RECORD OF PROCEEDINGS


      IN THE CASE OF:

      BOARD DATE:           7 October 2004
      DOCKET NUMBER:   AR2004099918

      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. Prevolia Harper               |     |Analyst              |


      The following members, a quorum, were present:


      |     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |

      The Board considered the following evidence:
      Exhibit A - Application for correction of military records.
      Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests retroactive promotion to staff sergeant (E-6)
and all back pay due.

2.  The applicant states in effect, that he was erroneously denied
promotion to staff sergeant/pay grade E-6, that the Nevada Army National
Guard (NVARNG) improperly promoted another enlisted solider [hereafter
referred to as Sergeant G] to staff sergeant/pay grade E-6 and that he [the
applicant] held a higher sequence number on the STPA [Select, Train,
Promote, and Assign] promotion list than Sergeant G who was promoted to
staff sergeant/pay grade E-6.

3.  The applicant provides in support of his application a copy of a
memorandum to the Nevada Inspector General, dated 13 May 2002; a memorandum
for the Army Board for Correction of Military Records (ABCMR), dated
3 December 2003; an email, dated 19 November 2003; an email, dated 29
December 2003; a rebuttal addressed to the NVARNG Inspector General, dated
22 May 2002; a MRI report, dated 29 May 2002; a notification of personnel
action, dated 2 June 2003; a copy of Headquarters 5th United States Army
Permanent Orders Number 271-1, dated 28 September 2001; an email, dated
5 April 2004; an undated Freedom of Information Act Request, an email,
dated 7 June 2004; and a rebuttal to a staff advisory opinion with
enclosures, dated 25 June 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he initially served in the
Ohio Army National Guard (OHARNG) from 19 November 1976 through 18 November
1982.
He subsequently served on active duty as a military policeman for the
periods
13 May 1986 through 26 October 1993 and 28 September 2001 through 24 May
2002.

2.  The applicant's records contain an Enlistment/Reenlistment Document
which shows that on 15 December 1993, he enlisted in the Nevada National
Guard for a period of 1 year.

3.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated
11 June 1998, shows the applicant voluntarily extended his enlistment in
the ARNG for 4 years.

4.  The applicant was considered by the 2001 NVARNG promotion board which
considered soldiers eligible for promotion to staff sergeant/pay grade E-6.

5.  The available records do not contain the official promotion list and/or
the order of merit list from the 2001 NVARNG staff sergeant promotion
board.

6.  Records show that on 1 January 2002, the applicant was tendered a
civilian employment offer for the position of Civil Aviation Security
Specialist (Federal Air Marshal).  Records further show that the applicant
accepted this position on 2 January 2002 and that his start date of
employment was 27 January 2002.

7.  On 16 January 2002, the applicant received a notification of
eligibility for retired pay at age 60 from the State of Nevada, Office of
the Adjutant General.  This notification shows that the applicant had
completed the required years of service to be eligible for retired pay at
age 60 in accordance with Title 10 United States Code.

8.  On 15 April 2002, the applicant requested release from active duty due
to extreme hardship.  The applicant stated his reason for the request was
that if he did not immediately accept the civilian position he would
forever be precluded from employment in Federal Law Enforcement due to
congressionally mandated age restrictions.

9.  On 15 April 2002, the applicant's commander forwarded the release from
active duty due to extreme hardship request to the Garrison commander of
the Defense Language Institute Foreign Language Center, Monterey,
California, with a recommendation of approval.

10.  On 15 April 2002, the battalion chaplain recommended by memorandum
that the Garrison commander approve the applicant's request for a hardship
discharge.

11.  On 16 April 2002, the Garrison commander concurred with the
recommendations of approval and forwarded the applicant's request to
officials of the United States Army Personnel Command (PERSCOM) for final
approval.

12.  On 7 May 2002, PERSCOM approved the applicant's request for hardship
discharge and provided a release date effective no later than 24 May 2002.

13.  On 13 May 2002, the applicant requested that the Inspector General
consider his allegations that he was subjected to duress under the
provisions of Article 138 (Complaints of Wrongs) of Title 10 United States
Code.



