IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080003384 


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 his date of rank (DOR) and effective date of promotion to Master Sergeant (MSG) be adjusted from 4 July 2007 to 22 October 2003. 

2.  The applicant states, in effect that his DOR and promotion effective date to MSG/E-8 should be adjusted from 4 July 2007 to 22 October 2003. 

3.  In an additional statement, he states that he is requesting a retroactive effective date of his promotion to MSG from 4 July 2007 to 22 October 2003.  He states that 22 October 2003 is the date of his Enlisted Personnel Management System (EPMS) position selection referral.  As an E-7, he was selected to an E-8 position on 22 October 2003.  He was placed on Title 10 Orders on 12 October 2003 for Operation Iraqi Freedom (OIF) II.  After consulting with his chain of command, his Soldiers, and his family, he decided that it would be wrong for him to take a promotion and allow his Soldiers, which he had been training with for a long time, to go off to war without him.  He made an extremely hard decision to go to war for his country instead of taking a promotion that would have helped provide for his family.  AGR (Active Guard Reserve) Soldiers of his same grade were promoted while on this deployment and were not required to return until they came off Titled 10 orders.  He provided names of several AGR 




Soldiers who were promoted.  In addition to the loss of pay from 22 October 2003 through 4 July 2007, at the pay grade of E-8, he also lost an opportunity to make the grade of E-9, which would effect his retirement in 2010.  He believes that an injustice was done to him and his family based upon him making the decision to fight for his country.  He believes, however, that this injustice could be made right by this request.  He asks that this request be expedited in hopes that he would be able to make the E-9 promotion list this year.

4.  The applicant provides several documents such as; alert orders, with amendments; several copies of memorandums; ALARACT (All Army Activities) Messages; and a copy of promotion orders; and a newspaper article in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Oregon Army Nation Guard (ORARNG) on 30 December 1986.  

2.  The applicant was promoted to SFC/E7 with a DOR and effective date of 19 April 1999. 

3.  On 12 October 2003, the applicant was ordered to active duty for 365 days in support of OIF II in the rank of SFC.  His report date to his mobilization station (Fort Hood, Texas) was 30 October 2003.     

4.  On 22 October 2003, the applicant received an EPMS position selection referral.  On 24 October 2003, he elected to decline promotion consideration for the position that was offered to him.  He understood that by declining this position he would be removed from the current list for the current cycle.

5.  On 24 October 2003, the applicant prepared a letter for the State Adjutant General (AG), explaining his declination for promotion to MSG.  He stated he regretted that he must decline his offer for promotion to MSG/E-8.  It was a very difficult decision to choose between deploying with his unit or accepting a promotion.  He felt that if he had not chosen to take the promotion and did not deploy, with his unit, he would not be living up to his moral responsibilities.  He was put in an unfortunate position that he hoped no other Soldier would find themselves in.  He believed that there were other courses of action that could have been taken that would have been good for the command and that would have taken care of him as a Soldier and his family.  Instead, he had to choose to be a patriot or to take a promotion that he has strived to achieve since the beginning of his military career.  He believes policies could be changed to allow Soldiers to serve without missing out on a promotion opportunity.
6.  On 30 October 2003, the applicant’s deployments orders were amended to change his period of active duty from 12 October 2003 through 10 October 2004 to from 12 October 2003 through 12 April 2005.

7.  On 4 November 2003, the Deputy Brigade Commander, ORARNG, prepared a memorandum for the Assistant AG, ORARNG, Subject:  Declination of Promotion.  He acknowledged the letter from the applicant declining his promotion.  He indicated that the applicant was at the top of the AGR list for promotion to MSG.  The 41st Brigade had an opening for MSG in the 186th Infantry Battalion and it was required that he be offered the position.  He was not aware of any other "course of action" the brigade could have taken to meet both letter and intent of the applicable regulations.  When making the offer, it was stated that his acceptance of the promotion would not have detrimental effect on the deploying battalion.  He confirmed with the command that other equally qualified NCOs (Noncommissioned) were available to take the applicant’s platoon should he accept the promotion.  He stated that it was unfortunate that their system did not make allowances for unique situations such as those encountered by the applicant.  He stated that they were trying to take care of the Soldier and the Brigade CSM (Command Sergeant Major) was preparing a request to the State CSM to keep the applicant in his current position on the promotion list as opposed to removing him from the list for declining the job offer.

8.  On 15 December 2003, the Brigade CSM prepared a memorandum supporting the applicant’s request, as an exception to policy, and that he not be removed from the EPMS list.  He declined promotion to MSG to deploy with his unit to Iraq.  His decision to forego a promotion that would have forced him to leave his unit and not deploy deserves to be supported.   

9.  On 22 January 2004, the Deputy Chief of Staff, ORARNG, denied the request. The Deputy Chief of Staff replied that although commendable, the applicant's decision to deploy with his unit and turn down referral to an open position in another unit removed him from the 2003 list. 

