Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 1 of 17

(3) Delete ineligible soldiers, including those formally denied consideration per paragraphll-38, bylining through namesand entering a short explanatory note for the deletion. Noone mayestablish local requirements for considerationsuch as time served in a unit or position, recruiting production,or other criteria not providedin this chapter. (4) Enter manually any missing or changed data on the NGB Form4100-I-R-Eusing the instructions in figure 11-2 and in the state MOI. (5) Determineand enter evaluator namesor positions on individual NGB Forms 410 I-1-R. c. The soldier's leader (generally the first line leader) will review the NGB 4100-I-R-E Form with the soldier to verify informationand update entries in handwritingon the form(or electronically, if providedby the state), obtain the soldier's written choice (X mark)to accept or decline consideration and, if accepting consideration, the soldier's written choice (X mark)of one or moreof the options provided by the state per paragraph11-34a, and obtain the soldier's signature and the date signed. When soldiers are not available to do this in person, the commander a delegate) maydo this by telephone, facsimile transmission, or mail (including email), accomplish (or all of the required actions, and sign and date the formfor the soldier. Soldiers who not available to process their are NGB Forms4100-1-R-E due to unsatisfactory participation (for drill status soldiers) or absencewithout leave (AWOL) soldiers on orders for 30 or more days for ADSW, (for ADT,FTNGD special work or training, Annual for Training for 30 days or more, TTAD AGR) or will not be contacted while in this status. If they do not return to duty before the cut-offdate for submission of documentsannouncedby the State AG(MPMO) the MOI the in for promotionboard, they will not be considered by that board and are not eligible for standby consideration. The leader will (1) Interview and counsel each soldier using NGB Form 4100-1-R-E. (2) Have each soldier verify the individual data in sections MII. (a) Soldiers will be considered for promotion, anrolled in NCOES, selected for assignmentsbased on their and CPMOS. CPMOS be the primary MOS The will unless there is a compelling reason for it to be another MOS. For example, a merger MOS such as 75B2that merges into 75H3; a command directed reassignment for an AGR soldier from 75B to 13B to become Training NCO; a soldier in an isolated MOS a or with little chanceof progression such as Legal NCO D) or Chaplain's Assistant (71M). In cases other than the merger in the same CMF, soldier (71 the must request the new CPMOS DAForm 4187 through command on channels to the State NTMO chapter 5 of per this regulation. (b) Soldiers mayprovide documents update the form and the personnel data base by enclosing it with the to NGB Form4100-I-R-E. The source documentsthat maybe used to update personnel data are listed in each of the data fields in NGP (AR)25-I0. For instance, Civilian EducationLevel is in paragraph2-36: the source is listed Diploma/certificate, school degree or transcript. Incompleteand questionable documents not acceptable. are d. Individual leaders in the field whorate soldiers using NGB Form4101- I-R, and forward their evaluations under the leader evaluation process, should counsel each rated soldier on their strengths and weaknessesand what they maydo to improve their individual qualities and qualifications. 11-36. Individual soldier actions The data on NGB Form4100-1-R-Eare taken from the ARNGUS personnel data base, and are the basis for promotion consideration. a. Soldiers must verify the accuracy of entries and update the data as required. b. Soldiers must accept or decline consideration in their ownhandwriting on the form. They also must select by X mark one or more of the options provided in part IV of the NGB Form4100-I-R-E(or a state supplemental list of options) to showwherethey are available for assignmentand promotionto the higher grade as provided in paragraphs 11-34a(2) and 11-35c. (1) Theymaydecline consideration for promotionwithout penalty. This is only a declination of consideration for promotion, assignmentto higher graded positions, and NCOES training. The declination will be in effect only during the life of that list. Soldiers who decline considerationwill be consideredby the next regularly scheduled promotionboard if they remaineligible. Theyare not eligible for standby consideration regardless of the reason for declination. (2) Thosewhoaccept consideration, whenlisted in the selection objective of the promotionlist, mayexpect to be trained in the NCOES course required for the promotion, promotedand assigned to higher graded positions during the life of the list per paragraph11-42cof this regulation. Assoon as the promotion list is published, soldiers in the selection objective of the list whoare not graduates, or enrolled as students in, the NCOES course required for the promotion list grade, should, and may required to, enroll in that course. If they accept consideration for be

881

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 2 of 17

promotionand NCOES training on NGB Form4100-I-R-E, are listed in the selection objective of the promotion list and, based on that, are selected for promotionand assignment, and decline a school or assignment(and the promotion)for whichthey are eligible (based on the options they selected per paragraphs 11-34a(2) and 11-35c, fail to apply for, accept enter, or graduate from a school required for promotion other than by reason of medical disqualification or extreme hardship approvedby the State Adjutant General (or DARNG Title 10 AGR for soldiers), will be removedfrom that promotion list. They maybe considered by the next regularly scheduled promotionboard, if still eligible, but are not eligible for standbyconsideration. Unit leaders mustencourage help soldiers in the and selection objectives of promotionlists to apply for required NCOES courses. c. Not used. d. States should combinethe CSM selection process in chapter 9 of this regulation with the SGM Promotion Board as stated in paragraph 11-33a. This process requires a means for eligible SGM, and MSG accept or 1SG to decline consideration for CSM such as using DAForm 4187 to accompanythe NGB Form 4100-1-R-E. For 1SG and MSG selected for CSM not this will not affect their eligibility for promotionto SGM their MOS. in 11-37. Correspondencewith the board No one, other than soldiers being considered for promotion, maycorrespond with a promotion board, and then only in their ownbehalf. If the boardis prescribed in a format other than a formal board sitting jointly, no one may correspond with the board. a. Soldiers being considered maywrite to the president of the promotionboard to provide documentsand informationcalling attention to any matter concerningthemselvesthey feel is importantto their consideration. Althoughwritten communication authorized, it is encouraged is only whenthere is somethingthat is not provided in the soldier's records, and whichthe soldier feels will havean effect on the board's deliberations. Thesoldier's official record is used to determinequality and potential. Correspondence boards will not be acknowledged, to will not be a basis for reconsideration, and will not be included in the soldier's permanent personnel records (MPRJ, TAG file or CMIF). Documents permanent filing must be processed per both ARand NGR for (AR) 600-8-104. b. The following documents not authorized and wilt not be given to the board: are (1) Correspondencefrom anyoneother than the soldier concerned (this precludes communication from the soldier's chain of command, support channel, political sources, or other third parties). NCO (2) Correspondence criticizes or reflects on the character, conduct, or motives of any soldier. that (3) Incomplete appeals of items such as NCOER, courts-martial, Article 15 or comparablestate code AER, actions, etc. (4) Incomplete copies of NCOER AcademicEvaluation Report. Only fully completed documents processed or through official channelswill be seen by the board. c. Letters or memoranda all enclosures) seen by a selection board become (and part of the board record and are not filed in personnelrecords. Non-receiptof a letter to the board president is not groundsfor reconsideration by a StandbyAdvisory Board as described in paragraph 11-53. 11-38. Denyingsoldiers consideration for promotion Soldiers whoare eligible for promotionmaybe denied consideration as shownbelow, using the guidance and procedures in paragraph 11-49g below. Denial maybe based on misconduct, shortcomings in personal and professionalqualities and qualifications, or lack of potential to serve at the higher grade. This action generally will be taken when individual deficiency is not sufficient to warrant a bar to reenlistment or extension or elimination the from service. When approved,the denial of consideration will be maintained with, and will expire with, the promotion list for whichit wasinitiated. a. Initiate denial of consideration on DAForm 4187. Enclose DAForm 4856 on which the commander has personally counseled the soldier on the reason for recommending denial. Soldiers mayrebut their commanders' recommendations submit statements that directly affect the circumstances. Theseactions will take place in time and to allow the soldier 30 days to prepare comments consult with a judge advocate, if desired, and to allow the and approval authority to take final action before the board process is complete. Holdingthemuntil the completionof the evaluation cycle mayrequire Standby Advisory Board action whena recommendation disapproved. is b. Denial of promotion consideration for SPC, CPLand SGTmaybe approved by the first higher commander authorized in grade LTC higher. or c. Denial of promotion consideration for SSGand SFCmaybe approved by the first commander authorized in gade COLor higher. d. Denial of promotion consideration for MSG be approved by the State AG. may

