IN THE CASE OF:	  

		BOARD DATE:	        17 March 2009

		DOCKET NUMBER:  AR20080008580 


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, promotion to the rank of sergeant major (SGM)/pay grade (E-9), along with a date of rank (DOR) and effective date commensurate with the first time he was denied consideration; all back pay due as a result of this promotion; correction of the rank on the orders transferring him to the Retired Reserve; and removal of the Academic Evaluation Report (AER) from his official military personnel file (OMPF).

2.  The applicant states, in effect, he was denied consideration for promotion by the 2003 Command Sergeant Major (CSM) Board due to a clerical error made by the 90th Regional Readiness Command (RRC) that caused his promotion packet not to be boarded.  He also states that a subsequent error caused his promotion packet not to be boarded by the Enlisted Standby Advisory Board (STAB).
	
     a.  The applicant states he initiated an Inspector General (IG) inquiry into this matter in 2003, filed appeals, requested advisory boards, and it has taken almost five years to get a decision by the Army Review Boards Agency (ARBA).

     b.  The applicant states that he could not get anyone in his chain of command to acknowledge that a mistake was made and, since he is so close to retirement, he cannot get anyone in his chain of command to take ownership and follow through on the ARBA's findings and recommendations.


3.  The applicant provides an ARBA Case Summary, Noncommissioned Officer Evaluation Report (NCOER) Appeal, dated 18 March 2008; Headquarters, U.S. Army Human Resources Command (USAHRC), St. Louis, Missouri, Orders
P04-805965, dated 29 April 2008; Headquarters, USAHRC, Transition and Separations Branch, St. Louis, memorandum, dated 29 April 2008; Headquarters, U.S. Army Reserve Command (USARC), Fort McPherson, Georgia, Orders 08-157-00012, dated 5 June 2008; DD Form 363A (Certificate of Retirement), dated 18 June 2008; Headquarters, U.S. Army 90th RRC, Office of the IG, North Little Rock, Arkansas, memorandum, dated 28 July 2004; Headquarters, 373rd Corps Support Battalion, Beaumont, Texas, memorandum, undated; Headquarters, 373rd Corps Support Battalion, Beaumont, memorandum, dated 27 January 2005; Headquarters, 373rd Corps Support Battalion, Beaumont, memorandum, dated 1 February 2005, subject: Promotion Packet Error; and Headquarters, 373rd Combat Sustainment Support Battalion, Beaumont, memorandum, dated 27 July 2006, subject:  Sergeants Major Academy Deferment Request, along with applicant’s statements, dated
24 October 2006 and 19 June 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show prior honorable active duty enlisted service in the U.S. Marine Corps (USMC) from 21 June 1967 to 30 April 1970 and in the USMC Reserve from 1 May 1970 to 5 March 1973.

2.  The applicant's military personnel records show he enlisted in the U.S. Army Reserve (USAR) on 16 June 1980 and his date of birth (DOB) is recorded as
18 June 1948.  His pay entry basic date (PEBD) is recorded as 16 June 1974.  He served continuously in the USAR, and was promoted to the rank of master sergeant (MSG)/pay grade E-8 effective 16 March 1998.  

3.  A Headquarters, Department of the Army message, date time group unknown, subject:  CY (calendar year) 2003 USAR SGM/CSM Selection Board (Active Guard Reserve (AGR) SGM/CSM/Qualitative Management Program) and Troop Program Unit (TPU) CSM).  The board was scheduled to convene on 7 October 2003 to consider eligible AGR Soldiers for promotion to SGM and to consider eligible USAR noncommissioned officers for appointment as CSM.

4.  Paragraph 3 of the message provided the eligibility criteria for appointment as TPU, Individual Ready Reserve (IRR), and Individual Mobilization Augmentee (IMA) CSM.  In pertinent part, it stated that First Sergeants/MSGs with a PEBD of 1 March 1972 and later and with a DOR of 6 June 2001 and earlier must have had a DOB of 1 October 1948 and later.

5.  The applicant was serving in a TPU at the time. 

6.  The applicant's military personnel records contain a copy of a Headquarters, Army Special Review Boards, Arlington, Virginia, memorandum, dated
21 February 2008, subject:  NCOER Appeal - [Applicant’s Name, Rank, Social Security Number, Military Occupational Specialty (MOS)] with 3 enclosures that include the applicant’s appeal packet, Enlisted Record Brief, and a copy of the contested report.

     a.  This memorandum shows that the Department of the Army Enlisted Special Review Board (ESRB) adjudicated an appeal pertaining to the applicant and determined that the evidence justified deleting the AER rendered on the 
applicant that pertained to his enrollment in the U.S. Army Sergeants Major Non-Resident Course, Class Number 31, for the period 1 April 2004 through 30 June 2006.  This document also shows that the ESRB approved the appeal, directed the report be deleted from the applicant’s records, the appeal correspondence not be filed in the restricted section of the applicant’s OMPF, and that promotion reconsideration and consideration for a waiver to return to the U.S. Army Sergeants Major Academy (USASMA) is warranted.

     b.  As a result of the ESRB’s decision pertaining to the AER, the applicant’s request for removal of the AER from his OMPF will not be discussed further in this Record of Proceedings.

