BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140011905 


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:

The applicant defers his request, statement, and evidence to counsel

COUNSELS' REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant be advanced on the Retired List to the highest grade satisfactorily held while on full time active duty with the Arizona Army National Guard (AZARNG), sergeant major (SGM)/E-9.

2.  Counsel states although the applicant retired on 1 November 2012 in the rank/grade of master sergeant (MSG)/E-8, he previously held the rank/grade of SGM/E-9 while on full time active duty with the AZARNG.  He has a total of 33 years of time in active service and on the Retired List.  In March 2010, he had an issue that resulted in his commander losing faith in him.  He was demoted due to inefficiency from E-9 to E-8.  Counsel argues: 

* E-9 was the last rank in which the applicant served honorably and he should be restored to it and placed on the Retired List in that grade
* the command violated Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) in that no nonjudicial punishment was imposed
* the applicant accepted the reduction on advice of his counsel
* Army Regulation (AR) 15-80 (Army Grade Determination Review Board and Grade Determination) allows for the restoration of his grade


3.  Counsel provides: 

* Noncommissioned Officer Evaluation Reports (NCOER), dated 30 November 2007, 30 November 2008, 10 March 2009, 10 March 2010, 1 April 2010
* Orders 090-615, dated 31 March 2010
* letter from the applicant to his Commanding General (CG)
* letter from the CG to the applicant
* promotion orders to E-8, dated 14 November 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 25 March 1956.  He turns 60 years of age on 25 March 2016.

2.  He enlisted in the Pennsylvania (PA) ARNG on 5 June 1979.  He was trained in and held military occupational specialty (MOS) 68G (Aircraft Structural Repairer).  He served through multiple extensions in a variety of assignments.

3.  He entered active duty on 7 December 1993 in support of state operations (Active Guard Reserve, Title 32, section 507).  He served in a variety of assignments during multiple extensions. 

4.  On 2 October 2001, the AZARNG published Orders 23-2 promoting him to MSG/E-8 effective 2 October 2001 and awarding him primary MOS (PMOS) 67Z and secondary MOS (SMOS) 93B.

5.  Between 1 April 2004 and 30 June 2006, he completed the U.S. Army Sergeants Major Course, Class 1-06.  

6.  During this time, on 17 March 2006, the AZARNG published Orders 076-614 promoting him to SGM/E-9 effective 1 March 2006 and awarding him PMOS 15P (Aviation Operations Specialist) and SMOS 15Z (Aircraft Maintenance Specialist). 

7.  On 17 May 2006, the AZARNG published Orders 137-605 amending Orders     076-014 stipulating that acceptance of this promotion incurs a service remaining obligation and completion of the U.S. Army Sergeants Major Course. 

8.  On 17 October 2007, the AZARNG laterally appointed him to command sergeant major (CSM) effective 12 January 2007 and awarding him PMOS 00Z (CSM) and SMOS 15P.  The additional instructions stipulated that he must complete the U.S. Army Sergeants Major Course or the First Sergeant Course as a condition of this lateral appointment.  

9.  On 9 March 2010, the AZARNG advised the applicant that reduction proceedings were being initiated against him in accordance with AR 600-8-19 for inefficiency.  The specific reasons are listed as his inability to distinguish between leave and a pass, inability to utilize the DA Form 31 (Request and Authority for Leave) system effectively, unfamiliarity with DOD Directives that have the effect of a general order, having a serious deficit in relaying information, and failing to keep the chain of command fully informed of those activities that affect the organization.  When combined, those inefficiencies led the chain of command to believe he was not performing at the E-9 level.  He was recommended for a two-rank reduction from E-9 to E-7 and advised of his rights.  

10.  On 16 March 2010, he was advised that an administrative reduction board was called to determine if he should be reduced two grades from SGM/E-9 to sergeant first class (SFC)/E-7.  He acknowledged receipt of this notification and indicated his desire of waiving his right to a board contingent on a reduction of not more than one grade.  He stated: 

* he was advised of his rights by legal counsel and understood he had the right to be present and be heard by a board
* he understood the board would determine whether he should be reduced in grade and his right to be represented by counsel before such a board
* he had conferred with counsel who explained his rights to him and he understood those rights 
* he understood by waiving his right to an administrative reduction board, he was waiving his right to object to procedural errors and his right to appeal the reduction from E-9 to E-8 as well as other rights afforded to him by AR 600-8-19

11.  On 31 March 2010, the AZARNG published Orders 090-615 reducing him from SGM/E-9 to MSG/E-8, effective 1 April 2010 with a date of rank of 
2 October 2001, and awarding him PMOS 15P and SMOS 15Z, by reason of inefficiency, in accordance with AR 600-8-19, paragraph 10-5. 