882

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 3 of 17

e. These commanders personally approveor disapprovethese actions, and wilt not delegate this authority. will The final appeal authority is the State AG. Section II The Evaluation Process 11-39. General The complete evaluation process is a board process and should be modeledon the following lines. States mayvary from this modelprovided every soldier in each grade is evaluated the sameway. For instance, states mayprescribe formal, joint boards at the STARC for senior boards, and decentralized or informal boards at major subordinate HQ command regional levels, or any combinationof these. These decisions maybe madebased on resource, distance, or time, leader availability, and troop populationfactors decidedby the state. At least three individuals will evaluate each soldier as prescribed by the State AG(MPMO). However,these boards will be conducted the same for each grade of rank across the state as specified in the state MOI other directive that prescribes each board. or a. If the leadership chain (chain of command, supervisory channel, or NCO support channel), as designated State MO1, the board, that process must be followed throughoutthe state for that grade. This constitutes a board is and, althoughit maynot meet jointly, will act accordingly. Unless othar~vise stated here, the wordboard applies to both leadership chain evaluation and formal boards sitting jointly. b. Rules for boards: (1) Three to five members senior in grade to the soldiers being considered, with the senior member as president, will evaluate all soldiers considered. When large numbers soldiers are considered, the convening of authority mayappoint two or more panels, each comprising three or more members, each of which will consider and a portion of the total records. (2) Promotionboards will generally be comprisedof enlisted soldiers. The president will be a CSM unless there is no CSM available, then a SGM preside (except for the SGM may board and CSM panel). When officers are used in these boards and panels, use LTC higher for SFCand MSG or boards (except the ISGpanel), and COL higher for SGM boards, with a senior COL a general officer as president. Panels should include at least one or officer and two senior NCOs, whenofficers are included. (3) The CSM panel of the SGM board will include CSMs review SGM, and MSG to 1SG ~vho are eligible, per chapter 9 of this regulation, and accept consideration for CSM. officers are included, they wilt be COL higher. If or I SGs and MSGs selected for CSM this panel are automatically selected for promotion to SGM CPMOS by in 00Z50 (paragraph 11-43e). (3. I) The l SGpanel of the MSG promotion board, if used per paragraphs 5-30d(1) and 11-33b. 1 of this regulation, will include only 1SGsand soldiers in higher grades of rank. Officer membership limited per is paragraph 11-39b(2) above. (4) If minority members being considered, boards will include at least one minority member a voting are as member, tfthis is not possible, the recorder will write the justification into the final boardreport. (5) If females are being considered, boards will include at least one female as a voting member. this is not If possible, the recorderwill write the justification into the final boardreport. (6) Boards mayinclude minority membarsand female memberseven though the board maynot be considering female and minority soldiers. The board should not be composed entirely of minority or female members. Convening authorities will document explain unusual board composition, such as all (or no) minority or female and members, inclusion in board reports. for (7) Eachboard and panel maybe served by a nonvoting recorder or other administrative support from the supporting S-I, personnel office, or other Adjutant General Corpssoldiers. 11-40. Evaluate soldiers fur promotion Board members will evaluate soldier performanceand potential using the whole soldier concept. The sum of each soldier's qualities and qualifications, matters of record, past performance with the heaviest weightgiven to the recent past, and tbe soldier's potential to serve in positions of greater responsibility, mustbe consideredobjectively. a. Considerall soldiers equally and fairly according to the memorandum instruction and the instructions for of NGB Form4101 -I-R- Members formal boards that meet jointly will not discuss any specific scores or findings of with individual soldiers or in public.