7.  The applicant's military personnel records contain a copy of Headquarters, USAHRC, St. Louis, Orders P04-805965, dated 29 April 2008, and Headquarters, USARC, Fort McPherson, Orders 08-157-00012, dated 5 June 2008.  These orders show, in pertinent part, that the applicant was released from the 373rd Combat Sustainment Support Battalion, Beaumont, TX, on 17 June 2008 and assigned to the Retired Reserve, to be placed on the Army of the United States (AUS) Retired List, in the grade of MSG (E-8), effective 18 June 2008, based on maximum age.

8.  In support of his application, the applicant provides the following documents.

     a.  ARBA Case Summary, NCOER (AER) Appeal, dated 18 March 2008.  The applicant also provides a copy of an ARBA, Congressional and Special Actions, Arlington, facsimile (FAX) cover sheet, dated 18 March 2008, that shows the 5-page ARBA Case Summary, NCOER Appeal, was faxed to the applicant on 18 March 2008.

     b.  Headquarters, USAHRC, St. Louis, Orders P04-805965, dated 29 April 2008; Headquarters, USAHRC, Transition and Separations Branch, St. Louis, memorandum, dated 29 April 2008; Headquarters, USARC, Fort McPherson, Orders 08-157-00012, dated 5 June 2008; and DD Form 363A, dated 18 June 2008.  These documents, in pertinent part, show the applicant was assigned to the Retired Reserve to be placed on the retired list, in the grade of MSG (E-8) and honorably retired effective 18 June 2008.

     c.  Headquarters, U.S. Army 90th RRC, Office of the IG, North Little Rock, memorandum, dated 28 July 2004, that shows, in pertinent part, the colonel serving as IG responded to CSM D___, 90th RRC, who had requested assistance in determining the procedures for the applicant’s records to appear before a CSM consideration board.

         (1)  This document shows that the IG conducted a thorough inquiry into the applicant’s request for assistance that determined the maximum age requirement at the time of the CY 2003 TPU CSM Board was 56; the applicant had not yet attained age 56 as of the date of the board (6 October 2003); and that the 90th RRC’s Deputy Chief of Staff G-1, erroneously returned the applicant’s promotion packet because it was determined he did not meet the DOB requirement based on information available at the time.

         (2)  This document also shows the USARC G-1 SGM provided guidance instructing the applicant to submit documentation requesting an Enlisted STAB in accordance with Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), paragraph 4-18 (Enlisted Standby Advisory Board).  He was also advised to include documentation from his chain of command concerning the administrative error pertaining to his DOB, including the message the applicant provided that changed his DOB from 1948 to 1947.  This memorandum also shows that the applicant was advised to reference the USARC G-1 SGM (by name) as recommending the applicant for Enlisted STAB consideration by the CY04 TPU CSM Board.

     d.  Headquarters, 373rd Corps Support Battalion, Beaumont, TX, memorandum, undated; Headquarters, 373rd Corps Support Battalion, Beaumont, TX, memorandum, dated 27 January 2005; and Headquarters, 373rd Corps Support Battalion, Beaumont, memorandum, dated 1 February 2005, subject:  Promotion Packet Error.  These three documents, in pertinent part, show that the applicant, the Supervisory Staff Administrator, and CSM requested consideration of the applicant for an Enlisted STAB.

     e.  Headquarters, 373rd Combat Sustainment Support Battalion, Beaumont, TX, memorandum, dated 27 July 2006, subject:  Sergeants Major Academy Deferment Request, along with applicant’s statements, dated 24 October 2006 and 19 June 2006.  These documents show, in pertinent part, that the applicant requested a deferment for attending Phase II of the USASMA because his last four promotion packets submitted were not processed due to his age; he had not received a response pertaining to his request for an Enlisted STAB, and he was 
waiting on a decision from the Department of the Army as to what course of action he should take.  In his statement, the applicant’s states, in pertinent part, “[m]y thought process was to ask for a deferment, and then when I received a reply from the Department of the Army, I would attend Phase II.”

