BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20080011760 


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 promotion to first sergeant or that he be placed on the Active Guard Reserve (AGR) master sergeant controlled grade list ahead of another AGR Soldier who was behind him on the promotion list, but was selected for promotion ahead of him.

2.  The applicant states that he was considered for promotion to first sergeant in 2007.  He states that in South Carolina, a leadership board convenes for promotion to first sergeant and command sergeant major and publishes a leadership roster based on the recommendations of the command sergeants 
major sitting on the first sergeant board using the last five noncommissioned officer reports (NCOER) and points from the National Guard Bureau (NGB)  Form 4100.  He states that in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraphs 7-39 and 7-40, Soldiers are promoted sequentially within their command.  He states that the First Sergeant Leadership Roster published on 27 March 2007 lists three sergeants first class for the Army Air Missile Defense Command (AAMDC) and he was listed with 775 points.  He states another Soldier had 732 points and a third Soldier had 671 points.  He states that the Soldier who had 671 points was promoted to first sergeant on 1 November 2007 and both he and that Soldier are in the same battery.  He states he should have been assigned to the position of the Soldier with 671 points because it was the earliest first sergeant position to become available and it was in his unit.  He states Army Regulation 600-19, paragraph   7-39(a), clearly states that eligible and available Soldiers will not be bypassed for promotion and that Soldiers will not be removed from promotion boards except using the procedures in Army Regulation 600-8-19, paragraphs 7-43 through 
7-44.  He states he expressed his concerns to the battalion command sergeant major, the major subordinate command sergeant major, and the State command sergeant major.  He states that he also expressed his concerns to the battalion administrative officer, his battalion commander, and his major subordinate command administrative officer.  He states that to his knowledge, no action was taken regarding his concerns.  He states he was provided different reasons by his chain of command for his not being promoted and that applying to this Board seems to be his only chance for equity.

3.  The applicant provides a copy of a 2007 First Sergeant Leadership Roster that was published on 27 March 2007 and a copy of an AGR Enlisted Controlled Grade List dated 13 July 2008.

CONSIDERATION OF EVIDENCE:

1.  On 26 September 1989, the applicant enlisted in the U.S. Army Reserve (USAR) in Columbia, South Carolina, for 8 years in pay grade E-1.  He enlisted in the Regular Army (RA) for 4 years on 18 January 1990 and he successfully completed his training as a fire support specialist.  He was advanced through the ranks to pay grade E-4.

2.  On 10 December 1993, the applicant enlisted in the South Carolina Army National Guard (SCARNG) for 3 years, 8 months, and 8 days in pay grade E-4, to be effective the day after his release from active duty.

3.  On 17 January 1994, the applicant was honorably released from active duty in the RA under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 4, due to completion of his required active service and he was transferred to the SCARNG to complete his Reserve service obligation.

4.  On 23 August 1995, the applicant was ordered to full-time National Guard duty in an AGR status for 3 years effective 1 September 1995.  On 6 September 1995, the applicant extended his enlistment for 11 months and 6 days.  He was promoted to the pay grade of E-5 on 5 March 1996.

5.  On 4 August 1998, Orders 148-27 were published ordering the applicant to full time National Guard duty in an AGR status for 5 years effective 1 September 1998.  He was promoted to the pay grade of E-6 on 22 October 1999 and he extended his enlistment for 5 years on 6 May 2003.

6.  On 20 May 2003, the applicant was ordered to full-time National Guard duty in an AGR status for 6 years effective 1 September 2003.  He was promoted to the pay grade of E-7 on 19 December 2003.
7.  Apparently, the applicant's commander recommended the applicant's name be removed from a First Sergeant Leadership Roster.  An MPO Form 4000-R (Standby Advisory Board (STAB) Command Sergeant Major Action), dated 11 January 2006, shows that the battalion command sergeant major concurred with the recommendation and added that the applicant needed more time to hone his leadership skills.  It also shows that the command sergeant major of the major subordinate command  recommended the applicant's name be removed from the "current leadership list."  He stated he believed that the applicant lacked certain qualifications at that time.  

8.  The 2007 First Sergeant Leadership Roster was published on 27 March 2007 and it shows that the applicant was assigned to the AAMDC, that he was assigned the avenger crewmember primary military occupational specialty (PMOS), that he had 775 leadership points, and that he was the first on the list of two AGR Soldiers assigned to the AAMDC with the same PMOS.