883

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 4 of 17

b. Board members may,as stated in the MOI,discuss the general promotion selection process to help their soldiers and others to better understandthe process. Theymayalso counsel their soldiers on the data in their records and howtheir qualifications and qualities compare the criteria in this chapter and the MOI. to c. Using NGB Form4101-I-R, rate each soldier fairly in each area under Performanceand Potential. d. Members formal boards will review available records such as MPRJ of with NCOERs, Academic Evaluation Reports, qualification records, correspondence, and other official matters. Anauthorized memorandum to the president of the board (paragraph 11-30 above) will be shown all members the board designated to of evaluate the soldier whosubmitted it. Theywill not review medical records. Members will refer questionable items to the recorder whowill consult with the Personnel Officer. e. Board members will not depart from the board with any type of notes. f Recorderswill collect all forms, notes and materials used in the evaluation process, and: (1) Verify that entries and scores lmve been madecorrectly and transcribe them to NGB Form4100-1-R-E, section VI only after all board members evaluated tbe soldier. have (2) Ensurethat there is a supporting document attached to the NGB Form4100-I-R-Efor each altered entry in sections I-IlL (3) Sign and date the form, obtain the president's signature and date, and submit themaccording to the memorandum instruction. of (4) Destroy all notes and extraneous materials. g. Process the forms through personnel channels to the State MPMO entry into the database. for Section VIII Approveand Publish Promotion Lists 11-41. Approvepromotion lists The State MPMO -will a. Ensurethat all actions taken and entries on the forms are correct and that this regulation and the MOI have been compliedwitb. The State AGmaydisapprove a board whenthere has been a material error: in the charge to the board (the MOI);in the selection of board members; whenboard members used incorrect criteria (added disregarded, or selectively applied one or morecriteria); or throughany other major compromise the board's of conductor integrity. b. Process the data and generate a promotionlist for each grade with all individuals considered ranked from highest to lowest by their promotion or CPMOS (with numberone being the highest). For example, the SFC PromotionList for MOS mi~t showSSGswith numbers1 through 25 of whom first 14 are in the selection 13B the objective (paragraph 11-42c). For Title 10 AGR soldiers, the list will be arrangedby functional area. Tour c. Include on the list the data neededto identify individuals and to help manage list such as AGR, the Military Technicianand NCOES status codes; unit ID; ZIP codes; declination status or codes; etc. d. Approve gain approval of the conveningauthority per paragraph11-2 of this regulation and the state's or MOI,of the promotionlist. e. Retain promotion board files for two years. Minimum documentation includes: (1) Tbe board appointment and memoranda instructions. of (2) TbeNGB Forms 4100-l-R-E with enclosures (other than source documents processed to SIB) oneach soldier considered. (3) Written communications accepted by the president from promotion candidates. (4) Thefinal approval, master promotion list and, if the boardsubmitsone, an after action report. 11-42. Determine promotion status a. The State MPMO in concert with the HRO it affects full-time support soldiers, determine the will, as numberof soldiers required for promotion in each grade and MOS based upon: (1) Current vacancies. (2) Positions occupiedby junior grade soldiers, whether promotableor not. (3) Vacanciesprojected during the life of the promotionlist (approximatelyone year) including grade vacancieson carrier UICs that will become effective during the life of the list. (4) A statistically relevant projection to allow for attrition fromthe list. (5) Anallowance for Military Technicians and AGR soldiers whomayrank high on the list but be ineligible for a significant numberof anticipated vacancies based on State programexperience. Allowance also be madefor a may

884

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 5 of 17

number M-Day of soldiers whomayplace high on the list but be ineligible or unavailable due to program requirements, geographic location, AGR Military Technician programs, etc. or b. If prescribed in State policy, establish a minimum promotionscore. c. Set the selection objective for each MOS include the maximum to numberwhomayexpect to be trained, promoted assigned during the anticipated life of the list. Onlythese soldiers can expect to be trained, assigned and or promoted.Soldiers belowthe selection objective cannot normallyexpect to be selected from this list. d. Soldiers in the selection objective, even though assigned but not yet promoted,are considered "promotable' while on the list but will not use tbe letter (P) in correspondence other documents or unless specifically authorized AR25-50, paragraph 7-5c. e. All other soldiers on the list belowthe selection objective, but abovethe minimum promotablescore, if one is set, will still be eligible for assignment,training and promotion sequence the original expectationsare in if exceeded. 11-43, Publish promotion lists a. Print a promotionlist by MOS each grade (paragraph 11-41 b) with the information specified by the for State MPMO distribute a copy to each unit authorized a field officer commander, and each STARC director, and each STARC detachment except the Selective Service Section. The minimum information on a promotion list will be the soldier's name,promotionor career progression MOS functional area for Title 10 AGR),promotion (or points, and a code to determine M-Day, Technician or AGR status. This last item is necessary to determine eligibility for manyassignmentsdue to compatibility requirements. States mayadd items needed to manage the programsuch as unit abbreviation, NCO education code, etc. Everyonewhohandles lists with Social Security Numbers (SSN)will be cautioned to protect the lists from public disclosure. b. States may also publish derivative or extract lists and distribute themto any level desired. Theselists will not alter anyone's sequencenumberin the MOS any other standing. Lists published to small unit level and which or maybe posted in orderly roomswill not include SSNS. c. Commanders notify soldiers whowere not selected on the day before the list is announced large. may at d. Althoughthe promotionfist will be published throughout the State, the State MPMO maintain the will official master list at the State HQ.This list, whichmustinclude the SSN accurately identify each soldier, will to showall deletions, changes, additions, promotionsand other actions the State MPMO prescribes. e. The promotion or CPMOS soldiers selected for CSM promotion to SGM MOS for and is OOZ.List them by the type of organization or specific organization for whichthey were nominated selected per chapter 9 of this and regulation In this case, the type of organization takes the place of the junior soldiers' MOS determinethe relative to ranking for promotion and assignment. f. The MPMO but is not required to, publish updated lists periodically. Individuals integrated into the may, list, and those whosepositions changeon the list for any reason, maybe entered electronically or manually the at discretion of the State MPO. Section IX Select Soldiers fromPromotionLists 11-44. General a. The State MPMO will, in concert with the State HRO, determine the methodsto request, assign and promotesoldiers, including those whoare Military Technicians and AGR, available vacancies throughout the to State in promotion sequence using the guidance in this paragraph and in paragraph 11-45 below. NGB-ARZ-T performsthis function for the Title I0 AGR Program. b. When promotionlist is published, soldiers are eligible for immediate the assignmentto positions and, if qualified, promotionconcurrent with the assignment. Assignment a position from the promotionlist as the first to soldier in sequenceeligible and available for the position assures the promotion.For soldiers already assigned to positions whenthe list is published, see paragraph 11-44g(2) below. NOTE: soldiers wilt not be promoted AGR pay grade E8 or E9 without a controlled grade allocation. c. Soldiers are immediatelyeligible for the NCOES training required for promotion per paragraph 11-28a of this regulation and assignmentto positions authorized higher grades, but will not be promoted until they satisfy the NCOES requirementfor the promotiongrade listed in paragraph 11-28a. This is a statutory requirementthat is not waivable as stated in the Army National GuardCombat Readiness ReformAct of 1992 (Title XI, section 1114, of the National DefenseAuthorizationAct for Fiscal Year 1993). As soon as the list is released, soldiers in the

