BOARD DATE: 18 June 2014 DOCKET NUMBER: AR20130017122 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 for restoration of his rank/grade to master sergeant (MSG)/E-8 for retirement purposes. 2. The applicant states: a. In reading the Board's previous Record of Proceedings (ROP) it became clear to him that he should have elaborated a little more on some of the points based on the outcome of the decision. b. The first being that during the transfer process which began in April 2001 the first sergeant (1SG) had him sign the National Guard Bureau (NGB) Form 22-5-R-E (Addendum) sometime between April and June (most likely the month of May) with the date of signature being 15 July 2001. This is a minor thing, but the Board must realize that making the acknowledgement months in advance of the actual transfer left lots of room for changes to happen before his transfer was completed in July. c. Changes like looking for an E-8 position instead of an E-7 position, cancelling the transfer request in June, and writing it to reflect the changes to look for an E-8 position. The transfer to an E-7 position when the Soldier is an E-8 is in direct violation of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) which states, "Excess Sergeant First Class (SFC), MSG, and Sergeant Majors (SGM) will be assigned to the next vacant position for which qualified, within the unit of assignment or another unit within the geographical area." d. Nothing is stated in the Consideration of Evidence section of the ROP which stated that consideration was given to the fact that SFC Cxxxxx did not confer with State Command Sergeant Major (CSM) Mxxxx about available E-8 positions; this being a very important bit of evidence. The fact being that there were E-8 positions available in Alaska and SFC Cxxxx chose not to do his job in accordance with regulations. The 1SG position in his assigned unit was empty at the time of his transfer. Potential candidates had been selected, but no orders had been cut. So SFC Cxxxx's sworn disposition was not truthful since that position was military occupational specialty (MOS) non-specific and would have been compatible with 92Y (unit supply specialist). e. As for SFC Cxxxxx, SGM Zxxxxxx, and Colonel (COL) Bxxxxx's “predications” and/or fixation to him being assigned to only a Career Management Field (CMF) 92 position are also in violation of NGR 600-200 which states, "In changing a primary MOS, the Soldier's desires will be considered." Nowhere in the regulation does it state a Soldier must be transferred into his CMF. When they were making the statement that there were no E-8 92Y positions available they may have been correct, but that did not restrict placing him in any vacant E-8 position or negate the fact that there were open E-8 positions to which he could have been placed. f. Because they chose to exercise a short-sighted attitude and/or exercise the "good old boy system" attitude it seems that no one looked at the fact that there were other positions for which he could have better served the Army National Guard (ARNG) (in accordance with regulations). He could have performed in those positions with additional training. g. He was never advised that if no ARNG unit vacancy is available he could contact the U.S. Army Reserve or another Reserve Component unit to obtain an assignment. He was not granted access to unit manning rosters until October, three months after the transfer. Throughout this ordeal he accepted this position under duress (since he didn't have a choice). This includes during the investigation conducted by COL Bxxxx where he states, "That Bxxxxxxx [applicant] wants to be a member of the Alaska ARNG (AKARNG) and has no problem being administratively reduced to E-7." h. He was under the threat of expulsion from an otherwise unblemished exemplary military career, a threatened loss of a source of income that affected his family's livelihood, and eventually lost retirement benefits after 20 years of service (four years from the date of the investigation). It should also be acknowledged that he had informed the 1SG of the change in rank in as timely manner as possible (the day he was promoted) which was approximately 1 1/2 months for him to react and make corrections to the transfer form and subsequently search for an E-8 position which he chose not to pursue. i. The Report of Investigation (ROI), under COL Bxxxx's recommendations, is the only place he found where someone implied that there were other positions that may have been compatible. This could also indicate that people knew he was eligible for other positions. Finally, his promotion date was 31 May 2001, 1 1/2months prior to the transfer and his acknowledgement was not until 15 July 2001. This brings up the point as to whether or not the transfer document is a valid document at all and should not have been acted upon. He hopes the additional information and more detailed explanation of multiple violations of the regulations help demonstrate the existence of a probable error or injustice and the retraction of the previous determination and award of his request. 