10.  On 3 April 2005, the applicant’s deployment orders were amended to change his period of active duty from 12 October 2003 through 10 October 2004 to from 12 October 2003 through 31 March 2005.

11.  The applicant served in Iraq in support of OIF (Operation Iraqi Freedom) from 26 March 2004 to 17 March 2005.

12.  The applicant was released from active duty on 31 March 2005 and was transferred to a TPU (troop program unit).

13.  The applicant was ordered to active duty on 1 April 2005 to serve as the RNCO (Recruiting) in the AGR Program for a period of 3 years, 8 months, and 28 days.

14.  On 6 June 2006, the applicant requested that the IG (Inspector General), ORARNG, review all documents pertaining to his promotion for MSG/E8 and requested to be promoted to MSG with an effective date of 22 October 2003.  He requested that a STAB (Standby Advisory Board) be conducted to put him on the Sergeant Major’s (SGM) EPMS for 2006.  He elaborated on the current positions held by him.

15.  On 13 October 2006, the applicant requested a retroactive promotion to MSG/E-8 based on an ALARACT Message.  He questioned the choices provided to him and still deployed with his unit after his command told him that they could do nothing for him.  This was incorrect information given to him and based on the wrong information he decided to deploy with his unit and decline the promotion.

16.  On 21 November 2006, the applicant’s current Battalion Commander supported his request and recommended retroactive promotion to MSG/E-8.  In his recommendation he stated, the applicant had been offered the promotion while he was in a deployed Title 10 status.  According to ALARACT Message dated 8 February 2002, Soldiers will not be de-mobilized solely to take a promotion or corresponding reassignment.  It was his understanding that the applicant was given a choice of either deploying as a SFC or de-mobilizing to accept promotion and reassignment.  This was clearly contrary to the ALARACT Message.

17.  On 4 December 2006, the applicant’s Brigade Commander denied the request.  He felt the command was justified in making their decision and understood why the command did not want an AGR Senior NCO vacancy for over 1 year. 

18.  On 12 March 2007, the Deputy Chief of Staff for Personnel (DCSPERS), Office of the Adjutant General (OAG), ORARNG, denied the applicant’s request.  He stated that the applicant’s decision to deploy with his unit and turn down the promotion to the 1-186 (1st Battalion, 186th Infantry Regiment), removed him from the 2003 list.  Soldiers who decline assignments or require training to be fully eligible will be administratively removed from the promotion list.  They will not be reinstated on the list under any circumstances but may be considered by future boards if they remain eligible.

19.  On 21 March 2007, the IG, ORARNG, declined the applicant’s request concerning his request for exception to EPMS policy and retroactive promotion to MSG/E-8.  The ALARACT message provided by the applicant was not an included operation and was specifically targeted at USAR Soldiers and thus was not applicable to this case.  The applicant signed an EPMS referral sheet declining the position and was removed from the promotion list for that year.  Due to this decision, he was not entitled to a retroactive promotion. 

20.  On 4 May 2007, the applicant met with the Commanding General (CG), 41st Brigade Combat Team, ORARNG, to discuss his case.  The CG reviewed his file and determined that his request was unfortunately not supportable.  He informed the applicant that if he wished to pursue the matter, personnel would assist him in setting up an appointment with the AG.  

21.  On 24 May 2007, by email, the applicant requested an appointment with the State AG, ORARNG.  He provided a summary of the issue through email to personnel who were assisting him with his case.

22.  On 18 September 2007, orders were published promoting the applicant to MSG/E-8 with a DOR and effective date of 4 July 2007.

23.  The applicant was released from active duty on 1 January 2008 and was transferred to a TPU. 

24.  The applicant provides a copy of a newspaper article titled "Earning a Promotion (Deployment will not interfere with deserved promotions, chief says)." The article states that National Guard members who are defending their nations from terror bear many burdens, but being passed over for promotion will not be one of them.  The Chief, National Guard Bureau (NGB), stated that American citizen-Soldiers should not be hindered due to mobilization.  The NGB is committed to not penalize Soldiers for being patriots and for answering their country’s call, said the Chief, National Guard Bureau.  "Promoting people and then giving them time to attend their schools or complete their education after their deployment is the right thing to do.  Any policy that disadvantages you [the Soldier] while you are deployed would be changed or rescinded."  The article continued to elaborate on the promotion system and the Chief, National Guard Bureau’s visit with Soldiers in Iraq and Afghanistan.

25.  In an advisory opinion, the Chief, Personnel Division, National Guard  Bureau (NGB), reiterated the applicant's request and statement.  The NGB recommended approval of the applicant's request and recommended that he receive all back pay and allowances owed for the period 22 October 2003 through 4 July 2007 as a result of the DOR and effective date of promotion change.  The opinion elaborated on the regulatory authority that supported its decision.  The opinion also stated that the applicant was disadvantaged when he was required to decide between completing his deployment and taking a promotion.