885

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 6 of 17

selection objective whoare not yet trained in the NCOES courses for their promotionsmust apply for the required course. States mayestablish specific times in whichsoldiers must apply for these courses and be listed in ATRRS or be removedfrom the promotionlist. d. Soldiers maybe considered for assignment and promotion without regard to SQI, ASI and LIC required for their positions unless the qualification is indispensable to performance. States mustuse a consistent standard for each MOS, grade, functional area, and type of unit. e. Soldiers in the selection objective of the MSG promotionlist whoare selected for First Sergeant positions are eligible for immediatepromotion uponassignment, and appointmentto the grade of ISG. They should be identified early enoughto attend the First Sergeant Course (FSC)(ACor RC)before assignment. However, states mayset a policy to require these soldiers to completethe FSCbefore promotion they set it as a state-wide standard. if See paragraphs5-30d, 11-33b.1, and 11-39b(3.1) of this regulation for further guidanceon First Sergeants. f States shoald have current SGMS, MSGs the SGM and on promotion list, designated and approved for appointmentto CSM anticipated CSM for vacancies using the procedures in chapter 9 of this regulation. g. Commanders assign currently eligible, available soldiers per chapter 5 of this regulation, including will career development reassignments in grade, before requesting soldiers from promotionlists. Soldiers assigned to higher gaded positions who: (l) Are not eligible for promotion,were eligible for but declined consideration by the board, or ranked so low in the promotionlist that they will not be trained or promoted,maybe removed from their positions whenthere are one or moreeligible soldiers on the list whocan be assigned to and promoted their positions. in (2) Are not immediately promotable due to their sequence numberon the MOS promotion list mayremain in their positions and be promoted whenthe eligible and available soldiers rankedahead of themon the list in their MOSs been promotedin their positions; selected and assigned, whetherpromotedor not (if awaiting training); have removed from the list administratively; determinedineligible or not available for an assignment;or declined an assignment and promotion. h. Military Technician and AGR soldiers will be selected, assigned, trained and promoted a concerted effort in between the States MPMO, and POTO assure equitable management.Although they maybe assigned to HRO to positions identified only for members these programs,their promotionsequencewill be determinedper paragraph of g(2) above and, ifAGR or MSG, controlled grade allocation is available to promotethe soldier. SFC a i. Specialists whoare in the selection objective of the promotionlist for their CPMOSs have completed and PLDC, be trained and then concurrently awardedSQ14, assigned as described in paragraph 5-24a(4) of this may regulation to AGR Recruiting and Retention NCO positions, and promotedto SGTagainst the R&R position authorization. 11-45. Selecting soldiers from promotion lists Chapter 5 of this regulation covers the assignmentof soldiers. Usethat guidanceand the followingpolicies, proceduresand options to fill positions. a. Soldiers will be offered assignmentto available vacanciesfor whichthey are eligible and available starting with the lowest promotionsequencenumber continuing until the selection objective is exhausted, all vacancies and are filled, or the list expires. If soldiers are eligible and available for the assignment,they will be assignedand promotedprovided they have met all other requirements for the promotion. 1SGsand MSGs the SGM on Promotion List for CSM will be eligible and available for MOS assignments, and immediatepromotionconcurrent with 00Z assignments only after approval by the HQDA(NGB) CSM ARNG Selection Board per chapter 9 of this regulation. SFCson the MSG PromotionList and the ISGSelection List are eligible for immediatepromotion concurrent with assignmentto First Sergeant positions as discussed in paragraphs5-30d and 11--44e. Soldiers whoare flagged are not eligible for assignment,training or promotion until the SFPA closed. Thesesoldiers will not be contacted for is assignmentto higher gradedpositions while in a flagged status. States will establish proceduresto contact and solicit individual responses (acceptance or declination) only from eligible and available soldiers whohave selected option to serve at a unit or location or within an area or distance, including allowableresponsetimes (and the consequencesof failure to respond) Guidanceon the options is in paragraphs 11-34a(2) and 11-46 below. State MPMOs ensure that additional criteria or unauthorizedscreening criteria or proceduresnot specified in this will chapter or chapter 5 are not addedto this process. b. Soldiers within the published commuting distance (50 miles from the soldier's residence unless another standard has been established by the State AG)must accept promotionand assignmentto positions for which they are eligible (qualified) and available.

886

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 7 of 17

(1) The travel distance and time tales for involuntary assignmentin AR135-91, paragraph 5-5, are designed to ensure safe, reasonablerequirements soldiers. Theyensure the evenapplication of rules to all soldiers on that for list. States should use themwhen setting the distances that apply to assignmentsfor promotions under this chapter. For this chapter only, the samecircumstancesas an involuntary assignmentoccur whena soldier declines a promotionand is removedfrom a promotion list. (2) No one other than the conveningauthority mayadd a requirement for the assignmentor promotionthat is not set in the MTOE/TDA. Standards published by the state will apply to all soldiers in the grade or grades for whichthe standards are set. (3) AGR soldiers are not subject to the commuting distance standard. Theyare eligible for statewide reassignment and permanent change of station moveper NGR 600-5 and the Joint Federal Travel Regulation when selected for promotionand reassignment. (4) Soldiers serving in assignments that have a service requirement, such as an AGR madea permanent who changeof station (PCS)move not be eligible or available for many may assignmentsdue to the restriction subsequent PCSmovesalthough otherwise Myqualified for promotion. c. Soldiers selected for assignmentswhenthey are fully qualified will be promotedconcurrently with the assignment. They maynot be assigned to positions nor promotedin the positions until the incumbentsare reassigned or separated. The only exceptionto this is the authority to have a promotionceremony the soldier's current unit at immediatelybefore reassignmentper paragraph1 t-15a of this regulation. Those whoare assig'ned before they complete required NCOES courses, will be promotedwith effective date and DOR of the day after they complete as the required training or the date on whichthe state receives a controlled grade allocation. Orders maybe published in advanceof the actual vacancyto allow planningand processing, but the effective date of the soldier's promotion and assignmentto the position will not be earlier than the day after the incumbent leaves the position. d. Oncethe soldiers in the selection objective are assigned to positions, they generally remainpromotable basedon the list fromwhichselected. (1) Soldiers selected from the list and assigned to positions, but whoare not promoted because they have not yet completed their scheduledNCOES the end of the list, will be listed on an extract. Theextract list wilt ensure by their promotions,without further board action, the day after they completetraining. (2) However,AGR and MSG SFC assigned, but for whom there are no controlled grade allocations against whichto promote,will remainassigned to the positions and maybe considered anewby the next boards (see paragraph11-33b above.) State leadership decides whichpositions and soldiers are allocated to the limited number of controlled grades, and the methodthrough whichthis is done. 11-46. Declining promotion and assignment a. States mayset proceduresthat allow categories of soldiers to decline consideration in advancewhen, although they maybe eligible for assignments, the likelihood of acceptance win be small. For example, SPCand CPL be allowed to decline consideration outside of their unit or city; SPCthrough SGT,and any other grade, may mayelect advancedeclination of any assignmentover the stated commuting distance; Military Technicians maybe allowed to decline in advanceany non-compatibleposition; etc. b. AGR soldiers selected for higher priority units than those in whichthey currently serve maynot decline assignment. Also, they maynot decline any other management directed moveunder AGR program management policies. Theseare conditions of remainingon active duty status, and refusal is groundsfor relief from active duty and from the promotionlist. c. Declinations will be madein the form prescribed by the State. However, declination of an assignmentfor whicheligible and available, (including commuting distance), or refusal of training under this program should be writing. Soldiers whodecline assignmentsor require training for whichthey are fully eligible will be administratively removed from the promotionlist. They will not be reinstated on the list under any circumstances but maybe consideredby future boards if they remaineligible. 11-47. Hardship affecting promotion and assignment a. Soldiers maydecline an assignmentfor whichthey are other~vise fully eligible based on hardship that develops after they sign NGB Form4100-I-R-E accepting consideration for promotion. b. Soldiers with hardships approvedby the State AG will stay on the list but are not eligible for an assignment or promotion until the hardship no longer exists. c. Someexamplesof hardship are increased demandsbased on family or medical problems, civilian education, and civilian employment.

