IN THE CASE OF:	  

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130002827 


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, correction of his National Guard Bureau (NGB) Form 22 to show his rank/grade as sergeant (SGT)/E-5 and his date of rank (DOR) as 9 July 1979.

2.  The applicant states he was assigned to the California Army National Guard (CAARNG) from 1984 to 2000 and worked in the dining facility.  His unit was on Annual Training (AT) in the early part of March 2000.  He worked in the dining facility which was seriously understaffed.  At the beginning of AT the unit's dining facility noncommissioned officer in charge (NCOIC) was a master sergeant (MSG)/E-8 who was relieved of his duties because he sent meals to the troops in the field late.  After the MSG was relieved the unit commander put a sergeant (SGT)/E-5 in charge of the dining facility; however, this SGT was also relieved for sending out late meals to the troops.  Finally, his unit commander appointed him as the dining facility NCOIC, and at that time he held the rank of SGT.  He was also relieved of his duties as the dining facility NCOIC; however, he was also reduced in rank from SGT to SPC.  He does not understand why he was demoted when his predecessors retained their rank.  

3.  The applicant provides:

* Two Leave and Earnings Statements (LES), dated June and July 1979
* Letters to his Member of Congress, dated 15 April 2004 and 3 May 2004
* Letter from the Defense Finance and Accounting Service (DFAS), dated 
6 March 2008
* Self-authored letter, dated 3 September 2012
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having had previous enlisted service the applicant enlisted in the U.S. Army Reserve in 22 May 1976 in the grade of E-3 and held military occupational specialty 94B (Cook).  He served through several reenlistments.  His promotion orders to the grade of E-4 are not available.

3.  His record contains a DD Form 4 (Enlistment/Reenlistment Document-Armed Forces of the United States) showing that his last reenlistment in the USAR occurred on 3 November 1979.  This form shows he reenlisted for a period of 
6 years and that he held the rank/grade of specialist five (SP5)/E-5.

4.  He enlisted in the CAARNG on 16 January 1984.  His DD Form 4 shows he held the grade of E-5 at the time of this enlistment.  He served through several reenlistments and/or extensions in the CAARNG and the Illinois Army National Guard (ILARNG) during the remainder of his military service.

5.  His record contains a DD Form 214 (Certificate or Release or Discharge from Active Duty) showing he entered active duty on 1 May 1992 and was honorably released from active duty on 9 May 1992 by reason of expiration term of service. His rank/grade was listed as SGT/E-5 and his DOR as 1 January 1985.

6.  The circumstances surrounding his reduction to SPC are unknown.  However, Orders Number 079-01, issued by the CAARNG, on 19 March 2000 show he was reduced from SGT to SPC with a DOR of 9 July 1979 due to inefficiency in accordance with National Guard Regulation 600-200 (Enlisted Personnel
Management), paragraph 11-60.

7.  Orders Number 88-1000, issued by the CAARNG, on 29 March 2001, released him from his CAARNG unit and transferred him to the ILARNG effective 
20 February 2001.
8.  On 10 December 2004, he was discharged from the ILARNG under honorable conditions for unsatisfactory performance.  His NGB Form 22 lists his rank/grade as SPC/E-4 and his DOR as 9 July 1979.

9.  He provided an LES for July 1979 which shows he was promoted to E-5 on 
9 July 1979.

10.  He provided a letter, dated 15 April 2004, the CAARNG Director, Policy and Liaison sent to his Member of Congress which states:

	a.  The applicant indicated he was reduced from the rank of SGT to SPC while serving as a member of the CAARNG in 2000.  The applicant indicated that when he was reduced to SPC the sergeant major (SGM) told him he would be promoted back to SGT after 90 days.  He transferred to the ILARNG effective 
20 February 2001 and he is now requesting that he be promoted back to SGT.

	b.  Since this action happened several years ago and the applicant is no longer a member of the CAARNG, this office is unable to investigate the inquiry.  The applicant is currently a member of the ILARNG, in accordance with National Guard Regulation 600-200, that agency holds the promotion authority for any possible promotion actions pertaining to the applicant.

11.  He provided a letter, dated 3 May 2004, the ILARNG Adjutant General sent to his Member of Congress which states that after a thorough investigation it was determined that the opportunity for the applicant to be promoted still exists.  The leaders in his chain of command had no plans to place anyone other than the applicant into the SGT position.  The applicant was qualified for the position, but to date he had not yet demonstrated the leadership qualities necessary to hold the position.  He had been counseled regarding the necessary steps and actions he must take to be promoted.  The promotion would occur when his leaders were convinced he was committed to being a leader for the unit.

12.  National Guard Regulation 600-200, in effect at the time states in:

	a.  Paragraph 11-45 that SGTs and above are entitled to a board unless exempt per this section when being considered for reduction for inefficiency, misconduct, or due to civil conviction.  They are not entitled to a board for administrative reduction or separation in a lower grade for failure to meet a condition or requirement for a promotion or assignment in this chapter such as Noncommissioned Officer Education System training or a service remaining requirement for the promotion, or for loss of authorized grade due to reorganization or release from active duty.  The reduction board will be convened unless the Soldier waives the requirement in writing.  
	b.  Paragraph 11-60 that a Soldier may be reduced one grade for inefficiency. Inefficiency is defined as technical incompetence or demonstrated pattern or one or more acts of conduct that show lack of abilities and qualities required and expected of a Soldier in that grade.  Inefficiency can include one or more acts of misconduct, poor performance, a record of unexcused absences or declaration as an unsatisfactory participant, conviction by a civil or criminal court, long standing personal debts when there has been no reasonable attempt to pay them, and significant shortcomings in training performance.  A single act may be so negligent or so substantially below the norm that it warrants a recommendation for reduction from the commander.  However, an unexcused absence from scheduled training should not normally in itself be the sole basis to charge a Soldier with inefficiency to the degree that reduction is warranted, nor is it intended as a substitute for judicial or nonjudicial punishment whether in state or Federal status.  A reduction board is authorized for Soldiers in grade SGT and higher, and the recommending commander must provide complete justification and documentation to support the reduction action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records are void of the specific facts and circumstances surrounding his reduction to SPC.  However, based on the statement he made, it appears that he was reduced for inefficiency.

2.  At the time of the applicant's reduction in rank, in accordance with National Guard Regulation 600-200, paragraph 11-60, for SGTs and above, the requirement was that a reduction board be convened unless the Soldier waived the requirement in writing.  The applicant is presumed to have willingly, and in writing, waived his right to a reduction board.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected with respect to his reduction.  Furthermore, in the absence of evidence showing otherwise, it must be presumed that his reduction to SPC was a result of his inability to successfully perform proficiently in the rank of SGT.

3.  The circumstances surrounding his predecessors’ relief from duty are not known, so the applicant’s reduction cannot be compared to their relief from duty.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request to correct his rank to SGT or adjust his DOR.





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)                                         AR20130002827



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ABCMR Record of Proceedings (cont)                                         AR20130002827



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