MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 October 1998
         DOCKET NUMBER: AC97-11643

         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. Loren G. Harrell		Director
Mr. Kenneth Aucock		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Curtis W. Barbee, Jr.		Member
Mr. Raymond V. O’Connor, Jr.		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
         Exhibit B - Military Personnel Records (including advisory opinion,
         if any)

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APPLICANT REQUESTS: In effect, reinstatement in the rank of Sergeant Major with the restoration of all rights, privileges, and property.

APPLICANT STATES: That he was promoted to Sergeant Major (SGM) [and subsequently appointed as a Command Sergeant Major (CSM)] by the 1992 Army Reserve CSM Selection Board, and was forced to withdraw from the CSM program because of nonalignment of his rank and his military technician position. He was reduced without cause. He states that the 122^nd Army Reserve Command (ARCOM) revoked his original promotion order [to SGM] without cause, and at no time did he request a reduction in rank.

The applicant raises four issues in which he argues, in effect:

•         Command must make a good faith effort to achieve alignment of his civilian position with his military rank and position, when an Army Reserve Technician (ART) is promoted to a rank higher than authorized for his assigned unit, and the technician accepts the promotion.
•         He should be placed on a standing list for promotion when [as a military technician] promoted to a rank higher than authorized for his present unit.
•         He should not have been reduced [other than for cause] after being promoted to SGM and appointed CSM, accepting the promotion and appointment, performing the duties of a CSM, and then obtaining an approved voluntary withdrawal from the CSM program.
•         The formal agreement as contained in Army Regulation 140-315 (Employment and Utilization of U.S. Army Reserve Military Technicians) was violated when he was forced, under duress of losing his job, to withdraw from the CSM program and his position as a CSM at the 810^th Station Hospital. An attempt by DA to correct this injustice was circumvented.

EVIDENCE OF RECORD: The applicant's military records show:

On 18 October 1992 the applicant, a Master Sergeant in the Army Reserve, was assigned from the 122^nd ARCOM in North Little Rock, Arkansas to the 271^st Maintenance Company in Barling, Arkansas in a warrant officer position [as indicated on the unit manning report]. This assignment was concurrent with his employment as a civilian ART as a unit administrative technician. The applicant previously had over 16 years of civil service and over 2 years of military service. As a condition of his employment he was required to maintain [military] membership in the Reserve unit in which he was employed. The notification of personnel action (SF Form 50-B) indicates that his employment was an approved exception to a total civilian hiring freeze.

In September 1992 a USAR Command Sergeant Major Selection Board convened to consider qualified SGM and First Sergeants (1SG)/Master Sergeants (MSG) for appointment as CSM. The Memorandum of Instruction for this board stated that CSM selectees in the rank of 1SG/MSG would automatically be selected for promotion to SGM.

In November 1992 the results of the selection board were announced. The applicant was selected from appointment as a CSM with the 810^th Medical Hospital.

On 9 March 1993 the 122^nd ARCOM published an order promoting the applicant to Sergeant Major effective 1 April 1993. On 10 March 1993 the Army Reserve Command (USARCOM) in Atlanta appointed the applicant a CSM and on that same day assigned him the 810^th Station Hospital, both actions effective
1 April 1993. The assignment order stipulated that CSM stabilization expired
31 March 1997.

The applicant attended unit training, staff meetings, and briefings with his new unit in March, April, and May 1993.

On 19 March 1993 the 122^nd ARCOM requested that the 271^st Maintenance Company initiate action to remove the applicant from his ART position based on his reassignment from that unit [loss of dual status with the 271^st]. On
7 April 1993 the 271^st requested that the applicant be removed from his ART position for failure to maintain membership with that unit, thereby violating his terms of employment.

In a 5 May 1993 memorandum to the USARCOM the applicant voluntarily withdrew from the CSM program, stating that he would lose his civilian job if he was assigned to a unit other than the 271^st Maintenance Company. He further requested immediate reassignment to the 271^st and stated that the 122^nd ARCOM had agreed to hold the position [his old position] pending reassignment. He stated that he understood that his voluntary withdrawal from the CSM program would prohibit him from future considerations for CSM positions.