887

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 8 of 17

Section X Removalof Soldiers from PromotionLists 11-48. Administrative removal Commanders will promptly advise the State AG(MPMO) writing with supporting documents to removefrom in promotionlist the nameof a soldier who: a. Is reduced. b. Is discharged from ARNGUS enlisted status other than for immediate reenlistment c. Has a retirement approved before the board date set in the memorandum instruction. of d. Is barred from immediatereenlistment or extension of enlistment, or non-selected for retention by a board before the date set in the MOI. e. Wasconsidered in error and selected. (1) Soldiers erroneously considered and selected whoare promoted before discovery of their ineligibility will have their promotions revoked. (2) If warrantedby commanders' explanatioas, State AGs grant these soldiers de facto status for the period may served in the erroneous grade per paragraph 11-11. f. Has been considered by a reduction board whose recommendation to removethe soldier from the list. was g. When notified of NCOES training required for promotion, declines, refuses or fails to apply for, enroll, be acceptedinto, or graduate due to an act, omissionor failure of standards. I1. For soldiers whoseMOS whichthe soldier is on the promotionlist) has been eliminated (in reorganization, whorefuses or fails to completetraining required for reclassification per para~aph11-27e(2). i. Declines an assignmentwithin the published commuting distance for which fully qualified and eligible unless an exception to policy has been approvedby the State AG. j. Enrolls in a commissioned warrant officer producing program. or initiated removal 11-49. Command a. Commanders recommend may that a soldier's namebe removedfrom an approved list at any time. b. When recommending soldier for removal, the following must be considered: a under UCMJ State code) or nonpunitive measuresshould not automatically be the sole basis (or (I) Ponishment to suggest that a soldier's namebe removed fromthe list. (2) The soldier's conduct before and aRer the punishmentor nonpunitive measuresand facts and circumstances leading to and surrounding the misconductmust be considered. (3) To removea soldier based solely on a minoror isolated incident of misconduct be unfair to the soldier. may Removal from a promotionfist has far-reaching, long-lasting effect on the soldier. The probability of subsequent selection for promotion extremelylimited. is (4) Commanders should evaluate circumstances to ensure that all other appropriate actions have been taken (training, supervision, and formal counselinghave not helped) or the basis for considering removalis serious enough to warrant denyingthe individual's promotion. c. The commander must submit a recommendation removal on a soldier whois not in compliance with the for 6 or 12-monthrule in AR600-9, or consecutive failure of record APFTs. d. The commander submit a recommendation removal for one or more of the following reasons: may for (I) Punishmentunder Article 15, UCMJ comparableState code, whether directed for filing in the or performanceor restricted portion of the soldier's OMPF, for Title 10 AGR or soldiers, in their CMIF NGB. at (2) Anycourt-martial conviction. (3) A memorandum reprimand, signed by a general officer, placed in the soldiers OMPF of orNGB CMIF. (4) Adversedocumentation directed for filing in the soldier's OMPF. (5) Otherderogatoryinformation receivedin official channels, but not filed in the soldier's official records, if it is substantiated, relevant and might reasonably and materially affect a promotionrecommendation. e. Recommendations removal may be submitted for substandard performance. Definition: The commander for determinesover a reasonableperiod of time (at least three months)that the soldier's work: (1) Is such that promotionto the next higher grade wouldnot be in the best interest of the ARNGUS;or (2) Has declined to such a degree that the soldier no longer has the potential to performin the higher grade. f. Recommendations should not be submitted on isolated acts based on short-term supervision. To ensure a fair and impartial decision, each case must be investigated thoroughly.

888

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 9 of 17

g. Process removalactions as follows: (1) Before sending a removalaction to the State AG consideration, the commander deliver it in writing for will to the affected soldier. Include all documents will be submittedto the State AG the notification to the soldier. that in The soldier win be allowed30 days, or until 5 days after the unit's next regularly scheduledtraining assembly AT or period, whichever first to respondin writing to the proposed is action after receipt of the written notice. The maximum period should be limited to 2 monthsto ensure that the soldier is notified and has the time to prepare, but that the process continues to move funvard. The soldier mayinclude the opinion and statements of third persons in the response. The commander extend this time for reasons beyondthe soldier's control. may (2) Asoldier who elects not to respondwill reviewthe entire action, state the election not to respondin ~vriting, sign the statement, and return the action to the commander. (3) The commander will submit the action for review through command channels to the State AG.Include with the recommendation copy of the soldier's DA a Form2-1 (in States without a central records center or Personnel Service Branch), SIDPERS Personnel Qualification Record, and DAForm268, if flagged. (4) A commander any level maydisapprove the recommendation, at include the reason for disapproval, and return the action through command channels to the originator. (5) On recommendations processed through the chain of command not disappr0ved at a lower level, the and State AG will makethe final decision based on results and recommendations the State level standby advisory of board. Section Xl Integrating Soldiers into Promotion Lists 11-50. General a. This section describes howto integrate soldiers into approvedpromotionlists. b. Individuals whoenlist or reenlist into the ARNGUS any other component the Armed from of Forces of the U.S. maynot be integrated into promotion lists. They maybe considered by the next scheduled promotionboard, provided they are eligible, or considered by a Standby AdvisoryBoard (STAB) paragraph 11-53, whendirected per by the State Adjutant General. 11-51. " Interstate transfers and inservice recruiting a. Soldiers with promotion list status in one state whotransfer to another may integrated into the newstate be promotion list. The State MPMO contact the losing state to obtain the soldier's official standing and related may records. b. Integration will be in the soldier's promotion or CPMOS. the newstate does not have the soldier's When CPMOS, reclassify the soldier and recompute soldier's score. Integrate the soldier into the list in the newMOS. the c. Soldiers with promotion list status in the active Army,a USAR Troop ProgramUnit, or USAR Control Group(IMA)whoenlist or reenlist into the ARNGUS not eligible for integration into ARNGUS based are lists their active Army Reserve promotionlist status; each component a different system. However,State AGs or has may direct a STAB consider this category of soldier for integration. to d. Soldiers integrated into approvedpromotionlists will be administratively reviewedand placed on the list immediatelyafter the individual with more points or the samenumber poitus. Their places will be designated with of decimals. For instance, betweensequence numbers60 and 61, one soldier wouldbe numbered60. 1; a second wouldbe 60.2; etc, 11-52. Soldiers reclassified while on promotion lists Soldiers reclassified for other than loss of qualifications due to inefficiency or misconduct will compete training, for assignment and promotion in the new MOS. These soldiers will be removedfrom a promotion list, but State AGs maydirect a STAB consider soldiers' promotionstatus for integration into a list in the newMOS. to 11-53. Standby Advisory Board a. The Standby AdvisoryBoard (STAB) used whena soldier meets the conditions listed in the remainder is this paragraph, lfa boardis in session, comprisedessentially as was the original board by whichthe soldier wasor should have been considered, they maybe charged as a STAB fully evaluate the soldier's record using the original to board charge. When there is no board in session, assembleone using the rules in paragraph 11-39.

