IN THE CASE OF:	  

		BOARD DATE:	       16 September 2008

		DOCKET NUMBER:  AR20080003904 


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 records be corrected to show he was promoted to Sergeant Major (SGM), E-9.

2.  The applicant states that he was on extended active duty (EAD) orders when he made the 99th Regional Readiness Command (RRC) promotion list.  Now he is on Sanctuary orders.  He believes someone did not understand the regulation and he was passed over for promotion.  

3.  The applicant provides a printout documenting his January 2008 contact with the U. S. Army Human Resources Command – St. Louis (USAHRC – STL); numerous emails, from March 2006 through June 2007, between himself and USAHRC – STL; a draft memorandum, with a suspense date of 17 February 2006, from the Office of the Deputy Chief of Staff, G-1; a memorandum, dated  28 June 2006, from the Office of the Assistant Secretary, Manpower and Reserve Affairs; a memorandum, dated 11 September 2006, from the U. S. Army Reserve Command (USARC); and a memorandum, undated, from Major General P___.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the Regular Army, the applicant enlisted in the U. S. Army Reserve (USAR) on 2 August 1994.  He was promoted to Master Sergeant, E-8, on 1 February 2001.

2.  Orders, dated 25 July 2005, transferred the applicant from his troop program unit (TPU) to the Individual Ready Reserve (IRR) effective 30 September 2005 for immediate entry on active duty.

3.  Orders, dated 23 August 2005, ordered the applicant to active duty for 1 year to fulfill active duty requirements under the EAD program.  The orders indicated that he was assigned to the U. S. Army Human Resources Command – Alexandria for accounting and promotion only and that he was counted as part of the Active Army end strength.  

4.  In a draft memorandum, with a suspense date of 17 February 2006, the Office of the Deputy Chief of Staff, G-1, stated, in pertinent parts, that Reserve Component (RC) Soldiers on an EAD tour were no longer counted against the Regular Army end strength.  Consequently, Army Regulation 600-8-19 (Enlisted Promotions and Reductions) no longer applied to RC Soldiers on an EAD tour.  Effective 1 March 2006, and not retroactive, promotion consideration for RC Soldiers from Sergeant First Class (SFC) through SGM entering EAD from a USAR TPU would be provided by the RRC for the unit from which the Soldier entered an EAD tour.  RC Soldiers who entered an EAD tour from the IRR would be considered for promotion, to all grades, by normally scheduled IRR enlisted promotion boards.  As an exception to policy, the promotion provisions of Army Regulation 600-8-19 would apply to RC Soldiers who, as a result of serving on an EAD tour, attain 18 years of active Federal Service (AFS) (i.e., Sanctuary).

5.  The draft memorandum stated, in pertinent parts, that RC Soldiers on an EAD tour selected for promotion must be charged against a valid vacant TPU or Individual Mobilization Augmentee (IMA) position, in the promotable grade, prior to promotion.  This action would not encumber the valid vacant TPU/IMA position and a promotable TPU or IRR Soldier could be promoted to fill the valid vacancy. Promotable RC Soldiers (to the rank of SFC and higher) who attain sanctuary status while serving on an EAD tour will be incorporated into the oldest Regular Army promotion list in effect for that grade.

6.  The draft memorandum continued to state, in pertinent parts, that upon completion of the EAD tour RC Soldiers who were promoted while on EAD would have 12 months to be assigned to an appropriate position for their newly-promoted grade.  If not assigned, either voluntarily or involuntarily, to an appropriate position in the promoted grade, those Soldiers were subject to either administrative reduction in accordance with established policy in order to fill vacant lower-grade positions, or transfer in the promoted grade to the IRR.

7.  The applicant was originally scheduled to be considered by the Calendar Year 2006 IRR, IMA, and Standby Reserve (Active List) E-6 through E-9 promotion board that was to convene on 8 August 2006.  MILPER Message Number        06-125, issued on 28 April 2006, contained instructions regarding eligibility criteria.  One of the eligibility criteria was to have been assigned to the IRR, IMA, or Standby Reserve (Active List) for a minimum of 12 months as of 8 August 2006.

8.  In a memorandum, dated 28 June 2006, Subject:  Promotion Policies for Reserve Component (RC) Enlisted Soldiers on Active Duty for Operational Support (ADOS) in Excess of 12 Months, the Office of the Assistant Secretary of the Army, Manpower and Reserve Affairs, clarified and prescribed policy and procedures for the promotion of RC enlisted Soldiers who are serving on ADOS.  It stated that with the creation of the new operational support strength accounting category RC enlisted Soldiers on extended ADOS no longer count against the Army’s active duty end strength.

