BOARD DATE: 17 May 2018 DOCKET NUMBER: AR20160003413 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 17 May 2018 DOCKET NUMBER: AR20160003413 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 he be restored to sergeant first class (SFC)/pay grade E-7 and retired in that grade. 2. The applicant states he was improperly reduced in grade from SFC to staff sergeant (SSG)/pay grade E-6 on the eve of his retirement for inefficiency. He had previously held the rank of SFC since 1999. The Ohio Army National Guard (OHARNG) failed to offer him non-judicial punishment (NJP) or court-martial for the perceived misconduct. The OHARNG failed to allow him to retire at the grade and rank he held for over a decade and abused the appropriate regulations by reducing him to SSG due to inefficiency using arguments of misconduct. He stated he was never offered an opportunity to appeal the board results with the assistance of appointed counsel. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 January 2013 * National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service), dated 31 January 2013 * Army National Guard (ARNG) Current Annual Statement prepared on 4 March 2013 * a letter, dated 28 January 2016, from the applicant's attorney * the applicant's authorization to release information to his attorney, dated 4 August 2015 * Standard Form 180 (Request Pertaining to Military Records), dated 4 August 2015 * Memorandum, dated 29 October 2012, Record of Proceedings from the Administrative Reductions Board (ARB) * DA Form 1584 (Report of Proceedings by Investigating Officer/Board of Officers), dated 25 October 2012 * A letter, dated 11 September 2015, from the Department of Veterans Affairs (VA) * DA Form 1559 (Inspector General (IG) Action Request), dated 20120703 * DA Form 1559, dated 1 October 2012 * three letters, dated 25 June 2014, 28 July 2014, and 8 August 2014, from the Freedom of Information Act (FOIA)/Privacy Officer, OHARNG * a letter, dated 28 July 2015, from the OHARNG IG COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel states the ARB reduced the applicant as a result of inefficiency based on perceived misconduct in violation of Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), chapter 10-6. This abuse of AR 600-8-19 was done in order to avoid any type of offer of an Article 15 or court-martial which could have resulted in the applicant being able to defend himself against the allegations of misconduct. 2. Misconduct included allegations of being absent without leave (AWOL) while at the same time he was hospitalized for shoulder surgery at the direction of his physician and paid for by the United States Army. It should also be noted that AR 600-8-19, paragraph 1-13, requires that the "DOR (date of rank) in a rank to which reduced for inefficiency ... is the same as the previously held rank". The applicant's DD Form 214 lists an arbitrary effective date of rank of 11 April 2012, rather than in 1999, when he initially was promoted to E-6/SSG and was in a position which he held for over a decade earning accolades and awards throughout his career. 3. Subsequent to the Board, the applicant requested that he be provided an opportunity to appeal the Board results, however, his former counsel failed to respond to his request resulting in ineffective counsel and utter lack of due process related to the Board. See recently correspondence to former counsel attached hereto as Enclosure 4 seeking clarification as to why the applicant was not assisted with any such appeal. 4. Presently, counsel's office is awaiting the applicant's medical records from the Department of Veterans Affairs who has acknowledged receipt of a request by correspondence, dated September 11, 2015 (see Enclosure 5). 5. Counsel's office has also recently requested the applicant's records from the Ohio National Guard Judge Advocate General related to the investigations of the applicant's alleged misconduct which may or may not have done. Notably, counsel's office has yet to receive a response to their correspondence, dated November 25, 2015, which is beyond the allowable time for a response or an acknowledgment of a properly received Freedom of Information Act (FOIA) request. (See Enclosure 6). 6. It should be noted that although counsel's office was only retained recently, the applicant had previously attempted to engage the Inspector General on numerous occasions for assistance and has received no substantive action related to same and has not even received responses to his own FOIA requests for investigation records related to his alleged misconduct investigation and resulting Board. (See Encl. 7). CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant previously completed 3 years, 5 months, and 10 days of active service and 7 years, 8 months, and 7 days of inactive service. 