BOARD DATE: 22 February 2011 DOCKET NUMBER: AR20100013642 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of her records to show she was promoted to the rank of sergeant major (SGM) by the 81st Regional Readiness Command (RRC) [formerly Regional Support Command] July 2007 Senior Selection Board. 2. She states that she: a. Found out in November 2008 that she wasn’t going to receive her promotion orders because the position she was assigned to was being saved for someone else and she was going to be removed and placed somewhere else. b. Filed an Inspector General (IG) inquiry and a Congressional inquiry with no favorable results. c. Believed this action to be unjust because she is a military technician (MT) who has been assigned to her current unit of assignment since June 2007 as a condition of employment and she was in a valid position to receive promotion orders. 3. She provides the following documents in support of her application: * Letter addressed to her Congressman * Alphabetical listings of Soldiers recommended and considered for promotion to SGM * Unit Manning Report Extract * Email correspondence * Memorandum for the Commander, 81st RRC * Two DA Forms 1559 (IG Action Request) * Letter from the IG addressed to her * Letter from the IG addressed to a Congressman * Four DA Forms 2166 (Noncommissioned Officer Evaluation Report (NCOER)) covering the periods 1 October 2006 through 30 September 2009 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 25 July 1980. She is currently serving in the USAR in the rank and pay grade of master sergeant (MSG)/E-8. 2. Orders published on 26 February 1999, 12 July 2000, and 10 February 2003 show she was: * promoted to sergeant first class (SFC) and was awarded primary military occupational specialty (MOS) 71D4O (Legal NCO), effective 1 March 1999 * released from Headquarters and Headquarters Company, 3rd Personnel Command (PERSCOM), and reassigned to the 213th Legal Support Office, Team 7, in Jackson, MS, effective 1 March 1999 * released from the 213th Legal Support Office and reassigned to the 3rd PERSCOM, effective 1 July 2000 * promoted to MSG and was awarded MOS 27D5O (Senior Legal NCO), effective 1 March 2003. 3. She was laterally appointed to first sergeant (1SG), effective 15 June 2004. 4. Orders published on 28 June 2007 show she was reassigned to the 814th Adjutant General (AG) Company, effective 28 June 2007. 5. She was considered for promotion to SGM by the July 2007 Senior Enlisted Promotion Selection Board. An alphabetical listing of Soldiers, dated 20 August 2007, shows she was recommended for promotion to SGM. 6. A memorandum, dated 23 October 2007, shows the 3rd PERSCOM indicated the applicant was identified for assignment to the position of Chief Human Resources Sergeant (position/paragraph/line 0020 101/04) in the 814th AG Company in duty MOS 42A (Human Resources Specialist). 7. On 5 and 7 November 2008, the following three events occurred: a. The 814th AG Company Unit Manning Report prepared on 5 November 2008 shows she was assigned to the position of Chief Human Resources Sergeant (position number 0020) in the rank of 1SG in MOS 42A5O on 22 August 2007. b. SFC S____ of the USAR 143rd Expeditionary Sustainment Command (ESC) emailed several individuals, including the applicant indicating the applicant had been recommended [i.e., selected] for promotion to SGM against a position at her unit, the 814th AG Company. c. Ms. A____ of the 143rd  ESC emailed Command Sergeant Major (CSM) H____ and stated, "This position is scheduled for fill by SGM E____ G____ (see attached DA Form 4651R signed by Lieutenant Colonel H____). He is the MT we spoke about earlier who will return from mobilization in January. It is my understanding the position must be announced before it can be filled. This slot does not need to be placed on the vacancy list. I would appreciate your involvement in this matter to ensure we take care of our full-time employees. Ms. B____ [the applicant] will be [slated] in a position within the 365th upon SGM G____'s return." SFC S____ forwarded this email to the applicant on 12 November 2008. 8. On 23 February 2009, the applicant submitted an IG Action Request indicating that the senior enlisted position she occupied had not been announced according to USAR Command (USARC)/81st RRC/143rd ESC senior vacancy guidance for the last 18 months because it was being held for a Soldier who was mobilized. 9. On 1 April 2009, she submitted a second IG inquiry into the 81st RRC's July 2007 Senior Enlisted Promotion Board announcement and the slating process from July 2007 until the current year to include the announcement of unit senior vacancies for the 365th Combat Sustainment Support Battalion, 207th Readiness Support Group, and 143rd ESC as reported to the 81st RRC monthly. 10. Her NCOERs for the periods ending 30 April 2009 and 30 September 2009 show her principal duty title as Chief Human Resources Sergeant and she was assigned to the 814th Theater Gateway Reception, Replacement, Return-to-Duty, Rest and Recuperation, and Redeployment Team of the 143rd ESC during these periods. 11. In a letter, dated 12 May 2009, the Deputy IG responded to her 23 February 2009 IG inquiry by stating: a. The 81st RRC July 2007 Senior Enlisted Promotion Selection Board published guidance had no requirement for commands to submit their cumulative vacancies as previously required for their 29 January 2007 Senior Enlisted Promotion Selection Board. b. On 24 October 2007, a vacancy request for the 814th AG Company's Chief Human Resources Sergeant position was forwarded to the 81st RRC for announcement. c. The 814th AG Company's Chief Human Resources Sergeant vacancy was never announced as a vacancy due to an administrative error by the individual responsible for consolidating all identified SGM vacancies at the 81st RRC. However, this administrative error had no effect on the applicant's current promotion sequence number for SGM. d. On 7 May 2009, SGM M____, USARC G-1, stated that MTs cannot be double-slotted. The individual double-slotted in the 814th AG Company's Chief Human Resources Sergeant position with the applicant must be immediately reassigned on the Unit Manning Report to position "9992." e. Despite