9.  The 28 June 2006 memorandum stated in pertinent parts that Soldiers who enter on ADOS from the USAR TPU will be considered for promotion under the provisions of Army Regulation 140-158, chapter 3, or the corresponding provisions of the consolidated Army Regulation 600-8-19, soon to be published.  This also applies to TPU Soldiers who were voluntarily reassigned to the IRR for the purposes of entering on ADOS.  Soldiers who enter on ADOS from the IRR, except those mentioned earlier, and IMA Soldiers will be considered for promotion under the provisions of Army Regulation 140-158, chapter 5, or the corresponding provisions of the consolidated Army Regulation 600-8-19 soon to be published.

10.  The 28 June 2006 memorandum stated, in pertinent parts, that when a position vacancy is otherwise required for promotion, RC Soldiers on ADOS selected for promotion must be charged against a valid position vacancy in the promotable grade prior to promotion.  This action, however, will not encumber the valid position vacancy.  A promotable RC Soldier who is not on ADOS may be promoted to fill the valid vacancy.  The intent is that promotable RC Soldiers on ADOS will be promoted at that point in time when they would have been promoted had the Soldier not been on ADOS.

11.  The 28 June 2006 memorandum continued, in pertinent parts, that upon completion of the ADOS tour RC Soldiers who were promoted while on ADOS would have 12 months to be assigned, either voluntarily or involuntarily, to an appropriate position in their promoted grade and in accordance with established regulatory guidance.  If not assigned to such a position within 12 months these Soldiers are subject to either administrative reduction in accordance with 

established policy in order to fill vacant positions in the lower grade, or transfer in the promoted grade to the IRR.  Soldiers who are administratively reduced will not be authorized grade restoration.

12.  The 28 June 2006 memorandum further stated, in pertinent parts, that this policy is not intended to be used as a vehicle to facilitate promotions when valid authorized requirements are not available.  As such, Soldiers on ADOS orders will only be promoted against documented requirements.  Soldiers may not be promoted against any temporary positions created within a unit.

13.  The 28 June 2006 memorandum did not discuss Sanctuary Soldiers.

14.  Orders, dated 3 August 2006, extended the applicant’s active duty commitment to 2 years.

15.  In a memorandum, dated 11 September 2006, Subject:  Promotion Policies for Reserve Component (RC) Enlisted Soldiers on Active Duty for Operational Support (ADOS) in Excess of 12 Months and Sanctuary Soldiers, USARC provided clarification to the 26 June 2006 memorandum.  USARC stated that, effective immediately, TPU Soldiers serving on ADOS in excess of 12 months (later USARC clarified to the Board analyst that the policy started on the          12-month mark) will be boarded by their former TPU promotion authority.  USARC stated that Army Reserve promotion authority is not retroactive.  Selections and promotions by Army Reserve promotion authorities prior to        28 June 2006 were not authorized or valid.  

16.  The 11 September 2006 memorandum stated that this policy also applies to Army Reserve Soldiers retained on active duty in Sanctuary status who were previously accessed into the Active Army strength and managed by the U. S. Army Human Resources Command – Alexandria.

17.  Records at USAHRC – STL show the applicant was informed on                   19 September 2006 that he was not eligible for consideration by the IRR/ IMA, Standby Reserve (Active List), but he was eligible for a TPU board scheduled for December 2006.

18.  On 25 January 2007, the applicant was selected for promotion to SGM by the 99th RRC Enlisted Promotion Selection Board.

19.  Records at USAHRC –STL show that on 1 February 2007 the applicant was identified for enrollment in the Sergeant’s Major Academy Resident course, apparently as a result of his recommendation for promotion to SGM.  Due to a lack of quotas, he was enrolled in the non-resident course.
20.  In a memorandum, dated 30 April 2007, Subject:  Clarification and Change to Promotion Policies for Army Reserve Troop Program (TPU) Enlisted Soldiers on Active Duty for Operational support (ADOS) and Sanctuary Soldiers, USARC clarified ADOS promotion policy, established orders publishing authority, and rescinded the guidance regarding promotion of Sanctuary Soldiers by Army Reserve promotion authorities.  In pertinent part, it stated that effective the date Sanctuary status is approved Soldiers are no longer promotable under the provisions of Army Regulation 600-8-19.  It stated that Sanctuary Soldiers may be considered under the provisions governing the active duty status into which he/he is transitioned.  

21.  The 30 April 2007 memorandum stated that orders previously published promoting Sanctuary Soldiers would not be revoked at that time.  However, Soldiers already on a promotion recommended list, but not yet promoted as of the effective date of Sanctuary status, will be administratively removed from the recommend list.  No removal board action is required.  

