IN THE CASE OF:	  

		BOARD DATE:	        5 August 2008

		DOCKET NUMBER:  AR20080006033 


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 his DA Form 4187 (Personnel Action), dated 12 June 2007, be corrected to show he has reappointment rights as a Command Sergeant Major (CSM).

2.  The applicant states, in effect, that the chapter used on the DA Form 
4187 should read chapter 5-22.  He continues that he was not allowed due process as required by regulation.  He further states there is no supporting documentation that would warrant his removal from the CSM Program.  He was forced to retire and never given a full hearing as to why he was put upon by his higher headquarters.

3.  The applicant provides an undated Request Retirement letter; a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) with the through date 21 February 2007; a 20-Year Retirement Letter, dated 4 March 1999; a DA Form 4187, dated 12 June 2007; a DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 7 June 2007; U.S. Army Human Resources Command (USAHRC) Orders C-06-718639A01, dated 19 June 2007; USAHRC Orders C-06-718639, dated 12 June 2007; and a memorandum from the Commander, 399th Combat Support Hospital, dated 22 January 2008. 

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant enlisted in the U.S. Army Reserve (USAR) on 4 February 1975.  On 4 April 2006, he was promoted to CSM.

2.  USAHRC Orders C-04-610096, dated 12 April 2006, show that the applicant was assigned to the 399th Medical Company Hospital, effective 7 April 2006.

3.  A DA Form 4187, dated 12 June 2007, shows the applicant’s rank of CSM was terminated and he was appointed in the rank and grade of Sergeant Major (SGM)/E-9.  The document shows the authority as “AR 135-205, paragraph 
6-22.”  Additional instructions state "Soldier does not have reappointment rights." 

4.  USAHRC Orders C-06-718639, dated 12 June 2007, show the applicant was assigned to the Retired Reserve effective 9 June 2007, at the rank of SGM.  The orders further show that he did not have reappointment rights.

5.  USAHRC Orders C-06-718639A01, dated 19 June 2007, amended orders 
C-06-718639 to show the applicant’s retirement rank as CSM and further indicated he did not have reappointment rights.

6.  In the processing of this case, an advisory opinion was obtained from the Senior Leadership Development Division, USAHRC-St. Louis.  It stated, 
"Mr. V_______ did not meet the 4 years of cumulative service required as Command Sergeant Major in accordance with AR 135-205, dated 14 September 2005, which governed the Command Sergeants Major management at the time 
Mr. V_______ retired.  Mr. V_______ was placed on the Retired Reserve as a Command Sergeant Major; highest rank held, however, Mr. V_______’s reappointment rights were terminated in accordance with regulation cited above.”

7.  In his rebuttal to the advisory opinion, the applicant stated in part that he requested that the DA Form 4187 be removed because it cited the wrong authority paragraph and his termination of reappointment right should not stand, as that paragraph does not exist.  He further stated that his not completing the
4 years stabilization as a CSM was not being contested.  However, he completed 
14 months in the assignment as a CSM before his voluntary reassignment into the Retired Reserve.  He stated, “As stated in the regulation 135-205, Section IV, paragraph 5-20, I was only required to serve in my position for 
12 months before I could voluntarily retire.”

8.  Army Regulation 135-205 (Enlisted Personnel Management), Section IV of the version in effect at the time, paragraph 5-20a stated that on assignment to a CSM position a CSM will be stabilized in that position for 4 years.  The stabilized period of assignment starts on the date of assignment to a CSM position while in 

the grade of CSM.  To complete the stabilization period, a CSM must have 
4 years of cumulative service as a CSM.  A CSM must serve 12 months in an assignment before voluntary reassignment can occur.  Paragraph 5-20c(4) stated that on completion of a stabilized period of assignment, a CSM may be voluntarily reassigned to the Retired Reserve.  

9.  Army Regulation 135-205, paragraph 5-27a(2), stated that a SGM could be reappointed to CSM if he or she voluntarily withdrew from the CSM Program to enter on active duty (Active Army or AGR).  On release from active duty, he or she would be assigned to a CSM position or the Retired Reserve.  Paragraph 5-27a(3) stated that a CSM who was reclassified as a SGM under paragraph 5-20c and was transferred to the Retired Reserve on completion of a stabilized period of assignment as a CSM had reappointment rights to CSM.

10.  Army Regulation 135-205, paragraph 5-22, provided that a CSM or CSM designee who fails to be effective or maintain the expected high standards of a CSM is subject to removal from the CSM program.

11.  Army Regulation 135-205, paragraph 5-25b(2), stated a CSM would be mandatorily reclassified to SGM when the CSM was reassigned to another position that was not a CSM position (paragraph 5-20c).

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant served in a CSM position for 
14 months prior to being reassigned to the Retired Reserve.  It is acknowledged that his DA Form 4187 erroneously cited the wrong authority for his termination of CSM to SGM.  Contrary to the applicant's assertion, paragraph 5-22 was not the correct cite, either.  The correct cite was paragraph 5-25b(2).  

2.  The applicant’s Retired Reserve orders where amended to show his highest rank held as CSM.  However, he did not qualify for reappointment rights due to his not meeting the 4 years of cumulative service as a CSM.  Serving in a CSM position for 12 months made him eligible to voluntarily request reassignment (in his case, to the Retired Reserve).  However, since he did not complete the        4-year stabilized period he was not eligible for reappointment rights.  By regulation, this mandated that his reappointment rights be terminated.

3.  In view of the foregoing, there is no basis for granting the applicant's request.


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.

ABCMR Record of Proceedings (cont)                                         AR20080006033



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ABCMR Record of Proceedings (cont)                                         AR20080006033



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