HRC, wrote another memorandum through the applicant's chain of command again informing him of the STAB removal decision.  He was further advised that the Director of Military Personnel Management had approved the recommendation to remove him from the FY 2010 Sergeant Major Selection List.  This memorandum identified the applicant as a master sergeant.

9.  In a memorandum, dated 2 December 2011, the applicant, identified as a master sergeant, was informed that the QMP Selection Board had conducted a comprehensive review of his records to determine his potential for continued service.  The board recommended that he be denied continued active duty service.  The Director of Military Personnel Management approved the board's recommendation and directed his discharge.

10.  Orders 268-0020, Fort Carson, CO, dated 24 September 2012, announced the applicant's reassignment for the purpose of separation processing.  These orders indicate the applicant's rank as master sergeant, and that he was to be retired due to a temporary physical disability, effective 26 November 2012, and placed on the retired list in the rank of first sergeant.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired as a master sergeant, pay grade E-8, effective 26 November 2012, due to a temporary physical disability.  He had completed 
26 years, 6 months, and 8 days of creditable active duty service.

12.  Army Regulation 600-8-19 provides for removals from a centralized promotion list by HRC.

	a.  HRC will continuously review promotion lists against all information available to ensure that no Soldier is promoted where there is cause to believe that a Soldier is mentally, physically, morally, or professionally unqualified to perform duties of the higher grade.

	b.  A GOMOR and a relief for cause NCOER filed in the Soldier's AMHRR provide a valid basis for a promotion list review.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his AMHRR should be corrected to show his retired rank as sergeant major, pay grade E-9 because his "non-punitive" GOMOR was used as a basis to reduce his rank and pay grade and to force his retirement as a master sergeant, pay grade E-8.

2.  The available evidence clearly shows that the applicant had been selected for promotion to sergeant major, pay grade E-9.  It further indicates that he had been placed in a duty position requiring the skills and experience of a sergeant major.  It appears, that based on his duty title, he was addressed as a sergeant major.

3.  However, there is no documentary evidence showing that the applicant was ever promoted to, frocked, or paid as a sergeant major, pay grade E-9.  Furthermore, there is no evidence showing he was ever reduced from pay grade E9 to E-8.

4.  The available evidence clearly shows that the applicant received a GOMOR and was relieved for cause based on a shoplifting incident.  The evidence shows he rebutted the GOMOR wherein he pointed out discrepancies in the matter but did not deny his guilt.

5.  The governing regulation requires that HRC continuously review centralized promotion lists to insure Soldiers exhibiting mental, physical, moral, or unprofessional attributes making them unqualified to perform duties of the higher grade are not so promoted.  In the applicant's case, his GOMOR and relief for cause NCOER were a valid and substantial basis for such review and removal from the promotion list.

6.  In view of the above, there is no apparent error or injustice in the applicant's case.  Therefore, his request should be 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)                                         AR20130001466



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ABCMR Record of Proceedings (cont)                                         AR20130001466



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