IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20070008768 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be restored to the rank of sergeant major (SGM/E-9) with back pay and allowances.

2.  The applicant states, in effect, that he met all requirements afforded him for his original promotion and was demoted due to no fault of his own.

3.  The applicant provides a copy of his reduction orders; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his retirement orders; a copy of his Congressional Complaint, with response; and a copy of several of his NCOERs (Noncommissioned Officer Evaluation Report) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant’s military records show he enlisted in the Texas Army National Guard (TXARNG) on 9 November 1989, with prior service in the Regular Army.  He reenlisted on 2 April 1990, for 2 years, with an established expiration of term of service (ETS) of 1 April 1992.  He served through a series of continuous extensions. 

3.  The applicant was promoted to MSG/E-8 with a date of rank (DOR) and effective date of 11 January 1999.  

4.  The applicant extended his enlistment on 25 March 2001 for 6 years with a newly established ETS of 1 April 2007.

5.  The applicant was conditionally promoted to SGM/E-9 with an effective date and DOR of 4 April 2003.  Promotion was contingent upon his completion of the United States Army Sergeants Major Course (USASMC) and his failure to meet the condition would cause his reduction. 

6.  The applicant provided four copies of NCOERs he received which show that he was rated as a first sergeant (1SG) on three occasions and rated as a SGM on one occasion for 12 months.

7.  On 4 April 2003, the applicant was enrolled in the USASMC, class 31, with a scheduled start date in April 2004. 

8.  On 18 November 2003, the Texas Military Forces, Joint Forces Headquarters, Adjutant Generals Department, notified the applicant that he had completed the required years of service to be eligible for retired pay, on application, at age 60 (20-Year Letter).

9.  On 7 January 2004, the Commander, Joint Counterdrug Task Force, prepared a memorandum for the applicant, Subject:  20-Year Extension Request.  The commander stated that his request to extend his active Federal service beyond 1 April 2004 or 20 years of active duty was denied.  His letter was forwarded to The Adjutant General (TAG) through his command staff and all senior leadership levels non-concurred with the request.  The primary reasons were associated with the uncertain financial future of the Counterdrug Program.  Additional to this was the AG's stated policy that required active duty ARNG Guardsmen to retire at the 20 active duty Federal year service point, unless extenuating circumstances prevailed, i.e., formal courses of scheduled, funded training, or operational deployments critical to wartime tasking or defense.   


10.  As the commander, he explained, he had to support his retirement at 20 years since he had recently forwarded a strong position to the AG requiring the forced 20 year retirement of Air National Guardsmen from Full Time National Guard Duty –Counterdrug (DTNGD-CD) service due to funding issues.  He pointed out, however, his value during a critical time to their program and that he would fully support his extension if the TAG or any member of his staff honored his request. He stated that the applicant provided a good and practical case for an active duty extension with the departure of critical staff members and a major mission transition; however, his 20 year retirement was driven by current TAG policy.  The commander concluded by reflecting on the applicant's years of service to the program, his service in the TXARNG, and his accomplishments.

11.  On 24 March 2004, orders were published by Texas Military Forces, Joint Forces Headquarters, Adjutant General's Department, reducing the applicant to pay grade of E-8 with an effective date of 31 March 2004 and a DOR of 11 January 1999.  On that same day, orders were published discharging the applicant from the TXARNG and transferring him to the Retired Reserve, effective 31 March 2004, in the rank and pay grade of MSG/E-8.

12.  The applicant's Chronological Statement of Retirement Points shows that he had completed 20 years, 4 months, and 22 days of qualifying service for retirement purposes.

13.  On an unknown date, the applicant wrote a letter informing a Member of Congress (MOC) about his case.  He provided a detailed outline to the MOC reiterating the sequence of events leading up to his promotion and reduction.   

14.  The MOC coordinated with the Army Review Boards Agency on procedures necessary to gain assistance for the applicant in having his issued reviewed. 

15.  The MOC informed the applicant that he received a response from the Army Review Boards Agency regarding the inquiry made in his behalf.  He provided the applicant a copy of the reply which included application procedures needed to be followed in having a review accomplished.  He thanked the applicant for the opportunity to assist him and to please keep him advised of any Federal matter on which he could be of assistance.  

16.  In an advisory opinion, the Chief, Personnel Division, National Guard Bureau (NGB), reiterated the applicant's request and statement.  The NGB recommended disapproval of the applicant's request based on there being no evidence in the documents provided by the applicant showing he ever completed USASMC.  A search of the Soldier's interactive Personnel Electronic Records Management System (IPERMS) was also conducted and failed to reveal documentation showing that he completed USASMC.  

