ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:    29 April 2019

	DOCKET NUMBER:  AR20170000337


APPLICANT REQUESTS:  reconsideration of his earlier request for: 

* Retirement at the grade of E-5
* Recalculation of his years of service for retirement purposes

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149
* Self-Authored Statement

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150000642 on 6 October 2015.

2.  The applicant states that the ABCMR’s previous decision failed to focus on the main contention of his application which was that according to New York Army National Guard (NYARNG) Regulations retirement pay is based on a Soldier’s highest rank held for at least eighteen months at any time during his career.  He served as a sergeant (SGT)/E-5 for over fifteen years.  Additionally, his reduction in rank was illegal, because he no longer had an obligation and should not have been carried as absent without leave (AWOL).  He was supposed to be in an inactive status awaiting a medical discharge.  He is not seeking a handout.  He was called names when he returned from overseas in 1973.  All he did was raise his hand and volunteer for service in Vietnam.  He was a good marine and a good soldier and should be compensated.    

3.  A review of the applicant’s service record shows the following:

     a.  He was honorably released from active duty in the Marine Corps in 1973.

     b.  He enlisted in the NYARNG on 7 January 1985 and continued to serve through a series of enlistments and extensions.

     c.  He was promoted to SGT effective 1 January 1987.

     d.  He was reduced three times over the course of three days, with each order citing to the authority of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), Chapter 11, paragraph 11-60.

* Orders 314-1, dated 9 November 2000, reduced him from SGT/E-5 to specialist (SPC)/E-4 effective 10 November 2000 due to “Inefficiency (AWOL)”
* Orders 7-1, dated 10 November 2000, reduced him from SPC/E-4 to private first class (PFC)/E-3 effective 10 November 2000 due to “Inefficiency (continued and willful absence)”
* Orders 8-1, dated 11 November 2000, reduced him from PFC/E-3 to private/E-2 due to “Inefficiency (continued and willful absence)” 

     e.  On 11 February 2003, applicant was recommended for medical retirement by the State Surgeon due to physical unfitness.

     f.  He was transferred to the Retired Reserve effective 26 April 2003.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows his rank/grade as PV2/E-2 and credits him with 19 years and 20 days total service for retired pay.

     g.  His NGB Form 23B (Army National Guard Retirement Points History Statement), dated 7 January 2013, credits him with 19 years and 20 days of creditable service for retired pay.  

     h.  On 11 January 2013, the NYARNG issued applicant a Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter).

     i.  His application for retired pay was approved on 13 February 2013 with an effective date of 27 November 2012, his 60th birthday.  He was placed on the retired list in the rank/grade of PV2/E-2. 

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that partial relief was warranted.  Based upon the documentary evidence submitted by the applicant and found within the military service record, the Board found an injustice whereby the command administratively reduced the applicant during three consecutive days of a single AWOL offense.  Based upon this recognized injustice, the Board recommended granting the portion of the request relating to restoring the rank of the applicant to Sergeant/E5.  


However, the Board found no evidence either submitted by the applicant or within the military service record which would warrant making a change to the retirement points of the applicant.  For that reason, the Board recommended denying that portion of the request.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


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 changing the rank of the applicant on the National Guard Bureau Form 22 to reflect the rank of Sergeant/E5.
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 recalculation of his years of service for retirement.

	 
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.



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation 15-185 (Army Board for Correction of Military Records) essentially states that the ABCMR will entertain requests for reconsideration submitted within one year of the Board’s original decision if a matter has not been previously reconsidered and/or the applicant submits new facts or argument as to why relief should be granted that were not in the record at the time of the Board’s prior consideration.   

3.  National Guard Regulation (AR) 600-200 (Personnel—General—Enlisted Personnel Management), prescribes the criteria, policies, procedures and responsibilities to, among other things; promote, appoint and reduce in grade enlisted soldiers in the Army National Guard of the United States (ARNGUS).  Paragraph 11-60, in effect at the time, states in part, that a soldier may be reduced one grade for inefficiency.  Inefficiency is defined as technical incompetence or demonstrated pattern or one or more acts of conduct that show lack of abilities and qualities required and expected of a soldier in that grade.  Inefficiency can include one or more acts of misconduct, poor performance, a record of unexcused absences or declaration as an unsatisfactory participant.  A reduction board is authorized for soldiers in the grade of E-5 or higher, and the recommending commander must provide complete justification and documentation to support the reduction action.  Paragraph 11-63 states that a reduction board may recommend a reduction of one or more grades.  Paragraph 11-67 states reductions are announced in orders.  

4.  Title 10, USC, section 12731b, in effect at the time, essentially provides that the Secretary concerned, in the case of a member of the Selected Reserve who no longer meets the qualifications for membership solely because the member is unfit because of physical disability, may determine to treat the member as having met the service requirements for non-regular retirement and provide the member with notification of eligibility if the member has completed at least 15 and less than 20 years of qualifying service. 

5.  Title 10 USC, section 3961, in effect at the time essentially states that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army retires in the regular or reserve grade that he holds on the date of his retirement.


ABCMR Record of Proceedings (cont)	 AR20170000337


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