ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 October 2021 DOCKET NUMBER: AR20210005374 APPLICANT REQUESTS: * Reconsideration of his previous request to reinstate his rank/ grade from Sergeant (SGT)/E-5 to Staff Sergeant (SSG)/E-6 * A personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number on 13 April 2020. 2. The applicant states that he was demoted from SSG to SGT while serving in Iraq with A Company, 1st Battalion, 69th Infantry Regiment on 16 March 2005. His rank was reduced because he refused to cover-up racism within his company. He had one month remaining in country. He had medical issues and applied before leaving. The Pentagon investigated the matter and removed all documents from his record. 3. The applicant's service record shows: a. On 28 May 1987, having prior honorable service in the Regular Army, the applicant enlisted in the Army National Guard (ARNG). b. Orders Number 59-3 issued by Headquarters, 242nd Signal Battalion, dated 14 December 1987, promoted the applicant to the rank of SGT effective 1 January 1988. c. Orders Number 121-821 issued by the Office of the Adjutant General, dated 30 April 2004, ordered the applicant to active duty in support of Operation Iraqi Freedom effective 15 May 2004 - not to exceed 560 days. d. Orders Number 280-1043 issued by the Office of the Adjutant General, dated 6 October 2004, promoted the applicant to the rank of SSG effective 14 August 2004. e. DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 4 July 2005, shows the applicant executed an immediate reenlistment for a period of 1 year in the rank/grade of SSG. f. A Company, 1st Battalion, 69th Infantry Regiment Memorandum, Subject: Recommendation of Your Appearance Before a Battalion Reduction Board, dated 11 July 2005, shows that per National Guard Regulation 600-200 (Enlisted Personnel Management), the applicant was recommended to appear before a Battalion Reduction Board for the following reasons: (1) Lack of technical and tactical abilities to perform as an Infantry Squad Leader. (2) The inability or lack of motivation for self-improvement. (3) Showing an aptitude for poor performance. g. A Company, 1st Battalion, 69th Infantry Regiment Memorandum for Record, Subject: Denial for a Request of Compassionate Reassignment, dated 24 July 2005, in which the applicant requested to be sent home early to enroll his children in school in September. The applicant felt that his ex-wife would disobey a court ruling. The applicant was offered to be sent home on emergency leave on two previous occasions. The applicant insisted that his issues were under control and his presence was not required at home. (1) The applicant's present wife was his attorney in the court proceedings with his ex-wife for child support and she based her defense on his unavailability to appear before the judge. This suited the applicant's purposes when the military had been willing and able to send him home. It was not until the applicant was recommended to appear before an Administrative Reduction Board for a separate issue that he requested a compassionate reassignment to be sent home to avoid the pending process. (2) The applicant's immediate commander denied the request for insufficient reasons and lack of urgency in the nature of his pending issues at home. h. Office of the Staff Judge Advocate Memorandum, Subject: Reduction Board, dated 9 August 2005, stated that the applicant's proposed Battalion Reduction Board violated Army administrative procedure and Army Regulations. (1) National Guard Soldiers in Title 10 status, such as the applicant, are not subject to National Guard Regulations (NGR), but rather, Army Regulations (AR) apply. The 11 July 2005 notice was not delivered to the applicant until on or about 25 July 2005. The notice referenced NGR 600-200 (Enlisted Personnel Management) and therefore, was ineffective. Since the notice was ineffective, any adverse action resulting from the proceedings would be legally insufficient and unsustainable. Even if the original memorandum, notwithstanding the citations, was valid, it is substantively defective for failing to abide by the process outlined in AR 600-8-19 (Enlisted Promotions and Reductions), chapter 7. The notice misstated and omitted the applicant's rights under AR 600-8-19. The applicant was never notified of his right to submit a rebuttal in accordance with AR 600-8-19, 7-6(d). (2) Through counsel, the applicant demanded withdrawal of his summons to appear before the Battalion Reduction Board. If his request was denied, the applicant demanded that the Convening Authority arrange for a Trial Defense Service to be appointed as his counsel. i. On 22 August 2005, the Chief, Client Services provided a memorandum to the Commander, 1st Battalion, 69th Infantry Regiment, Subject: Reduction Board, in which he stated the proposed reduction for the applicant must meet the requirements of AR 600-8-19. The applicant had not yet received an effective notice of board proceedings. If a board was convened by the convening authority, the applicant requested the following: (1) Minority and male board member representation in accordance with (IAW) AR 600-8-19, 7-7b(5) and (6). (2) 15-day notice of the hearing date IAW AR 600-8-19, 7-8a. (3) The presence of the 11 witnesses listed IAW AR 600-8-19, 7-8f. j. A self-authored memorandum, Subject: Reduction under A 600-8-19, Chapter 7, to the Acting Commander, A Company, 1st Battalion, 69th Infantry Regiment, dated 27 August 2005, in which the applicant requested consideration of his case by an Administrative Reduction Board, a personal appearance before the Board, and consulting