BOARD DATE: 5 December 2017 DOCKET NUMBER: AR20160010250 BOARD VOTE: ____x____ ___x_____ ___x_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 5 December 2017 DOCKET NUMBER: AR20160010250 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by revoking Orders 290-1073 issued by The Adjutant General, Department of Military and Veterans Affairs, Commonwealth of Pennsylvania, and paying him any monies he is due as a result of this correction. _____________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. BOARD DATE: 5 December 2017 DOCKET NUMBER: AR20160010250 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, in effect, correction of his records to show he was not reduced in rank and grade due to inefficiency. 2. The applicant states he was reduced in 2012 from pay grade E-5 to E-4 after he punched another Soldier while trying to prevent that Soldier from entering his room to fight another Soldier. His actions were considered tantamount to inefficiency. a. According to Field Manual (FM) 27-1, chapter 7, commanders should not reduce for inefficiency based on a single event. This was the only time in his almost 21 year military career that he had been in trouble. Not that it totally matters, but he is a state parole agent that supervises sex offenders to give the Board an understanding of his background. b. He believes that inefficiency should not be applied in his case, because his actions represented a singular event. The fact that he punched the Soldier when that Soldier was drunk, and was trying to force his way into the applicant's hotel room (through him) so he could fight another Soldier (who was also drunk and belligerent), should have carried more weight to mitigate the punishment he received. c. He was unaware the regulation states that inefficiency had to show a pattern of behavior and not be used for a single event. 3. The applicant provides no additional evidence in support of his request. 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 enlisted in the Pennsylvania Army National Guard (PAARNG) on 27 October 1995. 3. Orders 105-1014, issued by the PAARNG on 15 April 2005, promoted him to the rank/grade of sergeant (SGT)/E-5 effective 24 March 2005. 4. The applicant was assigned to Headquarters and Headquarters Company (HHC), 28th Combat Aviation Brigade, PAARNG, on 7 August 2010. 5. A DA Form 268 (Report to Suspend Favorable Personnel Action (Flag), dated 30 June 2012, shows the applicant was flagged by his commander for an adverse action, effective that same day. There is no mention of the reason behind the flag and his record does not show when the flag was removed. 6. A DA Form 2166-8 (NCO Evaluation Report (NCOER)), for the period 1 December 2011 through 30 November 2012, shows the applicant received an annual evaluation with 12 months rated time in which he and his rating officials authenticated the form. * Part IV (Army Values/Attributes/Skills/Actions) shows all "Yes" were marked for Army values * Part IV ((Rater) Values/NCO Responsibilities) shows his rater evaluated him with two "Excellence" and three "Success" ratings * Part V (Overall Performance and Potential) shows his rater evaluated him as "Fully Capable"; his senior rater evaluated his overall performance with a "2 Successful," and his overall potential for promotion with a "2 Superior" 7. Orders 290-1073, issued by the PAARNG on 16 October 2012, reduced him in rank/grade from SGT/E-5 to specialist (SPC)/E-4, by reason of inefficiency, effective 13 October 2012. a. His unit of assignment at the time of reduction was HHC, 28th Combat Aviation Brigade, PAARNG. b. Additional instructions on the order read: Inefficiency is demonstrated characteristics that show that the Soldier cannot perform the duties and responsibilities of the grade and military occupational specialty (MOS). Date of Rank (DOR) is the same as that previously held in that grade. c. His DOR to SPC is 19 March 1998. d. His Primary MOS (PMOS) in effect at the time of the reduction was 25B (Information Technology Specialist). 8. The applicant was notified on 12 April 2016 that he was not selected for retention by a Qualitative Retention Board. He was honorably discharged from the ARNG on 7 November 2017. 9. The applicant's record is void of evidence that shows what was considered by his chain of command when it was determined he would be reduced for inefficiency. His record is also void of evidence a reduction board was held or declined by him in writing. REFERENCES: Army Regulation 600-8-19 (Enlisted Promotion and Reductions), in effect at the time, provides that inefficiency is a demonstration of characteristics that shows that the person cannot perform the duties and responsibilities commensurate with the Soldier’s current rank and MOS. a. For the purpose of administrative reduction, inefficiency must be predicated on a pattern of acts, conduct or negligence that clearly shows the Soldier lacks the abilities and qualities normally required and expected of the Soldier’s rank and experience. Although Commanders may consider misconduct, including conviction by civil court, as bearing on inefficiency, misconduct alone will not be the basis for an administrative reduction under this paragraph. b. Soldiers may be administratively reduced under this authority for longstanding unpaid personal debts that he or she has not made a reasonable attempt to pay. An administrative reduction for inefficiency is limited to SGT and above and to one grade (unless formally declined by the affected Soldier, reduction boards are required). A Soldier being reduced for inefficiency must have served in the same unit for at least 90 days prior to being reduced. The commander initiating the reduction action will present documents showing the Soldier's inefficiency to the reduction authority. Documents will establish a pattern of inefficiency rather than identify a specific incident. c. Reduction for inefficiency will not be used to reduce Soldiers for actions for which they have been acquitted because of court-martial or civil proceedings; in lieu of non-judicial punishment; or to reduce a Soldier for a single act of misconduct. d. The commander reducing the Soldier will inform him/her, in writing, of the action contemplated and the reasons. The Soldier will acknowledge receipt of the memorandum by endorsement and may submit any pertinent matter in rebuttal. Any matter submitted by the Soldier must be considered by the reduction board and reduction authority prior to rendering a decision. DISCUSSION: 1. The applicant contends he was reduced for inefficiency as the result of a single act. 2. The evidence of record shows he was assigned to the unit that reduced him on 7 August 2010. His unit commander initiated an adverse action flag on his record effective 30 June 2012. There is no record of when the flag was removed. 3. He received an annual NCOER for the period 1 December 2011 through 30 November 2012 that does not show he was evaluated as substandard. However, he was subsequently reduced in rank for inefficiency effective 13 October 2012. 4. The applicant's record is void of any evidence that shows what caused the adverse action flag, the reduction for inefficiency, whether or not he appeared before an administrative reduction board, nor evidence he declined the board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160010250 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160010250 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2