889

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 10 of 17

b. Generally it is not used whena board was not properly conductedfor an entire class of soldiers such as everyone in one grade, one unit, one career management field, or one MOS. that event, the MPMO have to In will invalidate some all of the original board, reconstruct the soldier's records and the board, and conductthe board or essentially as of the date the proper action should have occurred. c. The State AG(MPMO) approve cases for referral to a STAB may upon determining that a material error exists. d. The State MPMO determineifa material error existed in a soldier's official records whenthe file was will reviewed, or should have been reviewed had the error not precluded review, by a promotionboard. e. Error is considered material whenthere is a reasonable chancethat had the error not existed the soldier would have been selected. J~ STABs convened to consider the records of soldiersare (l) Not reviewed by a regular board. (2) Whose records, due to material error, were not revie~vedby the regular board. (3) Whose records were reviewed by the regular board, were not selected for promotion, and whoserecords contained a material error whichmayhave been a factor in nonselection. (4) Enlisting or reenlisting directly into the AR.NGUS the active Army USAR, from or whendirected by the State AdjutantGeneral, for addition to approved lists as described in paragraph11-5 lc. (5) On whom derogatory information has developed that maywarrant removal from approved promotion lists. (6) Reclassified as described in paragraph 11-52. g. Soldiers selected by a STAB will be integrated into approved promotionlists and promotedalong with their peers in the sequencethat wouldhave occurred had they been originally selected. h. Only soldiers whowouldhave been eligible per the original memorandum instruction as of the date of of the boardwill be considered. Soldiers whodid not meetor could not have met the criteria at the time of the original board will not be considered. i. Reconsideration normally will be granted whenone or moreof the following conditions existed in the soldier's official records at the time they were reviewedby a promotion selection board: (Soldier's requesting reconsideration for reasons in (2) through (5) belowwill be granted reconsideration only for the most recent board before the soldier's request) (1) An adverse NCOER AcademicEvaluation Report reviewed by a board was subsequently declared or invalid in wholeor in part, and a determinationwas made that there was a material error. (2) Anadverse document belonging to another soldier was filed in the nonselectee's records and was seen by the board. (3) AnArticle15 (or comparable State nonjudicial action) designated only for temporaryfiling in the soldier's record, or whichwas set aside and has not been removed from the soldier's record was seen by the board. (4) Court-martial orders were filed in the soldier's record whenthe findings were 'not guilty." (5) document wafi led in therecords revi ewed by the board that erroneously identified the s oldi er as AW s OL while on active duty, a deserter, or an unsatisfactory participant according to AR 135-91. (6) A record of 30 or morecollege semester hours properly entered into official channels but was not seen by the board. College degree or transcript must have been submitted into channels within three monthsbefore the board to be recordedon qualification records, or submittedto the boardpresident in hard copywith the soldier's memorandum the president to warrant standby consideration. to (7) An award of a State or Federal Commendation Medal or higher award presented within three months before the date of the boardwas not recorded on official records, seen by the board in hard copy, or not presented to the board whenprovided in the soldier's memorandum the president to warrant standby consideration. to (8) Anannual or changeof rater NCOER was processed to the custodian of records in time to be filed that before the date the board convenedwas not reviewed. NCOERs received on time but returned for administrative reasons maywarrant standby consideration. (9) Consideration in an MOS other than the soldier's PMOS designated CPMOS. or j. The following reasons do not constitute material error and are not reasons for reconsideration. (I) Omission commendatory, of congratulatory or service memoranda, certificates, letters or similar correspondence. (2) Absenceof documentswritten, prepared or computed after the date the board convened. (3) Incorrect data on DAForm2-1, NGB Form 4100-1-R-E, PQR other records which the soldier reviewed and prior to the date the board convened.

890

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 11 of 17

(4) Absence official photographor prasence of an outdated one whichthe soldier did not update, when of current pbotugraphs wcrc required in the board MOI. (3) Absence of an award lower than a commendation medal. (6) Absenceof documants anthorized for filing in records by AR600-8-104. not (Y) Absenceof the completion doanmcntfor an NCOES course, unless it was required for consideration and was completed before the date the board convened. (8) A complete the record NCOER an optional report and the absence of this report will not, under any is circumstances,be a basis for reconsideration. k. Correspondencesuch as letters and memoranda commendation,appreciation, documentsfrom third of parties, and documents dated on or after the date the STAB convened will not bc forwarded. Section XI1 Reductions in Grade 11-54. General a. Sergeants and aboveare entitled to a board unless exemptper tbis section whenbeing considered for reduction for inefficiency, misconduct,or due to civil conviction. Theyare not entitled to a boardfor administrative reduction or separation in a lower grade for failure to meet a condition or requirementfor a promotionor assignment in this chapter such as NCOES training or a service remainingrequirementfor the promotion,or for loss of authorized grade due to reorganization or release from active duty. The reduction board will be convenedunless the soldier waivesthe requirementin writing. b. A commander has the authority to advance or promote a soldier to a grade per paragraph 11-2 also has who the authority to reduce a soldier fromthat grade. c. The authority in this paragraphwill not be used to reduce soldiers for actions of whichthey were acquitted as a result of courts-martial proceedings. d. Revocationof illegal or erroneous promotion orders is not a reduction action in the meaning this section. of See paragraph1 I-11 for revocation and related actions. 11-55, Voluntary reduction If approvedby the unit commander, soldier mayvolunteer in writing on DA a Form4187for reduction to any lower grade for reassignmentto another position, another program, or to continue in service. The promotionauthority may then administratively reduce the soldier without board action. Establish DOR prescribed in paragrapht l-6j(1). as 11-56. Failure to complete training Reducesoldiers, without board action or appeal: a. Who fail to complete OCS WarrantOfficer training to the grade held on the day before appointmentto or Candidatestatus as a SGTor SSG effective the date after they are no longer enrolled. Promotion authorities may reduce these soldiers to PFCor SPConly whentbey were appointed from grade PV2and would have otherwise been eligible for advancement. b. Who complete OCS Warrant Officer training program, without accepting appointment or commission,to or the grade held before entering candidate status effective the date after they completethe program. c. SMP participants whowithdraw or whoare eliminated from the ROTC AdvancedCourse to the grade held on the day before appointmentto Cadet status as Sergeant or the grade to whichthe soldier wouldbe entitled if enlisting underthe provisions of chapter 2, but not belowPV2. d. Who accept commission appointment, to the grade held on the day before entering candidate or cadet or status effective on the day before commission appointment.Soldiers will not be separated in special pay grades or E5 or E6. e. Who fail to successfully complete an NCOES course that is a condition of a promotiondue to their failure to apply for, enter, meet standards, or through misconductor voluntary withdrawal. Reducethese soldiers automaticallyeffective on the date the soldier fails to applyfor, enroll or be enrolled in a class for whichselected, fails a course, withdraws from the course, or on expiration of the time set for completionat promotion.This service does not require a de facto determination; the soldier will retain the higher pay and allowancesthroughthe day before the effective date of reduction in a de jure status (by right.) However, TIMIG the higher grade is not in satisfactory service for future adjusted DOR promoted if again to the grade nor is it creditable towardsretired pay in the higher grade or any other determination dependentupon the higher grade. This includes soldiers whosetraining

