RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 April 2007
      DOCKET NUMBER:  AR20060014215


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Edward Montgomery             |     |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 promotion to the pay grade of E-7 with all back
pay and allowances, or retirement in the pay grade of E-7.

2.  The applicant states that he was not considered for promotion to the
pay grade of E-7 because his records had been misdirected between his
changes in service obligation from active duty to Reserve.  He states that
he was forced to submit his retirement packet on 1 August 2006, due to his
mandatory retirement date.  He states that Soldiers normally receive a
retirement order 1 year prior to retirement; however, he was informed 3
months prior to his release date which has created undo hardship on him and
his family.  He states that on 7 September 2006, he was informed that he
was not being considered for promotion due to his having an approved
retirement date of 31 October 2006, as the results would not be published
until late September 2006.  He states that if he had been selected by the
promotion board, he could have applied to reenlist in the Regular Army (RA)
by submitting a DD Form 368.  He states that upon approval of his Sanctuary
Order, he fell under the RA promotion and separation regulations.  He
states on 28 June 2006, his promotion eligibility changed to the Individual
Ready Reserve and that upon reviewing his Official Military Personnel File
on 2 August 2006, he noticed that he was being considered for promotion.
The applicant goes on to question why he was not promoted by either the RA
or the Reserve and he states that under the provision of Army Regulation
601-280, he is eligible for immediate reenlistment.  He states that on 1
August 2006, his application for reenlistment was disapproved because of
being a Sanctuary Soldier.  He states that he has not reached his retention
control point as a staff sergeant (E-6) and he does not understand why his
physical profile (P3) would be a factor since the medical board found him
fit for duty.  The applicant concludes by stating that it was after 7
September 2006 when he was informed that once his retirement was approved
he would no longer be eligible for promotion because he fell under RA
guidelines and if this statement is true, can he reenlist?

3.  The applicant provides in support of his application, copies of
documentation maintained in his Official Military Personnel File;
electronic mail (e-mail) from his retirement services officer; and a copy
of a memorandum addressed to the President of the Board, Army Personnel
Command (ARPERSCOM) dated 7 August 2006.





CONSIDERATION OF EVIDENCE:

1.  On 15 December 1977, the applicant enlisted in the United States Army
Reserve (USAR) in Brooklyn, New York, for 6 years, under the Delayed Entry
Program.  He enlisted in the Regular Army on 3 August 1978 and he went on
to successfully complete his training as an administrative specialist.  He
remained on active duty through a series of reenlistments and extensions.

2.  The applicant enlisted in the New York Army National Guard (NYARNG) on
23 May 1996, for 3 years, in the pay grade of E-4 (Reserve Component
Transition Enlistment).

3.  On 1 June 1996, the applicant was honorably discharged from the RA in
the pay grade of E-4, under the provisions of Army Regulation 635-200,
chapter 16-8, as a result of a reduction in force.  He had completed 17
years, 9 months and 29 days of net active service.

4.  On 4 September 1997, the applicant enlisted in the Indiana Army
National Guard (INARNG).  While a member of the INARNG, he was promoted to
the pay grade of E-5 on 1 May 1999.

5.  On 1 July 2000, the applicant was honorably discharged from the INARNG
in the pay grade of E-5 and he was assigned to the USAR Control Group
(Reinforcement).

6.  The applicant was released from the USAR Control Group (Reinforcement)
and he was reassigned to the USAR Forces School in Germany on 12 September
2000.  As a result of a voluntary reassignment, the applicant was promoted
to the pay grade of E-6 effective 20 April 2001.

7.  Orders were published on 30 July 2004, ordering the applicant to active
duty for a period not to exceed 545 days, unless extended, for the purpose
of partial mobilization in support of Operation Iraqi Freedom.  The orders
show a reporting date of 14 September 2004.

8.  Orders were published on 2 December 2004, ordering the applicant to
active duty in the pay grade of E-6, for a period of 1 year, 11 months and
15 days, for the purpose of obtaining 20 years of active Federal service
under the extended active duty (EAD) Sanctuary Program, with duty as a
prescribed load list clerk.  The orders show a reporting date of 21
November 2006.