the fact that the applicant would no longer be double-slotted, she would not be eligible for promotion to SGM as long as there was another SGM of the same MOS assigned to the unit. 12. A letter, dated 3 December 2009, shows the USARC Deputy Chief of Staff G-1 informed the applicant's Congressman that: a. In accordance with Army regulatory guidance, when a position or projected vacancy occurs in the unit to which the MT is assigned, he or she will be promoted off the recommended list in sequence provided that he or she is qualified in the duty MOS. b. In no case will promotions be made to SFC and above for Soldiers in an overstrength status. Transfers to and from an overstrength status will not be made for the purpose of increasing promotion opportunities. c. 1SG B____ [the applicant] is an MT assigned to a unit with only one position in the grade necessary for her promotion. There is a qualified SGM currently occupying that position. d. Prior to the SGM's assignment to the unit, 1SG B____ was not in line for promotion as the list had not reached her sequence number so she could not be promoted. 13. In an undated letter to her Congressman, the applicant requested an investigation of the 814th AG Company Commander's failure to follow the determination of the 81st RRC IG. She cited comments from the USARC G-1, gave a brief background of her position as a civilian MT, and listed documents she provided in support of her claims. She stated: * no action had been taken to remedy the situation * she and the USARC G-1 believed the only appropriate resolution was that the 814th AG Company Commander be compelled to follow the determination made by the IG in his memorandum, dated 12 May 2009 * she assumed the position of Chief Human Resources Sergeant was commensurate with the appropriate rank of E-9 * she was unable to get promoted due to administrative errors and the actions of the 814th AG Company Commander 14. She also stated that: * MTs cannot be double-slotted in the same position according to civilian personnel policy * the MT who was currently double-slotted with her was not assigned to this position until 2009 * holding the position for another individual caused her promotion harm and career peril since she was not able to assume a position in which she was fully qualified * the 814th AG Company Commander continued to maintain her in a double-slotted status 15. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 5, prescribes policy for the promotion of USAR Soldiers assigned to troop program units, Army Reserve elements, and multi-component units. Soldiers selected for promotion by boards are identified on a list maintained by the promotion authority. Promotion from the list is by sequence and MOS based on a position vacancy within a reasonable distance of the Soldier's residence. 16. Paragraph 5-4 of Army Regulation 600-8-19 governs cumulative vacancies and states the following: a. The computation of unit and command vacancies by pay grade and by position is illustrated in table 5-1. The maximum number of promotions that may be made in each pay grade above corporal or specialist in a unit, referred to as cumulative vacancies, is computed as follows: (1) Subtract the actual number of assigned enlisted personnel from the required plus permitted overstrength positions in that grade. Do not include participants in the Reserve Officers' Training Corps Simultaneous Membership Program in the actual number of assigned Soldiers. The following listed personnel will be included in the actual number of assigned Soldiers, but except for an incumbent MT, promotions will not be made against positions occupied by these personnel: (a) MTs (b) Active Army and Active Guard Reserve (AGR) Soldiers. Although counted against the unit's assigned enlisted strength, Active Army and AGR Soldiers are promoted per chapters 2, 3, and 4 of this regulation. (2) Starting with 1SG/MSG, subtract the actual number of assigned enlisted personnel from the required strength plus permitted overstrength (if any) in that grade (include AGR, Active Army (full-time manning), and MT personnel. Add the cumulative vacancies, if any, in the next higher grade, or subtract if the cumulative vacancies are a minus quantity. b. An overstrength in NCOs in a pay grade will reduce or eliminate promotion possibilities for NCOs in that grade and lower grades. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contentions are acknowledged and determined to have merit. 2. The evidence of record shows she was considered and recommended for promotion to SGM by the July 2007 Senior Enlisted Promotion Selection Board. 3. The 814th AG Company Unit Manning Report shows she was assigned to the position of Chief Human Resources Sergeant (position number 0020) in the rank of 1SG in MOS 42A5O as of 22 August 2007. 4. Since she was assigned to a valid SGM position (Chief Human Resources Sergeant) within her unit, 814th AG Company, by an appropriate authority, she was eligible to be promoted to the higher grade of SGM and she is the rightful incumbent to that position. 5. She was assigned to a unit with only one position at the grade necessary for her promotion. However, through no fault of her own, she was not promoted to SGM. The position was filled by another Soldier and this action created an overstrength within her unit. 6. Therefore, it would be equitable to correct her records to show she was promoted to the rank of SGM on 22 August 2007, the date she was assigned to the position of Chief Human Resources Sergeant. In addition, she should be paid all back pay and allowances to which she is entitled based on her promotion. BOARD VOTE: ___x__ ___x_____ __x______ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she was promoted to SGM/E-9 with an effective date and date of rank of 22 August 2007. 2. The Board further recommends that the Defense Finance and Accounting Service audit the applicant’s military pay account to determine the amount owed as a result of the above correction and pay her all back pay and allowances. _______ x _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20100013642 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100013642 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1