RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 February 2008
	DOCKET NUMBER:  AR20070005224 


	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.  


Ms. Catherine C. Mitrano

Director



	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, that his records be corrected to show he was promoted to Sergeant (SGT), E-5 before he was discharged.

2.  The applicant states he was recommended for promotion by his First Sergeant (1SG).  He was unfairly and unjustly kept from receiving his promotion. His promotion packet was declined.  

3.  In a letter to the Office of the Inspector General (IG), dated 7 June 2006, the applicant stated that he was always willing to support his unit with the California Army National Guard (CAARNG).  He volunteered time to work in Supply.  He was asked to attend Attrition Management School, and he was glad to go if it would help the unit.  In late November 2003, they were scheduled to go for weapons qualification.  He was put in charge of all the weapons; however, when he showed up with the weapons his Readiness Noncommissioned Officer (NCO) was very angry, telling him he was supposed to have stayed back.  The applicant states he was only doing what he was ordered to do.  The harassment began then.  

4.  In the 7 June 2006 letter, the applicant stated that he was sent to the Primary Leadership Development Course (PLDC) ill-prepared.  He was given his         pre-resident package only four days before he left.  At PLDC, he was the 17th student in a class that was prepared for 16 students.  He had to share books with a reluctant Soldier.  He could not pass the course that way, and he was sent home.  His Readiness NCO did not believe why he was sent home.  The applicant told Sergeant Major (SGM) H___ what happened, and SGM H___ said he would still promote the applicant, as long as he got back on a list to return to PLDC.  The applicant tried, but he was never put on that list.

5.  In the 7 June 2006 letter, the applicant stated that in June 2004 he was harassed again while at annual training.  Upon returning from annual training, he gave notice that he was leaving the unit.  He was demoted (to Private First Class (PFC), E-3) by Captain A___.  The demotion was not justified, and it was revoked by The Adjutant General.  He joined the Nevada ARNG in October 2004. Due to a family situation, however, he had to return to the CAARNG around June 2005.  He went back to his old squadron, but he felt better when told he would be in A Troop, not C Troop, his former unit.  He was told the Cavalry unit was to become a Military Police (MP) unit, and he joined with the understanding that he would be an MP.  However, they refused to code him as an MP.  

6.  In the 7 June 2006 letter, the applicant stated that he was asked in early February (2006) if he was interested in volunteering for an Iraq deployment.  He told them that he had given his heart and soul to the Guard and that they would not promote him so he would be getting out on his separation date of 10 June 2006.  In March, he was handed orders for that deployment.  He had turned in his uniforms in Nevada.  On 4 March 2006, he was issued new uniforms, none of which fit and none of which had a nametape or anything else on them.  Also, he had injured his back and submitted notes that stated, “Light duty, no field.”  

7.  In the 7 June 2006 letter, the applicant stated that 1SG B___ was pushing to get him his E-5.  The applicant stated he was told that if the 1SG wanted him promoted, all he (the 1SG) had to do was to submit the request and it could have been approved in a day.  He heard that he was not being promoted because Staff Sergeant (SSG) T___ had said things about him.  He earned that promotion.  His unit was promoting other Soldiers who could not pass the Army Physical Fitness Test.

8.  The applicant provides discharge orders, dated 26 July 2006; an email, dated 27 March 2007; four letters from his Member of Congress to him, one dated        1 August 2006, one dated 5 October 2006, one dated 19 December 2006, and one dated 7 February 2007; a letter from him to his Congress Member’s office, dated 16 October 2006; and three letters, one dated 27 September 2006, one dated 13 December 2006, and one dated 31 January 2007, from the California National Guard to his Member of Congress; and a letter, dated 9 January 2007, To Whom It May Concern.

9.  The applicant also provides a letter, dated 24 February 2005, from the State of Nevada, Office of the Military IG; reduction to PFC orders and orders revoking that reduction; an Army Achievement Medal award certificate with its related DA Form 638 (Recommendation for Award); a memorandum awarding him the California Drill Attendance Ribbon; an email and a letter from SSG G___; an email and a letter from Sergeant First Class (SFC) L___; an Unverified Windows CAT-ASVAB (Armed Services Vocational Service Aptitude Battery) Test Score Report; an incomplete Noncommissioned Officer Evaluation Report; a recommendation for award of the Army Commendation Medal; page 6 of his Personnel Qualification Record; and a certificate of training, dated 14 November 2003.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the U. S. Marine Corps Reserve, the applicant enlisted in the ARNG in the rank of Specialist, E-4 on 11 June 2003 for 3 years.  