12.  During April 2010, the applicant was relieved from his duties (for cause).  He was assigned as the Senior Enlisted Advisor to the Western ARNG Aviation Site. His NCOER for the rating period 11 March 2010 through 1 April 2010 shows:  

* his rater placed an "X" in the "No" block for Honor and Integrity 
* his rater rated his Competence as "Needs Improvement (Some)" and entered the comments "relieved for cause and reduced in rank in accordance with appropriate regulation" and "lacked sound judgment during this rating period" 
* his rater rated his "Responsibility and Accountability" as "Needs Improvement (Much)" and entered the comments "failed to walk up to responsibilities where right and wrong are concerned," "relieved for cause and reduced in rank as a result of failures where right and wrong are concerned," and "the rated NCO has been notified of the relief" 
* his rater rated his overall potential as "Marginal" 
* his senior rater rated his overall performance as "Poor" and his overall potential as also "Poor" 

13.  On 2 February 2011, while holding the rank of MSG, after consulting with counsel and declining trial by a court-martial, at an open hearing, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for: 

* making a false official statement with intent to deceive on 3 December 2010
* making a false official statement with intent to deceive on 16 December 2010
* committing general misconduct on 3 December 2010 by writing derogatory comments and abusing his authority as a contracting officer representative 

14.  The Adjutant General (imposing officer) imposed a punishment of reduction of one grade and directed filing of the Article 15 in the performance folder of the applicant's official military personnel file.   The applicant submitted an appeal on 9 February 2011. 

15.  On 7 June 2012, AZARNG published Orders 159-0001 releasing him from active duty on 31 October 2012 and on the next day placing him on the Retired List in his retired rank/grade of SFC/E-7. 

16.  On 15 June 2012, AZARNG published Orders 167-629 releasing him from the ARNG and transferring him to the Retired Reserve effective 31 October 2012.  The standard name line listed his grade as SFC. 

17.  On 18 October 2012, The Adjutant General, AZARNG denied the applicant's request for grade restoration; however, he determined that mitigation was appropriate.  As such, he ordered the setting aside of an executed punishment and mitigated the reduction in grade to a forfeiture of pay in the case of the applicant's reduction to SFC/E-7 and returned him to the grade of E-8. 

18.  He retired on 31 October 2012 by reason of sufficient service for retirement and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 November 2012.  His DD Form 214 shows he completed 18 years and 11 months of active service during this period and he had 1 year, 1 month, and 22 days of prior active service.  It also shows in:

* item 4a (Grade, rate or Rank), SFC
* item 4b (Pay Grade), E-7
* item 12i (Effective Date of Pay Grade), 9 February 2011

19.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was transferred to the Retired Reserve effective 31 October 2012 in rank/grade SFC/E-7 with an effective date of pay grade of 
9 February 2011.  It also shows he completed 33 years, 4 months, and 26 days of total service for pay.

20.  On 14 November 2012, the AZARNG published Orders 319-612 promoting him to MSG/E-8 effective 18 October 2012 with a date of rank of 18 October 2012, and awarding him PMOS 15P and SMPS 15Z, by authority of AR 27-10 (Military Justice), paragraph 3-28a. 

21.  Also on 14 November 2012, the AZARNG published Orders 319-610 amending Orders 167-629, dated 15 June 2012, amending his standard name line to show his grade as MSG instead of SFC. 

22.  On 24 January 2013, the AZARNG published Orders 024-606 amending Orders 319-612, dated 14 November 2012, to show the date of rank as 1 April 2010 instead of 18 October 2012, in addition to imposing a forfeiture of pay and mitigation of the reduction. 

23.  On 25 January 2013, he was issued an NGB Form 22A (Correction to NGB Form 22) that shows his rank/grade as MSG/E-8 instead of SFC/E-7 and his effective date of pay grade as 1 April 2010 instead of 9 February 2011. 

