IN THE CASE OF:    

		BOARD DATE:  9 December 2014	  

		DOCKET NUMBER:  AR20140015388 


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 to be placed on the Retired List in the highest rank/grade she satisfactorily held, master sergeant (MSG)/E-8. 

2.  The applicant states:

* she was processed under the integrated disability system (IDES) and she was permanently retired in the rank/grade of sergeant first class (SFC)/E-7
* the Army Grade Determination Review Board (AGDRB) considered her case and denied her request to be retired in the rank/grade of MSG/E-8
* she was promoted to MSG/E-8 in 2001 and served satisfactorily in that rank/grade; she was also laterally appointed to first sergeant (1SG)
* she was the first female 1SG assigned to the 204th Engineer Battalion despite her chain of command’s objection to placing a female in that position
* she completed the 1SG course and performed admirably; she also received superior ratings on her evaluations
* she was nominated for a position of command sergeant major (CSM) and her name was number one on the New York Army National Guard (NYARNG) promotion list 
* she interviewed for the E-9 position vacancy, but she was advised she needed a waiver to drill with the 369th Sustainment Brigade because she was a full-time technician (with dual status) 
* shortly after the interview, her battalion commander disclosed that she was under investigation – something she believes was a retaliation
* she accepted an administrative reduction to SFC/E-7 due to her own reasons; her reduction to SFC/E-7 was not a result of misconduct; there were no E-8 vacancies at the time
* she had the opportunity to retire at the time; she had completed 
20 qualifying years of service but she accepted the administrative reduction to stay in the ARNG and keep her full-time technician status 
* she was given an Article 15 in September 2009 for false allegations and she was reduced to staff sergeant (SSG)/E-6
* she petitioned this Board to remove the Article 15 and reinstate her rank/grade of SFC/E-7; however, an advisory official at the National Guard Bureau (NGB) opined such action was not Board-appropriate 
* she hired a civilian attorney and reached a settlement with the State ARNG; she received monetary compensation and had her rank reinstated in January 2012
* she was considered by a medical evaluation board/physical evaluation board (MEB/PEB) that recommended her for permanent retirement
* her overall performance throughout her 35 years of service to this country had been outstanding; she was never reduced for unsatisfactory performance
* the Article 15 was not presented to her as an E-8 and she was not relieved or reduced from MSG/E-8 to SFC/E-7 for misconduct
* she is a female who worked very hard to earn her rank and she feels the poor treatment and acts of retaliation started when she became a 1SG

3.  The applicant provides:

* AGDRB Disability Determination
* Order 332-02, promotion to E-8
* Orders 055-101, lateral appointment to 1SG
* Orders 055-101, award of military occupational specialty (MOS)
* DA Form 1059 (Service School Academic Evaluation Report)
* DA Form 5856 (General Counseling Form)
* Request for Command Waiver
* Orders 016-10457, administrative reduction
* Memorandum, Nomination for CSM
* NYARNG 2005 Promotion Roster E-8 to E-9 - Career Progression MOS (CPMOS) and secondary MOS (SMOS)
* NYARNG 2007 Promotion Roster E-8 to E-9 - CPMOS and SMOS
* ARNG 2007 Promotion Roster E-8 to E-9 – SMOS
* Noncommissioned Officer (NCO) Position Vacancy Announcement 
* Orders 016-001, awarding MOS
* Email from her former defense counsel to her commander
* Appeal of nonjudicial punishment (NJP)
* Orders 307-1037, reduction from SFC/E-7 to SSG/E-6
* Previous Advisory Opinion from the NGB
* Settlement Agreement 
* Orders 020-1012, promoting her back to SFC/E-7
* Letter of Recommendation 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she was born in April 1957. 

2.  She enlisted in the NYARNG on 10 July 1975 and she held MOS 42A (Human Resources Specialist).  She served through multiple extensions in a variety of assignments and she was advanced to SFC/E-7 on 15 August 1993.

