| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Mr. Raymond V. O'Connor, Jr. | Chairperson | |
| Ms. Kathleen A. Newman | Member | |
| Mr. Patrick H. McGann, Jr. | Member |
2. The applicant requests, in effect, that his rank and pay grade of sergeant major/E-9 (SGM/E-9) be reinstated. The applicant states, in effect, that his conditional promotion to SGM/E-9 was not conditional as is stipulated in a Department of the Army (DA), Deputy Chief of Staff, G-1, policy memorandum, dated 26 June 2002, subject: Conditional Promotion to USAR Sergeant Major (SGM) - Policy Guidance).
3. The applicant’s military records show that on 8 April 1994, Orders Number
32-4, issued by 97-9, issued by Headquarters, 85th Division, Arlington Heights, Illinois, authorized his promotion to SGM, effective 8 April 1994. There were no additional instructions in the orders indicating that the promotion was contingent on the completion of the Sergeants Major Course (SMC), or that it was conditional.
4. The applicant’s commander was notified in October 1999 that the applicant’s enrollment in the Nonresident Sergeants Major Course had been terminated because he had failed to maintain satisfactory academic progress. The notification letter indicated, “Since he was conditionally promoted to his current rank…and was terminated from the course, his promotion must be revoked.” On 4 November 1999, Orders Number 308-2, issued by Headquarters, 85th Division, Arlington Heights, Illinois, revoked the applicant 1994 promotion to SGM/E-9, but granted him “DE FACTO” status in order to retain pay and allowance he had received at the higher grade.
5. On 16 November 1999, Orders Number 320-5, issued by Headquarters, 85th Division, Arlington Heights, Illinois, authorized the applicant’s transfer to the Retired Reserve, effective 16 November 1999. These orders indicated that he was being transferred in the rank and pay grade of master sergeant/E8
(MSG/E-8).
6. On 26 June 2002, the Director of Military Personnel Policy, DA, Deputy Chief of Staff, G-1, published a memorandum containing the policy on conditional promotions to USAR SGM. This policy memorandum stated that the Office of The Judge Advocate General (OTJAG) rendered a legal opinion that indicated that the Deputy Chief of Staff, G-1, had no authority to authorize conditional promotions of USAR enlisted soldiers to SGM/E-9 during the period 1 October 1993 through 16 January 1998. Consequently, promotions to SGM/E-9 during that period were unconditional in nature. It further specified that this meant that soldiers who were not graduates of the SMC could be promoted to SGM/E-9, but could not be subsequently reduced for failure to complete this course. The authority for conditional promotions to SGM/E-9 took effect on 17 January 1998.
7. The applicant’s name was placed on the retired list on 4 December 2001, in pay grade E-8, when he reached age 60.
CONCLUSIONS:
1. The Board notes the applicant’s contention that his promotion to SGM/E-9 was not conditional and that his rank and pay grade should be reinstated, and it finds this claim has merit.
2. The evidence of record confirms that the applicant was promoted to SGM/E-9 on 8 April 1994. As indicated in the 26 June 2002 Director of Military Personnel Policy, DA, Deputy Chief of Staff, G-1, memorandum, the OTJAG rendered a legal opinion that confirmed that DA lacked the authority to authorize conditional promotions to USAR enlisted soldiers during the period 1 October 1993 through 16 January 1998. Consequently, promotions to SGM/E-9 during that period were unconditional in nature.
3. In view of the facts of this case, the Board finds that the applicant’s promotion to SGM/E-9 was unconditional and the subsequent revocation of that promotion order was improper. As a result, the Board concludes that it would be appropriate to revoke Orders Number 308-2, dated 4 November 1999, issued by Headquarters, 85th Division, Arlington Heights, Illinois, which revoked the applicant’s original promotion order to SGM/E9. Further, the Board concludes that the applicant should be provided any back pay and allowances due as a result of this reinstatement of his rank and pay grade to SGM/E-9.
4. In addition, the Board finds that it would also be appropriate to amend Orders Number 320-5, dated 16 November 1999, issued by Headquarters, 85th Division, Arlington Heights, Illinois, to show that the applicant was transferred to the Retired Reserve in the rank and pay grade of SGM/E-9 vice MSG/E-8 as is currently indicated in these orders.
5. As a result of the restoration of the applicant’s grade, his records should be also be corrected to show that he was placed on the retired list effective
4 December 2001, in the grade SGM/E-9, with entitlement to appropriate back pay.
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 be corrected:
a. by revoking Orders Number 308-2, dated 4 November 1999, issued by Headquarters, 85th Division, Arlington Heights, Illinois;
b. by restoring the rank and pay grade of the individual concerned to SGM/E-9 as originally effected on 8 April 1994;
c. by providing him any back pay and allowances due as a result of this reinstatement of his rank and pay grade;
d. by amending Orders Number 320-5, dated 16 November 1999, issued by Headquarters, 85th Division, Arlington Heights, Illinois, to show that he was transferred to the Retired Reserve in the rank and pay grade of SGM/E-9 vice MSG/E-8 as is currently shown.
e. by placing him on the retired list effective 4 December 2001 in the grade of SGM/E9 with entitlement to appropriate back pay.
BOARD VOTE:
__RVO__ __KAN __ __PHM__ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
Raymond V. O'Connor, Jr.
CHAIRPERSON
| CASE ID | AR2002081508 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20030703 |
| 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. | 112.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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