24.  Title 10, U.S. Code, section 3963 states a Reserve enlisted member of the Army described in subsection (b) who is retired under section 3914 of this title shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily (or, in the case of a member of the National Guard, in which the member served on full-time National Guard duty satisfactorily), as determined by the Secretary of the Army.  This section applies to a Reserve enlisted member who (1) at the time of retirement is serving on active duty (or, in the case of a member of the National Guard, on full-time National Guard duty) in a grade lower than the highest enlisted grade held by the member while on active duty (or full-time National Guard duty); and (2) was previously administratively reduced in grade not as a result of the member’s own misconduct, as determined by the Secretary of the Army.  This section applies with respect to Reserve enlisted members who are retired under section 3914 of this title after September 1996.

25.  Title 10, U.S. Code, section 12731, states a person is entitled upon application to retired pay if the person is at least 60 years of age and has performed at least 20 years of service as computed under section 12732 of this title.

26.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states, in pertinent part, that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service.  Service in the highest grade will not be deemed satisfactory if it is determined that any of the following factors exist:  revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, UCMJ, or court-martial; or there is information in the Soldier’s service record to indicate clearly that the highest grade was not served satisfactorily.

27.  AR 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system. 

	a.  Paragraph 10-1 states except for voluntary reductions or when stipulated in table 10–2, a reduction board is mandatory for Corporal and/or Specialist administratively reduced more than one grade and for all NCOs (Sergeant (SGT) through CSM) when administratively reduced for misconduct (civil conviction) and for inefficiency.  Board appearance may be declined in writing and will be considered as acceptance of the reduction board’s action.  

	b.  Paragraph 10-5 states inefficiency is a demonstration of characteristics that shows that the person cannot perform duties and responsibilities commensurate of the Soldier’s current rank and MOS.  For the purpose of administrative reduction, inefficiency must be predicated on a pattern of acts, conduct or negligence that clearly shows the Soldier lacks the abilities and qualities normally required and expected of the Soldier’s rank and experience. Although commanders may consider misconduct, including conviction by civil court, as bearing on inefficiency, misconduct alone will not be the basis for an administrative reduction under this paragraph.  Soldiers may be administratively reduced under this authority for longstanding unpaid personal debts that he or she has not made a reasonable attempt to pay.  An administrative reduction for inefficiency is limited to SGT and above and to one grade (unless formally declined by the affected Soldier).  Reduction boards are required as provided for in paragraph 10–1c.

28.  Department of Defense Financial Management Regulation, volume 7B (Military Pay Policy and Procedures-Retired Pay), chapter 1 (Initial Entitlements-Retirements), section 0105 (Rank and Pay Grade), states that unless entitled to a higher grade under some other provision of law, those Regular and Reserve members who retire other than for disability, will retire in the Regular or Reserve grade they hold on the date of retirement.  Paragraph 10503 (Satisfactory Service) provides that the determination as to what constitutes satisfactory service for the purpose of retirement in the highest grade is within the discretionary power of the Secretary of the Military Department concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SGM/E-9 on 1 March 2006. In March 2010, he was notified that an administrative board would be held to consider his reduction for inefficiency.  His chain of command determined he had integrity and honor issues as well as issues with his competency and accountability/responsibility.  He was advised of his rights and he waived those rights contingent upon a reduction of one instead of two grades.  

2.  When an administrative reduction board appearance is declined in writing, it is considered as acceptance of the reduction board’s action.  The applicant in this case declined the board and accepted his reduction to E-8 (instead of E-7).  This by itself is a clear indication that he did not serve satisfactorily as a SGM/E-9.  Shortly after his reduction, he received a "Relief for Cause" NCOER that clearly revealed his inefficiency as a senior leader. 

3.  By regulation, Reserve members of the Armed Forces are entitled to be placed on the Retired List in the highest grade in which they satisfactorily served. However, in the applicant's case, he did not satisfactorily serve in the rank/grade of SGM/E-9.  

4.  While holding the rank of MSG, he accepted NJP under the provisions of Article 15 of the UCMJ which resulted in his reduction to SFC/E-7.  He appealed this punishment and the appeal authority reduced the punishment to a forfeiture of pay.  As such, his rank/grade was restored to MSG/E-8.  He retired in the rank/grade of MSG/E-8 in October 2012 because that was the rank/grade he held at the time.  He did not hold the rank/grade of SGM/E-9.  In view of the foregoing evidence, the applicant is not entitled to the 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)                                         AR20140011905



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ABCMR Record of Proceedings (cont)                                         AR20140011905



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