3. The applicant provides copes of the following: * Orders Number 151-327 and 345-665 * Email correspondence from SGM Yxxxxx * NGB Form 22-5-R-E * AKARNG Unit Manning Report * DA Form 2823 (Sworn Statement) * ROI memorandum * Orders Number 223-022, 229-1064, and 229-1066 * Inspector General (IG) Request memorandum and their reply * Army Board for Correction of Military Records (ABCMR) ROP * NGR 600-200, chapter 5, dated 1 March 1997 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 ABCMR in Docket Number AR20120022508 on 15 August 2013. 2. The applicant resubmitted copies of all documents previously provided to the Board and a new argument. The new argument will be considered by the Board. 3. The applicant enlisted in the Texas ARNG (TXARNG) on 15 October 1988 and he served MOS 92A (automated logistical specialist). He was promoted to pay grade E-7 effective 1 March 1999. 4. Orders Number 151-127, issued were by the State of Texas, Adjutant General's Department, dated 31 May 2001, promoted him to MSG/E-8, in MOS 92A, with an effective date of 15 June 2001. 5. An NGB Form 22-5-R-E, dated 15 July 2001, shows he requested a transfer to the AKARNG, in the rank of SFC/E-7, in MOS 92A. He also acknowledged that he had been accepted by the AKARNG as an interstate transfer and was to report to his new unit no later than 15 July 2001. 6. An AKARNG Unit Manning Report, dated 16 October 2001, shows there were four vacant E-8 positions: two 1SG positions, an operations sergeant position, and an intelligence sergeant position. 7. In an email correspondence, dated 29 November 2001, SGM Yxxxxx requested the applicant be counseled regarding the SFC position offered by the AKARNG and that he would be assigned to an E-7 position, and that he had twelve months to find a new position or take an administrative reduction to SFC. He also requested the applicant be allowed to immediately reenlist to correct an error. 8. Orders Number 345-665, issued by State of Texas, Adjutant General's Department, dated 11 December 2001, transferred him to the AKARNG, in pay grade E-7, in MOS 92Y, with an effective date of 15 July 2001. 9. In a DA Form 2823, dated 25 February 2002, SFC Cxxxxx, stated: a. COL Bxxxxx had informed him that an investigation was being conducted surrounding a potential erroneous Oath of Enlistment and Inter-State Transfer Agreement of the applicant. b. The first contact with the applicant was via email on 20 April 2001. The applicant stated that he was moving to Alaska from Texas, taking a position with the U.S. Forest Service in Juneau, and that Texas might be promoting him to E-8. In all contact both telephonically and via email, he was sure the applicant understood that he would be transferring into an E-7 position and that contact was fairly regular until the applicant left Texas. c. Due to the applicant's expiration of term of service (less than four months) in relation to the date of his transfer, it was necessary for the applicant to reenlist. Reenlistment accomplished by the TXARNG. NGB Form 22-5-R-E accomplished by the TXARNG indicated transfer and acceptance to an E-7 position in the State Area Command-Alaska. At no time did he promise or allude to the applicant that they might assign him to an E-8 position, if Texas promoted him. 10. In an ROI memorandum, dated 17 March 2002, the Director, Plans, Training, and Mobilization, Headquarters, Department of the Army, stated: a. Two administrative errors were found and needed to be corrected on the applicant's reenlistment/extension. The DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) was improperly completed and the applicant did not sign the Oath of Extension and the original DA Form 4836 must be obtained. The TXARNG had offered to provide new, properly-completed paperwork. b. There were no promises made by SFC Cxxxx or other members of the AKARNG to the applicant regarding assignment to an E-8 position. There were no E-8 positions available within the applicant's CMF at the time of transfer. The applicant wanted to be a member of the AKARNG and has no problem being administratively reduced to E-7. c. He recommended the applicant be immediately reenlisted which would correct the errors contained within the DA Form 4386 executed in Texas on 14 June 2001 and would also produce an original copy of the DA Form 4386, thereby allowing the applicant to receive all pay and entitlements due. d. The applicant was to be assessed into the AKARNG as an E-8; however, pursuant to NGR 600-200, chapter 5, and email from SGM Yxxxxx, the applicant was assigned to an E-7 position and he had twelve months to find a new position or be administratively redacted to E-7. The twelve months ended on 15 July 2002. Assuming there were no compatible positions for the applicant, he should be administratively reduced to E-7 effective 15 July 2002. e. The root of the problems surrounding the applicant's transfer to the AKARNG appeared to be caused by poor documentation and the inability of the TXARNG to provide the AKARNG the requisite documentation. Further, the applicant desired to be a member of the AKARNG and complete a 20 year military career and therefore he should not be penalized for the inability of the State of Texas to provide the requested documentation. 