PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            7 December 2000
	DOCKET NUMBER:   AR2000043906

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. John P. Infante		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that he be restored to the pay grade of E-8 and advanced on the Retired List in that pay grade. 

3.  The applicant states, in effect, that his reduction to the pay grade of E-7 was the result of discrimination. 

4.  The applicant’s military records show that he served in the Regular Army from July 1976 to December 1979 when he was honorably released from active duty and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).

5.  He reenlisted in the USAR in April 1981 and remained in the USAR through a series of continuous reenlistments.  He was promoted to the pay grade of E-7 on 1 May 1990.  His last reenlistment was on 18 March 1997 for a period 3 years which established an expiration of term of service (ETS) of 17 March 2000.

6.  On 1 September 1999 he was promoted to the pay grade of E-8.  The orders effecting the promotion contained additional instructions which informed the applicant that he had to serve in the position for 12 months before requesting voluntary transfer to another troop program unit (TPU).  He was transferred from a TPU in Decatur, Georgia to a TPU at Patrick Air Force Base in connection with his promotion. 

7.  A suspension of favorable personnel actions (Flag) was initiated against the applicant on 7 November 1999 due to his having failed the Army Physical Fitness Test.

8.  On 9 and 11 November 1999 the applicant was notified by Certified Mail that he had eight unexcused absences from scheduled multiple unit training assemblies (MUTA) and that if he accumulated nine unexcused absences within 1 year, he would be deemed an unsatisfactory participant and processed for separation from the USAR.  The applicant’s wife signed for the notices.

9.  On 25 November 1999 he submitted a Personnel Action Request (DA Form 4187) in which he requested transfer to the Retired Reserve.  He indicated that due to the investigation that was currently being conducted, he felt it best for him and his family that he retire from the USAR.  There is no indication in the available records to show that the request (a facsimile copy) contained in his records was ever processed.

10.  The applicant’s commander notified the applicant by certified mail again on 11 December 1999 that he had again missed four MUTAs and that this was a final notice.  The letter of notification was addressed to the applicant’s proper address and was returned unclaimed on 7 January 2000.
11.  On 14 January 2000 the applicant’s commander notified the applicant in writing that he had been absent from 12 MUTAs and that he was no longer authorized to attend unit drills.  He also indicated that he was requesting that he (the applicant) be transferred to the USAR Control Group (Individual Ready Reserve) for unsatisfactory participation.  There is no indication in the available records to show that the applicant ever responded to any of the commander’s notices.

12.  The applicant’s commander submitted a request on 7 February 2000 to his higher headquarters requesting that the applicant’s promotion orders to the pay grade of E-8 be revoked due to the applicant’s unsatisfactory performance and his failure to occupy the position for which he was promoted for a period of 12 months.

13.  On 13 April 2000, the applicant was reduced in rank to the pay grade of E-7 in accordance with paragraph 7-12d-g, Army Regulation 140-158.  He was also discharged from the USAR on the same date subsequent to his ETS.  There are documents contained in his records which show that the commander was informed that the applicant could not be discharged for unsatisfactory performance because he was within 90 days of his ETS.  There is no indication that the applicant was informed of the proposed reduction action before it was accomplished.

14.  Army Regulation 140-158 serves as the authority for the promotion and reduction of enlisted personnel in the USAR.  It states, in pertinent part, that a soldier accepting promotion to the pay grade of E-7 and above voluntarily agrees to serve in the duty position to which promoted, even if the promotion requires reassignment to another TPU.  The soldier must report for duty in the position to which promoted, comply with a reassignment to another TPU, if issued, and serve at least 12 months in the duty position before voluntary reassignment to another TPU.  This policy does not preclude reassignment for the convenience of the government or for the good of the command, nor does it preclude reassignment from a TPU to the Ready Reserve, Standby, or Retired Reserve.  Promotion and reassignment orders will be revoked for a soldier who fails to decline a promotion based on a concurrent reassignment and who refuses to comply with the reassignment order.

15.  That regulation also provides, in pertinent part, that personnel serving in a TPU in the pay grade of E-5 or above will be given at least 30 days written notice to appear before a reduction board.  A reduction board is mandatory, except for mandatory, voluntary and administrative reductions, unless the individual concerned waives the right to appear before a reduction board.

16.  Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of that regulation relates to the removal of soldiers from active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. 

17.  Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted soldiers from the Reserve Components. Paragraph 1-3 states, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud.  After the effective date of discharge, orders could not be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

CONCLUSIONS:

1.  It appears, based on the evidence of record, that the applicant was unjustly reduced in grade and discharged from the USAR after he had requested to be transferred to the Retired Reserve.

2.  Although the applicant was required to serve 1 year in the position for which he was promoted before he could request voluntary transfer to another TPU, the applicable regulation provides that an individual may request transfer to the Retired Reserve before the 1 year period.  It does not specify a minimum time that must be served in grade before such a request may be submitted.  Additionally, a reduction board was required before a reduction could be accomplished and the individual concerned was required to be notified of an impending reduction action.  There is no indication that any such action occurred. Therefore, it appears that he was unjustly and improperly reduced to the pay grade of E-7.

3.  The Board also notes that after being notified that he had eight unexcused absences and that nine unexcused absences would result in separation or transfer, the applicant requested transfer to the Retired Reserve in the pay grade of E-8.  It appears that his request was never acted on and he was instead discharged subsequent to his ETS.  Accordingly, it would be appropriate at this time to act on his request.

4.  The applicant’s contention that his reduction and discharge were the result of discrimination have been noted by the Board.  However, it is not supported by either the evidence of record or the evidence submitted with his application.  It appears that his command made every attempt to notify him that his continued absences would result in separation unless he could show that he had a valid reason for his absences.  There is no indication that the applicant made any attempt to do so and it appears that the command took the necessary steps, although incorrectly, to separate him from the TPU.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:  That all of the Department of the Army records related to this case be corrected by:

a.  revoking the reduction action of the individual concerned and restoring him to the pay grade of E-8 with entitlement to all back pay and allowances.

b.  by voiding the 13 April 2000 discharge from the USAR of the individual concerned; and by showing that he was transferred to the Retired Reserve in the pay grade of E-8, effective 17 March 2000, the date of his scheduled ETS.

BOARD VOTE:  

___jpi ___  __ewl___  ___rvo __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2000043906	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/12/07	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  322	133.0000/RED IN RK	
2.  333	135.0100/TRAN TO RET RES	
3.		
4.		
5.		
6.