RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20070014070 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, in effect, that his rank of sergeant major/E-9 be restored and that his records be corrected to show he was placed on the retired list as an E-9.

2.  The applicant states that he was unlawfully administratively reduced from sergeant major to master sergeant at retirement and that the applicable laws and regulations were violated.  He states that he was promoted to sergeant major on 1 May 2003, that he requested voluntary retirement in 2004, and that the day prior to signing out on transitional leave he was told he could not retire because he had 17 months as a sergeant major as opposed to the 24 months required.  He goes on to state that his unit claimed the right to reduce him in grade because he did not complete the Sergeant Major Course.  He states that he was allowed to retire at his requested date if he accepted a retirement grade of master sergeant.  He claims that he agreed to accept this offer, although he did not think it was appropriate, because of an employment obligation.  He also points out that no reduction orders were issued. 

3.  The applicant states that he clearly could not have been administratively reduced for failing to complete his active duty service obligation (prohibited by Army Regulation 635-200, chapter 12), nor could he have been reduced for failing to complete the Noncommissioned Officer Education System (NCOES) course because his promotion was not conditional.  He contends that nowhere on his promotion orders is there any reference to the promotion being conditional on completing the Sergeant Major Course (Army Regulation 600-8-19, paragraph 1-27).  He also states that he was never given the opportunity to present his case to the Army Grade Determination Review Board as authorized by law.

4.  The applicant provides promotion orders, dated 16 April 2003; orders, dated 
9 February 2004; page one of a Department of Veterans Affairs Rating Decision, dated 3 February 2005; a DA Form 31 (Request and Authority for Leave), dated 2 June 2004; orders for the Bronze Star Medal and the Defense Meritorious Service Medal; an Enlisted Retirement-Waiver; and a copy of his DD Form 214 for the period ending 30 September 2004. 

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 entered active duty on 3 July 1984 and remained on active duty through continuous reenlistments.  Orders, dated 16 April 2003, show he was promoted to sergeant major effective 1 May 2003.  These promotion orders do not reference any NCOES requirement or that it was a conditional promotion.

3.  On an unknown date, the applicant submitted a request for retirement.     

4.  A DA Form 1059 (Service School Academic Evaluation Report), dated 
12 October 2004, shows the applicant enrolled in the Sergeant Major Course on 1 April 2003 (Phase I, nonresident) and was disenrolled from the Sergeant Major Course due to retirement. 

5.  On 30 September 2004, the applicant was retired in the rank of master sergeant after completing over 20 years of active service. 

6.  Item 4a (Grade, Rate or Rank) on the applicant’s DD Form 214 for the period ending 30 September 2004 shows the entry, “MSG [master sergeant].”  Item 
4b (Pay Grade) on this DD Form 214 shows the entry, “E8.”  

7.  The available records do not contain orders reducing the applicant in rank to master sergeant.

8.  Army Regulation 600-8-19 prescribes the policies and procedures for promotion of enlisted personnel on active duty.  The current version of this regulation states, in pertinent part, that a Soldier must be a graduate of the U.S. Army Sergeant Major Course for promotion to sergeant major.  It states that Soldiers selected for promotion to staff sergeant, sergeant first class, and sergeant major will be conditionally promoted.  A Soldier must be a graduate of the Sergeant Major Course for promotion to sergeant major.  It states Soldiers promoted to sergeant major will incur a 2-year service requirement.  It states a promoted Soldier may not, at his or her own request, be reduced to terminate the required service requirement.

9.  Army Regulation 600-8-19, dated 2 May 2003, effective 2 June 2003, states, in pertinent part, that for conditionally promoted Soldiers 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 will be administratively reduced and must re-compete for promotion.”  It states a Soldier must be a graduate of the Sergeant Major Course for promotion to sergeant major.

10.  Army Regulation 600-8-19, dated 15 April 2003, effective 30 April 2003, states, in pertinent part, that for conditionally promoted Soldiers to the rank of staff sergeant the following statement will be entered on the staff sergeant promotion instrument: “Soldier has not met the NCOES requirement and is promoted conditionally.  If the soldier does not attend and successfully complete the required course as scheduled, the soldier will be administratively reduced and will have to be boarded again to regain promotable status.”  It states a Soldier must be a graduate of the Sergeant Major Course for promotion to sergeant major.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 12-8 states a promoted individual may not be administratively reduced to terminate a promotion service obligation.  

12.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) states, in pertinent part, that most grade determinations do not require action by the Army Grade Determination Review Board or the exercise of discretion by other authorities because they are automatic grade determinations that result from the operation of law and this regulation.  For example, under section 3961(b), Title 10, U.S. Code, an enlisted Soldier will normally retire at the grade held on the date of retirement.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his promotion orders do not reference that his promotion was conditional on completing the Sergeant Major Course was noted. However, neither the regulation dated 15 April 2003 and effective 30 April 2003 nor the regulation dated 9 December 2002 and effective 9 January 2003 required this statement to be entered on sergeant major promotion orders.  Nevertheless, both those versions of the regulation (and the current version of the regulation) clearly stated a promotion to sergeant major was contingent on completion of the Sergeant Major Course.  It is not credible to believe that the applicant was not aware of this requirement.       

2.  It is acknowledged that Army Regulation 635-200 states a promoted individual may not be administratively reduced to terminate a promotion service obligation.  However, the applicant’s administrative reduction resulted because he did not graduate from the Sergeant Major Course as required by the governing regulation, not because he had a service obligation.  Although there is no evidence to show revocation orders were issued, he nevertheless did not meet the criteria to continue to hold the rank of sergeant major.  Therefore, there is no basis for granting the applicant’s requests.     

3.  The applicant’s contention that he was never given the opportunity to present his case to the Army Grade Determination Review Board as authorized by law was noted.  However, the governing regulation states that most grade determinations do not require action by the Army Grade Determination Review Board and that an enlisted Soldier will normally retire at the grade held on the date of retirement.  The applicant retired in the grade he held on his retirement date, master sergeant.  As this reduction was by operation of Army regulations  then in effect, the Army Grade Determination Review Board did not have jurisdiction to upgrade the applicant’s rank.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JM_____  ___CD__  ___QS___  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.




      ___         JM________
                CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.


ABCMR Record of Proceedings (cont)                                         AR20070014070


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508