IN THE CASE OF:	   

		BOARD DATE:	  9 June 2014

		DOCKET NUMBER:  AR20140017986 


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 reconsideration of his previous request to show he was placed on the Retired List in the rank/grade of sergeant first class (SFC)/E-7 vice sergeant (SGT)/E-5.

2.  The applicant states he is providing new evidence and a new argument that were not previously considered.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 October 2001, Orders 342-135, AR20130001859 Record of Proceedings (ROP), and a statement of support.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130001859, on 15 October 2013.

2.  As new evidence, the applicant provides a statement of support, dated 30 September 2014, wherein (Retired) Brigadier General (BG) RLT, stated, in part:

	a.  It has been 14 years since he served with the applicant but the applicant had been an E-7 in the Active Guard Reserve (AGR) program for 14 years.  He had been the applicant's battalion commander during the time he allegedly performed conduct unbecoming an SFC.  He does not remember any documentation of the applicant's conduct being presented to him, nor does he remember sending his commander (BG RLT's) information that would justify reducing an E-7.  Since the applicant was under his charge, he believes he would remember any misconduct that would have warranted that degree of administrative action and would have most certainly been part of the process.  Reducing an E-7 is undoubtedly an action a commander would remember.

	b.  He is confused by the fact that the applicant was reduced two times towards the end of his career, once for misconduct and once for inefficiency, and yet still retired with an honorable discharge.  There are too many inconsistencies in the applicant's retirement record for him to believe the reductions were justified and he recommends the applicant's retired rank should be corrected to SFC with full compensation.

3.  As a new argument, the applicant states:

	a.  In the previous decision, the ABCMR ROP stated it took a colonel (COL) to reduce an E-7.  His [reduction] orders clearly have a lieutenant colonel's (LTC's) signature who was a personnel officer and was not in his chain of command.  His commander at the time, LTC RLT [now retired BG RLT], would have had to recommend reduction to his higher commander, COL DPG.

	b.  At the time of his reduction, he was under a doctor's care due to an automobile accident and was out for 5 to 6 months.  He was reduced because in the AGR program your position is vital because in most cases you are the only one to do a certain mission.  Therefore, his position had to be filled.  An automobile accident should not warrant misconduct; especially since there were no charges against him, simply improper driving.

4.  Having had prior Reserve and active duty service, the applicant enlisted in the Virginia Army National Guard (VAARNG) in the rank/grade of staff sergeant (SSG)/E-6 on 5 March 1986.

5.  He entered active duty as a member of the AGR program on 29 September 1986.  He was assigned to Battery A, 1st Battalion, 246th Field Artillery (FA), 29th Infantry Division (ID) Artillery, VAARNG, Martinsville, VA.

6.  On 1 September 1987, he was promoted to the rank/grade of SFC/E-7.  He was subsequently assigned to Battery C, 1st Battalion, 246th FA, 29th ID Artillery, South Boston, VA.

7.  The specific facts and circumstances surrounding his reduction to SSG are not known.  However, he provides and his record contains Orders 342-135, dated 7 December 2000, issued by Office of the Adjutant General (AG) of Virginia, VAARNG, Blackstone, VA, wherein it shows he was reduced from the rank/grade of SFC/E-7 to SSG/E-6, effective 2 December 2000, for misconduct.  These orders show at the time he was assigned to Battery C, 1st Battalion, 246th FA and was attached to Battery E, 111th FA, Sandston, VA.  The orders were signed by LTC EAH, Assistant Chief of Staff (ACofS) of Personnel, VAARNG.  They also show, in part, that the orders were distributed to his battery, battalion, and brigade commanders (emphasis added).  He was subsequently released from the attached unit and transferred to his assigned unit.

8.  The specific facts and circumstances surrounding his reduction to SGT are not known.  However, his record contains Orders 045-01, dated 14 February 2001, issued by Headquarters (HQ), 29th ID Artillery, VAARNG, Sandston, VA, wherein it shows he was reduced from the rank/grade of SSG/E-6 to SGT/E-5, effective 9 February 2001, for inefficiency.  These orders were signed by the commander, LTC DPG.

9.  On 13 April 2001, he was released from active duty to the control of the ARNG.  On 13 April 2001, he was discharged from the VAARNG and transferred to the Retired Reserve.

10.  However, it was subsequently found he should not have been involuntarily discharged from the ARNG when he had completed over 19 years and 6 months of active duty service for retired pay.  As a result, his DD Form 214 was reissued on 30 June 2012 to show he was honorably retired on 31 October 2001 and placed on the Retired List in the rank/grade of SGT/E-5 effective 1 November 2001 due to sufficient service for [regular] retirement.  He completed 20 years and 7 days of active duty service.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides, in pertinent part, that the reduction authority for Soldiers in the AGR Program rests with commanders in the grade of COL or higher for enlisted grades of
E-7 and above and commanders in the grade of LTC or higher for pay grade E-6 and E-5.  Company commanders may reduce grades E-4 and below.   

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 12, sets policies and procedures for voluntary retirement of Soldiers 
because of length of service and governs the retirement of Soldiers (active Army, ARNG and U.S. Army Reserve (USAR)) who are retiring in an enlisted status.  Retirement normally will be in the Regular Army or Reserve grade the Soldier holds on the date of retirement.  As an exception, ARNG/USAR Soldiers serving on active duty at the time of retirement in a grade lower than their highest enlisted grade in which they served satisfactorily, who were administratively reduced in grade not as a result of their own misconduct, will retire at the highest enlisted grade in which they served.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show he was placed on the Retired List in the rank/grade of SFC/E-7.

2.  While the specific facts and circumstances surrounding the applicant's reduction to SSG are not known, his record contains orders properly issued by the Office of the AG of the VAARNG, a general-officer level position, that show he was reduced on 2 December 2000 for misconduct.  Although the orders were signed by a LTC, the LTC was the ACofS and would have been the orders approval authority and not the individual directing the reduction.  There is no evidence and the applicant hasn't provided any evidence that shows these orders were issued in error.  

3.  In addition, while the specific facts and circumstances surrounding his reduction to SGT are not known, his record contains orders properly issued and signed by the commander HQ, 29th ID Artillery, that show he was reduced to SGT on 9 February 2001 for inefficiency.  There is no evidence and the applicant hasn't provided any evidence that shows these orders were issued in error.  

4.  In the absence of evidence to the contrary, it is presumed both of his reductions were accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

5.  In accordance with applicable regulations and laws, he was appropriately placed on the Retired List on 1 November 2001 in the rank/grade of SGT/E-5, the rank/grade he held at the time of retirement and the highest enlisted grade in which he served satisfactorily.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 to amend the decision of the ABCMR set forth in Docket Number AR20130001859, dated 15 October 2013.



      _______ _   _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)                                         AR20140017986





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ABCMR Record of Proceedings (cont)                                         AR20140017986



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