22.  Records at USAHRC – STL show that on 19 June 2007 the applicant requested information on the promotion board (apparently the IRR, IMA, Standby Reserve (Active List)) that would convene in August 2007.  

23.  In emails dated 20 June 2007, the applicant inquired of USAHRC – STL who the promotion authority would be (for his 99th RRC promotion).  He inquired, “I will not need a vacancy from the 99th or will I need to have a position when my ADOS orders end.”

24.  Orders dated 13 September 2007 ordered the applicant to active duty effective 1 October 2007 to obtain 20 years of active Federal service (AFS) under the EAD Sanctuary Program.

25.  On 30 September 2007, the applicant was released from active duty after completing his 2-year commitment.  At that time, he had completed 18 years,      1 month, and 16 days of creditable active service.  

26.  Effective 1 October 2007, the applicant was ordered to active duty for 545 days.  These orders were later amended to order him to active duty for 575 days, to end 30 September 2009.

27.  On 2 October 2007, the applicant was administratively disenrolled from the Sergeant’s Major Course due to being in the Sanctuary Program.


28.  Apparently effective January 2008, the applicant was removed from the 99th RRC Enlisted Promotion List because he was a Sanctuary Soldier.

29.  In an email dated, 12 February 2008, the applicant provided to the 99th RRC, G-1, Reserve Personnel Division, Senior Promotions, information on a unit/vacant position into which he could be promoted to SGM.  On 20 February 2008, the 99th RRC provided the information to USAHRC – STL.

30.  In the processing of this case, an advisory opinion was provided by the Career Management Officer, USAHRC – STL.  That individual opined that the applicant would have to compete for promotion against the Regular Army Component in accordance with USAHRC – Alexandria’s Sanctuary Information Sheet, page 8.

31.  Page 8 of the referenced Information Sheet states:

     “number that is listed on the front of the packet.  Allow at least two weeks for the changes before contacting us.

     ENLISTED:  This should be done locally at your installation PSB.  Keep in mind that there are some fields that they will not be able to update (i.e. input promotion, assignment history).  Before contacting the PSB please make sure that the proper transactions has (sic) been completed and there is an ERB in the system for you.  Your gaining installation must attach you to the attached UIC on your sanctuary orders.  If you cannot pull an ERB off of MY ERB https://www.perscomonline.army.mil/index2.asp then you must check with this office to make sure that the proper transaction to arrive you at the installation was done correctly.”

32.  Page 6 of the referenced Information Sheet answers the question Will I be able to attend schools while on Sanctuary? with “Since your period of AD is, normally 2 years or less it depends on whether it benefits the Army.  Only the required NCOES and Officer Development Courses are allowed.  Each case is looked at on an individual basis and ruled on independently.”

33.  Page 7 of the reference Information Sheet answers the question How are promotions handled?  With “ENLISTED – Currently, Sanctuary Soldier are (sic) being considered or (sic) promotion IAW Memorandum dated June 28 2006, subject:  Promotion Policies for Reserve Component (RC) Enlisted Soldiers on Active Duty for Operational Support (ADOS) in Excess of 12 Months.”

34.  A copy of the advisory opinion and the Sanctuary Information Sheet that was attached to it was provided to the applicant.  On 20 August 2008, he telephonically informed the Board analyst that his comments would basically be the same as outlined in his application.  He believed the guidance on RC promotions and promotions for Sanctuary Soldiers was confusing.  He also noted that the advisory opinion made a confusing reference to page 8 of its attached Sanctuary Information Sheet.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested that his records be corrected to show he was promoted to SGM, E-9, contending that someone did not understand the regulation and he was passed over for promotion.  

2.  The applicant’s argument that someone did not understand the regulation has validity.  The promotion policy of Reserve Soldiers on ADOS was changed or clarified several times during the short time the applicant was on ADOS and now is on active duty in a Sanctuary status.

3.  Effective 30 September 2005, the applicant was transferred from his TPU to the IRR for immediate entry on active duty.  He was assigned to the U. S. Army Human Resources Command – Alexandria for accounting and promotion only and he was counted as part of the Active Army end strength.  Under the policies in effect at this time, he would have been considered for promotion by the Active Army.

4.  The promotion policy began to change around February 2006, when the Office of the Deputy Chief of Staff, G-1, issued a memorandum which stated, in pertinent parts, that RC Soldiers on an EAD tour were no longer counted against the Regular Army end strength and effective 1 March 2006 (and not retroactive) promotion consideration for RC Soldiers from SFC through SGM entering EAD from a USAR TPU would be provided by the RRC for the unit from which the Soldier entered an EAD tour.  RC Soldiers who entered an EAD tour from the IRR would be considered for promotion, to all grades, by normally scheduled IRR enlisted promotion boards.  