3. On 17 January 1990, the applicant enlisted in the Ohio Army National Guard (OHARNG). 4. On 17 July 1995, the applicant was ordered to full-time National Guard Duty in an Active Guard Reserve (AGR) status in the grade of sergeant/pay grade E-5. 5. On 8 November 1996, the applicant was promoted to staff sergeant (SSG)/pay grade E-6. 6. A DA Form 2166-7 (NCO (noncommissioned officer) Evaluation Report) for the period from October 1998 - September 1999 shows the applicant's rank as SFC and his DOR as 8 May 1999. 7. On 16 June 2004, the applicant was notified he had completed the required years of service for eligibility for retired pay upon application at age 60 (20-year letter). 8. On 13 March 2011, the applicant received a Memorandum of Reprimand (MOR), signed by a colonel. He was reprimanded for violating DODIAA [Department of Defense Information Assurance) Policy as well as the OHARNG Computer Users Agreement by receiving, storing and/or e-mailing pornographic material on/from his government computer. His conduct caused the need for a lengthy investigation into computer misuse and the use of valuable man hours to complete. The content of the discovered material should be embarrassing to him and it was not in keeping with the best values of the OHARNG. His conduct was prejudicial to good order and discipline in the Armed Forces and was of a nature to bring discredit upon the Armed Forces. 9. On 8 April 2011, based on a review of their conversations and the information the applicant submitted concerning their meeting on 13 March 2011, the imposing officer decided to file the MOR in his unrestricted official military personnel file (OMPF) as a permanent document for a period of 2 years. 10. On 26 April 2012, the applicant received a MOR from a general officer (GOMOR) for making inappropriate remarks to two different civilian female members of the Medical Detachment on separate days in January of 2012. These remarks were offensive to each and were documented in their statements dated 4 January and 22 January 2012. It was particularly disturbing in that these statements were made within 1 year of the date of his last letter of reprimand regarding the discovery of pornography on his government computer. At the time of the reprimand he was told that that reprimand would remain in his file for 2 years. It was a matter of serious concern to the imposing officer that the applicant continued to demonstrate a lack of judgment, particularly so soon after his last incident. a. On 26 April 2012, the applicant acknowledged receipt of the GOMOR and elected to submit written statements or other documentation in support of his rebuttal of the unfavorable information contained in the GOMOR. These statements were not available for review. b. On 10 May 2012, the imposing general officer, based on their conversations and the information the applicant submitted concerning their meeting on 26 April 2012, decided to file the GOMOR in the applicant's unrestricted OMPF as a permanent document for a period of 2 years. 11. The Orthopedic Associates, INC provided a certificate, dated 14 May 2012, signed by Dr. M, that certified the applicant was having surgery on 10 July 2012 and he would be unable to work for approximately 6 weeks. 12. A memorandum for record (MFR), dated 28 May 2012, from Captain G, the unit administrative officer acknowledged the notice of surgery on 10 July 2012, and indicated he informed the applicant that the timing of his surgery needed to be adjusted from 10 July 2012 to late July 2012, or later in order to accommodate the needs of the organization. a. The applicant supervised two Soldiers in key leadership positions on a full- time basis. One of those positions was vacant and the second position was filled by a Soldier that had been in his assignment for less than 1 wee. Due to the unit's upcoming major training events in July, it was necessary to provide a stable full-time unit staff in order to ensure the unit was set up for success. b. CPT G would ensure the applicant was able to stay within the limits of his profile during the additional period without surgery. c. The applicant must submit the proper medical documentation in order for convalescent leave to be approved in a timely manner. This must be approved prior to the surgery. 13. In an email, dated 29 May 2012, Captain G informed the applicant he needed to request his surgery be changed to the end of July or beginning of August. He also informed the applicant he needed more than the MFR from his doctor to request convalescent leave. Details on the surgery, supporting documents, etc. were needed to run the request up to NGB. 14. A letter, dated 3 July 2012, from Dr. M, Orthopaedic Associates, stated the applicant was scheduled for shoulder surgery on 10 July 2012. He was unable to undergo a magnetic resonance imaging (MRI); however, based on his symptomology, it was highly likely that he had a labral and/or rotator cuff tear. Postponing surgery could cause further damage to his shoulder and due to the schedule, he would not be able to reschedule until September (2012). 