9.  In an e-mail dated 28 November 2005, from the Sanctuary Retirements
Noncommissioned Officer (NCO), the applicant was informed that if he were
to be promoted to sergeant first class (E-7), he would still retire at his
current order end date.  He was told that he had the option to submit a
packet to join the RA and his packet would go through an approval process.
The applicant was further informed that if he did not wish to join the RA,
he may submit a request for retiree recall.  He was informed that his
sanctuary orders would not be extended for an additional 2 years.

10.  In a memorandum dated 27 February 2006, from the Acting Sergeant
Major, United States Army Human Resources Command (AHRC), the Chief, Army
Review Boards Agency, was informed that the applicant was not considered
for promotion by the office of promotions, Reserve Component (RC) and
therefore, is not eligible for promotion reconsideration.  The Acting
Sergeant Major, AHRC stated that it was his opinion that the applicant was
considered for promotion by the RA and that an opinion and or
administrative correction regarding his promotion should be addressed to
that agency.

11.  In an e-mail dated 17 February 2006, from the Sanctuary Retirements
NCO, the applicant was notified that the time had come for him to submit
his retirement paperwork.  He was provided details of what needed to be
submitted and he was informed that if he had any questions to e-mail the
Sanctuary Retention NCO.

12.  In an e-mail dated 22 March 2006, an official at the RC Mobilization
Support Branch, AHRC informed the applicant that as a sanctuary Soldier he
fell under the guidance of Army Regulation 600-8-19, which is the active
duty promotion regulation.  He was told that he was no longer considered
for promotion under the USAR promotion system and for further guidance on
promotion, to go to the Enlisted Records and Evaluation Center,
Indianapolis web site for instruction.

13.  On 4 August 2006, the applicant was notified that his sanctuary
retirement had been reviewed and approved for 31 October 2006.  He was
informed that upon receipt of the notification, he was required to make
contact with the transition center to initiate the retirement process.

14.  On 7 August 2006, the applicant contacted the President of the Board,
ARPERSCOM, requesting promotion consideration by an Individual Ready
Reserve (IRR) Sergeant First Class Promotion Selection Board.  He stated
that he was waiting on the results from the enlisted Standby Advisory Board
that



convened on 6 June 2006.  The applicant went on to explain the
circumstances surrounding one of his NCO Evaluation Reports and how he had
worked hard for the Army.  He requested that his promotion be given first
priority because if
non-selected, it would be the third time he was non-select in his primary
zone of consideration due to no fault of his own.

15.  In a memorandum dated 24 August 2006, the applicant contacted the
Department o the Army G1, Alexandria VA, requesting an extension beyond his
RCP of 1 year.  He was notified that his request was denied on 5 September
2006.

16.  In an e-mail dated 7 September 2006, from the Fort Huachuca Retirement
Services Officer, the applicant was informed that if he was selected for
promotion to the pay grade of E-7 by a Reserve Component Selection Board
(RCSB), he would still retire in the pay grade of E-6 because he would not
have fulfilled an active duty service obligation of 2 years time in grade.
He was informed that he was subject to RA regulations while he was on
active duty.  The applicant was told that upon approval of his application
for the Sanctuary Program, he originally fell under RA promotion and
separation rules and regulations and that on 28 June 2006, a memorandum was
published changing his promotion eligibility to IRR promotion system rules,
instead of RA guidelines.  The applicant was told that he had to follow
Army Regulation 140-158 for promotion, which clearly states in paragraph 1-
18m that he lost his promotable status once he obtained approval on his
retirement request (4 August 2006).  He was informed that Army Regulation
140-158 had been superseded by Army Regulation 600-8-10; however, he was
subject to the rules of Army Regulation 140-158.

17.  On 31 October 2006, the applicant was retired in the pay grade of E-6,
under the provisions of Army Regulation 635-200, chapter 12, as a result of
obtaining sufficient service for retirement and he was transferred to the
USAR Control Group (Retired Reserve).  He had completed 20 years, 3 months
and 28 days of total active service and he was furnished a reentry
eligibility (RE) code of RE-4.

