PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 21 NOVEMBER 2002
         DOCKET NUMBER: AR2002071169


         I certify that hereinafter is recorded the true and complete record of the proceedings 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. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Mr. Thomas Lanyi		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that he be restored to the rank of staff sergeant E-6.

3. The applicant states that he was reduced to sergeant E-5 for failure to attend the Basic NCO Course (BNCOC). He was not offered the opportunity to attend BNCOC until 24 November 2002, with a start date of 17 December 2002. At that time he had already submitted his request for retirement.

4. He states that he will have 20 years of active federal service on 19 August 2002. He requested retirement on 30 November 2001. He was notified by e-mail that he was enrolled in BNCOC. At that time he was awaiting a retirement physical examination, and he did not have enough time to complete the [service obligation] requirement [after completion of BNCOC], and therefore, could not attend the scheduled class. The BNCOC reservation was cancelled. He states that he tried to get the Army Reserve Personnel Center to enroll him in BNCOC for two years, to no avail. He tried to enroll himself with the help of his training NCO, but was unable to do so. His career advisor failed to return his calls, and when he finally contacted him, he was informed that there were few seats [quotas], and not to worry about it. He would be contacted. He continued to pursue the matter.

5. The applicant talks about his training, assignments, and duties, and the awards that he has received. He provides certificates showing that he was awarded the Meritorious Service Medal, Army Commendation Medal (twice), Army Achievement Medal (twice), and Commander’s Coin. He includes a certificate and an academic evaluation report showing that he was the distinguished honor graduate of a medical supply specialist course in 1996. He provides memorandums of support from his medical company commander, his brigade commander, and an Army Reserve recruiter, the latter stating that he submitted a request for a BNCOC class date for the applicant, but after several submissions, he was informed that because the applicant was an Active Guard/Reserve (AGR) soldier, he was not allowed to enroll him in a professional development course.

6. The applicant’s military records show that he enlisted in the Army for three years on 21 June 1971. He was released from active duty in the grade of E-4 on 14 June 1974. He was discharged from the Army Reserve on 20 June 1977. On 16 April 1982 he enlisted in the Army Reserve. He was ordered to active duty in an AGR status on 24 September 1985.

7. The applicant was promoted to sergeant on 1 June 1993. He attended BNCOC at Fort Benjamin Harrison, Indiana from 18 October 1993 to 18 November 1993. He failed the course because he did not pass the Army physical fitness test.

8. The applicant was promoted to staff sergeant E-6 effective and with a date of rank of 1 October 1997. The order effecting his promotion states in pertinent part, “Soldiers accepting a conditional promotion and are subsequently denied enrollment, declared a “No-Show,” become academic failures or otherwise do not meet graduation requirement, will have their promotion revoked by PERSCOM, Office of Reserve Promotions (TAPC-MSL-E) and will be administratively removed from the centralized promotion list.”

9. On 24 November 2001 an official at the Army Reserve Personnel Command requested that the 94^th Regional Support Command (the applicant’s major command) be notified that the applicant was scheduled to attend BNCOC at Fort Sam Houston, Texas from 12 December 2001 through 5 March 2002.

10. On 19 February 2002 the applicant was reduced to sergeant with a date of rank of 1 June 1993.

11. The applicant was released from active duty on 31 August 2002 and placed on the retired list on 1 September 2002 in the rank and pay grade of sergeant, E-5, with his grade effective on 19 February 2002.

12. In 1991 Department of the Army linked the NCO Education System (NCOES) to promotions, requiring graduation from the appropriate level of NCOES (BNCOC, etc.) as a prerequisite for promotion. In October 1993, the Deputy Chief of Staff for Personnel (DCSPER), modified that requirement for soldiers selected for promotion to sergeant major, and in August 1994 modified the requirement for all NCO grades. Those modifications allowed conditional promotion until completion of the appropriate NCOES, and stated that the conditional promotion would be revoked if the soldier failed to complete the appropriate NCOES.

13. On 8 November 2001 the Office of The Judge Advocate General opined that the Deputy Chief of Staff for Personnel (DCSPER), as the proponent and exception authority for Army Regulation 140-158 (Enlisted [Army Reserve] Personnel Classification, Promotion, and Reduction) had the authority to authorize promotions to the grade of sergeant major prior to successful completion of the Sergeants Major Course; however, absent proper coordination and without approval by the Secretary of the Army or the Administrative Assistant to the Secretary of the Army, the DCSPER did not have the authority to authorize conditional promotions. Because the DCSPER messages [that authorized conditional promotions] were not properly coordinated, the portions of those messages purporting to establish conditional promotions were without legal effect. Promotions occurring between 1 October 1993 and 16 January 1998 were unconditional in nature. When the Secretary of the Army changed Army Regulation 140-158 on 17 December 1997 (effective on 17 January 1998), he took no action to ratify the purported issuance of new policies on conditional promotion in the 1993 and 1994 messages. Accordingly, those messages have no legal effect.

14. On 16 October 2002 an official in the Office of The Judge Advocate General advised a member of this agency that the aforementioned opinion applied not only to conditional promotions to the grade of sergeant major, but to conditional promotions to the grade of staff sergeant as well.

15. Army Regulation 140-158, change 4, became effective on 17 January 1998, and authorized promotions conditioned upon completion of required NCOES courses.

16. On 15 August 2002 the official at the Army Reserve Personnel Command who scheduled the applicant for BNCOC in December 2002, stated that scheduling for BNCOC was top loaded, that she had no information whether or not he previously had been scheduled, but that he may have “fallen through the crack.”

17. On 7 November 2002 a copy of the legal opinion from the Office of the Judge Advocate General, along with the information provided by the OTAG on 16 October 2002 and the information provided by the Army Reserve Personnel Command on 15 October 2002, was furnished the applicant for his review and comment. He concurred with the favorable recommendation contained therein.

CONCLUSIONS:

1. Although the applicant certainly had responsibility to get himself to BNCOC, information from the Army Reserve Personnel Command indicates that he may not have been entirely at fault. His contention that he did his best to get scheduled rings true. He might have “fallen through the crack.”

2. Nevertheless, the conditional nature of his promotion was without legal effect, as indicated in the opinion from the office of The Judge Advocate General. Consequently, his promotion to staff sergeant was not conditioned upon his completion of BNCOC.

3. Therefore, his promotion to staff sergeant effective on 1 October 1997 was unconditional. Accordingly, his subsequent reduction to sergeant on 19 February 2002, with a date of rank of 1 June 1993, is null and void and of no force or effect.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a. revoking the 19 February 2002 order reducing the applicant to sergeant. That order is null and void and of no force or effect;

         b. granting the applicant all due pay and allowances in the rank and grade of staff sergeant E-6 effective 19 February 2002; and

         c. showing that the applicant was released from active duty on 31 August 2002 and placed on the retired list on 1 September 2002 in the rank and pay grade of staff sergeant, E-6, with an effective date of his grade of 1 October 1997.

BOARD VOTE:

__FNE __ __LE____ __TL____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Fred N. Eichorn______
                  CHAIRPERSON

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INDEX

CASE ID	AR2002071169
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021121
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	133.00
2.
3.
4.
5.
6.