17.  The applicant was provided a copy of this opinion for possible comment prior to consideration of his case.

18.  On 1 May 2008, the applicant submitted his rebuttal to the NGB's recommendation.  In his rebuttal, he congratulated the NGB on the accuracy of the information they provided to the Board and that he was not contesting ever having been promoted to SGM and subsequently demoted to MSG.  Nor was he contesting the fact that he never completed the USASMC, which led to his ultimate reduction in rank.  His complaint was and still is based on the fact that he was forcibly retired although he was scheduled to attend the USASMC within days of retirement.  He stated that he should have been retained on active duty orders so that he could attend this required course and one day retire as an E-9. The Commander, Joint Counterdrug Task Force denied his request but made it very clear that he should have been retained on orders to complete this scheduled funded training.

19.  He elaborated in detail on the regulatory authority pertaining to his reduction to MSG that was utilized by the advisory opinion to recommend disapproval of his request.  He also elaborated on evidence that was previously stated and his accomplishments throughout his career.  He felt that he was unfairly reduced and did everything required to fulfill the requirements of his promotion to SGM.  He concludes that if the Board was unable to grant his request to restore his rank given the current condition, he suggested that he be returned to active duty from retirement and reinstated so that he could attend and complete the regulatory requirements of attending the USASMC and fulfilling the service remaining requirements.

20.  Army Regulation 600-8-19 governs the enlisted promotions and reductions function of the military personnel system.  Paragraph 1-27 pertains to Noncommissioned Officers Education requirement for promotion and conditional promotion.  Subparagraph 1-27b pertains to conditional promotion to SGM.  It states that Soldiers selected for promotion to SGM who are nongraduates of the USASMC would be conditionally promoted.  Soldier  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 (Non-commissioned Officers Education System) class (through fault of the Soldier) would be administratively reduced 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 would be the previous DOR held at the reduced grade.  Conditionally promoted SGMs who have been reduced or removed from the promotion list as a result of failure to meet the NCOES requirement are ineligible for future promotion consideration.  For conditionally promoted SGMs the following statement will be entered on the promotion instrument "Soldier has not met the NCOES requirement and is promoted conditionally.  If the Soldier fails to successfully complete, fails to remain eligible for, is denied enrollment in, or does not attend his/her scheduled NCOES class (through fault of the Soldier), then the Soldier would be administratively reduced."

21.  Chapter 4, of the same regulation, pertains to eligibility criteria.  Paragraph    4-2(c)6 states that Soldiers who have been disenrolled from the USASMC for any reason (other than compassionate or medical) are permanently ineligible for promotion considered to SGM.

22.  Chapter 7, of the same regulation, covers Enlisted Promotion and Reduction of ARNG Personnel.  Paragraph 7-6 pertains to service remaining obligations.  It states that the following service obligations, from the effective date of promotion, are required for promotion to SGT (sergeant) through SGM: (1) to SGT and  SSG, 1 year and (2) to SFC through SGM, 2 years.   

23.  Paragraph 10-18, of the same Regulation, pertains to failure to complete or attend NCOES.  It states that 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) would be administratively reduced or removed from the promotion list.  Soldiers would only be reduced when NCOES is required for his/her current grade.  Soldiers would be removed from promotion list when promotion is being held in abeyance (for reasons set forth in paragraph 1-27).  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 would be the previous DOR held at the reduced grade. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was conditionally promoted to SGM/E9 with a DOR and effective date of 4 April 2003, contingent upon completion of the USASMC.  He enrolled in the USASMC on the same date of his promotion, with a scheduled to start date in April 2004.  

2.  The applicant was informed by the Commander, Joint Counterdrug Task Force that his request to extend his active Federal service beyond 1 April 2004 or 20 years of active duty was denied.  As the Commander, he explained, he had to support his 20 year retirement which was driven by current TAG policy. 

3.  Because the applicant had not completed the USASMC and due to a denial of his request for extension of his service beyond 20 years of active duty, the  applicant was reduced to the pay grade of E-8 with an effective date of 31 March 2004 and a DOR of 11 January 1999.  

4.  The applicant was discharged from the TXARNG for the purpose of retirement on 31 March 2004.  He was placed on the Retired List effective 1 April 2004, in the rank and pay grade of MSG/E-8.  

5.  The applicant claims that he was forcibly retired and was scheduled to attend the USASMC within days of his retirement and should have been retained on active duty to attend the course and retire as an E-9.  There is no evidence to show that he completed the non-resident portion of the USASMC.  He also provided no evidence to show he was on orders to attend the resident portion of the USASMC, and therefore, no evidence that funds had been obligated and expended towards his training.  Regulatory authority clearly indicates that Soldiers promoted to SGM were required to enroll in and complete USASMC after promotion.

6.  Based on the TAG's policy, the applicant is unable to be returned to active duty from retirement and to be reinstated so that he may attend and complete the regulatory requirement of attending USASMC and fulfilling the service remaining requirement.  The applicant's request is therefore denied.

7.  In order to justify correction of a military record the applicant must show 
to the satisfaction of the Board, 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.

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.





























ABCMR Record of Proceedings (cont)                                         AR20070008768



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ABCMR Record of Proceedings (cont)                                         AR20070008768



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