891

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 12 of 17

was delayed or deferred whenordered to active duty for service during combator contingencyoperations such as the one year completionrequirement for NCOES after release from the period of active dub,. f. Promotedin their former MOS under reorganization guidance but whohave refused or failed to qualify in the MOS the newposition to whichassigned per the guidancein chapter 5 of this regulation. for g. Who were promotedper the rules in paragraph I 1-27e(2). 11-57. Reductionupon return from active duty. a. Soldiers returning to their ARNG units after being released from active duty (IADT,TTAD Title 10 and AGR, etc.) in a higher grade than held at the time of entry into such service, other than authorized advancements to grades that wouldhave been gained per this chapter, maybe retained in their higher grade for 6 months.Upon termination of the 6 months, soldiers not assigned to MTOE TDA or vacancies commensurate with their grade are reduced, reclassified, transferred to the ING,IRR, Retired Reserve, or dischargedin accordancewith chapter 8. b. Waivers. One waiver for an additional 6 months may be approved by the State AGfor Title 32 AGR.One waiver for an additional 6 months maybe approved by NGB Title 10 AGR for personnel. c. Soldiers released from active duty in a higher grade than held at time of entry into active Federal service, whoare transferred to the INGor the IRR, are transferred in the higher grade. 11-58. Other reasons for reduction Reducesoldiers without board action or appeal: a. Who enlist or reenlist in a grade abovethose authorized by chapter 2, to the grade to whichthen entitled, effective the date of enlistment or reenlistment. b. Who,2 years after date of enlistment or reenlistment into lower graded positions in the Try Onein the Guardprogram, have not been reassigned to a grade vacancyposition commensurate with their grade. c. Who involuntarily lose their positions due to unit reorganization, inactivation, full-time support utilization requirements or downgrading SPMD positions, and therefore cannot be property utilized per chapter 5. (1) If immediate reassignmentis not appropriate, retain themin current grade for up to one year before involuntarily reducingor reclassifying themto fill valid positions. (2) When is not possible to properly assign these soldiers, transfer themto the INGor IRR. NOTE: it Full-time soldiers not affected by force st~cture changes maynot be involuntarily moved lower graded AGR to positions or reduced because of that assignment. d. Failure to meet the service remaining requirement in paragraph 11-10. e. To enter a training program that requires a lower entry grade to qualify for another position in the sameor another unit. f. Reduction failure to meetthe criteria of a conditional promotionother than training, such as prior for authority to use interim clearances for promotion, etc. 11-59. Enlistment in lower grade Enlistment or reenlistment at a lower grade in the ARNGUS, Regular Army,the USAR, any component another or of U.S. Armed Force is a contractual agreementand is considered a voluntary reduction to gain a benefit. Subsequent reenlistment in the ARNGUS not authorize restoration of grade or adjustment of DOR.Accepting a voluntary does reduction does not entitle a soldier to an earlier adjusted DOR whenpromoted again to a formerly held grade. Grade and DOR former officers will be in the grade determinedfrom chapter 2 and paragraph1 l-6m of this regulation. of 11-60. Reductionfor inefficiency A soldier maybe reduced one grade for inefficiency. Inefficiency is defined as technical incompetence or demonstratedpattern or one or moreacts of conductthat showlack of abilities and qualities required and expected of a soldier in that grade. Inefficiency can include one or moreacts of misconduct,poor performance,a record of unexcused absences or declaration as an unsatisfactory participant (AR135-9 l), conviction by a civil or criminal court, long standing personal debts whenthere has been no reasonable attempt to pay them, and significant shortcomingsin training performance.A single act maybe so negligent or so substantially belowthe normthat it warrants a recommendation for reduction from the commander.Hmvever,an unexcused absence from scheduled training, whether one UTA one MUTA, or should not normallyin itself be the sole basis to charge a soldier with inefficiency to the degreethat reductionis warranted,nor is it intendedas a substitute for judicial or nonjudicial punishment whetherin state or Federal status. A reduction board is authorized for soldiers in grade SGT higher, and

