ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 October 2020 DOCKET NUMBER: AR20200002412 APPLICANT REQUESTS: restoration of his rank to Sergeant First Class (SFC) / E-7 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 4856 (Developmental Counseling) dated 24 February 2019 * MFR – Trial Defense Services Counsel dated 11 April 2019 * DA Form 2823 (Sworn Statement) dated 13 May 2019 * Memorandum for Record (MFR) – Request for Redress dated 22 December 2019 * Email and Text Message Communications * Phone Records FACTS: 1. The applicant states that while he was being processed by a Medical Evaluation Board (MEB), he was reduced in rank for allegedly being Absent Without Leave (AWOL). He contests that the night prior he was directed by his Executive Officer (XO) to report to a duty location 2 hours away that was in excess of the mileage/duration as provisioned by his medical profile. At the time he was only permitted to drive 1 hour due to a medical condition. Instead of doing as directed, he reported to his original work location previously approved by the XO and made himself available by phone, and when the system was operational, his work station. He remained in contact with the necessary points of contact and upon speaking to his supervisor, she made no mention of his duty status being changed to AWOL. He also informed her that he would violate his medical profile and travel to their location if need be. a. He adds that his XO was well aware of his medical condition and the MEB as he initiated it. He was also included in all of the communications associated with it and restrictions involving his inability to travel safely to the directed location. The rank reduction was personal as indicated by the submitted documents. b. He provided witness statements as a form of verification that he was at his appointed place of duty as required and the XO was well aware of this. Also in defense of his alleged AWOL, he provides that witnesses were not questioned. He remained in an AWOL status and was unaware of this as he continued to report to his approved duty location. It was only after he received his Leave and Earnings Statements (LES) and identified that he was not paid for this period due to his AWOL status. 2. A review of the applicant’s available service records reflects the following: a. On 26 March 1996 he enlisted in the United States Army Reserve (USAR). b. On 10 July 1996 he enlisted in the Regular Army. c. On 24 July 2000 he was released from the Regular Army and transferred into the USAR (Individual Ready Reserve). d. On 17 July 2002 he enlisted in the Army National Guard (ARNG). e. On 31 August 2006 (Order# 243-023) he was ordered to full time ARNG duty in an Active Guard Reserve (AGR) status. f. On 17 August 2010 he was promoted to the rank of Staff Sergeant (SSG) / E-6. g. On 30 December 2013 (Order# 364-1063) he was promoted to the rank of SFC. h. On 9 April 2018 he received his Notification of Eligibility for Retired Pay for Non Regular Service (20 Year Letter). i. On 2 April 2019 (Order# 0000006663.00) he was reduced in grade from SFC to SSG due to misconduct effective 15 March 2019. j. On 13 September 2019 a Physical Evaluation Board (PEB) was conducted finding him physically unfit for continued military service with a recommended disability rating of 80%. k. On 18 November 2019 (Order# 322-0001) he was released from assignment and duty due a permanent physical disability incurred while entitled to basic pay effective 22 December 2019 at the rank of SSG. 3. The applicant provides the following: a. DA Form 4856 (Developmental Counseling) dated 24 February 2019 reflective of counseling received from his XO for being AWOL during the period of 23 February 2019. His XO provides that he was ordered to report to Scanton on Saturday and Fort Indiantown Gap (FTIG) on Sunday. The applicant attended a medical appointment on the proceeding Friday after duty hours resulting in a recommendation to avoid driving more than 1 hour in duration. This action would require a change in his duty location. The applicant failed to notify the leadership of this recommendation for over 3 hours when he then sent an email. He notified members of the leadership the following day that he would be reporting to Spring City for duty. The XO emailed the applicant to confirm that he was at work and received no response. 2 hours later he again emailed the applicant raising concern for his lack of communication and directed that he report to a duty location 70 minutes from his residence to which the applicant did not respond. 4 hours later he again sent an email to the applicant directing immediate contact. The applicant did not respond. In result of this counseling he changed the applicant’s duty location to FTIG. The applicant disagreed with the content of this counseling and therefore provided a rebuttal letter. The document is provided in its entirety for the Boards review within the supporting documents. b. MFR – Trial Defense Services Counsel dated 11 April 2019 reflective of SSG M_ R_, Personnel Specialist for the Pennsylvania ARNG, statement regarding verification of the applicant’s duty status during the period of 23-24 February 2019 wherein she provides that the applicant was present for duty within the Spring City Armory during this period. c. DA Form 2823 (Sworn Statement) dated 13 May 2019 reflective of his written testimony concerning his whereabouts on 23-24 February 2019 wherein he provides that he was at the Spring City Armory, the duty location approved by his Battalion level authority back in October – November of 2018. d. Memorandum for Record (MFR) – Request for Redress dated 22 December 2019 wherein he provides contention with the rank reduction due to perceived misconduct and alleged AWOL. He suggests the action was excessive and conducted in retaliation by the XO. He adds that attempts to prove this accusation have previously rejected without investigation or inquiry. This document is also provided in its entirety for the Board’s review and consideration within the Supporting Documents. Contained within is historical information concerning his previous interaction with the XO. e. Email and Text Message Communications reflective of his request to speak with the Deputy Adjutant (G-1), PAARNG/ Battalion Commander concerning his continuous involvement with the XO. The information contained within these communications are also addressed within his provided MFR extensively. However, this document also references a positive drug test and the denial of the applicant’s appeal of the rank reduction conducted by COL P_ as a result of administered related non-judicial punishment. This communication is also provided in its entirety for the Board’s review and consideration within the Supporting Documents. f. Phone Records reflective of calls made to SFC M_ from 23 – 24 February 2019. 4. The applicant’s available personnel records are void of the nonjudicial punishment proceedings conducted resulting in reduction of rank from SFC to SSG. 5. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. Based upon the available documentation, including the approved PEB documentation outlining concerns for why the Soldier should not drive the 70 minutes to work, as well as the overall military record of the applicant, the Board concluded the actions of reducing the applicant from SFC to SSG creating an injustice which warrants correction. Therefore, the Board recommending restoring the applicant’s rank to SFC with the original date of rank of 30 December 2013. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 Army records of the individual concerned be corrected by correcting by restoring the applicant’s rank to Sergeant First Class (SFC) with a date of rank of 30 December 2013, to include on the applicant’s discharge order, Order#322-001, dated 18 November 2019. 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. REFERENCES: 1. Army Regulation (AR) 27-10 (Military Justice) provides that the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this regulation, the imposing commander or any subordinate commander has “promotion authority” within the meaning of UCMJ, Article 15 if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade. Admonitions or reprimands imposed on enlisted Soldiers under formal proceedings may be administered orally or in writing. Written admonitions and reprimands imposed as a punitive measure under UCMJ, Art. 15 will be in memorandum format. 2. AR 600-8-19 (Enlisted Promotion and Reductions) provides that commanders of organizations authorized a commander in the rank of Colonel (COL) / O-6 or higher may conduct administrative – reduction and boards. For reductions due to misconduct, commanders will publish orders and enter the reduction in the military records of the Soldier. The authority for reduction will be cited in the order. The Soldier will be notified, in writing, of the right to appeal the reduction. The written notification will include the time limits and procedures for an appeal. //NOTHING FOLLOWS//