15. A memorandum, dated 7 July 2012, stated the applicant was to remain off duty until cleared by Dr. M following surgery. The memorandum was signed by JT, Physician Assistant. 16. On 7 July 2012, the applicant received treatment in the Emergency Department, EMH Healthcare for a diagnosis of shoulder strain. 17. On 10 July 2012, the OHARNG notified the applicant his records were reviewed by an AGR Active Service Management Board (ASMB), convened on 26 June 2012, and he was selected for release from the AGR Program. a. He was to be released from the AGR Program no later than 30 April 2013 and * returned to traditional drilling status; * apply for retirement (submission within 30 days); or * transfer to the Army Reserve b. Separation from the AGR Program as a result of the ASMB was considered an involuntary separation for retirement purposes. 18. In a memorandum, dated 11 July 2012, subject: Findings & Recommendations for Commander’s Inquiry of Alleged AWOL by (the applicant), the investigating office (IO) for an AR 15-6 investigation submitted her findings and recommendation to Headquarters, 112th Engineer Battalion. a. The Orthopedic Associates, INC provided a certificate, dated 14 May 2012, that certified the applicant was having surgery on 10 July 2012 and would be unable to work for approximately 6 weeks. b. An MFR, dated 28 May 2012, from the applicant's administrative officer, acknowledging the notice of surgery on 10 July 2012 and indicating he had informed the applicant that the timing of his surgery needed to be adjusted from 10 July 2012 to late July 2012, or later in order to accommodate the needs of the organization. c. The IO found that the applicant did in fact fail to go to his appointed place of duty at the time prescribed. He willingly remained absent from his unit, who were at annual training (AT), at which he was required to be at the time prescribed. d. The IO found that the applicant failed to obey a direct order by scheduling shoulder surgery during the AT, after being informed of the necessity to reschedule due to full time unit support (FTUS) shortages/positon changes in his unit. e. The IO recommended the applicant receive an AWOL letter and a general letter of reprimand with appropriate action being taken. 19. On 12 July 2012, Trial Counsel conducted a legal review and found the IO was sufficiently thorough, that she addressed the questions raised by the appointing authority, and that her recommendations were supported by the facts and findings included with the submission. 20. On 14 August 2012, the applicant acknowledged the results of the ASMB and requested to retire on 30 April 2013. 21. On 30 August 2012, the applicant requested to change his retirement date from 30 April 2013 to 31 January 2013. a. On 1 October 2012, the applicant's battalion commander recommended the applicant's request for an earlier retirement date be denied. The applicant was pending administrative action for a pattern of misconduct. b. On 12 October 2012, the applicant's brigade commander recommended the applicant's request for an earlier retirement date be denied. The applicant was pending administrative action for a pattern of misconduct. 22. On 19 September 2012, the applicant received a GOMOR for having engaged in a course of conduct leading up to 2012 AT that caused the imposing officer to seriously consider the applicant's fitness for continued duty to the OHARNG. a. He scheduled and underwent a non-emergency surgery during the 2012 AT period despite having been instructed by the Battalion Administrative Officer and his Company Commander to reschedule this procedure to a time after the AT period. b. He failed to follow established written procedure in not having his request for convalescent leave pre-approved prior to the scheduling of the non- emergency procedure. c. On or about 7 July 2012 he failed to arrive for duty at the Brook Park, OH Armory to participate in the unit's movement to the Camp Ravenna Joint Military Training Site. d. From on or about 7 July 2012 through on or about 24 July 2012, despite repeated orders from his commander, he willfully failed to be at his appointed place of duty, Camp Ravenna Joint Military Training Site, for AT. e. His conduct during this period was unbecoming an NCO. His willful disregard for orders and regulations was prejudicial to the good order and discipline in the OHARNG. f. It was a matter of serious concern to the imposing officer that the applicant demonstrated such willful misconduct and continuing lack of judgment, particularly so soon after his last two reprimands. 