14.  The applicant essentially argued the following:

      a.  that on 24 September 2001, Sergeant G was accepted by the State
of Nevada as the replacement Active Guard Reserve (AGR) soldier to succeed
a sergeant first class who was retiring after 30 years of military service
and that Sergeant G was promoted to staff sergeant/pay grade E-6;

      b.  that on 25 September 2001, there was no vacant E-6/squad leader
positions for Sergeant G to be promoted in and that National Guard
regulations require a vacancy and the order of merit ranking on the
promotion eligibility list be followed;

      c.  that Sergeant G was ranked number 4 on the STPA promotion list
with 450 points and had the sequence number E6-067 and that he [the
applicant] was ranked number 2 with 542 points and had the sequence number
E6-017;

      d.  that the position vacancy initially announced required applicant's
to be staff sergeant/pay grade E-6 through sergeant first class/pay grade E-
7 and that Sergeant G was not eligible to apply for the position because he
did not meet these requirements;

      e.  that to avoid the perception of improprieties the head of the
selection board authorized the requirements of the announcement to be
changed to allow promotable individuals in the grade of sergeant/pay grade
E-5;

      f.  that this authorization included the stipulation that the
applicant be MOS qualified and have completed the Primary Leadership
Development Course (PLDC) and the Basic Noncommissioned Officer Course
(BNCOC) Phases I and II;

      g.  that the changes to the position announcement limited the number
of personnel, including himself, from applying for the position because
they were waiting for a BNCOC Phase I school slot to become available;

      h.  that Sergeant G was "double slotted" [assigned to two positions at
the same time] and that the 1/99 Troop Command was aware of the unit's
upcoming federal deployment and the subsequent loss of the AGR position
prior to Sergeant G being "double slotted.";

      i.  that on 30 September 2001, his [the applicant's] unit was
activated under the provisions of Title 10 United States Code and that the
AGR position held by Sergeant G was nullified;

      j.  that another staff sergeant was promoted to sergeant first
class/pay grade E-7 to replace the retiring sergeant first class and that
this promotion created an available staff sergeant squad leader position in
his unit;


      k.  that there was a second staff sergeant/pay grade E-6 squad leader
position available due to another soldier's bar to reenlistment and
retirement;

      l.  that the sergeant in the number 1 position on the STPA promotion
list was promoted to fill the position created by the retirement of another
soldier;

      m.  that he [the applicant] was number 2 on the STPA promotion list
but was not promoted into the second available position and that Sergeant G
was placed in that position on the manning roster despite the unit being
deployed under the provisions of Title 10 United States Code and the
nullification of the AGR position;

      n.  that Sergeant G was improperly promoted ahead of him and the
sergeant who was number 3 on the STPA promotion list and that since
Sergeant G was doubled slotted in the AGR position, he should not have been
promoted until the effective date of the retirement of the soldier
currently assigned to that position;

      o.  that he and the number 3 individual on the STPA promotion list
were wrongfully denied promotion;

      p.  that subsequently another staff sergeant left the unit in January
2002 which opened an additional E-6 position and that this position was
filled by a staff sergeant reassigned to the unit;

      q.  that the Inspector General grant relief by promoting him to staff
sergeant/pay grade E-6 with an effective date of January 2002 and that he
be provided all pay and benefits due him and that Sergeant G be permitted
to retain his promotion to staff sergeant/pay grade E-6, even if it should
be later discovered that he was prematurely promoted;

      r.  that he heard the excuse that a soldier must be in a position for
6 months in order to be promoted, that he was granted a hardship discharge
to take an anti-terrorist position as a Federal Air Marshal and that he has
already been reassigned to another unit as an staff sergeant/pay grade E-6
Military Police Investigator;

      s.  that a sergeant first class in the United States Army Reserve
advised him that if "provisionally" promoted to E-6 by the NVARNG, he would
retain the rank of E-6 and be immediately slotted to attend BNCOC.

15.  On 20 May 2002, the NVARNG Deputy Chief of Staff for Personnel
(DCSPER) responded by memorandum to the applicant's Inspector General
request.

16.  The NVARNG DCSPER essentially outlined the applicant's concerns
regarding the promotion of Sergeant G, the events that led to Sergeant G's
promotion, why he was not promoted to staff sergeant/pay grade E-6, and why
his packet was not considered by the 2002 promotion board.

17.  The NVARNG DCSPER stated that, the information contained in the
applicant's 13 May 2002 Inspector General request was considered and
determined that all noncommissioned officer (NCO) promotions were in
compliance with National Guard Regulation (NGR) 600-200 (Enlisted
Administrative Separations) and the State of Nevada promotion supplement
policy, dated 1 August 2001.