3.  On 31 July 1995, NYARNG issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

4.  On 28 November 2001, the NYARNG issued orders awarding her PMOS 51Z (Engineering Supervisor), SMOS 42A, and additional MOS 92Y (Supply Sergeant).  She then attended and successfully completed the 1SG Course from 7 to 21 February 2002. 

5.  On 24 February 2003, the NYARNG published Orders 055-101 promoting her to MSG/E-8 in PMOS 51Z and on 1 December 2003, she was awarded PMOS 92Y, SMOS 42A, and AMOS 51Z.  

6.  On 6 January 2004, she was laterally appointed as a 1SG, effective 1 December 2003, by NYARNG Orders 016-002 and 014-001.  She performed the duties of unit 1SG, Headquarters and Service Company, 204th Engineer Battalion, NYARNG. 

7.  On 20 January 2004, she requested through her chain of command consideration for CSM in the NYARNG.  The nominating official, CSM Sp------rn, NYARNG stated it had been determined that she possessed the skills, knowledge, and abilities to perform the duties of CSM.  Her immediate commander recommended approval. 

8.  Her name is not listed on the NYARNG 2005 Promotion Roster - E-8 to E-9, dated 2 February 2005, by CPMOS; however, her name is inserted as a hand-written entry.  Additionally, her name is listed on NYARNG 2005 Promotion Roster - E-8 to E-9, dated 3 February 2005, by SMOS.  Additionally, her name is listed on the NYARNG 2007 Promotion Roster - E-8 to E-9, dated 12 February 2007, by CPMOS and by SMOS. 

9.  On 11 December 2006, the NYARNG announced a vacancy position for sergeant major (SGM)/E-9, Senior Logistics Operations NCO, MOS 92Z with the 369th Sustainment Command.  It appears she applied and she had an appointment/interview scheduled for 6 May 2007. 

10.  In July 2007, she received a Change of Rater Noncommissioned Officer Evaluation Report (NCOER) covering the rating period 1 September 2006 through 15 July 2007 while holding the rank of MSG for her duties as Supply Sergeant, Headquarters and Service Company, 204th Engineer Battalion.   This NCOER shows she received: 

* Needs (Some) Improvement rating in the area of Leadership (Rater) with the bullet "occasionally unwilling to submit to authority; twice argued with leadership in presence of subordinate Soldiers showing a lack of respect"
* Marginal rating for Overall Potential (Rater) 
* Fair (4) rating for Overall Potential (Senior Rater) with bullets such as "NCO reacts to finding scapegoats rather than solutions, whether she is responsible or not"  

11.  On 16 January 2008, the NYARNG published Orders 016-1057 administratively reducing her from MSG/E-8 to SFC/E-7, effective 18 January 2008, in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 3-13.  

12.  On 3 November 2009, the NYARNG published Orders 307-1037 reducing her from SFC/E-7 to SSG/E-6, effective 27 October 2009, by reason of misconduct in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions).  The complete facts and circumstances surrounding her reduction are not available for review with this case. 

13.  On 5 April 2010, she petitioned the Army Board for Correction of Military Records to remove the State Article 15 from her records and to reinstate her rank/grade to SFC/E-7.  However, on 22 December 2010, she voluntarily requested to withdraw her petition. 

14.  On 29 July 2011, an MEB convened and recommended her for referral to a PEB. 


15.  On 7 December 2011, following a lawsuit, she reached a settlement agreement with the NYARNG.  She agreed to withdraw her discrimination complaint against the NYARNG (and other complaints), in exchange for reinstatement of her rank/grade to SFC/E-7 within 45 days and effective the date of reinstatement, payment of $50,431.00 within 30 days (and other settlements). 

16.  On 20 January 2012, the NYARNG published Orders 020-1012 promoting her to SFC/E-7 and awarding her PMOS 92Y and SMOS 12H, effective 
20 January 2012, in accordance with the settlement agreement. 

17.  On 23 December 2013, after the PEB received her proposed rating from the VA (under IDES), the PEB found her physically unfit and recommended a rating of 70 percent (Major Depressive Disorder with Anxiety Disorder) and recommended her disposition be permanent retirement.  She concurred. 