23. On 19 September 2012, the applicant acknowledged receipt of the GOMOR and he elected to submit written statements or other documentation in support of his rebuttal of the unfavorable information contained in the GOMOR. 24. On 4 October 2012, the imposing general officer reviewed the applicant's rebuttal. Based on the applicant's rebuttal and the fact that he had received two previous reprimands with the last 2 years, the imposing general officer decided to file the GOMOR in the applicant's unrestricted OMPF as a permanent document for a period of 2 years. The imposing general officer stated the applicant demonstrated an inability to conform to the standards expected of an NCO and he did not reflect the Army values to his peers and subordinates. 25. On 25 October 2012 an Administrative Reduction Board (ARB) was convened to determine whether the applicant should be reduced for inefficiency in accordance with AR 600-8-19. The Record of Proceedings included 27 exhibits of Government evidence and six exhibits of evidence submitted by the applicant. a. Included in the 27 exhibits were eight records of counseling: (1) 2 November 2011 - CPT G counseled the applicant on his expectations of the Readiness NCO along with the key duties and responsibilities. (2) 2 November 2011 - CPT G explained to the applicant that administrative issues with late extensions needed to be addressed immediately. (3) 7 March 2012 - CPT G counseled the applicant concerning events that showed negligence in his duties and responsibilities. The lack of organization displayed was careless and irresponsible. (4) 9 March 2012 - First Lieutenant (1LT) H counseled the applicant concerning his failure to notify Soldiers of attendance at an Officer Symposium, failure to upload a Soldier's flag removal, submission of slides that contained outdated and incorrect information, and failure to submit receiving reports in a timely manner for five consecutive months. (5) 9 March 2012 - 1LT H counseled the applicant on her expectations of him as the Company Readiness NCO, including the key duties and responsibilities. (6) 20 March 2012 - CPT G counseled the applicant concerning his lack of having a good grasp on the organizations priorities and he came to work daily without a plan. (7) 27 March 2012 - CPT G counseled the applicant concerning his failure to send AWOL letters to unsatisfactory Soldiers in a timely manner. (8) 3 May 2012 - 1LT H notified the applicant of her intent to remove him from the 2012 Enlisted Promotion System List due to his having a flag for pending adverse action and his receiving a GOMOR on 26 April 2012. b. Two DA Forms 4187 (Personnel Action) shows the applicant's status was changed from present for duty to AWOL effective 7 July 2012 and from AWOL to present for duty effective 23 July 2012. c. Medical documentation from the applicant's surgeon was not available at the board hearing but was admitted by agreement of the president and subsequently submitted by the applicant's counsel. It was unclear whether this documentation was originally submitted through the applicant's chain of command. d. The ARB, having carefully considered the evidence, found that based on the applicant's job performance and his acts and conduct, he lacked those abilities and qualities normally required and expected of an individual of his grade and experience. This finding was based on the testimony of several witnesses and the examination of more than two dozen exhibits over the course of a hearing that ran more than eight hours. e. The ARB recommended that the applicant be reduced in rank from SFC (E-7) to SSG (E-6). 26. An email dated, 30 November 2015, from an attorney at Tully Rinckey PLLC and the applicant's previous attorney indicated the attorney at Tully Rinckey was assisting the applicant with his appeal of his reduction from E-7 to E-6 as a result of the ARB held on 25 October 2012. However, there is no evidence of an appeal being submitted. 27. On 4 November 2012, the applicant was reduced to E-6. The reduction and all supporting documentation are to be filed in the applicant's unrestricted OMPF as permanent documentation. 28. There is no evidence the applicant submitted an appeal within 30 days of the date of his reduction to SSG. 29. State of Ohio, Adjutant General's Department Orders 314-1057, dated 9 November 2012, reduced the applicant from SFC to SSG. The orders shows the effective date as "20120411" and the DOR as "20120411." 30. State of Ohio, Adjutant Generals Department Orders 340-1058, dated 5 December 2012, assigned the applicant to the U.S. Army Transition Point, Fort Knox, KY effective 10 January 2013, released him from active duty effective 31 January 2013, and placed him on the Retired List the following date. The orders show the applicant's retired grade as SSG with an effective date of grade as 11 April 2012. 