ABCMR Memorandum of                                                             AR2002078658
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           29 July 2003
	DOCKET NUMBER:   AR2002078658

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

| Mr. Carl W. S. Chun | | Director
| Ms. Beverly A. Young | | Analyst

  The following members, a quorum, were present:

| Ms. Margaret K. Patterson | | Chairperson
| Mr. Walter T. Morrison | | Member
| Mr. Thomas E. O'Shaughnessy | | Member

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reinstatement of his promotion to the rank of sergeant first class (SFC) and all back pay to which he is entitled.

APPLICANT STATES:  In effect, after completion of 18 years of service in 2001, he was asked to go before a Military Occupational Specialty/Medical Retention Board (MMRB).  He states that he was given a P3 physical profile as shown on his DA Form 3349 (Physical Profile).  During the MMRB proceedings, it was recommended that he be retained in primary military occupational specialty (PMOS) 92Y (Unit Supply Specialist) as an instructor or in an S-4 position.  He claims that it is impossible to get a job in these areas as an Active Guard Reserve (AGR) Supply Sergeant in pay grade E-6.  He also claims that he was given only one reclassification choice by his PMO [Personnel Management Officer] at FTSMD [Full Time Support Management Directorate] and that choice was MOS 75H (Personnel Service Specialist).  He states that his name and sequence number still appear on the promotion list.  He contends that he did not make the decision to promote himself in the field of 92Y but the Army did.  He thought that the needs of the Army came first.  He was informed that perhaps the Army had made a mistake and that he could go before a Standby Board so the correction from 92Y to 75H could be made.  He was told that the Standby Board would review his record as a "soldier" and not as a "75H."  He wants the opportunity to show he can perform in any job given to him as an E-7.  In conclusion, he requests to be promoted and given back his original sequence number and all back pay to which he is entitled.

In support of his application, the applicant submitted a supplemental letter; a unit commander's evaluation; a DA Form 3349; the MMRB proceedings; an extract from Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction); his reclassification orders; his Leave and Earnings Statement for the period 1 to 31 August 2002; the Standby Advisory Board Results; a letter of response to a Member of Congress; two Memorandums for Record faxed to a Member of Congress; CY02 SFC, Reserve Component (RC) AGR Promotion Board Results; CY02 SFC RC/AGR MOS Summary of Board Actions; promotion information from a military website; and numerous e-mails.

EVIDENCE OF RECORD:  The applicant's military records show he is currently serving in the U.S. Army Reserve (USAR) AGR program in the rank of staff sergeant.

After having prior service in the U.S. Air Force, the USAR, and the Regular Army, he enlisted in the USAR on 6 December 1991.  He was promoted to the rank of staff sergeant (SSG) in PMOS 92Y with an effective date and date of rank of 1 January 1997.  He reenlisted in the USAR AGR program on 9 June 1997 for a period of six years.

In a 6 June 2001 memorandum for the MMRB, the applicant's commanding officer stated that the applicant had performed in an outstanding manner as the unit's Supply Sergeant for C Company, 324th Signal Battalion.  He stated that the applicant's physical profile had placed certain restrictions upon him and he could not meet all worldwide deployments in his current condition.  He also stated that the applicant had completed 18 years of honorable military service and recommended that the applicant be allowed to continue in service as long as he desired.

On 19 July 2001, the applicant was given a permanent profile of 1 1 3 1 1 1 for chronic low back pain and right sural nerve neuropraxia – foot pain and numbness.  The profile indicated that the applicant could do "No running, no jumping, no wearing combat boots (may wear "Hi-Tec's"), no sit-ups, no standing for more than 30 minutes per hour, no crawling, no stooping."  In addition, the profile indicated that the applicant was found fit by an MMRB at Fort Gordon, Georgia on 18 July 2001.

In a 23 July 2001 memorandum of the MMRB Proceedings, the Board recommended that the applicant be retained in PMOS 92Y as an instructor or 
S-4.  The Commander of the U.S. Army Signal Center at Fort Gordon, Georgia approved the recommendations of the MMRB and directed that the applicant be retained in PMOS 92Y.

Apparently, the approval was rescinded because Headquarters, U.S. Army Training Center, Fort Jackson, South Carolina, Orders Number 023-563 published on 23 January 2002 reclassified the applicant in PMOS 75H with a secondary MOS (SMOS) of 92Y.

