IN THE CASE OF: BOARD DATE: 4 September 2014 DOCKET NUMBER: AR20140010877 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, in effect, consideration by the Fiscal Year 2014 (FY14) Active Component Sergeant Major (SGM) Training and Selection Board. He also requests a personal appearance. 2. The applicant states: a. The Army's process of selecting candidates for the U.S. Army Sergeants Major Course (USASMC) is carried out with the assumption that it will take six years (getting selected for the Academy, waiting a year to get in the Academy, attending the Academy, getting promoted, and 3-year service obligation). They're saying he is ineligible for selection to the USASMC because he can't make it six years before he retires. The regulation stipulates a member must be born on 4 June 1958 or “sooner”; (i.e., not earlier than) he was born on 27 March 1958. He does not agree with the math! He is not arguing against the Army's policy; he is arguing against the math for the following reasons: (1) The USASMC is not a 12-month course, it's 10 months, which is approximately the difference between his date of birth (DOB) and the DOB the Army presently requires. (2) One of the criteria for awarding promotion sequence numbers is to give it to the oldest candidates first. (3) The age requirements are not consistent with other Army date requirements; e.g., the Army says you have to retire at a flat 62 years old, but the USASMA selection requirement is 55 years, 6 months, and 26 days old or younger--he asserts this is inconsistent. (4) Another example of the inaccuracy of the math is the fact that his SGM was selected for the Academy in March of 2007 and finished the 6-year requirement in June 2011 -- a little over 4 years. He is confident he could find dozens more SGMs who did it in less than 6 years. b. The math used in coming up with the 6-year assumption is wrong and it's unfair to a man who's been striving to "Be all he can be" and realize a dream of being a SGM for 24 years only to have the rug pulled out from under him by a technicality that's not even accurate. It's not fair to all the other master sergeants (MSG) in his position either. They should be considered for the Sergeants Major Course as well. 3. The applicant provides: * Statement from SGM Fl------ * Congressional correspondence * DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 20130510-20140509 * Email traffic with a congressional staffer * Statement from Lieutenant General (LTC) Te--- * DA Form 705 (Army Physical Fitness Test Scorecard) CONSIDERATION OF EVIDENCE: 1. The applicant's records show he was born on 27 March 1958. 2. He enlisted in the Regular Army on 25 July 1990 and he holds military occupational specialty 46R (Public Affairs Specialist). He served through multiple reenlistments in a variety of stateside or overseas assignments and he was promoted to MSG/E-8 on 1 December 2008. 3. The applicant appears to have been considered for attendance at the USASMC and possible promotion to SGM by the FY11, FY12, and FY13 selection boards but he was not selected. These boards were announced via various Military Personnel (MILPER) Messages, each titled: Fiscal Year (FY) [Appropriate Year] Active Component SGM Training and Selection Board, and each message announced the eligibility criteria, including the date of rank (DOR), basic active service date (BASD), DOB, primary zone (PZ) DOR, and secondary zone (DOR), as follows: a. MILPER Message 11-036, dated 8 February 2011, selection for USASMC Number 63, beginning in August 2012. DOR, 8 June 2009 and earlier; BASD, 8 June 1983 to 8 June 2001; DOB, not earlier than 8 December 1952; PZ DOR 10 June 2008 and earlier; and SZ DOR 11 June 2008 to 8 June 2009. b. MILPER Message 12-059, dated 1 March 2012; selection for USASMC Number 64, beginning in August 2013. DOR, 5 June 2010 and earlier; BASD, 5 June 1986 to 5 June 2002; DOB, not earlier than 5 June 1956; PZ DOR 8 June 2009 and earlier; and SZ DOR 9 June 2009 to 5 June 2010. c. MILPER Message 13-038, dated 5 February 2013; selection for USASMC Number 65, beginning in August 2014. DOR, 4 June 2011 and earlier; BASD, 4 June 1987 to 4 June 2003; DOB, not earlier than 4 June 1957; PZ DOR 5 June 2010 and earlier; and SZ DOR 6 June 2010 to 4 June 2011. d. Successful completion of the USASMA is required in order to obtain a sequence number for promotion to SGM. Completion of the USASMA incurs an automatic 24-month service remaining obligation upon graduation e. Upon receipt of promotion orders to the rank of SGM (excluding frocking appointments), Soldiers will incur an automatic 36-month service remaining obligation from the effective date of promotion. 