18.  The NVARNG DCSPER stated that his staff considered the information
contained in the applicant's 13 May 2002 request.  The memorandum continued
that, after a thorough review of all NCO promotion actions that were
completed within the 72nd Military Police Company during the past nine
months, it was found that all actions accomplished had been in compliance
with National Guard Regulation 600-200 and the State of Nevada supplemental
policy, dated 1 August 2001.

19.  The NVARNG DCSPER stated that on 21 February 2002, the Office of the
Chief of Staff for Personnel (ODCSPER) received and approved the
applicant's request for retirement.  The NVARNG DCSPER acknowledged that
the applicant's retirement processing was delayed due to a Stop Loss
requirement, the Headquarters supported the applicant's desire to leave a
deployed unit to pursue an Air Marshal position.  The NVARNG DCSPER stated
that if a vacancy was available after 21 February 2002, he would not have
been considered due to his pending approved retirement.

20.  The NVARNG DCSPER disapproved the applicant's request to receive a
back-dated promotion.  The NVARNG DCSPER continued that promotion to staff
sergeant requires that the soldier must have completed BNCOC and has a
remaining time in service requirement to allow service in the higher grade
for a minimum of 12 months.  The NVARNG DCSPER further stated that
conditional promotions can only be granted in instances where a soldier
actually performs the duties of the higher grade, agrees to attend NCOES
within 12 months after Return from Active Duty (REFRAD) and fulfills the 12
month time in service requirement.

21.  The NVARNG DCSPER concluded that the decision not to authorize the
applicant a conditional promotion was based on the fact that there was no
vacancy in the 72nd Military Police Company, he did not perform the duties
required of a staff sergeant while he was deployed, and that once he was
discharged to the USAR that the NVARNG could not ensure that he would
complete the required NCOES or remaining service commitment.

22.  On 22 May 2002, the applicant provided a letter to the NVARNG
Inspector General which responded to the 20 May 2002 memorandum by the
NVARNG DCSPER.

23.  In this response, the applicant essentially restated his arguments
provided in his 13 May 2002 IG request.  The applicant included the
following additional arguments in his response to the NVARNG DCSPER:


      a.  that the U.S. Total Army Personnel Command (PERSCOM) denied his
request to retire and he was subsequently given a hardship discharge;
therefore, he could not be administratively removed from the promotion
eligibility list";

      b.  that he could not have completed BNCOC because he was told that
there was no vacant school slot and the next available start date was in
December 2001;

      c.  that another soldier who had not completed BNCOC was conditionally
promoted to staff sergeant/E-6 upon deployment and that had he been
promoted he would have served in the position since September of the
previous year";

      d.  that a second soldier was conditionally promoted without
completing BNCOC and that soldier was scheduled to attend BNCOC in 2002;

      e.  that once the USAR accepts him, it becomes their responsibility to
ensure that he attends the required NCOES courses and not the NVARNG and
that he could have made comments on a DA Form 4187 (Personnel Actions) to
show that he would reenlist or extend to meet the eligibility requirements;


      f.  that he was granted his 20-year letter for nonregular retirement
at age 60 and was approved for transfer to the USAR Control Group
(Reinforcement) effective 30 April 2002;

24.  On 23 May 2002, the applicant requested that PERSCOM officials allow
him to remain on active duty in a convalescent leave status until he began
his Federal Law Enforcement Academy.  There is no evidence that this
request was approved.

25.  The applicant was released from active duty on 24 May 2002 and
transferred to the United States Army Reserve Control Group (Reinforcement)
as a sergeant/pay grade E-5.

26.  On 25 May 2002, the applicant was released from the 72nd Military
Police Company of the NVARNG and transferred to the Headquarters, 1/99th
Troop Command.

27.  DA Form 4187 (Personnel Action), dated 14 June 2002, shows that the
applicant requested assignment to the 313th Military Police Detachment in
the NVARNG.

28.  DA Form 4836, dated 14 June 2002, shows that the applicant voluntarily
extended his enlistment in the USAR (Control Group Reinforcement) for a
period of 1 year.  This extension was authenticated by a commissioned
officer in the rank of first lieutenant and placed in the applicant's
official military personnel file on 10 July 2002.

29.  U. S. Army Reserve Personnel Command Orders Number C-07-218042, dated
12 July 2002, released the applicant from the USAR Control Group
(Reinforcement) and assigned him to the 313th Military Police Detachment in
the NVARNG.

30.  Officials from the National Guard Bureau provided an advisory opinion,
dated 1 June 2004, which recommended that the applicant's request for
retroactive promotion and all back pay be denied.  The advisory opinion
further stated that the NVARNG DCSPER had reviewed all NCO promotion
actions that were completed by the 72nd Military Police Company during the
period 1 August 2001 through 1 May 2002 and found that they were in
compliance with the applicable regulations and policies.