31. On 31 January 2013, the applicant was retired by reason of having sufficient service for retirement. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his grade as SSG, his pay grade as E-6, with an effective date of pay grade of 11 April 2012. The DD Form 214 does not show any time lost. 32. NGB Form 22, effective 31 January 2013, shows the applicant's rank as SSG and his DOR in item 6 (Date of Rank) as 4 November 2012. 33. State of Ohio, Adjutant General's Department Orders 064-1021, dated 5 March 2013, amended State of Ohio, Adjutant General's Department Orders 314-1057, dated 9 November 2012, pertaining to the reduction of the applicant to show the effective date as 4 November 2012 and the DOR as 4 November 2012. 34. On 26 January 2018, an advisory opinion was received from NGB recommending the applicant's request be denied. a. On 9 March 2012, the applicant submitted a request to retire on 30 September 2013. Because the retirement date was after 30 June 2013, the Soldier was directed for review under an Active Service Management Board (ASMB) which convened on 26 June 2012. Shortly after, the Soldier received notification of his removal from the AGR program with an option to retire no later than 30 April 2013. The Soldier elected this option. b. Prior to his retirement, the applicant was referred to an ARB after the Soldier was determined to be AWOL during AT. c. The applicant had previously been instructed by his Company Commander to reschedule a non-emergency surgery, scheduled for 10 July 2012, that fell over the AT period (7-24 July 2012). The applicant did not report to AT and proceeded to get the surgery done, regardless of the Commander’s instructions. A memorandum, dated 11 July 2012, subject: Findings & Recommendations for Commander’s Inquiry of Alleged AWOL by the applicant, determined the applicant was, in fact, AWOL, did fail to obey a direct order, and exhibited conduct unbecoming of a senior NCO. As a result, the applicant received a GOMOR and was directed for review under an ARB. d. The ARB was conducted in accordance with AR 600-8-19 and the applicant was afforded appropriate representation and due process. e. The applicant further contends that he was not afforded the opportunity to appeal the board’s decision. AR 600-8-19 states that a Soldier will be authorized to submit an appeal in writing within 30 duty days of the date of reduction or date of memorandum notifying the Soldier that he or she will be reduced. There is no evidence provided to support that an appeal was requested by the Soldier; therefore, there is no substantiation that the Soldier was denied the opportunity. f. Inefficiency was the basis for the applicant's reduction. AR 600-8-19 describes the use of misconduct in the determination of a reduction, explaining that a single act cannot be used to reduce a Soldier. In the case of the applicant, written documentation provided to the ARB demonstrated a pattern of acts (to include misconduct) which demonstrated the applicant’s inability to perform the duties and responsibilities commensurate with the rank of SFC. The three letters of reprimand the Soldier received within an 18 month period and the multiple negative counseling sessions received, demonstrate this inability. g. Title 10 U.S. Code (USC) section 3963 (10 USC 3963) states, "A Reserve enlisted member of the Army described in subsection (b) who is retired under section 3914 of this title 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." As the applicant was reduced for inefficiency through a legitimate process, he clearly did not serve at the rank of SFC satisfactorily. Yet, it should be noted that the applicant's military records (to include discharge order and NGB Form 22) should be corrected to show his DOR to SSG as 8 November 1996; the date of rank he previously held for SSG. Per AR 600-8-19, the DOR in a rank to which reduced for inefficiency is the same as that previously held in that grade. 35. On 29 January 2018, the applicant was provided a copy of the above advisory and given the opportunity to submit rebuttal or additional comments. On 9 February 2018, the applicant's counsel submitted additional comments. a. The applicant was an AGR Soldier with the OHARNG performing recruiter duties when he and his government vehicle were hit by a truck, injuring his shoulder. His injury got progressively worse until he required surgery. He was on three successive profiles for this injury when he was scheduled for surgery on 10 July 2012. See profile at Enclosure 3. He was also eligible for retirement. He informed his chain of command about the scheduled surgery date and underwent the procedure. The applicant had been an E7 for 13 years, but rather than process his retirement, his command administratively reduced him from E-7 /SFC to E-6/S SG by an Administrative Reduction Board on October 