On 7 May 1993 USARCOM terminated his rank as CSM and appointed him a SGM effective 1 April 1993. On 13 May 1993 the 807^th Medical Brigade released him from his assignment at the 810^th Station Hospital and reassigned him to the 271^st Maintenance Company, effective 7 May 1993.

On 6 July 1993 the 122^nd ARCOM revoked the order of 9 March 1993 which promoted the applicant to SGM.

On 11 November 1993 the applicant requested reinstatement in the rank of SGM, stating that all soldiers when released from the CSM program retain their rank of SGM. He further stated that the only way a SGM could be reduced is by reason of court-martial or submission by the soldier of a request for administrative reduction.

On 12 January 1994 the applicant’s request was disapproved by the
122^nd ARCOM. That command stated that the CSM program was not part of the Army Reserve promotion system, and that the applicant’s promotion to SGM occurred solely to allow his appointment to CSM. His voluntary withdrawal from the CSM program at the start of his tenure immediately terminated any eligibility for retaining the rank of SGM. The 122^nd official went on to say that the applicant was not administratively reduced, and that his voluntary withdrawal from the CSM program at the start of his tenure disqualified him from the provisions of Army Regulation 135-205, paragraph 6-26. He stated that the order promoting the applicant was revoked because it was initially published solely to facilitate his appointment as a CSM.

That official continued by saying that the applicant accepted his appointment as CSM of the 810^th against advice of the ARCOM civilian personnel officer and CSM manager, cautioning him that his military transfer would result in him losing his civilian job. That official stated that the applicant accepted the CSM appointment, planning to challenge the law requiring post-1983 technicians to serve with their unit.

He said that after action was initiated to terminate the applicant’s civilian job, members of the chain of command took action to assist him in retaining his civilian job with the 271^st Maintenance Company, although the USARCOM CSM manager could well have demanded that the applicant meet the conditions of his acceptance of appointment as a CSM with the 810^th Station Hospital (serving a full term with the hospital). Instead he allowed the applicant to voluntarily withdraw from the program and be reassigned back to the 271^st as if nothing had happened, i.e., he had never accepted the CSM job. He also stated that the 807^th Medical Brigade agreed to release the applicant, although that command could have insisted he serve the full 4-year CSM tenure, which he voluntarily incurred. The 122^nd ARCOM agreed to accept the applicant back into a warrant officer position with the 271^st although they could have refused because there were no valid MSG vacancies in the unit. The 122^nd official stated that the applicant was never a SGM except for the purpose of assuming the duties as CSM of the 810^th, and because he could not fulfill his part of the agreement, he was allowed to withdraw from the program, with the loss of the SGM rank.

On 16 February 1994 a Judge Advocate General officer opined that there was no authority for his command to authorize the applicant’s reduction in the manner in which it was done. That officer stated that Army Regulation 135-205, paragraph 6-26, allows for voluntary withdrawal from the CSM, requires the command to reclassify the soldier to SGM and reassign him to a SGM position if available. If none is available, the soldier may voluntarily accept reduction. He went on to say that he could discover no authority that would allow the 122^nd ARCOM to unilaterally reduce him for voluntarily withdrawing from the CSM program.

On 7 March 1994 the applicant requested assistance from the USARCOM Inspector General, requesting reinstatement as a SGM and reappointment as a CSM and assignment to a military technician position where he could retain his CSM rank. On 24 February 1995 the IG notified the applicant that the Army Reserve CSM program did not authorize promotion to Sergeant Major and reappointment to the CSM program as he had requested. The IG stated that on withdrawal from the CSM program, a soldier would be reclassified and reassigned as a Sergeant Major, and that if a SGM position was not available, a soldier could voluntarily accept reduction and reassignment to an existing vacancy in a lower grade, or transfer to the Control Group (Reinforcement) as a SGM. The IG then implied that the applicant’s voluntary request for removal from the CSM program and reassignment to the 271^st , where there was no authorization for a Sergeant Major, effectively settled the matter.

