BOARD DATE:	  28 July 2009

		DOCKET NUMBER:  AR20080010710 


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) for master sergeant (MSG)/pay grade E-8 be changed from 1 May 2008 to 28 August 2007.

2.  The applicant states, in effect, he was scheduled to be promoted effective and with a DOR of 1 July 2007, but he was under suspension of favorable personnel actions (i.e., a flag) at the time.  He also states the flag was removed on
28 August 2007, he was promotable at that time, and should have been promoted.  However, he was not promoted because the paperwork was not forwarded to the appropriate authorities on time.

3.  The applicant provides copies of the following orders published by Headquarters, 75th Division (Training Support (TS)), Houston, Texas, Orders 
07-150-00004, dated 30 May 2007; Orders 07-215-00004, dated 3 August 2007; Orders 07-215-00005, dated 3 August 2007; Orders 07-215-00006, dated 3 August 2007; and Orders 07-218-00001, dated 6 August 2007.  He also provides an electronic mail (email) string, dated from 17 December 2007 to 
3 March 2008; and Headquarters, Regional Support Group - West, Arlington Heights, Illinois, Orders 08-136-00001, dated 15 May 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the U.S. Marine Corps Reserve (USMCR) from 9 June to 28 June 1973.  He then enlisted in the U.S. Marine Corps and entered active duty on 29 June 1973.  The applicant was honorably released from active duty on 1 July 1977 and transferred to the USMCR to complete his remaining military service obligation.  At the time he had completed 4 years and 3 days of net active service this period; 22 days of prior inactive service; and 4 years and 25 days of total service for pay.

2.  The applicant enlisted in the U.S. Army Reserve (USAR) for a period of
3 years on 7 September 1990.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 92Y (Supply Specialist).  The applicant continued to serve in the USAR and was promoted to the rank of sergeant first class (SFC)/pay grade E-7 in MOS 92Y, effective 1 March 2004.  On 24 July 2007, the applicant was ordered to active duty as a member of his Reserve Component for a period of 365 days in support of Operation Enduring Freedom.

3.  A DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report) covering the period 1 January 2007 through 31 December 2007 shows in Part I (Administrative Data), block c (Rank), the entry "SFC" and block d (Date of Rank) contains the entry "20040301" (i.e., 1 March 2004).  Part III (Duty Description), block b (Duty MOSC), contains the entry "92Y4O."

4.  A DA Form 2166-8 covering the period 1 January 2008 through 31 December 2008 shows in Part I, block c, the entry "MSG" and block d contains the entry "20080501" (i.e., 1 May 2008).  Part III, block b, contains the entry "92Y5O."

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

   a.  Headquarters, 75th Division (TS), Houston, Texas, Orders 07-150-00004, dated 30 May 2007, announced the applicant's promotion from SFC to MSG, in MOS 92Y, effective and with a DOR of 1 July 2007.  This order shows, in pertinent part, that "[t]he promotion is not valid and this order will be revoked if [the applicant] is not in a promotable status on the effective date of promotion."

   b.  Headquarters, 75th Division (TS), Houston, Texas, Orders 07-215-00004, dated 3 August 2007, announced the applicant's reduction in grade from MSG to SFC, with a DOR of 1 March 2004, effective 3 August 2007.

   c.  Headquarters, 75th Division (TS), Houston, Texas, Orders 07-215-00005, dated 3 August 2007, announced the revocation of Headquarters, 75th Division (TS), Houston, Texas, Orders 07-215-00004, dated 3 August 2007, that announced the applicant's reduction in grade.


   d.  Headquarters, 75th Division (TS), Houston, Texas, Orders 07-215-00006, dated 3 August 2007, announced the applicant's reduction in grade from MSG to SFC, with a DOR of 1 March 2004, effective 3 August 2007.

   e.  Headquarters, 75th Division (TS), Houston, Texas, Orders 07-218-00001, dated 6 August 2007, announced the revocation of Headquarters, 75th Division (TS), Houston, Texas, Orders 07-215-00006, dated 3 August 2007, that announced the applicant's reduction in grade.

   f.  An email string that shows, in pertinent part:

       (1)  on 17 December 2007, the NCO in Charge (NCOIC), S-1, 1st Battalion, 89th TS, 479th Field Artillery Brigade, requested a new promotion order pertaining to the applicant because the applicant was under suspension of favorable personnel actions on the effective date of his promotion order
(i.e., 1 July 2007) and the command had requested revocation of his promotion orders.  The S-1 NCOIC added the flag against the applicant was removed effective 28 August 2007 and the applicant was eligible for promotion.

