RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 February 2007
	DOCKET NUMBER:  AR20060001993 


	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. Anita McKim-Spilker

Analyst


The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. David K. Haasenritter

Member

Mr. Ronald D. Gant

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 that his record be corrected to show that he retired in the pay grade of staff sergeant/E-6.

2.  The applicant states, in effect, that his reduction to sergeant/E-5 was based on his failure to complete Noncommissioned Education System (NCOES) schooling requirements and not due to inefficiency.  Because he was reduced for failure to complete NCOES, he believes he is entitled to retirement in the grade of staff sergeant/E-6.

3.  The applicant provides copies of his promotion and reduction orders; a copy of his retirement orders; a copy of his Summary of Retirement Points; and a copy of his retirement approval.

CONSIDERATION OF EVIDENCE:

1.  The evidence of record shows the applicant served in the Regular Army from 
30 November 1966 through 28 November 1969.  On 28 October 1983, he enlisted in the Ohio Army National Guard (OHARNG) and as a Reserve of the Army.  On 1 February 2006, the applicant retired in the grade of sergeant/E-5 and was credited with 25 years, 3 months, and 9 days of service for retired pay.

2.  On 1 May 1995, the applicant was promoted to the grade of staff sergeant/E-6 contingent upon being "in a promotable status on the effective date of promotion."

3.  On 16 February 1999, the applicant was reduced in grade to sergeant/E-5.  The stated reason for the reduction was "inefficiency."

4.  On 11 June 1999, the applicant's reduction order was amended to indicate that he was reduced by reason of "failure to complete required NCOES training."

5.  On 26 October 2005, the applicant was promoted to staff sergeant/E-6, with an effective date of 25 November 2005.  The additional instructions were:  "Promotion is not valid and will not be effective if the Soldier is not in a promotable status on the effective date of this promotion.  The State Training Office will enroll Soldiers in the appropriate NCOES course.  The Soldier must complete the appropriate NCOES course within 24 months of the effective date 



of this promotion or release from active duty.  Failure to enroll, attend, or complete any portion within the allowable time frame will result in a referral to a reduction board per the Army National Guard Promotion Policy, dated 1 February 2005, para 7-60.  Acceptance of this promotion incurs a service remaining obligation per para 7-11."

6.  On 1 February 2006, the applicant retired in the grade of sergeant/E-5.

7.  In processing this case, an advisory opinion was obtained from the Supervisor, Retirements and Annuities, U.S. Army Human Resources Command (HRC), St. Louis, Missouri, which recommended denial of the applicant's request. Although the applicant was promoted to staff sergeant/E-6, he failed to complete the required NCOES course, and was subsequently reduced.  When his reduction order was initially published, it cited the wrong reason for his reduction; however, this order was amended to show the reason for his reduction was failure to complete NCOES.  The applicant was promoted again on 25 November 2005; however, he retired on 1 February 2006 so he did not hold that grade for 185 days or complete the required NCOES course.  Therefore, the highest grade he satisfactorily held at any time during his military career was sergeant/E-5.

8.  On 1 August 2006, the applicant was provided a copy of the advisory opinion. To date he has not responded.

9.  Chapter 11 of National Guard Regulation (NGR) 600-200, in effect at the time the applicant was promoted to staff sergeant/E-6 in 1995, prescribed policies, procedures and systems to advance, promote, laterally appoint, reduce and restore in grade for all ARNG enlisted Soldiers, except those included in the end-strength of the Regular Army and who were covered by the active Army promotion system.  Paragraph 11-28, in relevant part, stipulated that promotions to sergeant/E-5 with Primary Leadership Development Course credit were promotable to staff sergeant after they completed Basic Noncommissioned Officer Course (BNCOC) Phase I.  Completion of Phase II was required within two years after Phase I and before considered by a sergeant first class promotion board.  This type of promotion was considered "conditional." 

10.  Paragraph 11-56 of NGR 600-200 stipulated that a Soldier who failed to complete an NCOES course that was a condition of a promotion due to their failure to apply for, enter, meet standards, or through misconduct or voluntary withdrawal, would be reduced.  Time in grade in the higher grade was not considered satisfactory service for future adjusted date of rank if promoted again to the grade nor was it creditable towards retired pay in the higher grade or any other determination dependent upon the higher grade. 
11.  Chapter 7 of the Army National Guard Implementation Policy, dated 
1 February 2005 and in effect at the time the applicant was promoted to SSG the second time, prescribes policies, procedures and systems to advance, promote, laterally appoint, reduce and restore in grade for all ARNG enlisted Soldiers, except those included in the end-strength of the Regular Army and who are covered by the active Army promotion system.  Paragraph 7-11, in relevant part, states that a one year service remaining obligation is required for promotion from sergeant/E-5 to staff sergeant/E-6.

12.  Title 10, U.S. Code, Section 12739, provides that retired pay granted under Section 12731 will be computed on the monthly basic rate of the highest grade satisfactorily held by the person for at least 185 days at any time during his entire military career. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was initially promoted to staff sergeant/E-6 on 1 May 1995.  This promotion was contingent upon being "in a promotable status on the effective date of promotion."  Because the applicant had not completed his NCOES requirements, his promotion was considered conditional. 

2.  On 16 February 1999, nearly four years after his promotion, he was reduced to sergeant/E-5 because he failed to complete his required NCOES training.  His reduction order was amended thereafter to show the appropriate reason for the reduction.

3.  He was promoted to staff sergeant/E-6 again on 26 October 2005.  However, he retired on 1 February 2006, having never completed NCOES and without completing his one year service obligation for at least a year as required by regulation. 

4.  The applicant had over 10 years to complete his NCOES schooling requirement, and for reasons not explained in the record, never fulfilled this requirement.  Based on Army regulations, the applicant, by not completing a required NCOES course that was a condition of his initial promotion in 1995, failed to satisfactorily hold the rank of staff sergeant/E-6 even though he held the rank for nearly 4 years.  Further, time in grade in the higher grade is not considered satisfactory service for future adjusted date or rank if promoted again to the grade nor is it creditable towards retired pay in the higher grade.


5.  The applicant also did not meet the service remaining requirement to satisfy promotion requirements and retirement criteria as a staff sergeant/E-6 based on his promotion on 26 October 2005 and his subsequent retirement 1 February 2006.  He completed 98 days of the required 185 days creditable in the higher grade.

6.  Given the above facts, the highest grade satisfactorily held by the applicant was sergeant/E-5.  Therefore, there is no justification to grant the applicant's request.

7.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jcr___  __dkh___  __rdg___  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.




							Jeffrey C. Redmann
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060001993
SUFFIX

RECON

DATE BOARDED
20070208
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
129.0400
2.

3.

4.

5.

6.