MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 24 JULY 2001
         DOCKET NUMBER: AR2001055771

         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Margaret V. Thompson		Member
Mr. William D. Powers		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)

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APPLICANT REQUESTS: In effect, that he be restored to his previous rank of Staff Sergeant, pay grade E-6.

APPLICANT STATES: That he was promoted to Staff Sergeant on 3 May 1999 while attending the basic NCO course (BNCOC), and accessed into AGRET (Army Guard/Reserve Entry Training) on 13 June 1999 as a Staff Sergeant, but was ordered to relinquish his rank. His records do not show that he was administratively reduced.

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

On 13 February 1999 the Army Reserve Personnel Command (AR-PERSCOM) published an order ordering the applicant to active duty in an Active Guard/Reserve (AGR) status in the grade of rank of Sergeant, duty as a personnel sergeant (Para 010B, Ln 08A), with a reporting date to the 81^st Regional Support Command at Birmingham, Alabama of 28 June 1999. On 15 April 1999 that order was amended to reflect TDY (temporary duty) to attend AGRET training at Fort McCoy, Wisconsin during the period 14 June to 25 June 1999.

On 11 February 1999 the Office of the Chief of the Army Reserve (OCAR) requested to the DA Deputy Chief of Staff for Personnel (DA DCSPER) authority to modify Army Regulation 140-158, paragraph 1-7.1c, to delete the last two sentences of that paragraph, to allow soldiers to be promoted after applying for AGR status and allowing them to enter the AGR program at the higher grade, a change from the then requirement that a soldier who applied for entry on AGR status be ordered to active duty in the grade he held at the time of the application. The OCAR stated that soldiers who applied for AGR status and who were subsequently promoted were required to take an administrative reduction before entering on AGR status, and because the application process was long and cumbersome, and because in many cases 12 months passed before a soldier was notified of his acceptance into the program, the only recourse available to the soldier was to take a reduction or reapply at the higher grade.

On 8 March 1999 the DA DCSPER approved the OCAR request. It approved a change to Army Regulation 140-158, paragraph 1-7.1c, and stated that the approval applied to all AGR soldiers who were currently under consideration for AGR program entry. It did not “grandfather” AGR soldiers previously ineligible under the provisions of that paragraph. Changes to Army Regulation 135-18 (The AGR Program) were to be addressed to the proponent at OCAR.

On 12 March 1999 OCAR, in endorsing the new policy to the Commander of the Army Reserve Personnel Command, stated that soldiers in the grade of Staff

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Sergeant and above were not affected by the change; and that while Army Regulation 140-158 would allow those soldiers to retain the higher grade, Army Regulation 135-18 prohibited it, and that a change to the latter regulation was pending.

Information obtained from an official at OCAR on 10 July 2001 revealed that the OCAR endorsement was somewhat misleading, in that newly promoted Staff Sergeants could retain their rank, provided they were assigned to an AGR position calling for that rank.

Orders published by the 80^th Division, a Reserve command in Richmond, Virginia, show that the applicant was promoted to Staff Sergeant E-6 on 3 May 1999. The promotion order states: “The promotion is not valid and this order will be revoked if he is not in a promotable status on the effective date of promotion.”

On 17 June 1999 the applicant requested an exception to the provisions of Army Regulation 140-158, which prohibited promotion upon change of status to enter the AGR program, and stated that the position for which he was applying was a Staff Sergeant position [Apparently, at that time he was not aware of the policy change].

On 29 June 1999 the applicant requested to the Commander of the Army Reserve Personnel Command that he be promoted to Staff Sergeant E-6 in accordance with the provisions of the 8 March 1999 endorsement.

On 5 August 1999 the Army Reserve Personnel Command disapproved the applicant’s request citing the 12 March 1999 OCAR endorsement as the authority for its action.

A document which the applicant attaches to his application indicates that as of 7 February 2001 the applicant was occupying a position as an Exp Pers Sgt, Para 010B, Line 08, Grade E-6.

Army Regulation 140-158 prescribes policy and procedures governing the promotion and grade restoration of Army Reserve soldiers. Paragraph 1-7.1, then in effect, prohibits promotion to provide a higher grade upon change of status, and states: “The promotion of a soldier within one system for the specific purpose of providing the soldier with a higher grade on entry into another system, or against a duty position in another system, is prohibited. Such a practice

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avoids the competitive process and creates an injustice for all of the eligible soldiers within the system. For example, when a TPU soldier applies for entry on AGR status and is approved, the soldier will be ordered to active duty in the grade he or she held at the time of application. A subsequent promotion under the TPU system will not authorize a higher grade in an AGR status although the promotion is purportedly effective prior to entry on, or application for, AGR status.”

Paragraph 1-14 of Army Regulation 140-158 lists categories in which soldiers are considered to be in a nonpromotable status, and states that a soldier will not be advanced or promoted as long as he is in one of those categories. One of those categories concerns soldiers who are being processed for reassignment to the Control Group (AGR), Control Group (IMA), the IRR, or the Standby Reserve (Active List), and applies to soldiers assigned to a TPU.

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 promoted to Staff Sergeant prior to his reporting date in an AGR status; nonetheless, he was obviously selected for entry into the AGR program well in advance of his 3 May 1999 promotion date, as evidenced by the 19 February 1999 order to active duty in an AGR status. That order reflects his rank as SGT [although that rank had been lined through, and the rank of SSG substituted therewith]. The DA DCSPER approval of the change to the pertinent Army regulation specifically prohibited the “grandfather” of AGR soldiers who were under consideration for AGR program prior to the approval date of the change (8 March 1999).

2. The applicant was in a nonpromotable status on 3 May 1999, the date that he was promoted to Staff Sergeant, having already been selected for entry into the AGR program, prior to the change to the Army regulation. Consequently, the order promoting him should have been revoked.

3. Therefore, the applicant’s entry on active duty in an AGR status in the rank of Sergeant E-5 is correct.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

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6. 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

__JNS __ __MVT __ __WDP _ DENY APPLICATION

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

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INDEX

CASE ID	AR2001055771
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010724
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	192
3.
4.
5.
6.