       (2)  on 23 January 2008, the Command Sergeant Major, 1st Battalion, 
289th TS, inquired into the applicant's promotion status indicating that he had failed the Army Physical Fitness Test (APFT) at the time his orders were issued, he later passed the APFT, and the Inspector General advised that the applicant was eligible for promotion because he passed the APFT.
   
       (3)  on 23 January 2008, the Human Resources (HR) Specialist, Regional 
Support Group - West, indicated the applicant passed his APFT, on 28 August 2007, the flag was lifted, and he was eligible for promotion at that time.  The HR Specialist also requested assistance in verifying that there was a valid position into which the applicant could have been promoted at the time the flag was lifted, if the position was still vacant, and if the applicant’s promotion could be back-dated.

       (4)  on 31 January 2008, the HR Specialist, Regional Support Group - 
West, indicated the applicant was eligible for promotion on the date the flag was lifted (i.e., on 28 August 2007); however, the HR Specialist was in contact with the 90th Regional Readiness Command (RRC) for assistance in determining if there was a valid position into which the applicant could have been promoted at the time the flag was lifted.

       (5)  on 3 March 2008, a senior NCO at the 90th RRC advised officials at 
the 75th Division (TS) that the applicant was under suspension of favorable personnel actions as of the date of his promotion.  Therefore, the original promotion order had to be revoked.  This senior NCO also advised that the applicant had been placed back on the Permanent Promotion Recommended List (PPRL) and that he would assist in the applicant's promotion as soon as an authorized position vacancy could be found.

   g.  Headquarters, Regional Support Group - West, Arlington Heights, Illinois, Orders 08-136-00001, dated 15 May 2008, announced the applicant's promotion from SFC to MSG, in MOS 92Y, effective and with a DOR of 1 May 2008.  This order states, in pertinent part, that "[t]he promotion is not valid and this order will be revoked if [the applicant] is not in a promotable status on the effective date of promotion."  This order also states, "[p]romotion is concurrent with assignment to POS 3355 PARA/LIN 018B/14, W86W02."

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Board Support Branch, Promotions Division, U.S. Army Human Resources Command (USA HRC), St. Louis, Missouri.  The advisory official states that the authority to promote Army Reserve Soldiers assigned to troop program units (TPU) to the rank of MSG is the commander of the Soldier's respective RRC/Army Reserve Command/ USAR General Officer Command, Army Reserve Unit, or multi-component unit authorized a general officer.  In the case of the applicant, the promotion authority was the Commander, 75th Division (TS), Houston, Texas.  The USA HRC advisory official recommended contact with promotion officials at that command.  

7.  In further processing of this case, an advisory opinion was requested from the Deputy Chief of Staff, G-1 (DCS, G-1), U.S. Army Reserve Command (USARC), Fort McPherson, Georgia.  On 26 June 2009, an advisory opinion was provided confirming the applicant failed an APFT on 16 April 2007; therefore, he should have been flagged.  However, the unit failed to process the flag and promotion orders were published.  Once the error was identified, the original promotion order was revoked and the applicant was returned to the PPRL.  After the applicant was returned to the PPRL, the convening authority researched all previous vacancy reports and identified April 2008 as the first month a vacancy was reported that would allow for the applicant’s promotion.  Accordingly, with the April 2008 vacancy report, orders were published promoting the applicant to MSG (E-8) with an effective date of 1 May 2008.

8.  On 29 June 2009, the applicant was provided a copy of the DCS, G-1, USARC, advisory opinion in order to have the opportunity to respond; however, the applicant failed to provide a response within the time allowed.