9.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Promotions, Promotions Division, USAHRC,
St. Louis, dated 19 August 2008.

     a.  The advisory official states that a review of the retiree’s packet disclosed in the IG memorandum to the 90th RRC (dated 28 July 2004) that the USARC G-1 SGM recommended a remedy to the applicant’s situation.  Specifically, the USARC G-1 SGM recommended the applicant be instructed to submit documentation requesting an Enlisted STAB in accordance with Army Regulation 140-158, paragraph 4-18.  The advisory official confirms that his office has no record of the applicant ever requesting an Enlisted STAB.

     b.  The advisory official states that even if the applicant had submitted a request for an Enlisted STAB, it would have been returned without action, as there were no provisions at the time contained in Army Regulation 140-158 for the reconsideration of Soldiers being considered to the appointment of CSM.

     c.  The advisory official adds that, theoretically speaking, the applicant could have possibly been granted an exception to policy by the Army G-1 to be approved for an Enlisted STAB and could have possibly been selected as a CSM designee.  However, there is no way to state unequivocally that the applicant would have realized the “conditional” promotion to SGM as this would have been predicated on his assignment to an authorized CSM position. 

     d.  The advisory official concludes by stating the applicant must bear some of the responsibility by not following the initial recommendations of the USARC G-1 SGM.  Therefore, in view of the foregoing, the advisory opinion recommends the applicant’s request be denied.

10.  On 5 November 2008, the applicant was provided a copy of the Chief, Enlisted Promotions, Promotions Division, USAHRC, advisory opinion in order to have the opportunity to respond to its contents.  To date, the applicant has failed to provide a response.

11.  Army Regulation 140-158, in effect at the time, paragraph 3-28, prescribed the policy and procedures governing the promotion of TPU Soldiers to Sergeant First Class, MSG, and SGM.  It stated the selection and promotion process for senior enlisted grades was centralized at the Army Reserve Command/General Officer Command, and Regional Support Command (later designated Regional Readiness Command) headquarters.  The promotion authority would announce the convening date of the selection board, the location and description of current and projected position vacancies, the zones of consideration, and administration instructions.  All Soldiers assigned to a TPU who resided within a reasonable distance of a current or projected position vacancy would be considered by the promotion selection board.  Soldiers who did not live within a reasonable distance of announced position vacancies or projected vacancies could request consideration by the selection board if the Soldier was within the announced zone of consideration and was in a promotable status.  

12.  Army Regulation 140-158, in effect at the time, paragraph 4-18, in pertinent part, provided that an Enlisted STAB would consider records from the primary zone and secondary zone not reviewed by a regular board and that the names of Soldiers selected by this board would be integrated on the recommended list.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his records should be corrected to show he was promoted to the grade of SGM (E-9) with a DOR and effective date equivalent to one that would be based on selection by the CY 2003 CSM Board; all back pay due as a result of the promotion; and correction of the rank on the orders that transferred him to the Retired Reserve and AUS Retired List.

2.  In his statement with his application, the applicant raised the same issue (i.e., that he was denied consideration for promotion by the 2003 CSM Board due to a clerical error made by the 90th RRC that caused his promotion packet not to be boarded) that he had raised with the IG and which the advisory opinion addressed.  

3.  It is acknowledged that the IG found that due to an administrative error pertaining to the applicant’s age the applicant’s records were not considered by the CY 2003 TPU CSM Board that convened on 6 October 2003.  However, the message that announced that board specifically stated that the eligibility criteria for appointment as TPU CSM included, if the Soldier was a MSG with a PEBD of 1 March 1972 and later (the applicant's PEBD was 16 June 1974) and with a date of rank of 6 June 2001 and earlier (the applicant's date of rank was            16 March 1998) must have had a DOB of 1 October 1948 and later.  The applicant's DOB was 18 June 1948.
4.  The applicant did not meet the eligibility criteria to be considered by the CY 2003 TPU CSM Selection Board.

5.  As for the applicant's actual, current request that he be promoted to SGM with a DOR and effective date commensurate with the first time he was denied consideration, the CY 2003 TPU CSM Selection Board did not consider TPU Soldiers for promotion to SGM.  That selection board did consider AGR Soldiers for promotion to SGM; however, the applicant was not an AGR Soldier.

6.  The selection and promotion process for TPU SGM would have been centralized at RRC headquarters.  All Soldiers assigned to a TPU who resided within a reasonable distance of a current or projected position vacancy would be considered by the promotion selection board, and Soldiers who did not live within a reasonable distance of announced position vacancies or projected vacancies could request consideration by the selection board if the Soldier was within the announced zone of consideration and was in a promotable status.  However, the applicant provides no evidence to show that the 90th RRC ever announced or convened a SGM promotion selection board during the time in question.  Therefore, there is insufficient evidence on which to base the correction requested.

7.  The applicant's request pertaining to his AER was acted upon by the ESRB and approved.  The AER does not appear to be filed on his OMPF in the integrated Personnel Electronic Records Management System.  It does not appear that further action needs to be taken on this portion of his request.

8.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records to show he was promoted to the grade of SGM (E-9) or correction of the rank on the orders that transferred him to the Retired Reserve and AUS Retired List.

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)                                         AR20080008580



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ABCMR Record of Proceedings (cont)                                         AR20080008580



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