2.  In February 2005, the applicant asked the IG for assistance in removing the orders reducing him to PFC and the orders revoking that reduction from his records and in locating an Army Achievement Medal recommendation.  On       24 February 2005, the IG responded by informing him the two orders would be removed from the PERMS system and informing him the recommendation for award had been forwarded to his unit.  

3.  In a letter, dated 13 December 2006, to the applicant’s Member of Congress, the Director, Governmental and International Affairs, CAARNG stated that the applicant’s allegations that he was passed over for promotion were unfounded.  The Director stated, “There is no Order of Merit List for soldiers through the rank of E-5.  The commander has discretion over whom he/she promotes at this juncture.”

4.  The applicant was honorably discharged from the ARNG and as a Reserve of the Army on 10 June 2006 upon the expiration of his service obligation.

5.  On 15 May 2007, the applicant enlisted in the U. S. Army Reserve.

6.  National Guard Regulation 600-200 (Enlisted Personnel Management), dated 1 March 1997, chapter 11, stated in part that Specialists and Corporals could be considered for promotion without regard to their current levels of NCOES (NCO Educational System) but were not promotable to SGT until they completed PLDC.  It also stated that Soldiers could be promoted only into vacant positions based on being placed in the selection objective of a promotion list by board action.  States would conduct one board and publish a promotion list for each rank about once each year.  The promotion list is neither a permanent standing list nor an order of merit list.  Each list is a new list and is intended to remain valid until exhausted or a subsequent list supersedes it. 

7.  National Guard Regulation 600-200, dated 1 March 1997, chapter 11, stated that Soldiers who were eligible for promotion could be denied consideration.  Denial could be based on misconduct, shortcomings in personal and professional qualities and qualifications, or lack of potential to serve at the higher grade.  When approved, the denial of consideration would be maintained with, and would expire with, the promotion list for which it was initiated.  Denial of consideration would be initiated on a DA Form 4187 (Personnel Action).  The DA Form 4856 (General Counseling) on which the commander had personally counseled the Soldier on the reason for recommending denial would be included.  Soldiers could rebut their commanders’ recommendations and submit statements that directly affected the circumstances.  Denial of promotion consideration for E-4 and E-5 could be approved by the first higher commander authorized in grade lieutenant colonel or higher.
8.  National Guard Regulation 600-200 also stated that Soldiers promoted to SGT had a 1-year service remaining obligation.  

9.  Army National Guard promotion policy was updated effective 1 February 2005; however, the basic guidance from the March 1997 regulation (concerning the promotion denial actions, requirement to be selected by board action, the PLDC requirement, and the 1-year service remaining obligation) did not change.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that he was recommended for promotion by his 1SG, that SGM H___ stated he would still promote the applicant as long as he got back on a list to return to PLDC, and that he was told that if 1SG B___ wanted him promoted all the 1SG had to do was to submit the request and it could have been approved in a day.

2.  However, the 13 December 2006 letter from the Director, Governmental and International Affairs, CAARNG, which stated that the applicant’s allegations that he was passed over for promotion were unfounded, was basically correct when it also noted that the commander has discretion over whom he/she promotes.  A 1SG or a SGM may provide input to the commander about promotions, but they have no authority to promote.

3.  It is acknowledged that a denial of promotion consideration is not a simple matter of the company commander refusing to allow a Soldier to appear before a board.  Denial of consideration must be initiated in writing, the commander must personally counsel the Soldier on the reason for recommending denial, and the Soldier could rebut the recommendation of denial.  In addition, it would have taken an O-5-level commander to approve denial of promotion consideration for the applicant.

4.  Regrettably, this Board is not an investigative agency.  Since the applicant did not provide any results of an investigation into his allegations from a proper investigative agency there is no corroboration of his contentions.  The applicant did go to the IG in February 2005 concerning his reduction orders and an award. He could have raised the issue of his being unfairly denied promotion with the IG at that time or at any later time.  He provided no evidence that he did so and that an IG or other investigative agency corroborated his contentions.

5.  In the absence of absence to the contrary, it is presumed that the applicant was not denied promotion consideration unfairly or improperly.  Therefore, there is an insufficient basis on which to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x__  __x___  __x___  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.




__x____
          CHAIRPERSON




INDEX

CASE ID
AR20070005224
SUFFIX

RECON

DATE BOARDED
20080226
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
131.03
2.

3.

4.

5.

6.