18.  On 12 February 2014, the AGDRB convened on behalf of the Secretary of the Army to consider her case.  After a thorough review of her military records and the PEB Proceedings (which reflected her reduction to E-7 on 16 January 2008 and to E-6 on 27 October 2009), the AGDRB determined the highest grade in which she served satisfactorily for the purpose of computation of disability retirement or separation pay is her grade at the time of separation (E-7).  

19.  On 26 February 2014, the NYARNG published Orders 057-1009 discharging her from the ARNG and transferring her to the Retired Reserve in her retired rank of SFC, effective 27 March 2014, by reason of permanent disability.  

20.  An NGB advisory opinion, dated 16 June 2014, received in the processing of this case restates the applicant's request for retirement in the highest grade last held satisfactory for the AGDRB.  The NGB recommends and the State concurs that she is entitled to be reinstated as an MSG/E-8 for retirement purposes, which was the highest grade she satisfactorily held.

	a.  She satisfactorily held the rank of MSG/1SG for 7 years from 2001 to 2008.  The NYARNG issued reductions in rank, effective 16 January 2008; the reduction was from MSG/E-8 to SFC/E-7 for administrative reasons.  She was in an overgrade position with dual status as a Military Technician according to NYARNG State Order Number 016-1057.  Effective 3 November 2009, the reduction was from SFC/E-7 to SSG/E-6 for misconduct according to NYARNG State Order Number 307-1037.

	b.  An advisory opinion, dated 13 November 2010, for ABCMR Docket Number AR20100013641 was sent to the State with a return without action recommendation.  She later appealed the reduction from E-7 to E-6 and won the appeal for reinstatement of her rank back to SFC/E-7.  On 20 January 2012, she was reinstated to the rank of SFC/E-7 with NYARNG State Order Number 020-1012.

	c.  On 3 February 2014, her application to the AGDRB was submitted.  On 
12 February 2014, the AGDRB convened and determined the highest grade she held satisfactorily for disability retirement is the grade she held on the date of separation, which was SFC/E-7.  On 18 February 2014, this decision was published on reference memorandum from the AGDRB Docket Number AR20140002017, Subject-Disability Grade Determination.

	d.  In accordance with Army Regulation 135-180 (ARNG and Army Reserve Qualifying Service for Retired Pay Non-Regular Service), paragraph 2-11c(2), the Soldier meets the requirement to retire at the highest grade satisfactorily held.  The below requirement is 185 days or six calendar months.  This paragraph states the Retired Activities Directorate, Army Reserve Personnel Command will screen each retirement applicant's record to determine the highest grade held by him or her during his or her military service.  In arriving at the highest grade satisfactorily held, the following criteria will apply:  If the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, retired grade will be that grade which a commissioned officer or enlisted Soldier held while on active duty or in an active Reserve status for at least 185 days or six calendar months.  

	e.  In accordance with Title 10, U.S. Code (USC), section 1372 (Grade on Retirement for Physical Disability) members of the armed forces unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: 

		(1)  The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired.

		(2)  The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.

		(3)  The permanent regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.

		(4)  The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

	f.  In accordance with Title 10, USC, section 3963 for the highest grade held satisfactorily when Reserve enlisted members are reduced in grade not as a result of the member's misconduct, "....The Reserve enlisted member who 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, and 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 was previously administratively reduced in grade not as a result of the member's own misconduct, as determined by the Secretary of the Army."

	g.  In accordance with NGR 600-200, paragraph 6-41b- Retired grade - List in transfer and retirement orders the grade which the Soldier is authorized on the day before transfer or retirement.  See Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 7-14 for special advancement to highest grade satisfactorily held.

	h.  In accordance with Army Regulation 600-8-19, paragraph 7-14e, "Concurrent with separation from the ARNG and transfer to the Retired Reserve or placement on the retired list, Soldiers will be promoted to the highest enlisted grade satisfactorily held, provided they were not reduced for misconduct or inefficiency.  These promotions will not require promotion board action.  Promotion under this authority will not be authorized for Soldiers who requested reduction or separation, including transfer to the Retired Reserve or placement on the retired list, in lieu of separation action or prosecution under the UCMJ."