9.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)), in effect at the time, prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function: 

   a.  Paragraph 1-13 (Circumstances requiring a transferrable flag) provides the specific actions and investigations that require a transferable flag and lists, in pertinent part, failure to pass the APFT or failure to take the APFT within the required period.  This paragraph also instructs to remove the flag on the day the Soldier passes the APFT or at expiration term of service/mandatory release date.  

   b.  Paragraph 1-14 (Actions prohibited by a flag) states that a flag properly imposed in accordance with this regulation prohibits, in pertinent part, promotion or reevaluation for promotion and instructs the personnel service center to guard against accidental execution thereof.

10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribes policies and procedures governing promotion and reduction of Army enlisted personnel and applies to enlisted members of the Active Army, Army National Guard, Army National Guard of the United States, and USAR.

   a.  Paragraph 1-10 (Nonpromotable status), subparagraph j(1), provides that failure to initiate a DA Form 268 (Suspension of Favorable Personnel Actions (FLAG)) does not affect the Soldier’s nonpromotable status if a circumstance exists that requires imposition of a flag.  

   b.  Paragraph 1-11 (Delay of promotion due to suspension of favorable personnel actions for Soldiers on a centralized promotion list) provides that when a delay of promotion has occurred because of suspension of favorable personnel actions, the following rules apply once the final DA Form 268 has been prepared.  The Soldier's promotion status will be determined, in pertinent part, as follows:  If the Soldier's final report is closed with "Other" (applies to the Army Weight Control Program, APFT, and Army Substance Abuse Program) and the Soldier would have been promoted while suspension of favorable personnel actions were in effect, provided otherwise eligible, the Soldier will be promoted.  The effective date and DOR will be the effective date of the removal of the suspension of favorable personnel action.

   c.  Chapter 5 (Promotion of U.S. Army Reserve Soldiers Assigned to Troop Program Units, Army Reserve Elements, or Multi-component Commands or Units), Section III (Promotion to SFC, MSG, and Sergeant Major (SGM)), paragraph 5-30 (General), provides that the senior enlisted selection and promotion system outlined in this section prescribes the policy and procedures governing the promotion of unit Soldiers to SFC, MSG, and SGM.  This paragraph also provides, in pertinent part, that Soldiers will be promoted sequentially from the list to fill vacancies in accordance with paragraph 5-38c.

   d.  Paragraph 5-38 (Convening authority responsibilities) provides that the convening authority will take the names of those Soldiers on the promotion recommended list and establish or integrate them on to the PPRL.  It also states 
that this list will be used for promotion purposes and will not be distributed to subordinate units or participating commands.  This paragraph further provides that as a vacancy is reported, the convening authority will identify the first Soldier on the list who meets the reported requirements.

   e.  Paragraph 5-41 (Announcement of promotions) provides, in pertinent part, that the promotion authority will publish orders announcing promotions to SFC through SGM.  The effective date for pay purposes will be the effective date of the promotion order or a future effective date.  Promotions will only be made against a current vacancy to which the Soldier is or will be assigned.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DOR for MSG should be changed from 1 May 2008 to 28 August 2007 because he was scheduled to be promoted effective and with a DOR of 1 July 2007; however, he was under suspension of favorable personnel actions at the time.  The flag was not removed until 
28 August 2007 because the paperwork was not forwarded to the appropriate authorities on time.

2.  The evidence of record shows that orders issued on 30 May 2007 announced the applicant's promotion to MSG effective and with a DOR of 1 July 2007.  The evidence of record also shows that the applicant failed the APFT prior to his scheduled promotion date and, as a result, a suspension of favorable personnel action was initiated that resulted in the applicant being ineligible for promotion.

3.  The evidence of record shows the applicant passed the APFT on 28 August 2007, thus reinstating his promotion eligibility status on that date.  The evidence of record also shows the applicant was returned to the PPRL; however, the convening authority researched all relevant vacancy reports and identified April 2008 as the first month a vacancy was reported that would allow for his promotion.  The evidence of record further shows the applicant was promoted to MSG (E-8) effective and with a DOR of 1 May 2008.

4.  While the evidence of record shows the applicant became eligible for promotion effective 28 August 2007, the applicant provides insufficient evidence to show there was an available authorized MSG position vacancy to which he could have been assigned during the period from 28 August 2007 until 1 May 2008.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records in this case.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080010710



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010710



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1