PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:          28 October 2003                    
	DOCKET NUMBER:  AR2003085657

	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	
	Ms. Carolyn Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Marla J. N. Troup		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 that his date of rank to specialist (SPC/E-4) be backdated to 10 April 2001, the date he was administratively reduced.

3.  The applicant states that, without prior notice, he came to work on 10 April 2001 and was told that he was reduced from SPC to private first class (PFC/E-3) because of multiple Army Physical Fitness Test (APFT) failures.  Later, he was provided reduction orders on 16 May 2001 reducing him to PFC effective 10 April 2001.  He argues that his reduction was administratively incorrect and did not afford him the opportunity to appeal through his chain of command.  He adds that he was advanced to SPC in December 2002.

4.  In support of his application, the applicant submits:  a copy of orders, dated 16 May 2001, reducing him to the rank of PFC, effective 10 April 2001; an Appeal for Reinstatement to Former Grade of SPC/E-4; a Memorandum of Support, dated 19 December 2002; and a Commander’s Statement, Re: Appeal of SPC Clark.

5.  The applicant’s military records show that he is a SPC/E-4 serving on active duty in the Regular Army.  He is currently assigned to Headquarters and Support Company, 52nd Combat Engineer Battalion (Heavy), Fort Carson, Colorado.

6.  On 16 May 2001, the 52nd Combat Engineer Battalion (Heavy) published orders reducing the applicant from SPC/E-4 to PFC/E-3 because of his inability to pass the APFT after numerous attempts.  The reduction was made effective 10 April 2001.

7.  On 12 December 2002, the applicant was promoted to SPC/E-4, effective 1 October 2002.

8.  On 13 December 2002, the applicant appealed his earlier reduction through his company commander to his battalion commander stating that he was not afforded due process prior to his administrative reduction.

9.  On 23 December 2002, the applicant’s company commander recommended that the applicant’s appeal be denied.  He stated that he believed the motives for the applicant’s reduction were not malicious, but rather punitive due to the applicant’s inability to past the APFT.  He stated that the chain of command had bent over backwards to assist the applicant.  However, he had failed the APFT at least 9 times before eventually passing on 17 September 2002.  He concluded by stating that the evidence of record did not support the applicant’s claim of inequity or injustice.

10.  In the processing of this case, an advisory opinion was obtained from the US Total Army Personnel Command (PERSCOM), Promotions Branch, Alexandria, Virginia.  The staff of the Promotions Branch opined that the applicant’s request to adjust his date of rank and effective date to SPC/E-4 from 1 October 2002 to 20 June 2000 (sic) be denied.  However, the staff of the Promotions Branch recommended that the applicant’s date of rank and effective date to PFC/E-3 be adjusted from 10 April 2001 to 16 May 2001, based on the date the soldier was notified of the reduction.  The applicant was provided a copy of this advisory opinion and notified of his right to submit a rebuttal within 30 days from the date of the letter (23 April 2003) forwarding the rebuttal.  The applicant did not submit a rebuttal.

11.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  This regulation includes policy statements, operating tasks, rules in support of operating tasks, and sequential steps of each operating task.  Chapter 7 states that if a Soldier in the grade of CPL/SPC and below is being reduced one grade without referral to a reduction board, the reduction action must be accomplished within 30 duty days after receipt of documentary evidence and before separation or retention is considered.

CONCLUSIONS:

1.  The applicant’s contention that he was not notified prior to the effective date (10 April 2001) of his impending reduction is correct.  However, the applicant did not initiate an appeal of this reduction until 13 December 2002.

2.  The PERSCOM advisory opinion recommended that the applicant's request be denied.  However, it did recommend that his date of reduction from SPC to PFC be adjusted from 10 April 2001 to 16 May 2001 based upon the date the applicant was actually notified of the reduction.

3.  In accordance with the recommendation of the advisory opinion, the Board determined that the applicant’s date of reduction should be the date the reduction order was posted.  Therefore, the applicant’s effective date of rank to PFC/E-3 should be reflected as 16 May 2001, not 10 April 2001. 

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the effective date of rank of the individual concerned to PFC/E-3 is 16 May 2001 and by adjusting his pay and allowances for the period 10 April 2001 to 16 May 2001.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__rjw___  __lds___  __mjnt__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Raymond J. Wagner
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003085657	
SUFFIX		
RECON		
DATE BOARDED	20031028	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	100.0000	
2.		
3.		
4.		
5.		
6.