25, 2012 at the 16th Engineer Brigade (Combat Support), OHARNG due to inefficiency after holding the rank of E-7/SFC for over 13 years. At that time of the Board, the applicant had 20 years of active duty service and his Command prevented him from retiring, conducted the Board, and retired him at the rank of SSG/E-6 3 months later. b. Reducing the applicant for missing Annual Training when he was undergoing surgery was an abuse of the power entrusted to Commanders. The applicant had been injured in the line of duty and the surgery was actually paid for by the Army. His command knew where he was because he had informed them. His command did not care whether his shoulder injury was repaired while he was on active duty, or ever. They arbitrarily denied him permission to undergo surgery, then vindictively punished him months before he retired. c. The applicant did not receive due process during the administrative board. According to the Advisory Opinion, the applicant was "referred to the Administrative Reduction Board after the Soldier was determined to be absent without leave to annual training (AT). The Soldier had previously been instructed by his Company Commander to reschedule a non-emergency surgery." On the contrary, no evaluation was made of the purpose of the command in punishing the applicant. d. There is no evidence that then SFC [the applicant] could not perform his duties. He was improperly reduced at an administrative board for misconduct for missing AT while he underwent surgery. The appropriate way to dispose of allegations of misconduct or violations of the UCMJ is through the military justice system, including non-judicial punishment. Through this system, then SFC [the applicant] would have had the ability to prove his excuse for missing drill to a panel of disinterested military members. The AWOL is an improper basis for reduction for inefficiency. The applicant was therefore denied due process. e. The advisory opinion does not address this issue, nor the issue that there was no evidence that then SFC [the applicant] was unable to perform his duties. He was simply punished improperly through an Administrative Reduction Board. The failure of his command to follow the essential tenets of AR 600-8-19 demonstrates that the unit is not entitled to the presumption of regularity in government affairs. The applicant was arbitrarily punished for undergoing treatment for an injury he received in the line of duty. In the interests of justice and equity, this honorable Board should consider the advisory opinion very cautiously, as the author apparently was not concerned with this clear violation of the improper use of the administrative reduction board in this case. REFERENCES: AR 600-8-19, in effect at the time, prescribed the enlisted promotions and reductions function of the military personnel system. A reduction board was required for Soldiers in the grade of SGT through SGM for inefficiency under paragraph 10–5. Board appearance, however, may be declined in writing, which was considered as acceptance of the reduction board’s action. a. Reduction board determinations are effective on the date approved by the convening authority. Paragraph 1-13 stated the DOR in a grade to which reduced for inefficiency, voluntary reduction, or failure to complete a school course is the same as that previously held in that grade. b. Paragraph 10–5 stated inefficiency was a demonstration of characteristics that showed that the person could not perform duties and responsibilities of the grade and MOS. Inefficiency may also include any act or conduct that clearly showed that the Soldier lacked those abilities and qualities normally required and expected of an individual of that grade and experience. Commanders may consider misconduct, including conviction by civil court, as bearing on inefficiency. c. Paragraph 10-6 stated documents submitted to the reduction authority would establish a pattern of inefficiency rather than identify a specific incident. Reduction for inefficiency will not be used to reduce a Soldier for a single act of misconduct. d. Paragraph 10-8 stated the president of the board ensured that enough testimony was presented to enable the board members to: * fully and impartially evaluate each case * be objective in their deliberations * arrive at a proper recommendation * Consider those abilities and qualities required and expected of a Soldier of that grade and experience. An NCO is expected to maintain high standards of conduct * determine the best interests of the Army. Consideration of prior years of faithful service, while commendable, will not be overriding e. The board may recommend reduction of one or more grades, retention of current grade, or reassignment in grade. f. Approved reduction recommendations are effective immediately without regard for appeal procedures