Court of Federal Claims Vacates Army Board for Correction of Military Records Decision

A judge in the Court of Federal Claims recently issued a decision in the case of Guardado v. United States. Guardado had been a Master Sergeant in the Army when he was convicted of several offenses at court-martial in 2014. He was sentenced to eight years confinement, total forfeiture of all pay and allowances, and reduction to E-1. He was not sentenced to a punitive discharge.

Over the next four years, the appellate courts set aside several of his convictions. In March 2018, he was retried on one of these charges and acquitted. He was also resentenced for the remaining convictions. This time he was sentenced to fifty-five months confinement, total forfeiture of all pay and allowances, and reduction to E-1. Due to the time he had already served and various confinement credits, Guardado was not placed back into confinement. His reduction in rank to E-1 became effective on March 29, 2018. On June 12, 2018, a flag that had been placed in Guardado’s records was removed. On July 12, 2018, Guardado requested retirement and on September 30, 2018, he was retired as an E-1.

Guardado filed an application with the Army Board for Correction of Military Records, alleging that he was entitled to an automatic promotion to E-2 as of March 29, 2018 because he had six months time in service, was not in confinement, and it had been more than 12 months since his conviction. He asked for back pay while he was active duty from March 29, 2018 to his retirement, and back pay for his retirement pay since that date. The ABCMR disagreed, finding that Guardado had been ineligible for promotion and that his company commander had marked “No” on an enlisted advancement report on September 1, 2018.

Guardado filed suit with the Court of Federal Claims under the Military Pay Act. The Government asked that the case be remanded back to the ABCMR for a new consideration of the claim. On remand, the ABCMR again found that Guardado had properly been denied promotion to E-2. It found that he had a flag in his record preventing promotion, that he was within 12 months of a conviction, and that the company commander had blocked his promotion.

The case was returned to the Court and the judge heard cross-motions for judgment on the administrative record from both sides as well as a motion to dismiss from the Government. He denied the Government’s motion to dismiss, finding this promotion case to be appropriate for the Court to hear. The judge further determined that the promotion from E-1 to E-2 is “automatic” under the applicable Army regulations. This meant that, if Guardado was eligible for promotion before the company commander took action to deny promotion on September 1, 2018, then he was entitled to be promoted.

The judge next turned to the question of whether Guardado was actually eligible for promotion. Under Army regulations, Guardado’s request for voluntary retirement on July 12, 2018 made him ineligible for promotion after that date. This made the company commander’s denial in September irrelevant to the judge’s decision. The relevant time frame for eligibility was therefore compressed to March 29, 2018 to July 12, 2018. The judge determined that Guardado was not within 12 months of conviction in March 2018. His convictions all occurred in 2014, and the judge did not agree with the Government’s contention that his resentencing or post-trial processing in 2018 reset the conviction date.

The only remaining obstacle to Guardado’s eligibility for promotion was the flag in his record. The judge sent the case back to the ABCMR once more to determine:1) whether the flag in his record until June 12, 2018 was appropriate; 2) whether there was another ground to find him ineligible between June 12, 2018 and July 12, 2018; and 3) whether there would have been enough time to promote him between June 12, 2018 and July 12, 2018. Once ABCMR makes these determinations, the case will again be returned to the judge for resolution.

If you or your loved one was unfairly discharged or denied retirement benefits from the military, you need someone with experience who knows the law. We have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

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