counsel and representation by military and/or civilian counsel at no expense to the Government. k. 1st Battalion, 69th Infantry Regiment Memorandum, Subject: Findings of Administrative Reduction Board, dated 29 August 2005, determined that the applicant was not capable or competent in his current assignment as an infantry squad leader and was not technically or tactically proficient in his military occupational specialty as an 11B (Infantryman). The unanimous recommendation of the Board immediately reduced the applicant's grade from E-6 to E-5. The board members believed that if no action was taken regarding the applicant's deficiencies, the lives of his subordinate Soldier's would be jeopardized and the battalion's mission would be threatened. l. DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 11 October 2005, shows the applicant was honorably released from active duty (1) Block 4a (Grade, Rate or Rank) – SSG. (2) Block 4b (Pay Grade) – E-6. (3) Block 12a (Date Enter Active Duty This Period) – 15 May 2004. (4) Block 12h (Effective Date of Pay Grade) – 14 August 2004. m. DA Form 4187 (Personnel Action), dated 26 January 2006, shows the request to reduce the applicant's rank from SSG to SGT was approved by the Enlisted Personnel Branch Chief of the New York ARNG (NYARNG). n. U.S. Army Human Resources Command (HRC) Memorandum, Subject: Request for Reduction, dated 27 January 2006, shows the request to reduce the applicant from SSG to SGT, while in a mobilized status, was coordinated with Headquarters, NYARNG and his Regular Army chain-of-command. The effective date of the reassignment and reduction was 29 August 2005. o. DA Form 2173 (Statement of Medical Examination and Duty Status, dated 7 April 2006, shows the applicant was examined at 1130 hours and treated for Paget's Disease. The disease was not incurred in the line of duty, but could result in a permanent, partial disability. p. DA Form 4187, dated 2 June 2006, shows the applicant had an unresolved, open medical case and was medically disqualified due to a health-related condition. q. HRC Memorandum, Subject: Request for Medical Retention Processing, dated 16 August 2006, shows the request to place the applicant on Medical Retention Processing (MRP2) was returned without action. The applicant did not meet the qualifications for MRP2 based on incomplete or missing documentation. r. DA Form 199 (Physical Evaluation Board (PEB) Proceedings, dated 7 March 2008, shows the applicant was placed on the Temporary Disability Retirement List (TDRL) at 60 percent for posttraumatic stress disorder associated with an adjustment disorder, cervical strain, and chronic thoracic and low back pain associated with osteopenia of the thoracic spine. His conditions were received in the line of duty as a direct result of armed conflict or instrumentality of war and resulted from a combat- related injury. The applicant requested a formal hearing. s. Orders Number D130-02 issued by the Army Physical Disability Agency (USAPDA), dated 9 May 2008, placed the applicant on the TDRL at 60 percent effective 13 June 2008. His retired rank/grade was SGT/E-5. t. National Guard Bureau Form 22 (Report of Separation and Record of Service), dated 13 June 2008, shows the applicant was retired in the rank of SGT. (1) Item 10a (Net Service This Period) – 21 years, 0 months, and 16 days. (2) Item 10e (Total Service for Retired Pay) – 24 years, 0 months, and 19 days. u. Orders Number D014-11 issued by USAPDA, dated 14 January 2010, shows the applicant was removed from the TDRL and permanently retired at 70 percent in the rank of SGT. v. On 13 April 2020 and in ABCMR Docket Number , the ABCMR denied the applicant's request to reinstate his promotion to SSG. Based on the preponderance of evidence, the Board determined there was no basis to restore the applicant's rank to SSG. 4. On 9 April 2021, in the processing of this case, an advisory opinion was obtained from HRC, Enlisted Promotions Branch. The advisory official opined she recommended denial of the applicant's request. Records show that on 29 August 2005, an Administrative Reduction Board determined the applicant was incapable or competent in his current assignment as a squad leader and recommended reduction in grade from SSG to SGT. Unless other documentation is provided, there is insufficient evidence, in the form of an official order or other documentary evidence, showing that the applicant's rank should be reinstated. 5. The advisory opinion was provided to the applicant to afford him the opportunity to respond to its content. He did not respond. ? BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record, and regulatory guidance. The Board considered the Human Resource Command advisory opinion and concurred that additional documentation is necessary to support the applicant contention that his rank should be reinstated to that of Staff Sergeant. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF :X :X :X 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. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. 2. 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 Uniform Code of Military Justice, 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 Official Military Personnel File, 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. AR 635-5 (Separation Documents) in effect at the time provides the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing the DD Form 214. For item 4a (Grade, Rate or Rank) and Item 4b (Pay Grade) to enter the active duty grade and pay grade at the time of separation, respectively. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005374 1 1