892

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 13 of 17

and the recommending commander must provide complete justification and documentationto support the reduction action. Someexamples are: a. Statements of counseling or other documented attempts at rehabilitation by the chain of command or supervisors. b. NCOERs counseling statements documentinginefficiency or poor performance. or c. Record of misconduct during the period concerned. d. Correspondence from creditors attempting to collect debts. e. Adverse correspondencefrom civil authorities showingevidence of misconduct. f Documentation proving that individual has unexcusedabsences, periods of unsatisfactory participation, or that the soldier has beendeclared an unsatisfactory participant per AR135-9I. g. Reduction basedon lack of technical skill or ability requires reclassification to the corresponding skill level and MOS chapter 5 of this regulation. per 11-61, Redaction for misconduct or civil conviction a. Discharge. Ira soldier is to be discharged with a discharge certificate under other than honorable conditions, the State AG will reduce the soldier immediatelyto PV1without board action. If the discharge is suspended,the soldier is not reduced underthis paragraph. b. Droppedfrom the rolls of the Army (DFR). Whendischarged per chapter 8 because of being DFR, soldier is automatically reduced to PV1without board action. c. Misconduct civil conviction. A soldier can be reduced one or moregrades for misconductor civil or conviction. (1) If appropriate, Article 15, UCMJ 27-10), Courts-Martial (MCM (AR 1984), or provisions of State law be used to effect reductions for misconduct lieu of this regulation. in (2) Administrative reductions for misconductmaybe based on one or moreacts of misconduct. (3) A soldier convicted by a civil court (domesticor foreign) or adjudicatedas a juvenile offender by a civil court (domestic or foreign) is reduced or considered for reduction using the guidancebelow. "Juvenile offender' includes a person adjudicated as a juvenile delinquent, wayward minor, or youthful offender. Action is taken on receipt of documents establishing a sentence (imposedor vacation of a suspendedsentence) or a finding of guilt with sentence to be established at a later date. A soldier can be reducedeven thoughan appeal is filed. If an appeal results in reversal of the civil conviction, take action per paragraph11-66. (4) Ifthe civil authority's sentence includes death or confinement l year or morethat is not suspended,the of soldier is reducedto PVI. If convicted, or a guilty plea is acceptedby the court, and sentencingis delayedfor at least 30 days, reduction can be accomplishedimmediatelybased on the maximum penalty. If reduced and if the actual imposedsentence is less severe and then further restoration and board actions are required. (5) If the sentence is confinement morethan 30 days, but less than I year (not suspended), or 1 year or more for suspended, SPCand below will be considered for a one or more grade reduction. SGTand above must be referred to a reduction board for possible reduction of one or moregrades. (6) If the sentenceis less severe than in (4) above, and reductionauthority considers it appropriate, the soldier maybe considered for reduction of one or moregrades. SGTand above will be processed for possible reduction board action. 11-62. Reduction notification procedures a. The commander reducing the soldier informs the soldier in writing, delivered in person or dispatched by Certified Mail-Return Receipt Requested, of the action contemplatedand reasons. The soldier acknowledges receipt of the memorandum writing, and maysubmit any pertinent matters in rebuttal. Mail refused, unclaimed, not in acknowledged, otherwise undeliverable, is not used as defense against, or as a basis for an appeal of reduction, or whennotification wascorrectly addressedto the latest official mail address furnished to the unit by the member. b. The commander's written notification must include instructions advising the soldier (SGTand above) of his or her right to request a reduction boardand the date the board request must be received. (1) SPCand below maybe reduced without action by a board. (2) Only SGTthrough SGM request to appear before a reduction board. If the soldier waives board may action, the waiver mustbe in writing. Thesoldier may submitany pertinent matters in rebuttal in ~vriting. Failure to respondwithin 30 calendar days after the date of receipt of written notification constitutes a waiverof the right to a reduction board.

893

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 14 of 17

c. A soldier whorequests a boardwill be given at least 30 days written notice before the date of the hearing. The reduction authority mayapprovean extension of the 30 days if requested by the soldier in writing. el. The conveningauthority ensures that: (1) The board is composed unbiased soldiers senior in grade to the soldier being considered for reduction. of (2) At least one board member thoroughlyfamiliar with the soldier's field of specialization, especially for is inefficiency or poor performancecases. (3) The board consists of at least three voting members a recorder without vote. A majority of the and members the board constitutes a voting quorum must be present in order for the board to convene. of and (4) The senior voting member serves as president of the board. (5) If the soldier being consideredfor reduction is femaleor a minority, the board will include an officer or enlisted soldier whoalso is female or a minority member, reasonably available. However, if nonavaitability of a female or a minority member does not preclude conveningof the board. In the event ofnonavailability, justification must be stated in the record of proceedings. (6) Nosoldier with direct knowledge the contents of the case will be appointedto the board. of (7) Alternate board members appointed and will be available whenrequired. are (8) Unbiasedboard membars, not available, are requested through highar headquarters. if 11-63. Reduction board procedures a. The soldier mayrequest military counsel be appointed. If a specific judge advocate or other officer is requested and is reasonablyavailable, the convening authority designates that officer as counsel. If the requested counsel is from another command, conveningauthority wilt forward an official request to the appropriate the headquarters. Determinationby that headquartersis final regarding the availability ofrequasted military counsel. If the specifically requested counsel is not available, the conveningauthority will appoint anothar judge advocate or experiencedofficer to serve as counsel. b. Notice of a board hearing date is madeonly afier counsel is available to the soldier, if requested. c. The recorder, on request of the soldier or counsel, arranges for the presence before the board of any reasonably available witnesses. d. Copiesof all written affidavits and depositions of witnesses, whoare unable to appear before the board, will be furnishedto the soldier. e. The president of the board ensures that enoughtestimony is presented to enable the board to: (1) Fully and impartially evaluate the case. (2) Beobjective in their deliberations. (3) Arrive at a proper recommendation. (4) Considerthose abilitias and qualities required and expected of a soldier of that grade and exparience. (A NCO expected to maintain high standards of conduct). While prior years of faithful service are commendable, is this alone does not override the best interests of the ARNGUS. f. ARl 5-6 maybe used as a general guide for the board so far as it does not conflict with any provisions of this regulation. g. The board mayrecommend reduction of one or more grades (dependent on reason for reduction), a retention of grade, reassignmentor a combinationof any of the above b. The convening authority mayapprove or disapprove any portion of the board's recommendation long as so the action does not increase its severity. i. When board recommends reduction and the convening authority approves it the soldier is reduced by the a the reduction authority as directed without regard to any action taken to appeal. j. In case of reduction for inefficiency, the conveningauthority can suspendreduction up to six months.If the suspension is not vacated during this period, reduction mayonly be accomplishedby conveninga newreduction board. k. If a civil conviction is reversed, or sentence is modifiedor reassessed, see paragraph11-66. 11-64. Rights of the soldier a. Therights of the soldier concerningthe reduction board are: through SGM request a reduction board within 30 days of date of notification of the consideration may (1) SGT for reduction. (2) To decline in writing to appear before the board, or may appear in person with or without counsel at alt open proceedings.

894

Case 1:00-cv-00644-NBF

Document 114-14

Filed 07/18/2005

Page 15 of 17

(3) To retain a private attorney at no expenseto the Government not represented by a private attorney, the If conveningauthority designates military counsel whonormally a lawyer judge advocate officer or Army civilian attorney-advisor) unless, in consultation with the servicing staff judge advocate and the U.S. Army Trial Defense Service, the conveningauthority determinesthat a lawyer is not reasonably available. Anys