unless suspended by the convening authority. g. Paragraph 10-11 stated appeals of reduction for inefficiency were authorized to correct an erroneous reduction on equitable grounds. This was based on the facts and circumstances of the particular case that partial or full restoration of grade was in the best interest of the Army and the Soldier. (1) Authorized appeals will be submitted in writing within 30 duty days (30 calendar days for TPU) of the date of reduction. (2) If the appellate authority determined that the reduction met the requirements of this regulation and need not be changed on equitable grounds, the appeal was denied. Soldiers submitting appeals will be informed, in writing, of the decision. (3) A copy of the appeal and the final action was provided to the custodian of the Soldier’s OMPF. DISCUSSION: 1. The applicant received an MOR on 13 March 2011, for receiving, storing and/or e-mailing pornographic material on/from his government computer. He received a GOMOR on 26 April 2012 for making inappropriate remarks to two different civilian female members of the Medical Detachment in January of 2012. He received a GOMOR on 19 September 2012, for willfully disobeying an officer, failure to obey an order or regulation, missing movement, and AWOL. 2. On 14 May 2012, the applicant's surgery was scheduled for 10 July 2012. On 28 May 2012, the applicant's administrative officer indicated he had informed the applicant he must postpone his surgery until late July 2012. 3. On 3 July 2012, the applicant's doctor submitted a letter indicating that the applicant was scheduled for shoulder surgery on 10 July 2012. Dr. M stated that postponing the surgery could cause further damage to the shoulder and due to the schedule, he would not be able to reschedule the surgery until September. There is no evidence the IO for the AR 15-6 investigation in July 2012 or the Trial Counsel reviewed or were aware of this letter. 4. The applicant had been instructed by his company commander to reschedule his surgery, scheduled for 10 July 2012, that fell over the AT period. The applicant did not report to annual training and proceeded to get the surgery done, regardless of the commander’s instructions. 5. On 10 July 2012, the OHARNG notified the applicant he was selected for release from the AGR Program no later than 30 April 2013. 6. A memorandum, dated 11 July 2012 subject: Findings & Recommendations for Commander’s Inquiry of Alleged AWOL by the applicant, determined the applicant was, in fact, AWOL, did fail to obey a direct order, and exhibited conduct unbecoming of a senior NCO. As a result, the applicant received a GOMOR and was directed for review under an ARB. 7. On 25 October 2012, the ARB found that based on his job performance and his acts and conduct, the applicant lacked those abilities and qualities normally required and expected of an individual of his grade and experience. The ARB recommended the applicant be reduced from SFC to SSG. The applicant's reduction was based on a pattern of acts, conduct, or negligence. He had received one MOR and two GOMORs within an 18 month period and multiple negative counseling sessions as noted in the NGB Advisory. His reduction for inefficiency was not for a single act of misconduct. 8. The findings and recommendation of the ARB was provided on 29 October 2012 and the applicant was reduced effective 4 November 2012. An email, dated 30 November 2015, from an attorney at Tully Rinckey indicated the applicant was being assisted with an appeal of his reduction. However, there is no evidence the applicant submitted an appeal within 30 duty days of either of these dates. The applicant was retired on 31 January 2013 as a SSG. 9. The effective date of the applicant's reduction was 4 November 2012, the date his reduction was approved. His DD Form 214 with a separation date of 31 January 2013 should be corrected to show the effective date of pay grade as 4 November 2012. The DOR is not shown a DD Form 214. 10. The applicant's effective date of grade and DOR on State of Ohio, Adjutant General's Department Orders 340-1058, dated 5 December 2012, NGB Form 22, effective 31 January 2013, and State of Ohio, Adjutant General's Department Orders 314-1057, dated 9 November 2012 should be corrected in accordance with AR 600-8-19 by the Adjutant General, OHARNG. BOARD DATE: 17 May 2018 DOCKET NUMBER: AR20160003413 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the entry in item 12i (Effective Date of Pay Grade) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 January 2013 and entering 2012 11 04. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to restoration to sergeant first class. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160003413 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003413 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2