PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 September 2003
         DOCKET NUMBER: AR2002081504


         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Frank C. Jones		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 sergeant major (SGM/E-9) in accordance with Headquarters, United States Army Reserve Command (USARC) Memorandum, dated 7 October 2002.

3. The applicant states that he was promoted to SGM/E-9 with an effective date and date of rank (DOR) of 7 April 1997. He was reduced in rank from SGM/E-9 to master sergeant (MSG/E-8) and is entitled to restoration to his former rank. In support of his application, he submits copies of: USARC Memorandum, dated 7 October 2002; promotion orders; reduction orders; and a copy of his reassignment orders.

4. The applicant’s military records show he enlisted in the US Army Reserve (USAR) on 12 September 1969. He enlisted in the Regular Army on 9 January 1970. He continued to serve until he was early released to join a USAR unit on 1 November 1971. He was transferred to the USAR Control Group (Annual Training) where he continued to serve. He reenlisted on 9 September 1975 and was assigned to a troop program unit (TPU) and continued to serve through a series of continuous reenlistments.

5. He was promoted to MSG/E-8 with an effective date and DOR of 8 February 1982. He was conditionally promoted to SGM/E-9 with an effective date and DOR of 7 April 1997. Promotion was contingent upon completion of the Sergeants Major Course (SMC) within 2 years after enrollment.

6. On 11 February 2002, the applicant was released from his TPU and was transferred to the Retired Reserve, effective 11 February 2002, in the rank and pay grade of SGM/E-9.

7. On 25 March 2002, orders were published by Headquarters, 95^th Division (Institutional Training) reducing the applicant to the pay grade of E-8 with an effective date of 12 February 2002 and a DOR of 20 August 1984. On that same day, orders were published releasing the applicant from the USAR and transferring him to the Retired Reserve, effective 12 February 2002, in the rank and pay grade of MSG/E-8.

8. The applicant's Chronological Statement of Retirement Points shows that he had completed 32 years of qualifying service for retirement purposes.







9. On 7 October 2002, a memorandum was prepared by the Headquarters, USARC, Subject: Restoration of Promotion to Sergeant Major. It stated that Headquarters, DA Message, dated 28 October 1993, implemented conditional promotion to SGM in October 1993. Soldiers promoted to SGM between 26 October 1993 and 16 January 1998 were required to enroll in and complete the SMC after promotion. This authority also stated that promotion orders would be revoked for those soldiers who failed to enroll in or complete SMC. USARC, Memorandum dated 26 June 2002, announced a change in policy regarding those soldiers conditionally promoted to SGM between 26 October 1993 and 16 January 1998. The Office of the Judge Advocate General (OTJAG) rendered an opinion that the Army Reserve did not have the proper authority to make promotions conditional during the referenced time frame. As such, those solders whose promotions were revoked for failure to complete SMC were entitled to restoration to their former SGM rank. Commands should review their orders and file and take immediate action to promote soldiers who were (TPU) members and whose promotions were revoked, during the stated period, solely because they failed to complete the SMC. Soldiers were entitled to all back pay and allowances. Soldiers promoted to SGM would be restored to their previous DOR and effective date by USARC Memorandum dated 26 June 2002. Soldiers who are no longer assigned to TPUs would have to seek relief by applying to the Army Board for Correction of Military Records (ABCMR).

10. A HQDA Message, dated 28 October 1993, Subject: Linkage of Noncommissioned Officer Education System (NCOES) to Promotions (USAR, TPU, Individual Mobilization Augmentee (IMA) – Basic Noncommissioned Officer Course (BNCOC), Advanced Noncommissioned Officer Course (ANCOC), and SMC announced the required graduation from the appropriate level of NCOES as a prerequisite for promotion. 1 October 1993 was the established date for completion of the linkage of NCOES (SMC) for promotion to SGM. It announced that promotion to the rank of SGM required graduation from the SMC. Due to the lack of SMC graduates to meet the fiscal year (FY) 95 promotion vacancy requirements, MSGs/1SGs would be considered for promotion to SGM regardless of completion of the SMC for TPU soldiers. If selected, soldiers would be automatically enrolled in the SMC. Soldiers selected for promotion to SGM in FY95 and previously selected for appointment to CSM and assigned to the position that had not completed but enrolled in the United States Army SMC (USASMC) would be promoted conditional upon their completion of the SMC. Those who had previously failed USASMC would not be promoted under the authority announced in this message. The conditional promotion would not be revoked if the NCO was subsequently denied enrollment, became an academic failure or did not meet graduation requirements, became a "no show", or failed to attend during the FY for which selected for school. The promotion authority would revoke the soldier's conditional promotion orders and the soldier would be removed from assignment. The service would be considered a de facto status.

