ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20170012268 APPLICANT REQUESTS: * in effect, restoration of her master sergeant (MSG) rank or * correct her date of rank (DOR) to Sergeant First Class (SFC) * in effect, adjust her retirement pay based on the DOR change * in effect, back pay from her retirement date to present due to her DOR change * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * memorandum for the Inspector General (IG) regarding request for assistance * promotion orders to MSG * DD Form 214 (Certificate of Release or Discharge from Active Duty) * previous Army Board for Correction of Military Records (ABCMR) case * Preseparation Counseling Checklist * retirement orders 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 AR20060004155 on 9 January 2007. 2. The applicant states: * there are two issues and they are both related * her DD Form 214 has the incorrect effective date of pay grade * it is currently listed as 9 April 2004 and should be 1 January 1997 * she is concerned her retirement pay was affected by the incorrect date * she was wrongly taken off of the MSG promotion list after she was promoted and was paid MSG pay for 10 months * both of the issues caused the effective date of pay grade to be incorrect * she was promoted to SFC on 1 January 1997 * she was promoted to MSG on 1 July 2003 * in September of 2003, she was selected to participate on the inaugural committee for the election * after the Labor Day weekend, her branch manager took her off the assignment and put her on assignment to Germany * she found out about the new assignment from a friend who used to be a branch manager * he had gotten the information from a friend of his * she asked for a copy of the audit trail of her records but he didn't give it to her because he did not want to get his friend in trouble * she contacted her branch manager and requested a meeting * she informed him she knew what he had done * she remained on assignment to Germany * her branch manager had replaced her on the inaugural committee with a friend of his * when she was promoted to MSG, she had an expiration term of service (ETS) of 30 September 2004 * she did not reenlist before she was promoted * she understood she was obligated to two years of service as a result of the promotion * she did not have a problem with that but had an issue with the assignment switch * she appealed the injustice to the transportation regimental command sergeant major * she later found out he and the branch manager were good friends * she told her branch she would not take the assignment and would retire * they told her she was not allowed to retire, she would just have to get out with nothing * she was not going to let that happen * she was an outstanding Soldier and wanted to do more than 20 years * at that point, she realized she was not going to get any justice * she was a single parent and did not put in 19 years of service for nothing * she went to the Belvoir IG's office for assistance * they did nothing to help her but advised her to get out with no retirement * she was feeling very helpless as a Soldier and a single parent * her son was having problems with ADHD and she was struggling to get him the right help he needed * she appealed her case to the ABCMR * the results were not favorable * she could not base her case on what her branch manager did because she did not have evidence * she based her case on her son's condition so she could stay in place until she retired, which was less than 6 months * she had been in Kuwait in 2001 and had to leave her son with her sister in Florida * his father would not keep him * it was not the best situation, but she had no other choice * when she returned she was determined to not leave her son again if possible * when she found out she was on assignment for Germany, she knew she would have to deploy to Afghanistan * she could not take her son back to Florida * the only option she had was to retire * if her branch manager had left her on the committee assignment, she would not have had to retire * she was forced to retire and move from the MSG list because her branch manager wanted to hook up his friend * she and her son were wrongly punished by the branch manager's misdeeds * she thinks about what he has done to her family * removing her name from the list was out of spite because she told them she would retire and they could do nothing about it because she had an ETS date * they could not force her to do a permanent change of station 3. The applicant was promoted to the rank of MSG effective 1 July 2003 on Orders 161-9. Within those orders she was instructed, acceptance of the promotion constitutes acceptance of the 2 year service remaining requirement from the effective date of promotion. 4. The applicant was promoted on 1 July 2003. Her two year obligation would have expired on 30 June 2005. She had an ETS date of 30 September 2004. She did not have enough time to fulfill the service obligation she accepted by taking the promotion. The promotion orders further instruct her if she doesn't have sufficient time remaining to meet the two year requirement, she must reenlist for indefinite status or decline promotion. There is no evidence she declined the promotion to MSG. 5. The applicant requested assistance from the IG. The IG stated the applicant had three options: * ETS as scheduled, but she would ETS as a SFC and have to pay back the difference of MSG and SFC pay * request a waiver for hardship per Army Regulation 635-200, paragraph 2-11 and retire at the rank of SFC * reenlist and accept reassignment to a MSG position at Fort Eustis, Virginia 6. There is no evidence in the applicant's record that she requested a waiver for hardship; however, she was placed on the retired list as a SFC effective 30 September 2004 the date of her ETS. Her records contain a reduction order reducing her from MSG to SFC effective 12 April 2004. The orders show "SFC, 970101" the date she was originally promoted to SFC. 7. Her records also contain a memorandum from U.S. Army Human Resources Command removing her from the MSG list due to her approved retirement as an exception to policy. Her removal from the MSG list would have made her ineligible to be promoted to MSG. 8. The applicant's DD Form 214 shows she retired honorably from the service effective 30 September 2004. Her date of rank to SFC is listed as 9 April 2004. 9. On 9 January 2007 the applicant petitioned the Board to restore her rank as E-8 and correct her records to show she was placed on the retired list as an E-8. The Board denied her requests. 10. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 12-8 states a promoted individual may not be administratively reduced to terminate a promotion service obligation. Paragraph 12-10 states all noncommissioned officers in the grades of E-6 through E-8 who are currently on a Department of the Army centralized promotion list will lose promotion list standing upon approval of a retirement. Their names will be administratively removed from a promotion list, and they will retire in the grade currently held. 11. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board discussed the applicant’s promotion with a service obligation, her subsequent separation and the date of rank listed on her separation documents. The Board determined that the applicant did not completed the required obligated service to retain the rank of MSG at retirement, but there was a need to correct her date of rank when she reverted back to SFC. The Board further determined that the available records were sufficient to render a fair decision and denies the applicant’s requested personal appearance. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 amending the applicant’s DD Form 214 for the period of service ending 30 September 2004: Enter in item 12.h. (Effective Date of Pay Grade) 19970101. 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 of her rank to MSG, adjustment of retired pay, or a personal appearance. 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, 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. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 600-8-19 (Enlisted Promotion and Reduction), in effect at the time, states: a. In paragraph 1-13 the date of rank (DOR) in a grade to which reduced for inefficiency or failure to complete a school course is the same as that previously held in that grade. The DOR on reduction for all other reasons is the effective date of reduction. The DOR and effective date will be the same unless otherwise directed by this regulation. b. In paragraph 4-8, soldiers promoted to grades SFC, MSG, and SGM will incur a 2-year service requirement. Service requirement will be from the effective date of promotion, unless soldiers are eligible for retirement based on RCP for the recommended grade, already eligible through prior service for a higher grade at time of retirement, or Age 55 or older. Soldiers not having sufficient time remaining must reenlist or decline promotion. A promoted soldier may not, at his or her own request, be reduced to terminate the required service requirement. c. In paragraph 4-16, commanders will promptly forward documentation to Commander, HRC-Alexandria, AHRC-MSP-E, 200 Stovall Street, Alexandria, VA 22332-0443, pertaining to soldiers on a HQDA recommended list who has an approved retirement. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 12-8 states a promoted individual may not be administratively reduced to terminate a promotion service obligation. Paragraph 12-10 states all noncommissioned officers in the grades of E-6 through E-8 who are currently on a Department of the Army centralized promotion list will lose promotion list standing upon approval of a retirement. Their names will be administratively removed from a promotion list, and they will retire in the grade currently held. Paragraph 12-11 states exceptions to service obligations may be granted when the best interest of the Service is involved or when substantial hardship exists or would result if the Soldier is not retired. ABCMR Record of Proceedings (cont) AR20170012268 5