ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  13 April 2020 DOCKET NUMBER:  AR20190000749 


APPLICANT REQUESTS:  reinstatement of his promotion to Staff Sergeant (SSG). 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DD Form 214 (Certificate of Release or Discharge from Active Duty) dated11 October 2005



FACTS: 

1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code, section 1552(b); however, the ABCMR conducted a substantive review ofthis case and determined it is in the interest of justice to excuse the applicant's failure totimely file.

2.The applicant states that he was a SSG while serving in Iraq as a squad leader whenhe refused to assist his leadership with covering up allegations of racism.  As a result,he was sent before a rank reduction board and reduced to the rank of Sergeant onemonth prior to his redeployment.  The Pentagon later directed that all derogatorydocumentation within his records be removed.

3.A review of the applicant’s available service records reflects the following:

a.On 25 May 1984 he enlisted in the Army Reserve.



b.On 17 July 1984 he was ordered to active duty.



c.On 27 May 1987 he was released from active duty and transferred back into theArmy Reserve. 



d.On 28 May 1987 he enlisted in the Army National Guard.



e.On 20 April 2004 (Order# 121-821) he was ordered to active duty in support ofOperation Iraqi Freedom effective 15 May 2004. 



f.On 6 October 2004 (Order# 280-1043) he was promoted to SSG.



g.On 29 August 2005 an Administrative Reduction Board was conducted findingthe applicant incapable or competent in his current assignment as a Squad leader.  The board therefore recommended that he be reduced in grade from SSG to SGT.   



h.On 11 October 2005 he was released from active duty as a SSG.



i.On 26 January 2006 (DA Form 4187 Personnel Action) a request for reduction toSGT with an effective date of rank as of 29 August 2005 was recommended for approval. 



j.On 9 May 2008 (Order# D130-02) he was released from duty and placed on theTemporary Disability Retired List (TDRL) at the rank of SGT. 



4.The applicant provides a DD Form 214 dated 11 October 2005 reflective of himbeing a SSG upon completion of his last period of active duty.

5.The applicant did not provide nor does review of his available military records reflectaction directed by the Department of the Army or its entities to remove derogatorydocumentation from his official military personnel files (OMPF).

6.See all applicable regulatory guidance below under REFERENCES.

BOARD DISCUSSION: 



1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records, and regulatory requirements.  The Board noted the factspresented above.  The Board considered the applicant's statement, his record of service, an administrative reduction and the absence of evidence should he was recommended or selected for SSG before his separation.  Based on a preponderanceof evidence, the Board determined that there was no error or injustice in the applicant’s rank of SGT nor basis to restore his SSG rank.2.After reviewing the application and all supporting documents, the Board found thatrelief is not warranted.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XXX :XX DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 



XCHAIRPERSON

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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 
 
2.  Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) states that reduction for inefficiency is provided when a Soldier demonstrates characteristics that reflect that he or she cannot perform duties and responsibilities of the grade and specialty.  Inefficiency may also include any act or conduct that clearly shows that the Soldier lacks those abilities and qualities normally required and expected of an individual of that grade and experience. 
 
a. Paragraph 10-7 (Reduction Boards – Policy) states the board may recommend reduction of one or more grades, retention of current grade, or reassignment in grade.  Approved reduction recommendations are effective immediately without regard for appeal procedures unless suspended by the convening authority.  In the instance of reduction for inefficiency, the convening authority may direct suspension of the reduction for a period not to exceed 6 months.  If the suspension is not vacated during this period, reduction may be only accomplished by convening a new reduction board. 


 
b. Paragraph 10-12 (Reduction orders) states that reduction, accept for UCMJ, Article 15, is announced in orders.  When an Article 15 reduction is accomplished for misconduct and the Article 15 was directed to be filed on the restricted portion of the OMPF, a DA Form 4187 will be prepared for permanent filing in the Soldiers personnel file to substantiate the reduction.  Reduction orders will cite the reason for reduction (such as inefficiency or failure to complete training) and the authority for the action. 


 
3.  Army Regulation (AR) 15-185 (ABCMR) paragraph 2-9 states 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. 
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