4. On 31 January 2014, MILPER Message 14-023 announced the eligibility criteria for consideration by the FY14 Active Component SGM Training and Selection Board. The message announced that a board would convene on or about 3 June 2014 to consider eligible Soldiers for attendance at the USASMC for the purpose of promotion to SGM. * Soldiers selected would attend Class 66 which begins in August 2015 * Selected Soldiers must complete a 3-year service obligation upon promotion to SGM * Soldiers must have sufficient remaining service to complete the service obligation by their 32nd year of active service * only NCOs with a maximum of 26 years of active federal service will be otherwise eligible for selection consideration by the board to attend the USASMC * because the maximum age for continued active federal service is limited to age 62, only NCOs who are 56 years and younger will be otherwise eligible for selection consideration * the eligibility criteria for the purpose of promotion to SGM includes all qualified MSGs or first sergeants with a: * DOR of 4 June 2012 and earlier * BASD between 4 June 1988 and 4 June 2004 * DOB not earlier than 4 June 1958 5. The applicant provides: a. DA Form 2166-7 (NCOER) for the rating period 20130510 through 20140509. b. A DA Form 705 showing he passed the APFT on 24 February 2014. c. A statement, dated 13 June 2014, from SGM Fl------, the U.S. Army Central Command Public Affairs Sergeant Major. He states that he was in fact selected for the U.S. Army Sergeants Major Academy (USASMA) in March 2007 and fulfilled his 3-year service obligation in June 2011. He thus completed the Army's assumed 6-year commitment to being selected to the USASMC in 4 years and 3 months. 6. An advisory opinion was received on 18 July 2014 from the Department of the Army Promotion Branch at the U.S. Army Human Resources Command (HRC). An advisory official recommended disapproval of the applicant's request. The official stated the records available to this office indicate that [Applicant] was not eligible for selection consideration to SGM/E-9. He was not eligible for selection because when calculating the eligibility requirements for the USASMA Training and Selection board, the Soldier's DOB is considered since Soldiers may only serve up to their 62nd birthday. The maximum age requirement is codified in law (Title 10 of the U.S. Code) for all enlisted members. Further, when calculating board eligibility for attendance to USASMA, the assumption is made that from the time of initial selection until the completion of the 36-month Service Remaining Requirement (SRR), six years is required. This 6-year period takes into account the 12 months from selection until the report date to USASMA, 10 months in USASMA, 12 months after graduation until actual promotion, and 36 months to satisfy the SRR in pay grade E-9. Therefore, when determining the eligibility for consideration, six years is subtracted from the maximum age of 62, so that no one over the age of 56 as of the date of the board is eligible for consideration in accordance with paragraph F of MILPER Message 14-023. 7. The applicant replied on 14 August 2014 with a rebuttal, a statement from LTG Te---, and a request for personal appearance. In his rebuttal, he states: a. The memorandum signed by the Commanding General of U.S. Army Central Command, LTG Te--, believes in him enough to take time from his responsibilities to review and sign the attached document. LTG Te--- believes his case has merit and that the Board should follow through with their offer to allow him, at his own expense, to travel to Washington D.C. and appear personally before the Board to plead his case. Moreover, he requests that he appear before the Board itself and not some other entity. Specific reasons for this request can be explained upon request, but the main concept is that he be given a fair, impartial, and open-minded opportunity to plead his case. While the law does stipulate that 62 is the required age for retirement for all enlisted members, the assumption - and it is an assumption as stated by HRC in their advisory opinion - is not codified in law. It is a regulation, Army Regulation 600-8-19 (Enlisted Promotions and Reductions) and, therefore, can be reversed. Furthermore, he is not arguing the Army's policy but rather the math used in that policy. Another memorandum signed by another SGM attesting that it will take him five years - a year less than the assumed six years - to fulfill all the obligations and processes associated with being selected to the USASMA is also included with his appeal. The Board already has one such signed memorandum and he can provide two (2) dozen more upon request. b. Army Regulation 600-8-19 also states that one of the criteria for which USASMA graduates are awarded Promotion Sequence Numbers first is to give them to the oldest candidate; first. That alone is an aid to complete the associated obligations in less than six years. Finally, with all the technological capabilities available now, he submits it is time for change. HRC leadership could, with some innovation, devise a formula for calculating the time it would take each individual to meet the obligations associated with selection to the USASMA. If for one reason or another some individuals ended up taking longer, that could be rectified on a case-by-case basis. To do otherwise is to deny individuals the right to live their career-long dream because, as has been herein proven, the process can and usually does take less than 6 years. Simply because USASMA candidates are in their mid-fifties does not mean they cannot contribute in an impactful manner and is not consistent with the principles of life, liberty, and pursuit of happiness guaranteed by the U.S. Constitution. 