5.  The draft promotion policy mentioned Sanctuary Soldiers only in passing, noting that as an exception to (the new) policy the promotion provisions of Army Regulation 600-8-19 would apply to RC Soldiers who, as a result of serving on an EAD tour, attain Sanctuary status.  Army Regulation 600-8-19 at the time had not yet been consolidated with the RC promotion policies and procedures contained in Army Regulation 140-158 and pertained only to promotion of Active Army Soldiers.
6.  The applicant was then scheduled to be considered by the Calendar Year 2006 IRR, IMA, and Standby Reserve (Active List) E-6 through E-9 promotion board that was to convene on 8 August 2006.  However, one of the eligibility criteria was to have been assigned to the IRR, IMA, or Standby Reserve (Active List) for a minimum of 12 months as of 8 August 2006.  At that time, the applicant had been assigned from his TPU to the IRR, for the purpose of entering on ADOS, for less than 11 months.  Therefore, he was not eligible to be considered by this board.

7.  The draft RC promotion policy was finalized and clarified in a memorandum, dated 28 June 2006, issued by the Office of the Assistant Secretary of the Army, Manpower and Reserve Affairs.  The 28 June 2006 memorandum stated, in pertinent parts, that Soldiers who enter on ADOS from the USAR TPU will be considered for promotion under RC promotion procedures.  This also applies to TPU Soldiers who were voluntarily reassigned to the IRR for the purposes of entering on ADOS, as happened in the case of the applicant.  The 28 June 2006 memorandum stated, in pertinent parts, that when a position vacancy is otherwise required for promotion RC Soldiers on ADOS selected for promotion must be charged against a valid position vacancy in the promotable grade prior to promotion.  Soldiers on ADOS orders will only be promoted against documented requirements.  

8.  The 28 June 2006 memorandum did not mention Sanctuary Soldier promotion policy at all.  However, in a memorandum dated 11 September 2006, USARC stated that this new promotion policy also applied to Army Reserve Soldiers retained on active duty in a Sanctuary status who were previously accessed into the Active Army strength.

9.  Records at USAHRC – STL show the applicant was informed on                      19 September 2006 that he was not eligible for consideration by the IRR/ IMA, Standby Reserve (Active List), but he was eligible for a TPU board scheduled for December 2006.  That would have been in accord with the new RC promotion policy, because he had been transferred to the IRR from his TPU only for the purpose of entering on ADOS.  

10.  On 25 January 2007, the applicant was selected for promotion to SGM by the 99th RRC Enlisted Promotion Selection Board.  On 1 February 2007, he was identified for enrollment in the Sergeant’s Major Academy Resident course, apparently as a result of his recommendation for promotion to SGM.  Due to a lack of quotas, he was enrolled in the non-resident course.

11.  Emails, dated 20 June 2007, provided by the applicant indicated that he first inquired of USAHRC – STL at that time if he needed a position vacancy to be promoted to E-9.  The next available evidence, an email dated 12 February 2008, indicated that he provided to the 99th RRC on that date information on a unit/vacant position to which he could be promoted to SGM.  

12.  However, effective 1 October 2007 the applicant had been ordered to active duty to obtain 20 years of AFS under the EAD Sanctuary Program. 

13.  Unfortunately for the applicant, the new promotion policy was clarified in a USARC memorandum, dated 30 April 2007.  In pertinent part, it stated that effective the date Sanctuary status is approved Soldiers are no longer promotable under the (RC) provisions of (the consolidated) Army Regulation  600-8-19.  It stated that Sanctuary Soldiers may be considered under the provisions governing the active duty status into which he/she is transitioned.  While orders previously published promoting Sanctuary Soldiers would not be revoked, Soldiers already on a promotion recommended list but not yet promoted as of the effective date of Sanctuary status would be administratively removed from the recommend list.  

14.  Since the applicant had not yet been promoted as of 1 October 2007, he was administratively removed from the 99th RRC promotion list.  It appears he was disenrolled from the Sergeant’s Major Course due to being in the Sanctuary Program.  Although the Sanctuary Information Sheet stated that the Sanctuary Soldiers would be allowed to attend the required noncommissioned officer education system (NCOES) course, it also stated that each case is looked at on an individual basis and ruled on independently.  The applicant’s disenrollment from the Sergeant’s Major Course appears to be justified since his removal from the 99th RRC promotion list was in accordance with the new promotion policy.

15.  Regrettably, there is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ___xx___  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.




      _______ _xxxx______   ___
       	   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.



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