In a 23 February 1995 memorandum to DA, USARCOM requested an exception to policy to allow the applicant to reapply to the CSM program. That command indicated that the applicant, then a temporary DA civilian with the 122^nd ARCOM, from 9 March 1992, had applied for and was ultimately accepted for a permanent position as an ART with the 271^st. In the meantime, however, on 10 July 1992, while still working as a temporary employee with the 122^nd ARCOM, he requested consideration for the position of CSM of the 810^th Hospital.

The official from USARCOM repeated the information concerning the applicant’s assignment to the 271^st, acceptance and appointment as a CSM, assignment to the 810^th, imminent loss of his civilian position at the 271^st, withdrawal from the CSM program, and reassignment back to the 271^st. He went on to state that regulations did not support the applicant’s appeal to the IG, in that soldiers who withdraw from the CSM program were not eligible for CSM reappointment.

The official stated that the applicant’s situation was caused by the timing of the two separate actions that affected both his military and civilian status. Since he was a temporary employee with the 122^nd ARCOM when he submitted his packet for the CSM position there was no conflict with this selection and ultimate appointment at the 810^th; however, the conflict arose after his assignment to the permanent position at the 271^st. That official went on say that because the applicant was new to the military technician program, he did not understand the impact his acceptance of the CSM position would have on his civilian employment.

On 31 March 1995 DA approved the request for exception to policy, stating that the applicant could reapply for a CSM position, but only if he could maintain the dual status requirement and retain his position as a military technician.

On 26 June 1998 a member of congress (MC) requested information concerning the applicant’s promotion. The MC stated that the applicant obtained an exception to policy to reapply for a CSM position, and that after receiving this waiver he applied for approximately 30 positions and was refused on the grounds that he was not eligible to apply. In the latest instance, the applicant applied for a CSM position with the 90^th Regional Support Command, and the MC attached an order assigning him to an engineer unit within the 90^th, and an order 8 days later revoking that assignment order. The MC requested that the applicant be reinstated to the slot that the applicant indicated was vacant in his unit.

On 22 July 1998 the MC was informed of the applicant’s circumstances. He was also informed that the applicant’s allegation that he applied for over 30 CSM positions and was denied was unsubstantiated; that the CSM position in his unit became vacant and the applicant applied and was considered, but another soldier was selected for the position. The MC was further informed that the applicant could apply for any CSM position he desired; however, selection and assignment to a CSM position in a unit other than his current assignment would again violate the terms of his employment and a repeat of the 1993 incident.
The MC was informed that the applicant’s reassignment orders to the engineer unit was not approved by his chain of command, but personally initiated by the applicant who hand carried the request for orders to a clerk who published these orders. Since the reassignment order was never approved, it was subsequently revoked shortly after its publication.

In the processing of this case and advisory opinion (COPY ATTACHED) was obtained from the Chief of the Army Reserve. That agency opined that the applicant’s command properly followed procedures, and that his promotion order to SGM was revoked in accordance with Army Regulation 140-158. The applicant was not promoted to SGM under the same criteria as other soldiers, but promoted concurrently with his appointment to CSM for the sole purpose of filling a CSM position. The applicant may still apply and be considered for a CSM position as a result of the exception to policy granted by DA.
Army Regulation 135-205 prescribes policies, responsibilities, and procedures for the USAR enlisted personnel management program. Chapter 6 concerns the USAR Command Sergeant Major Program. Paragraph 6-14 states, in pertinent part, that soldiers who meet the selection qualification, but do not desire to serve as a CSM, may decline consideration. A CSM acceptance or declination statement must be completed each year before the scheduled date the selection board convenes. The acceptance statement to be executed reads, in pertinent part, “I accept consideration for CSM for the following announced position (TDA/TOE Line & Item Number, Geographical Location). I certify that I am within reasonable travel distance of the above position, or that I am willing to travel, or be reassigned, if selected and appointed. I understand that if selected I may not decline or voluntarily withdraw from the program before appointment unless extreme hardship or compassionate reasons are cited.” Paragraph 6-17 states, in effect, that on assignment to a CSM position a CSM designee (1SG or MSG) will be promoted to SGM in his current career management field (CMF), and then laterally appointed to the rank of CSM and reclassified in PMOS 00Z5. The effective date of promotion to SGM, lateral appointment to CSM, and reclassification will be the date the soldier vacates the former position enroute to the assigned CSM position.