11. On 26 June 2002, the Office of the Deputy Chief of Staff, G-1, Department of the Army, published a memorandum on guidance on "Conditional Promotions to USAR SGM – Policy Guidance." It stated that the OTJAG had rendered a legal opinion that the Department of the Army (DA) Deputy Chief of Staff for Personnel (DCSPER), now the G-1, had no authority to authorize conditional promotions of Army Reserve enlisted soldiers to SGM during the period 1 October 1993 through 16 January 1998. Promotions to SGM during that period were unconditional in nature (i.e., soldiers who were not graduates of the SMC could be promoted to SGM, but could not be subsequently reduced for failure to completed the SMC). Authority for conditional promotions to SGM took effect on 17 January 1998, the effective date of the current version of Army Regulation 140-158. Based on this information, required corrective action should now be taken. Reduction authorities may not accomplish any further reductions of Army Reserve soldiers affected by this action solely for failure to enroll in, attend, or successfully complete the SMC. Soldiers affected by this action who had a current military status in the Army Reserve, and who were subsequently reduced for reasons related to SMC completion, would be promoted to SGM by the soldier's current promotion policy. Promotions would be made without regard for position vacancy, with the same effective date and DOR as when first promoted to SGM, and should be accomplished without undue delay. Soldiers affected by this action that had no current military status (discharged or in the Retired Reserve) or who were no longer in the Army Reserve must make application to the ABCMR for correction.

12. Army Regulation 140-158 prescribes policy and procedures pertaining to the classification, promotion, reduction, and grade restoration of enlisted soldiers
of the US Army Reserve (USAR). Paragraph 1-8d pertains to revocation of orders. The promotion authority will issue an order revoking a promotion or advancement when: (1) The promotion or advancement was not authorized by this regulation or other published HQDA criteria governing USAR promotions; and (2) A condition for revocation has been determined by HQDA (DAPE-MPE), Commanding General (CG) PERSCOM, CG Army Reserve Personnel Command (AR-PERSCOM), or outside the continental United States (OCONUS) or area commander. The promotion authority will issue the revocation orders on notification.

CONCLUSIONS:

1. The applicant was conditionally promoted to SGM/E9 with a DOR and effective date of 7 April 1997 contingent upon completion of the SMC within 2 years after enrollment. He was release from his TPU and was transferred to the Retired Reserve effective 11 February 2002, in the rank and pay grade of SGM/E-9.


2. On 25 March 2002, he was reduced to the pay grade of E-8 with an effective date of 12 February 2002 and a DOR of 20 August 1984. On that same day, orders were amended transferring him to the Retired Reserve in the rank and pay grade of MSG/E-8 effective 12 February 2002.

3. USARC, Memorandum, dated 7 October 2002, clearly outlines the references pertaining to the applicant's restoration. DA Message dated 28 October 1993, implemented conditional promotion to SGM in October 1993. Soldiers promoted to SGM between 26 October 1993 and 16 January 1998 were required to enroll in and completed SMC after promotion. The applicant was promoted during that period, was required to enroll in and completed the SMC after promotion, and the authority stated that orders would be revoked if he failed to enroll in or completed SMC.

4. On 26 June 2002, DCSPER announced a change in policy regarding soldiers conditionally promoted to SGM between 26 October 1993 and 16 January 1998. The OTJAG rendered an opinion that the Army Reserve did not have the proper authority to make promotions conditional during that time. Soldiers whose promotions were revoked for failure to complete SMC were entitled to restoration to their former SGM rank.

5. Based on the foregoing, the applicant is entitled to restoration of his rank to SGM with a DOR and effective date of 7 April 1997, entitled to back pay and allowances in the pay grade of E-9 from 12 February 2002 to present, and transfer to the Retired Reserve effective 12 February 2002, in the rank and pay grade of SGM/E-9.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected:

a. by voiding the orders reducing him to MSG;

b. by reinstating him to the rank of SGM with a DOR and effective date of 7 April 1997;






c. by providing requisite difference in pay from 12 February 2002 to present in the pay grade of E-9; and

d. by transferring the applicant to the Retired Reserve effective 12 February 2002, in the rank and pay grade of SGM/E-9.

BOARD VOTE:

___RO___ __BE___ __FJ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond V. O’Connor, Jr.____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002081504
SUFFIX
RECON
DATE BOARDED	20030904
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20020211
DISCHARGE AUTHORITY	AR .140-10
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	21/302
2.
3.
4.
5.
6.