RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060012431 


	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.  




	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, in effect, reinstatement to the rank/pay grade of sergeant major/E-9.

2.  The applicant states that he was conditionally promoted to the rank of sergeant major contingent on him completing the Nonresident Sergeants Major Academy within 24 months of his promotion.  He states that his contract with the Florida National Guard expired on 31 December 2005.  The applicant admits that he did not want to be discharged and therefore, he enlisted in the United States Army Reserve (USAR).  He recalls that an order surfaced that reduced him in rank from sergeant major to master sergeant for not completing the sergeants’ major course.  The applicant maintains that he is currently enrolled in the Nonresident Sergeants Major Academy and is 20 months ahead of schedule.  The applicant states that he was informed by his commander and the G-2, Reserve Command, Fort McPherson, Georgia that he will have to take a reduction to the grade to master sergeant or be discharged out of the military.  

3.  The applicant provides his self-authored statement, Biographical Sketch, various orders, DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 215 (Correction to DD Form 214), school reservation sheets, Enlistment/Reenlistment Documents, Letter of Acceptance, congratulatory letter, and e-mails.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board show that the applicant enlisted in the Army National Guard (ARNG) on 7 December 1990 for 3 years and continuously served in the Army National Guard until his expiration term of service (ETS) on 
31 December 2005.

2.  Orders P307-028 dated 3 November 2005 promoted the applicant to sergeant major.  The effective date and date of rank was listed as 2 November 2005.  The authority was listed as paragraph 7-31, ARNG Promotion/Reduction Policy Implementation Memo dated 1 February 2005.  The additional instructions stated that the applicant was enrolled in Class #33 of the Sergeants Major Academy scheduled to begin 1 April 2006 and the course must be completed within 24 months or he would be reduced to the grade previously held and removed from the E9 position.  Additionally, the order stated that the applicant must extend his current enlistment for at least 2 years within 30 days from the date of the order or his promotion order would be revoked.

3.  The applicant’s DD Form 214 from the period 31 July 2004 to 31 December 2005 shows his rank as sergeant major and his pay grade as E9.  His effective date of rank to sergeant major is listed as 2 November 2005.  His "Net Active Service This Period" in item 12c is listed as 1 year and 5 months.  Item 12d "Total Prior Active Service" is listed as 12 years, 2 months, and 28 days.  The separation authority is listed as "Self Terminating Order."  The reentry code is listed as "NA"; however, the applicant’s DD Form 215 corrected the reentry code to show "LBK" indicating that he completed the required active service.

4.  Orders P004-018 dated 4 January 2006 administratively reduced the applicant from sergeant major to master sergeant.  The effective date was listed as 31 December 2005.  The order listed the authority as paragraph 7-63d, Implementation Memo, Subject:  ARNG Promotion/Reduction Policy dated          1 February 2005.  His date of rank was listed as 19 August 1999.  Failure to complete the Sergeants Major Academy was listed in additional instructions.

5.  Memorandum from the 3d US Army Augmentation Company, Fort McPherson, Georgia, dated 6 March 2006, stated that the unit was willing to accept the applicant for a position as operations sergeant.

6.  Enlistment/Reenlistment documents show that the applicant enlisted in the USAR on 8 March 2006 in the pay grade of E9 for 1 year.  As part of his enlistment, he was scheduled to attend the Infantry Senior Sergeant Course. 

7.  E-mail correspondence between USAR Command and the applicant’s commander shows that a Congressional inquiry was coordinated with the Army G-1 and determined that the applicant’s enlistment was invalid since he (applicant) was reduced in grade prior to his enlistment contract.  The applicant had an option of continuing in the Army Reserve for the remainder of his contract ending on 7 March 2007 provided he completed a corrected contract or elect discharge.

8.  E-mail from the Nonresident Sergeants Major Course (SMC) dated
8 February 2007 shows that the applicant successfully completed Phase 1 of the course.  The e-mail stated that the applicant’s name would be forwarded to his component for consideration for receiving a seat in the June 2007 Resident Phase. 

9.  The applicant’s "Biographical Sketch" shows a synopsis of his military education, schools, decorations and awards, and accomplishments from his entry on active duty until his separation.   

10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) chapter 7, prescribes policies, procedures and systems to advance, promote, laterally appoint and administrative reduce all ARNG enlisted Soldiers.  This chapter incorporated the information contained in the Implementation Memo dated
1 February 2005 pertaining to the authority listed in the applicant’s promotion and reduction orders.  The regulation states, in pertinent part, that Soldiers selected for promotion to sergeant major (SGM) who are nongraduates of the Sergeants Major Course (SMC) will be conditionally promoted.  Soldiers who fail to successfully complete, fail to remain eligible to be scheduled for or attend, who are denied enrollment in, or who do not attend their scheduled NCOES class (through fault of the Soldier) will be administratively reduced and/or removed from the promotion list.  The effective date of administrative reduction is the date of the action that caused the Soldier to be ineligible to retain the promotion.  The DOR will be the previous DOR held at the reduced grade. 

11.  Additionally, paragraph 7-8 of the same regulation states that the service remaining obligation for E7 through E9 is 2 years.  Service will be obligated from the effective date of promotion and Soldiers not having sufficient time remaining must reenlist or decline promotion.  Individuals who accept promotions will fulfill their service remaining obligations in the ARNG.  Soldiers who voluntarily transfer to a regular component, the USAR, the IRR, the Standby Reserve, the ING, or the Retired Reserve or who voluntarily discharge to civilian life will be separated at the lower grade. Those who do not meet their service remaining obligation will be administratively reduced without board action or appeal on the date separated unless granted an exception to policy by the Chief National Guard Bureau for the good of the service.  When a Soldier incurs more than one obligation, such as one for training and one for promotion, set the later date, do not combine them.

12.  National Guard Regulation 600-200 (Enlisted Personnel Management) states, in pertinent part, by accepting a conditional promotion, Soldiers agree to the conditions of the promotions and subsequent reduction without board action or appeal for failure to meet the NCOES requirements of the promotion.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant accepted a conditional promotion to sergeant major knowing that he was required to complete the SMC in order to retain his rank.  Additionally, the order stated that he must extend his current enlistment for at least 2 years within 30 days from the date of the order or his promotion order would be revoked.

2.  The applicant was separated from the ARNG less than two months from his promotion date.  Orders were cut with the same effective date of his separation, 31 December 2005, revoking his promotion to sergeant major as required by the above cited regulation as agreed upon when he accepted the conditional promotion.

3.  The fact that the applicant entered into an "invalid" enlistment contract with the USAR and is currently attending the SMC under the same class number established as when he was a member of the ARNG is not sufficient justification to warrant approval of his request.  

4.  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 has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JM __  __TR   ___  __RN  __  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.





______ John Meixell_________
          CHAIRPERSON




INDEX

CASE ID
AR20060012431
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070417
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
112.00
2.

3.

4.

5.

6.