31.  The advisory opinion further states that the applicant's promotion
required completion of BNCOC, a vacancy in the unit, and a remaining
service obligation of 12 months.  The advisory opinion noted that the
applicant had not completed BNCOC and that the applicant had requested and
was granted an early release from active duty.

32.  On 25 June 2004, the applicant submitted a rebuttal to the 1 June 2004
National Guard Bureau advisory opinion.  The applicant stated that he
believed that the author of the advisory opinion did not have all facts
pertaining to his case.

33.  The applicant continued that the facts at the time he should have been
promoted are "conclusively established" and anything beyond that is
irrelevant to his initial complaint and that given those facts, he was
improperly denied promotion to E-6/staff sergeant.

34.  The applicant stated the requirement for a 12-month service obligation
was waived immediately following 9/11 which allowed for the immediate
conditional promotion of soldiers who were on approved promotion lists into
vacancies that were current at the time of deployment.

35.  The applicant further states the same issues regarding the promotion
of Sergeant G, the requirement to complete BNCOC prior to being promoted to
staff sergeant/pay grade E-6, that his retirement was delayed due to a Stop
Loss policy, that he was accepted for employment as a Federal Air Marshal,
that he was granted a hardship release and that he was transferred to the
USAR.

36.  In addition, to information and arguments that the applicant's
previously submitted the applicant also states that following:

      a.  that his release from active duty to accept a position as a
Federal Air Marshal, has no bearing on the fact of whether he was entitled
to a promotion in September 2001;

      b.  that had he been promoted in September 2001, he would have been
assigned duties commensurate with that rank and would have met the 12-month
requirement to retain staff sergeant;


      c.  that the NVARNG did not notify officials at PERSCOM of his request
to have his release from active duty rescinded and to remain on active
duty;

      d.  that he believed under the regulations in effect in October 2002,
he would have been granted a 24 month time period in which to complete the
required NCOES course, otherwise, his conditional promotion would be
subject to revocation;

      e.  that according to his unit administrator, the Department of the
Army made all conditional promotions permanent;


      f.  that his superiors in the 313th Military Police Detachment also
informed him that NCOES requirements were changed and BNCOC was only
required for promotion to sergeant first class/E-7 due to ongoing
operations in Iraq;

      g.  that Staff Sergeant G had since been promoted to sergeant first
class/ pay grade E-7 in a platoon sergeant position and that he (the
applicant) would have been promoted to sergeant first class/ pay grade E-7
as well;

      h.  that he was released from active duty effective 24 May 2002 and
that he immediately entered the USAR Control Group Reinforcement as a staff
sergeant/pay grade E-6 with the 313th Military Police Detachment in Las
Vegas, Nevada;

      i.  that when the 2002 STPA packets were due, he asked a staff
sergeant to "put his promotion packet in just in case the Air Marshal
release fell through" and that he was shown an email from the "State" which
stated that since his retirement orders were issued, he had to sign a
statement that he did not want to be considered for promotion;


      j.  that he reluctantly signed the papers stating that he did not want
to be considered for promotion.


37.  National Guard Regulation 600-200, sets forth the basic authority for
personnel actions, including separations and promotions, pertaining to
soldiers in the National Guard.

38.  Paragraph 11-28a(2)(3) of National Guard Regulation 600-200, states,
in pertinent part, that sergeants with PLDC credit are promotable to staff
sergeant after they complete BNCOC Phase I.  They must start Phase II (or
the next resident phase prescribed by the proponent) within two years after
completion of Phase I.  Sergeants without PLDC credit are promotable to
staff sergeant after they complete PLDC and BNCOC Phase I.  Sergeants with
date of rank on or before 1 October 1992 do not need PLDC to attend BNCOC.

39.  Paragraph 11-32b of National Guard Regulation 600-200, states that
soldiers may be considered for assignment and promotion when they are two
grades under the authorized grade, there are no authorized positions in the
unit or immediate geographic area for the intermediate grade, and there are
no other qualified soldiers in the unit or immediate geographic area.

40.  Paragraph 11-33b of National Guard Regulation 600-200, states that
soldiers are promotable and may be promoted with an effective date of rank
on the day after they complete the required training.