26.  The opinion was forwarded to the applicant for his acknowledgement on 10 April 2008 and he concurred with the opinion, by email, on 27 April 2008.

27.  NGR 600-200 establishes standards, policies, and procedures for the management of Army National Guard enlisted personnel in the functional areas of:  accession and retention; civilian acquired skills; initial active duty for training and voluntary active duty; personnel management; promotion, appointment, and reduction; extensions, bars to reenlistment, immediate reenlistment and extension; and discharge.  Chapter 11, paragraph 11-46, of this regulation, pertains to declining promotion and assignment.  It states, in pertinent part, that declinations would be made in the form prescribed by State.  However, declination of an assignment for which eligible and available, (including commuting distance), or refusal of training under this program should be in writing.  Soldiers who decline assignments or refuse training for which they are fully eligible will be administratively removed from the promotion list.  They would not be reinstated on the list under any circumstances but could be considered by future boards if they remain eligible.

28.  ALARACT Message 081630, dated 8 February 2002, Subject:  Enlisted Promotion Policy for Soldiers Mobilized and Affected by Stop Loss.  This message applied to the Active Army, Army Reserve Soldiers on Active Duty counted against active Army End Strength (EAD), AGR, and both Army Reserve and ARNG Soldiers mobilized for Operation Noble Eagle and Enduring Freedom (10 USC 12302).  Paragraph 5(b), states the ARNG retains promotion authority at the State level for promotion to SFC, MSG, SGM IAW (in accordance with) NGR.  The Commander exercising UCMJ (Uniform Code of Military Justice) authority would initiate recommendations for promotion to SFC, MSG, for ARNG Soldiers mobilized under 10 USC 12303.  Once a State selects an ARNG Soldier for promotion, the Commander would receive appropriate orders announcing the promotion and would conduct an appropriate ceremony.  If a state selects a Soldier for a position in a non-mobilized unit, that position must remain vacant until the selected Soldier demobilizes and can be transferred into it.  By doing this, the State acknowledges that the position would remain unfilled until that time.  

29.  Title 10, USC, Section 12302, pertains to partial mobilization declared by the President.  It states that in time of national emergency no more than 1,000,000 are called up (total force) and for no more than 24 months.

DISCUSSION AND CONCLUSIONS:

1.  The evidence show the applicant was ordered to active duty in support of OIF II, on 12 October 2003, while serving in the rank and pay grade of SFC/E-7.  He received an EPMS position selection referral on 22 October 2003.  He declined the promotion consideration for the position in order to deploy with his unit.  He understood that declining the position would require removal of his name from the current promotion list for the current cycle.  He deployed and was removed from the EPMS list.

2.  The applicant appealed the decision through his command to the State AG explaining the reasons for declining his promotion to MSG/E-8.  His command prepared a memorandum supporting his request as an exception to policy and recommended that he not be removed from the EPMS list.  His request was denied.  

3.  The applicant requested a review of his case by the ORARNG, IG, and a retroactive promotion to MSG/E-8 based on an ALARACT Message.  His battalion commander supported his request but the Brigade Commanders and the DCSPER declined his request.  

4.  The applicant met with the CG, 41st Brigade Combat Team, ORARNG, to discuss his case and the CG determined that it was not supportable.  He provided assistance and informed him that if he wanted to pursue the matter, personnel would assist him.  He provided a summary of his case by email to personnel for forwarding to the State AG, ORARNG, for review.  

5.  Orders were later published promoting the applicant to MSG/E-8 with a DOR and effective date of 4 July 2007.  

6.  The NGB recommends that the applicant's promotion be adjusted from 4 July 2007 to 22 October 2003 and that he receive all back pay and allowances owed for the period 22 October 2003 through 4 July 2007 as a result of the DOR and effective date of promotion.

7.  In view of the circumstances in this case, the applicant is entitled to correction of his records to show he was promoted to master sergeant (MSG/E-8) effective 22 October 2003, with entitlement to all back pay and allowances from 22 October 2003 through 3 July 2007.  




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all the State of Oregon Army National Guard and Department of the Army records of the individual concerned be corrected by:

	a.  amending Oregon Military Department, Joint Force Headquarters, ORARNG Orders 261-008, dated 18 September 2007, to show the applicant was promoted to MSG/E-8, with a date of rank and effective date of 22 October 2003; and

	b.  paying the individual all back pay and allowances from 22 October 2003 through 3 July 2007.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to paying the applicant MSG pay on 4 July 2007 since it appears his current rate of pay began on that date.  




       _   ___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)                                         AR20080003384



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ABCMR Record of Proceedings (cont)                                         AR20080003384



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