Records show the applicant was considered by the CY02 RC/AGR SFC Selection Board which convened on 26 February 2002 and adjourned on 15 March 2002.  

The applicant provided a web page of the recommended list of the CY02 RC/AGR SFC Selection Board which convened on 26 February 2002 and adjourned on 15 March 2002.  This list shows that he was selected for promotion to SFC in PMOS 92Y with a sequence number of "132."

In a 30 July 2002 letter to a Member of Congress, the Chief of the Assistance Division, Office of the Inspector General informed the congressman that the applicant had been removed from the promotion list.  That office had determined that the applicant was erroneously considered for promotion in the wrong skill field.  The Chief of the Assistance Division stated that the FTSMD was reviewing the applicant's case.

In a 19 August 2002 memorandum, the applicant was notified that a Department of the Army Enlisted Standby Advisory Board that convened on 15 July 2002 had considered him for promotion to SFC.  The FTSMD informed the staff of the ABCMR that the applicant was considered in his new PMOS of 75H.  The applicant was informed that the Standby Advisory Board did not approve his name to be added to the recommended list announced in memorandum, 
TAPC-MSL-E, dated 2 May 2002, Subject:  Promotion List to Sergeant First Class.

Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction) outlines the policy and procedures for the promotion of USAR soldiers.  Chapter 4, paragraph 4-9, states in pertinent part, that a soldier must be promoted in a position requiring the MOS recommended by the board.  Subsequent assignment or reassignment after promotion will only be in the recommended MOS which, except for a detailed recruiter, will become the soldier's PMOS.  A soldier who is reclassified, or reassigned pending reclassification, in another MOS before the adjournment date of the board, has been considered in the wrong MOS.  If the soldier is selected in the previous MOS, his or her name will be removed from the recommended list per paragraph 4-19f(9).  The regulation also states that a soldier will be referred to the Standby Advisory Board for consideration in the correct MOS per paragraph 4-18e(11).

Paragraph 4-12a of Army Regulation 140-158 states that boards will select the "best qualified" soldier in each MOS for promotion to SSG through sergeant major (SGM).  They will recommend a specified number of soldiers by MOS from the zones of consideration who are the best qualified to meet the current and projected needs of the USAR AGR program.  The total number that may be selected in each MOS is based on USAR AGR requirements to fill current and projected position vacancies.  These requirements are announced in the Memorandum of Instruction (MOI) or HQDA message.

Army Regulation 600-60 covers the Physical Performance Evaluation System.  It requires Active Army, Army National Guard of the United States, and USAR soldiers with a permanent profile containing a three or four in one of the profile serial factors to be evaluated by an administrative screening board designated as the MMRB.  Paragraph 4-17 states that the recommendation of the MMRB to retain the soldier in current PMOS or specialty code is appropriate when the soldier's medical condition does not preclude satisfactory performance of PMOS or specialty code physical requirements in a worldwide field environment and when the soldier's profile does not preclude those common tasks identified at paragraph 4-2.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant was found physically fit and retained in PMOS 92Y by a MMRB in July 2001.  However, it appears that retention was contrary to the limitations of his physical profile and Army Regulation 600-60 and he was subsequently reclassified into PMOS 75H with 92Y awarded as his SMOS in January 2002.

2.  The evidence of record shows the CY02 SFC RC/AGR Selection Board selected the applicant for promotion in PMOS 92Y.  However, because he was reclassified into PMOS 75H prior to the adjournment date of the selection board, he was erroneously considered for promotion in the wrong PMOS.  As a result, his name was removed from the recommended list.

3.  The applicant was considered by a Standby Advisory Board in MOS 75H per Army Regulation 140-158 guidance but was not recommended for selection for promotion.

4.  The applicant was given erroneous information regarding how soldiers are selected for promotion.  Promotion selection board will select the "best qualified" soldier in each MOS for promotion.  Regrettably, when the applicant reclassified into PMOS 75H, he had no "background" as a 75H.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID | AR2002078658
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 20030729
TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE | YYYYMMDD
DISCHARGE AUTHORITY | AR .  .  .  .  .
DISCHARGE REASON |
BOARD DECISION | DENY
REVIEW AUTHORITY | Mr. Chun
ISSUES         1. | 110.0300
2. |
3. |
4. |
5. |
6. |