21.  She responded to the advisory opinion on 16 September 2014.  She stated: 

	a.  She hopes the ABCMR will consider her case on its own merits and adopt the advisory opinion recommendation in whole.  As stated in Army Regulation 135-180, paragraph 2-1, she met the requirement to retire at the highest grade held satisfactorily.  She was duly promoted to MSG on 28 November 2001 and served her country as an E-8 in both duty positions of MSG and 1SG through January 2008.  She was promoted to E-8, paid as an E-8, and served at the grade of E-8 for the regulatory period of time required.
	b.  In accordance with Title 10, USC, section 1372 grade on retirement for physical disability entitles her to the highest grade served satisfactory as determined by the Secretary of the Army.  She was not reduced in grade as a result of misconduct.  She was a full time National Guard Soldier serving in a grade (E-7) lower than E-8.  She was administratively reduced in grade from E-8 to E-7.  She retired with a physical disability.

	c.  In accordance with Army Regulation 600-8-19 Soldiers will be promoted to the highest grade when transferred to the Retired Reserve provided they were not reduced for misconduct or inefficiency.  She worked as the Battalion Logistics NCO (MSG) in 2008.  She received an Army Achievement Medal.  This recommendation was based on her efforts, knowledge, and dedication to duty required to convert the 204th Engineer Battalion (8 units) from regular paper supply records to centralized issue facility/computerized supply records.  The conversion was a total success.  The award is in her records. 

	d.  As also stated in Title 10, USC, section 1372, grade on retirement for physical disability under section 1201 or 1204, she is entitled to the grade equivalent to the permanent regular or Reserve grade to which she would have been promoted had it not been for the physical disability for which she retired and which was found to exist by her PEB.  She was also nominated for a CSM position and she was officially listed on promotion rosters in both her CPMOS 92Z and 42A in 2006 and 2007.  She was selected to participate in an interview process, and did so, on 6 May 2007.  She was selected for E-9 but because she was a full-time military technician, she required a waiver to drill with another unit as an M-Day Soldier.  Shortly after, she was administratively reduced from E-8 to E-7.  She believes this was done by her command in order to prevent her promotion to CSM.  As a result of this action and other injustices, she became very sick physically and emotionally and she retired for disability.  The military was her life and her career.  She gave 110 percent to the military.  

DISCUSSION AND CONCLUSIONS:

1.  By law, a person granted retired pay will receive such pay in the highest grade 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 the revision to a lower grade was due to misconduct or court-martial or if there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.

2.  In the applicant's case, the evidence of record shows she served in the rank/grade of MSG from 22 December 2002 (the date she was promoted to MSG) to 16 January 2008 (the date she was administratively reduced to SFC).  Although her revision to a lower grade was not for prejudice or cause, was not due to misconduct, or punishment pursuant to Article 15, UCMJ or court-martial, during the period she held the rank of MSG (22 December 2002 to 16 January 2008), there is clear information in her service record to indicate she did not serve satisfactorily in this grade.  Her NCOER for the rating period 20060901 through 20070715 confirm her unsatisfactory service in the rank/grade of MSG/E-8.  

3.  She was reduced from SFC/E-7 to SSG/E-6 on 3 November 2009 by reason of misconduct.  The reinstatement of her grade of SFC/E-7 on 12 January 2012 was a result of a settlement agreement.  At the time of her retirement, she held the rank/grade of SFC/E-7.

4.  It appears the AGDRB correctly determined that she did not serve satisfactorily in the rank/grade of MSG/E-8.  Therefore, notwithstanding the favorable advisory opinion provided by the NGB, the applicant has not demonstrated she served satisfactorily in the rank/grade of MSG/E-8.  Therefore, she 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)                                         AR20140015388



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ABCMR Record of Proceedings (cont)                                         AR20140015388



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