41.  Paragraph 11-33b of National Guard Regulation 600-200, also states in
pertinent part, that the promotion list is neither a permanent standing
list nor an order of merit list.  Each list published by the State AG is a
new list and intended to remain valid until exhausted.  Soldiers who have
not been selected for assignment and promotion who remain on the list near
its expiration, including those with hardships, will be considered in the
next board process with a new ranking relative to all other soldiers being
considered.  If not assigned and promoted from the old list before it
expires, their sequence on the new list will be determined solely by their
ranking with contemporaries, they will not be placed at the top of the
list.

42.  Paragraph 11-33b of National Guard Regulation 600-200 also states that
soldiers who fail to meet any condition of the assignment and promotion
such as applying for and completing a required NCOES course as required by
State policy, except through hardship, illness or injury, may be removed
from the position and promotable status, will not be placed back on the
list, and will not be eligible for promotion unless selected by a
subsequent board.

43.  Paragraph 11-45a of National Guard Regulation 600-200, states in
pertinent part, that soldiers will be offered assignment to available
vacancies for which they are eligible and available starting with the
lowest sequence number and continuing until the selection objective is
exhausted, all other vacancies are filled, or the list expires.  If
soldiers are eligible and available for assignment, they will be assigned
and promoted provided they have met all other requirements for promotion.

44.  Paragraph 11-48c of National Guard Regulation 600-200 states that
commanders will promptly advise the State Adjutant General in writing with
supporting documents to remove from the promotion list the name of a
soldier who has a retirement approved before the board date set in the
memorandum of instruction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be retroactively promoted with
all back pay because he was not promoted to staff sergeant in accordance
with the order set on the STPA promotion eligibility list.

2.  The applicant contends that a soldier with less time in grade, fewer
promotion points and a higher sequencing number was promoted to staff
sergeant prior to him.

3.  The NVARNG DCSPER validated the promotion of Sergeant G based on his
AGR status and the fact that he was the only one eligible to serve in the
position. Therefore, Sergeant G's promotion has no bearing on the
applicant's ability to be promoted.

4.  The applicant contends that the requirements of the announcement for
promotion to staff sergeant were changed and therefore, he was placed at a
disadvantage.  However, there is no evidence that the announcement was
changed or that if the change occurred, that it would have disadvantaged
the applicant.  Therefore, this contention is not supported by the evidence
in this case.

5.  The applicant contends that he should have been conditionally promoted
to staff sergeant.  However, evidence of record shows that the applicant
did not perform the duties required of a staff sergeant while deployed and
did not have the remaining time in his service obligation to serve at the
higher grade for a minimum of 12 months. Therefore, he was not eligible for
a conditional promotion to staff sergeant.  Based on the facts cited above,
the applicant's contention is without basis.

6.  The applicant contends that he should have been promoted into one of
several vacant staff sergeant positions.  However, evidence of record shows
that there was no vacancy at the 72nd Military Police Company and the
applicant acknowledged in his rebuttal comments that there was no vacant
staff sergeant positions available.  Therefore, the applicant's contention
that there were several positions in which he could have been promoted to
staff sergeant is contrary to the facts in this case.

7.  The applicant contends that his records were omitted from consideration
by the NVARNG 2002 promotion board that considered eligible soldiers for
promotion to sergeant.  However, evidence of record shows that the
applicant signed documents which stated that he did not want to be
considered for promotion to sergeant in 2002.  As a result, the applicant
was removed from consideration by the NVARNG 2002 promotion board for
promotion to sergeant.  Therefore, based on the fact that the applicant
requested removal from consideration for promotion to staff sergeant, the
applicant's contention that he was erroneously omitted from the NVARNG 2002
staff sergeant promotion board is contrary to the facts in this case.

8.  The applicant contends that the requirement to attend BNCOC was
immediately waived following the events of 9/11, which allowed for the
conditional promotion of soldiers on the promotion list at the time of
deployment.  However, there is no evidence and the applicant did not
provide evidence to support his claim that the requirement to attend BNCOC
was waived.  Therefore, there is no factual basis for this contention.

9.  There is no indication that the applicant's failure to be promoted by
the NVARNG to the rank of staff sergeant was unjust or inequitable or not
in accordance with applicable laws and regulations. Therefore, the
applicant is not entitled to retroactive promotion to staff sergeant/pay
grade E-6 and the back pay which he has requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_WTM____  _PMS____  _PM_ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.


                                            Walter T. Morrison_____
                                            CHAIRPERSON


                                    INDEX
|CASE ID                 |AR2004099918                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/10/07                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     | . . . . .                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.0300                                |
|2.                      |131.1000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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