9.  On 1 June 2007, the applicant's battalion commander forwarded a memorandum to the Adjutant General of South Carolina requesting that the applicant's name be removed from the First Sergeant Leadership Roster.  In the memorandum, the battalion commander stated that the applicant had been counseled by the command sergeant major and that he had been informed that at that time it was best if he waited until the next Enlisted Promotion System list to be considered for a leadership position.  The battalion commander stated that the applicant also understood that this action would not interfere with his being considered for a master sergeant (E-8) position.

10.  On 12 July 2007, a STAB convened and the board recommended approval to remove the applicant's name from the First Sergeant Leadership List.

11.  On 13 July 2008, the AGR Enlisted Controlled Grade List was published for master sergeant (E-8) and sergeant major (E-9).  The applicant's name is not reflected on this list; however, the name of the other AGR Soldier serving in the same unit as the applicant, with the same MOS and less leadership points than he, is reflected on the list with an effective date of promotion of 12 October 2007.

12.  On 27 August 2008, an advisory opinion was obtained from the NGB Personnel Division Chief who recommended disapproval of the applicant's request to be promoted to first sergeant or to be placed on the AGR master sergeant controlled grade list ahead of his peers.  According to the information contained in the advisory opinion, the Chief, Personnel Division, based his recommendation on the results of the STAB, which show that the applicant's name was removed from the First Sergeant Leadership Roster.  The Chief, Personnel Division, stated that in accordance with Army Regulation 
600-8-19, chapter 4, paragraph 4-18, Human Resources Command - Alexandria and Human Resources Command - St. Louis will continuously review promotion lists against all information available to ensure that no Soldier is promoted where there is cause to believe that a Soldier is mentally, physically, morally, or professionally unqualified to perform duties of the higher grade.

13.  In the advisory opinion, the NGB Personnel Division Chief stated that in accordance with Army Regulation 600-8-19, a Soldier may be referred to a STAB for an Article 15 (Nonjudicial Punishment under the Uniform Code of Military Justice) directed for filing in the official military personnel file (OMPF); a memorandum of reprimand placed in the OMPF; adverse documentation filed in the OMPF; being flagged in accordance with Army Regulation 600-8-2 and having not met the requirements in the time prescribed by that regulation; other derogatory information received by Headquarters, Department of the Army, but not filed in the OMPF, if it is substantiated, relevant, and might reasonably and materially affect a promotion recommendation; and, but not limited to, a relief-for-cause NCOER.

14.  On 12 September 2008, the applicant submitted a rebuttal to the advisory opinion stating that the information contained therein is incorrect based on a misinterpretation of Army Regulation 600-8-19, as chapter 4 is the governing authority for Active Army and USAR AGR Soldiers whose centralized promotions are processed by Headquarters, Department of the Army.  He states that he is a Title 32 National Guard AGR Soldier and that he falls under the authority of Army Regulation 600-8-19, chapter 7 (Enlisted Promotion and Reduction of Army National Guard Personnel), whose centralized promotions are processed by the State Adjutant Generals (AG).  He states that since he met none of the prerequisites for administrative removal stated in Army Regulation 600-8-19, chapter 7, he must assume that it was a command-initiated removal.

15.  In his rebuttal to the advisory opinion, the applicant stated that if he had been removed from the promotion list, the new list was not posted as required by regulation; that he was never informed in writing that he was being considered for removal from the First Sergeant Leadership List as required by regulation; that he was never given an opportunity to respond in writing to the proposed action as required by regulation; that he was never given the opportunity to elect not to respond to such action as required by regulation; that to his knowledge the action was not submitted through command channels for senior commanders' approval or denial as required by regulation; that his battalion commander was ineligible to initiate his removal from the list based on work performance as he did not meet 


the 6-month minimum observation time required by regulation; that there is no information in his OMPF that substantiates his removal from the promotion list as required by regulation; that there is no documentation of a command-initiated removal in his OMPF; that there is no AG action included with the STAB minutes; that the STAB does not remove a Soldier from a promotion list, it makes a recommendation to the AG who makes the final decision as required by regulation; that AGs are traditionally allowed to find in favor of a Soldier no matter what a board recommends; that Army Regulation 600-8-19, chapter 7, clearly states that only serious incidents or a decline in efficiency warrants removal from a promotion list; and that there was no decline in his work performance as he was an above-average Soldier.

16.  In his rebuttal to the advisory opinion, the applicant provided excerpts from Army Regulation 600-8-19, chapter 7; answered questions contained in electronic mail between the SCARNG senior enlisted personnel manager and an NGB human resources specialist; and submitted a copy of his NCOER for the period 1 August 2006 through 31 July 2007, which shows that he was rated as successful and superior (top block) in his overall performance and potential.