8. With his rebuttal, he provides a memorandum, dated 11 August 2014, from the Commanding General, U.S. Army Central Command, wherein he states the applicant should be afforded the opportunity, at his own expense, to travel and appear before the Board to plead his case for eligibility for selection to the USASMC. The applicant has demonstrated excellent leadership and competency during his tour with this unit. He is in excellent physical condition and he has limitless potential. The General further opines that the applicant's appeal has merit and ought to be heard by the Board. 9. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 10. Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system. Paragraph 4-13 (Rules for processing a request for standby advisory board (STAB). a. The Army G–1 or designee may approve cases for referral to a STAB upon determining that a material error existed in a Soldier’s official military personnel file (OMPF) when the file was reviewed by a promotion board. For the purpose of this paragraph, HRC is a designee. Error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected. b. STABs are convened to consider records of those (1) Soldiers whose records were not reviewed by a regular board, (2) Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board; (3) Recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list; (4) Selected for appointment to CSM but were referred by the CSM review board because of derogatory information that was identified during the post-board screening process; and (5) Not considered for appointment to CSM only when it was predicated on obvious intent of the Soldier to be considered and clear negligence in the administrative process results in the Soldier’s non-consideration. The request for a STAB will be sent to Commander, HRC. Concluding Statement: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. Army policy requires Soldiers to complete a 3-year service obligation upon promotion to SGM. Soldiers must have sufficient remaining service to complete the service obligation by their 32nd year of active federal service. Additionally, because the maximum age for continued active service is limited to age 62, only NCOs who are 56 years of age and younger are otherwise eligible for consideration to attend the USASMC and subsequent promotion to SGM. This ensures NCOs who are selected for promotion complete their promotion service obligation prior to reaching their mandatory retirement date in their promoted grade. 3. MILPER Message 14-023 was clear. The DOB must not be earlier than 4 June 1958. The applicant was born on 27 March 1958. His DOB is earlier than the announced criteria. He did not meet the criteria for consideration. 4. With respect to his arguments: a. The applicant's assertion that he was not given the opportunity to realize a dream of becoming a SGM is inaccurate. He was considered by at least three boards (FY11, FY12, and FY13) prior to his ineligibility for consideration by the FY14 board. b. While it is true that some NCOs are able to complete and/or fulfill the assumed 6-year commitment, it is reasonable to presume those same NCOs were actually within the age limit upon their consideration and selection for school and/or promotion. The applicant could have done the same had he been selected by any of the three boards that did not select him. c. It is against equity to grant him a DOB exception for consideration for selection to the USASMC and subsequent promotion simply because he exceeded the age limit by 2 and 1/2 months and deny those who are 3 or 4 months, or even 7 months, etc. He was not singled out by the announced DOB. The DOB cut-off applied to all other MSGs/1SGs with an early DOB. 5. Requests for reconsideration must be submitted, evaluated, and approved through command channels in accordance with Army Regulation 600-8-19, paragraph 4-14. Reconsideration for promotion may be granted only to Soldiers in the primary zone whose records contained a material error that may have been a factor in the individual's non-selection when reviewed by the board. The applicant's did not provide any evidence to show a material error. Therefore, he does not meet the criteria for a STAB. He has not shown an error or an injustice. As a result, he is not entitled to the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _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) AR20140010877 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140010877 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1