Paragraph 6-22 states that on assignment to a CSM position, a CSM will be stabilized in a TPU (troop program unit) for 4 years. During stabilization, the removal or reassignment of a CSM will be voluntary unless removed for cause, the CSM position is abolished, or removal is based on maximum age or years of service.

Paragraph 6-26 states in effect, that a CSM may withdraw from the CSM Program for other than retirement by furnishing written notice to his commander. On approval, the CSM will be reclassified to SGM. The appointment authority will reclassify and reassign the soldier to a SGM position, if available. If not available, the soldier may voluntarily accept reduction and reassignment to an existing vacancy in a lower grade, or transfer to Control Group (Reinforcement) as a SGM. The losing commander must initiate reclassification action when a CSM voluntarily withdraws from the program. The following are considered voluntary withdrawals: (1) A CSM who, at his own request, is transferred to other than a CSM vacancy, and (2) A CSM who voluntarily enters on active duty as a SGM, or has taken a grade reduction to MSG.

Army Regulation 140-315 provides for employment and utilization of Army Reserve technicians. Paragraph 1-4 states, in pertinent part that military technicians will carry out duties prescribed by their position descriptions and additional duties as assigned, and If appointed after 8 December 1983, maintain USAR membership in the troop program unit (TPU). Paragraph 1-6 states, in pertinent part, that technicians initially employed after 8 December 1983 in a troop program unit (TPU) must be a member of that TPU. Paragraph 1-7 states, in pertinent part, that local merit placement plans governing MT positions are governed by Federal Personnel Manual (FPM) 335 and AR 690-300, chapter 335. Personnel actions (SR-50) on the appointment of individuals selected subject to PL 98-212 will show the remark: " As a condition of employment, you are required to maintain membership in the unit in which employed. Paragraph 1-8 states that military technicians will serve in their assigned or supported units as technicians and provide support for additional attached units as directed by the unit commander or higher authority. Military technicians who voluntarily relinquish dual status or are separated from the USAR selected reserve due to unacceptable military performance or misconduct will be removed from their technician position. The employing commander will initiate removal action immediately upon notification that dual status has been lost. Military technicians appointed after 8 December 1983 are required as a condition of employment to maintain continuing membership in the USAR unit in which employed. Failure to meet this military obligation constitutes failure to meet this condition of employment.

The following guidance will be used in determining whether loss of membership is within or outside of the technician’s control. Loss of USAR selected reserve/unit membership resulting from actions initiated by the technician to cancel, discontinue, or otherwise terminate such membership, when not required to do so by the DA, is within the technician’s control. Actions which may result in loss of USAR selected reserve membership within the technician’s control include, but are not limited to: voluntary transfer to the individual ready reserve (IRR) or standby reserve.

Paragraph 1-8f states that military and civilian assignments will be as closely paralleled as possible. Attainment of military rank higher than authorized for the unit justifies lateral reassignment to a compatible civilian/military technician position. Commanders at all levels will make reassignments to achieve this objective to the maximum extent practical.

Army Regulation 140-158 prescribes policies and procedures pertaining to the promotion and grade reduction of enlisted soldiers in the USAR. Paragraph 6-22 states in pertinent part, that an ART must serve in a dual status as a technician and as a member of the USAR, and if employed after 8 December 1983, the ART must be a USAR soldier assigned to the unit he serves as a technician. An ART will be consider for promotion under the same criteria as other enlisted soldiers; however, if acceptance of the promotion would affect his status as an ART, to include job relocation, the ART may decline the promotion without penalty. In declining, the ART’s name will not be removed from the recommended list or the selection list. The ART will be retained on this list until promoted or removed for cause.

Paragraph 3-39 states that a soldier who accepts a promotion, voluntarily agrees to serve in the duty position to which promoted, even if the promotion requires reassignment to another TPU. An exception to this policy is where the soldier has a change of residence or civilian employment, or incurs an extreme hardship requiring such reassignment. This policy does not preclude reassignment for the convenience of the government or the good of the command, nor does it preclude reassignment from a TPU to the Ready, Standby, or Retired Reserve. Promotion and reassignment orders will be revoked for a soldier who fails to decline a promotion based on a concurrent reassignment and who refuses to comply with the reassignment order.