17.  The SCARNG Deputy Chief of Staff for Personnel concurred with the advisory opinion on 15 July 2009.

18.  On 31 July 2009, a second advisory opinion was obtained from the NGB Personnel Division Chief who recommends approval of the applicant's request to be promoted to first sergeant based on the STAB results dated 14 July 2007 provided by the SCARNG Military Personnel Office.  The NGB Personnel Division Chief states that according to the electronic mail message from the SCARNG Enlisted Branch Chief, dated 1 July 2009, the State prepared a removal letter, dated 1 June 2007, removing the applicant from the First Sergeant Leadership List and there is no record from the State showing that he acknowledged that he received the letter.  The NGB Personnel Division Chief states that in accordance with Army Regulation 600-8-19, paragraph 7-39(a), the State military personnel management office will, in concert with the State human resources office, determine the methods to request, assign, and promote Soldiers including those who are military technicians and AGR to available vacancies throughout the State in promotion sequence using the guidance in this paragraph and in paragraph 7-40.  The Chief, NGB, NGB-ARZ-T, performs this function for the Title 10 AGR Program.  Under no circumstances will a Soldier on a promotion list be bypassed who is eligible and available for the vacancy.  Selecting Soldiers from the promotion list through an interview process is prohibited.

19.  The applicant was provided a copy of the second advisory opinion and on 11 August 2009, he concurred with the advisory opinion stating that the NGB Personnel Division Chief is correct based on the correct interpretation of paragraph 7-39(a) of Army Regulation 600-8-19 and that it supports his statement that he had been incorrectly bypassed for promotion.  He states that since it could cause a hardship to reduce one of the other two Soldiers who were erroneously promoted before him, he should be promoted with a date of rank earlier than the other two Soldiers, which is important when considering points for promotion, pay, assignments, and positions in multi-unit task forces.

20.  Army Regulation 600-8-19 provides that the State military personnel management office will, in concert with the State human resources office, determine the methods to request, assign, and promote Soldiers including those who are military technicians and AGR to available vacancies throughout the State in promotion sequence using the guidance in this paragraph and in paragraph 7-40.  The Chief, NGB, NGB-ARZ-T, performs this function for the Title 10 AGR Program.  Under no circumstances will a Soldier on a promotion list be bypassed who is eligible and available for the vacancy.  Selecting Soldiers from the promotion list through an interview process is prohibited.  When the promotion list is published, Soldiers are eligible for immediate assignment to positions and, if qualified, promotion concurrent with the assignment.  Assignment to a position from the promotion list as the first Soldier in sequence eligible and available for the position assures the promotion.

21.  Army Regulation 600-8-19 further provides that Soldiers will be offered assignment to available vacancies for which they are eligible and available starting with the lowest promotion sequence number (having the most points) within each career progression military occupational specialty (CPMOS) and continuing until the selection objective is exhausted, all vacancies are filled, or the list expires.  AGR Soldiers only compete against other AGR Soldiers within the same CPMOS.  Traditional (mobilization (M)-day) Soldiers compete for vacancies with other M-day Soldiers to include military technicians.  If Soldiers are eligible and available for the assignment, they will be assigned and promoted provided they have met all other requirements for the promotion.  Sergeants 
first class on the master sergeant promotion list and the first sergeant selection list are eligible for immediate promotion concurrent with assignment to first sergeant positions.  Soldiers who are in a flagged status are not eligible for selection until the flag is closed.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be promoted to first sergeant or that he should be placed on the AGR master sergeant controlled grade list ahead of another AGR Soldier who was behind him on the promotion list, but was promoted ahead of him.

2.  His contentions have been noted and they are not without merit.  While there is documentation contained in the available records that indicates the applicant was counseled regarding the removal of his name from the First Sergeant Leadership List, there is no evidence in the available records that shows he ever acknowledged receipt of any letter or other notification informing him that his name was being removed from the list.

3.  The evidence of record shows that the applicant received a "top block" NCOER showing that he was rated as successful and superior in his overall performance and potential.

4.  The available evidence indicates that the applicant's name was erroneously removed from the First Sergeant Leadership List and as a result he was not promoted in accordance with the applicable regulation.

5.  In view of the foregoing, it would now be in the interest of justice to correct the applicant's records as recommended below.

BOARD VOTE:

___x____  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by promoting him to the rank of first sergeant 


(E-8) with an effective date of promotion and a promotion date of rank of 12 October 2007 and by paying him all back pay and allowances due as a result of this correction.



      ____________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)                                         AR20080011760



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ABCMR Record of Proceedings (cont)                                         AR20080011760



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