11. Orders Number 233-002, issued by the State of Alaska, Department of Military and Veterans Affairs, dated 21 August 2002, reduced him to pay grade E-7 with an effective date of 15 July 2002 and date of rank of 1 March 1999. The orders state: Soldier promoted while interstate transferred to the AKARNG. MSG/E-8 vacancy was not available (See NGR 600-200, paragraph 5-34b, 15-6 Investigation). Soldiers not eligible to retire as an MSG/E-8 (See NGR 600-200, paragraph 11-10a). Soldiers MUST serve as least two years as an MSG/E-8. 12. The Texas Military Forces issued the following orders on/for: * Number 229-1064, dated 17 August 2005, revoking Order Number 345-665 * Number 229-1066, dated 17 August 2005, transferring him to the AKARNG with an effective date of 15 July 2001 13. In a memorandum and letter, dated 23 September 2005, respectively, the applicant was advised that due to the fact that the Wisconsin ARNG (WIARNG) had no authority or jurisdiction to look into a matter that occurred while he was a member of the TXARNG or AKARNG his complaint was being referred to the National Guard Bureau. 14. He was honorably discharged from the WIARNG, in pay grade E-7, on 14 October 2006, and was transferred to the Retired Reserve. He was credited with completing 20 years of total service for retired pay. 15. NGR 600-200, in effect at the time, established standards, policies, and procedures for the management of the ARNG and the Army National Guard of the United States (ARNGUS) enlisted Soldiers. The regulation stated in: a. Paragraph 5-34b - the effectiveness of the interstate transfer process required that Soldiers inform their unit as soon as possible when they plan to move. This will allow coordination between the losing and gaining State headquarters. Sergeants and above require position vacancies in their grades. b. Paragraph 11-10 - Soldiers who accept promotions will fulfill the service remaining requirements before transfer to the Retired Reserve, voluntary retirement from active duty length of service, or expiration of term of service. If they do not, they will be separated in the next lower grade unless granted an exception to policy by the Chief, NGB. DISCUSSION AND CONCLUSIONS: 1. The new argument provided by the applicant was carefully considered. However, the available evidence shows that in July 2001 the applicant requested and accepted a transfer to the AKARNG. Prior to being transferred, he was promoted to pay grade E-8 by the TXARNG effective 15 June 2001. He transferred to the AKARNG effective 15 July 2001 and he was assigned to an E-7 position. 2. An investigation revealed that he was made aware that no promises were made by AKARNG representatives that he would be assigned to an E-8 position, no E-8 positions existed in his CMF at the time of his transfer, and he had no problem being administratively reduced to E-7 twelve months after his transfer if he had not found an MSG/E-8 vacancy. 3. He was reduced to pay grade E-7 effective 15 July 2002 and his orders stated that an MSG/E-8 vacancy was not available and he must serve at least two years as an MSG/E-8 to retire in that grade. He was transferred to the Retired Reserve on 14 October 2006 in pay grade E-7. 4. There is no evidence of record and he did not provide sufficient argument or new evidence that he was unjustly or erroneously not assigned to an E-8 position prior to his reduction to E-7 in July 2002. He stated that he was not provided a unit vacancy roster until October; however, it is clear he was aware that he had twelve months to find an E-8 position before being reduced. Since he did not serve two years as an MSG/E-8 he was not eligible to retire in that grade. He was properly discharged in pay grade E-7 in accordance with pertinent regulations. Therefore, he 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 to amend the decision of the ABCMR set forth in Docket Number AR20120022508, dated 15 August 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) AR20130017122 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130017122 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1