Paragraph 7-12b states that a solider who submitted a late declination of promotion that was not approved by the promotion authority will be reduced to previous grade without prejudice upon his request for voluntary reduction. A soldier may volunteer for reduction to one or more lower grades. The reduction requested by the soldier will be accomplished by the promotion authority without prejudice. Such reductions will normally be limited to soldiers desiring reduction for assignment in a lower grade to an existing vacancy in a TPU.

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

1. The applicant was considered and selected for appointment as a CSM in September of 1992, while assigned as a temporary employee with the 122^nd ARCOM. Prior to the November 1992 release date of the results of the selection board, the applicant applied for and was accepted as a permanent civilian employee, in a dual status role, with the 271^st Maintenance Company, ostensibly in a warrant officer position, but in actuality in an overstrength position, as there was no position vacancy in his rank of Master Sergeant available in that unit.

2. The applicant then accepted an appointment as a CSM and reassignment to the 810^th Hospital, concurrent with his promotion to SGM, effective on
1 April 1993. The acceptance of the appointment required him to service 4 years with his new unit as a CSM. Those actions terminated his dual status role with the 27lst.

3. The applicant had a change of heart when he discovered that he would lose his civilian employment with the 271^st, and requested termination of the CSM appointment. Both the 810th and the 271^st accommodated him. The 271^st agreed to take him back, even though again a position did not exist.

4. He clearly understood the particulars of his employment with the 271^st when he accepted the job in October 1992. He was apparently warned that his acceptance as a CSM and assignment to a CSM position with the 810^th would cause him to lose his job, and he chose to ignore this advice. The applicant’s request for removal from the CSM program was voluntary, and was not made under duress despite the applicant’s claim to the contrary. He was given a choice, stay with the 810^th and lose his civilian job, or withdraw from the CSM program, return to his former unit, and retain his civilian job. The Board notes that the applicant is required by law to maintain military membership in the unit in which he was employed. The Board also notes that neither the 810^th nor the 271^st had to accommodate the applicant. The 810^th could have insisted that he remain in that unit and serve the full 4 year term as a CSM, as required by regulation. The 271^st could have refused to accept his return to that unit for no reason other than the lack of a position vacancy.

5. The Board notes the 16 February 1994 opinion voiced by a JAGC officer and agrees that AR 135-205 allows for voluntary withdrawal from the CSM program, and requires the command to reclassify the soldier as SGM and reassign him to a SGM position if available. The Board agrees that the removal or reassignment of a CSM will be voluntary unless removed for cause, the CSM position is abolished, or removal is based on maximum age or years of service as indicated in the regulation. He voluntarily withdrew from the CSM program. There was no SGM position available. He did not voluntarily accept reduction to a lower grade. His option, then, again voluntary, was assignment to the Reinforcement Control Group as a SGM, with the resultant loss of his civilian job with the 271^st. There are no provisions for an involuntary removal from the CSM program, except as indicated above, i.e., removal for cause; and there are no provisions for placing a SGM in a TPU, in this particular circumstance, if no SGM position is available.

6. The Board also notes that the applicant did not decline consideration to serve as a CSM, and when he was selected, he accepted the appointment, concurrently with promotion to SGM and reassignment. Because he did not decline, there is no reason to place him on a recommended list or selection list. His acceptance of the appointment, albeit followed by his voluntary withdrawal, does not mandate that he be placed on a standing list for promotion.

7. The actions taken by the applicant’s command in approving his voluntary withdrawal from the CSM program, without a concurrent voluntary reduction in rank by the applicant, were somewhat unorthodox. Nonetheless, these actions, and subsequent actions by members of the applicant’s chain of command, benefited the applicant. He could have lost his job. This Board is satisfied that that there is no injustice done him, and in fact believes that people in his chain of command have gone overboard to assist the applicant.

8. 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

__JHL___ ___CWB_ __RVO__ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director