18.  Title 10 U.S.C. 12686a, commonly referred to as "18 year lock in"
"Sanctuary" is the term that is being used for RC Soldiers who are
mobilized, and have achieved 18 or more years of active Federal service.
They are retained on active duty to achieve 20 years of active Federal
service and become





eligible for retirement.  Sanctuary Soldiers have the option to enlist into
the RA.  On the Request for Personnel Action (DA Form 4187) the Soldier
will state if they will or will not enlist into the RA.  If the Soldier
circles "will" enlist into the RA, their packet will be sent to the
RC/Active Component (AC) team for processing.  In addition to this request
additional documents will be needed for the RC/AC packet.

19.  Army Regulation 600-8-19 prescribes the enlisted promotions and
reductions function of the military personnel system.  It is linked to the
Army Regulation 600-8 series and provides principles of support, standards
of service, policies, tasks, rules, and steps governing all work required
in the field to support promotions and reductions.  It provides the
objectives of the Army's Enlisted Promotions System, which include filling
authorized enlisted spaces with the best qualified Soldiers.  Further, this
system provides for career progression and rank that are in line with
potential and for recognition of the best qualified Soldier, which will
attract and retain the highest caliber Soldier for a career in the Army.
Additionally, the system precludes promoting the Soldier who is not
productive or not the best qualified, thus providing an equitable system
for all Soldiers.

20.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 12 of that regulation sets
policies and procedures for voluntary retirement of Soldiers because of
length of service and governs the retirement of Soldiers (Active Army,
ARNGUS, and USAR) who are retiring in their enlisted status.  This chapter
provides, in pertinent part, that Soldiers who have approved retirement are
in a non-promotable status.  They will not be promoted unless a request for
withdrawal of their retirement application has been approved.

21.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned RE codes, based on their
service records or the reason for discharge. Army Regulation 601-210 covers
eligibility criteria, policies, and procedures for enlistment and
processing into the RA and the USAR.  Chapter 3 of that regulation
prescribes basic eligibility for prior service applicants for enlistment.
That chapter includes a list of armed forces RE codes, including RA RE
codes.  RE-4 applies to persons with a non-waivable disqualification.






DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly retired in the pay grade E-6 and he has
provided no evidence that suggests differently.

2.  He was ordered to active duty for the purpose of obtaining 20 years of
active Federal service for retirement under the EAD Sanctuary Program.  His
orders to active duty clearly indicate that he had an active duty
commitment of 1 year, 11 months and 15 days with an end date of 31 October
2006.

3.  The applicant's contentions regarding his failure to be considered for
promotion has been noted.  However, there is no evidence in the available
records that supports his contention that he was not considered for
promotion to E-7 as a result of his records being misdirected between his
service on active duty and in the USAR.  He was on Sanctuary orders from
21 November 2004 to 31 October 2006 and at that time, all EAD Sanctuary
Soldiers were being considered for promotion by RA boards.  He was properly
not considered for promotion by an RCSB.

4.  He was no longer in a Reserve status and; therefore, he was subject to
RA laws and regulations for promotion and separation.  The applicant was
appropriately not considered for promotion by a RA promotion board prior to
the approval of his request for retirement and he has provided no evidence
to the contrary.  In accordance with the applicable regulation, he was in a
non-promotable status once his request for retirement was approved.
Consequently, he is not entitled to retirement in the pay grade of E-7 with
back pay and allowances.

5.  The applicant's questions regarding his reenlistment eligibility has
also been noted.  However, in accordance with the applicable regulation, he
is not eligible for reenlistment in the RA as he was assigned an RE-4 code,
which is a
non-waivable code.

6.  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 this requirement.

7.  In view of the foregoing, there is no basis for granting the
applicant's request.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__CG ___  ___MF __  ___EM __  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.





                                  _____Curtis Greenway________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014215                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070412                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |131.0000/PROMOTION                      |
|2.  313                 |131.0300/FAILURE TO BE CONSIDERED       |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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