IN THE CASE OF:	  

		BOARD DATE:	        2 December 2008

		DOCKET NUMBER:  AR20080010652 


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 she be promoted to staff sergeant/E-6. 

2.  The applicant states, in effect, that the Georgia Army National Guard stated that she was to be promoted to E-6 with an assigned unit (Headquarters and Headquarters Company (HHC), 48th Brigade) which has male and female Soldiers.  She also indicates that she signed an acceptance letter in February 2005 for the position in the 48th Brigade.  However, after she was deployed to Iraq the unit promoted a male Soldier in this position.  She later found out that she did not get promoted because the unit she was going to be assigned to (Company A, 1st Battalion, 121st Infantry) was a male unit.  She points out that her acceptance letter shows assignment to the 48th Brigade (which is a male and female unit) and not Company A, 1st Battalion, 121st Infantry.  

3.  The applicant provides a copy of the 2004 (E-6) Enlisted Promotion Consideration List, dated 3 April 2005; a memorandum, dated 17 February 2005, for acceptance/declination for transfer/promotion; active duty orders, dated 
5 December 2004; a Personnel Qualification Record; and transfer orders, dated 9 November 2004. 

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the Regular Army, the applicant enlisted in the Army National Guard on 27 August 1996 in pay grade E-5/sergeant.  

2.  The applicant provided a 2004 (E6) Enlisted Promotion Consideration List which shows she was selected for promotion in MOS 91G.

3.  On 6 December 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom with HHC, 148th Support Battalion.  

4.  The applicant provided a memorandum from her to HHC, 48th Brigade, dated 
17 February 2005, which shows she accepted a transfer or promotion in MOS 91G3O, paragraph 007, line 03.  

5.  On 24 March 2005, an email stated that there was a mistake and the position (i.e., paragraph 007, line 03) was actually in Company A, 1st Battalion, 121st Infantry Battalion, a male-only unit.  Based on this information, the applicant could not be promoted into the position. 

6.  Orders, dated 25 April 2005, show the applicant was awarded primary military occupational specialty (MOS) 75B and secondary MOS 91G2O effective 
7 January 2005.  Primary MOS 91G2O was withdrawn.  These orders were amended on 7 February 2006 to show an effective date of 28 August 2004. 

7.  On 1 July 2005, a new E-5 to E-6 promotion list was published and the applicant's primary MOS had changed, placing her on the 42A (formerly 75B) list.

8.  On 27 August 2006, the applicant was released from active duty in the rank of sergeant.

9.  A memorandum, dated 12 April 2007, from the Brigade Executive Officer, Georgia Army National Guard responded to the applicant's Congressional Inquiry in reference to her promotion.  The memorandum states the applicant was offered a promotion on 15 February 2005 in HHC, 48th Brigade as a 91G3O; however, that offer was made in error.  The actual vacancy was in Company A, 1st Battalion, 121st Infantry which is a unit that cannot accept females so the applicant was not eligible for that position.  The memorandum also states that the number two Soldier on the promotion list was promoted into a 91G slot in HHC, 48th Brigade and that was correct.  On 2 December 2005, another Soldier was promoted into a 91G3O slot.  However, at the time of his selection the applicant was no longer on the 91G promotion list.  According to 1 September 2005 promotion records, the applicant was on the 42A list and that is the reason she was not selected for that position/vacancy. 



10.  There is no evidence of record which shows the applicant was promoted to staff sergeant.  

11.  In the processing of this case, a staff advisory opinion, dated 25 July 2008, was obtained from the National Guard Bureau.  After considering the State's input, that office recommends approval of the applicant's request.       

12.  On 30 July 2008, a copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 25 August 2008, the applicant concurred with the advisory opinion.

13.  A revised advisory opinion, dated 13 August 2008, was obtained from the National Guard Bureau.  That office reviewed additional information from the Georgia Enlisted Personnel Office and from the applicant's personnel file and recommends disapproval of the applicant's request.  The opinion points out that although the applicant states that she was originally selected for promotion as a 91G in 2004 and that she signed a statement accepting the said promotion, the applicant was never promoted as a 91G off the 2004 promotion list because the only slot available was for males only.  The state admits that this was an administrative error on their behalf.  In 2005, the applicant submitted another packet for promotion consideration, this time as a 42A.  She was not selected for promotion.  However, another Soldier was selected for E-6 as a 91G and placed into a male/female slot.  The opinion states that it appears the applicant has confused the two promotion years.  In 2004, she competed for a 91G slot but was not selected because it was a male only position.  In 2005, she competed for a 42A slot but was not selected.  It is irrelevant that another Soldier was promoted into a male/female slot as a 91G in 2005 because the applicant was competing as a 42A at the time.      

14.  On 1 October 2008, a copy of the revised advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 24 October 2008, the applicant responded.  In summary, she stated that from 2003 to 2004 she was still a 91G2O in Company C, 148th Forward Support Battalion, that she worked as the unit administration clerk until she was moved to HHC, 148th Forward Support Battalion as the S1 clerk for the battalion, and that when she was transferred to that unit she was still in MOS 91G.  She states that in 2004 to 2005, she was a 42A and that when she was selected on the promotion list she was still a 91G so the promotion was valid.    

15.  The applicant also states that she is not confused about the two promotion boards, questions why would she submit a promotion packet in 2005 when she had already accepted the promotion and signed the acceptance letter, and states that if a promotion packet was submitted in 2005 while she was in Iraq it was without her knowledge and signature.  She states that she was never notified that the slot was only available to males or that the state admitted to an administrative error on their behalf until she returned from Iraq and submitted an inquiry in 2007. 

16.  National Guard Regulation 600-200 (Enlisted Personnel Management), in effect at the time, stated, in pertinent part, that for promotion to staff sergeant a Soldier must have been in promotable status and met the criteria in table 6-3 (Promotion Criteria).  Table 6-3 of this regulation stated, in pertinent part, that a position vacancy must exist for the rank of staff sergeant and military occupational specialty for which being recommended for promotion and before consideration by a board.     

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were considered.  

2.  Regrettably, it appears she was never promoted to E-6 in MOS 91G off the 2004 promotion list because the only slot available was for males.  The state admits that this was an administrative error on their part.  

3.  As to the applicant's contentions in her rebuttal to the advisory opinion, in the absence of evidence (such as the findings of an Inspector General's investigation) it must be presumed the advisory opinion accurately reflected the applicant's promotable status regarding her promotion in another 91G position. 

4.  Since there is no evidence to show the applicant was promoted to E-6, there is an insufficient basis for granting the applicant’s request.  

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.



      _______XXX_______________
               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)                                         AR20080010652



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ABCMR Record of Proceedings (cont)                                         AR20080010652



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