IN THE CASE OF:	  

		BOARD DATE:	       30 April 2009

		DOCKET NUMBER:  AR20080012570 


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 retroactive promotion to pay grade E-8 with a date of rank of 4 December 2004.

2.  The applicant states that she assumed the duties of the First Sergeant's  position in December 2005 and served until June 2005 when she deployed.  She has been unable to locate any entity that can or will hold the California (CA) Army National Guard (ARNG) responsible for abiding by the governing regulations.  She was selected for promotion, but it appears that the board results were not properly filed.  She was not frocked pending a control grade allocation.  She relates that, in December 2004, she was in a State [United States Code (USC), Title 32] Active Guard/Reserve (AGR) position when she was selected by a unit vacancy promotion board to fill a first sergeant's position with the Headquarters and Headquarters Detachment (HHD) of the  Joint Forces Headquarters (JFHQ).  She served in that position through June 2005.  Then, in July  2005,  when the commander of the 49th Military Police Battalion asked her to deploy in a E-7 position, she accepted that assignment.  But, she  was assured that she would still receive her promotion to pay grade E-8.  When she discovered that others had been promoted before her, she filed complaints with the Inspector General in August 2006 and again in 2008.  Both times she was told there was nothing wrong in her case.  She contends that the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management and Fiscal Year (FY) Enlistment Criteria ),dated 1 March 1997, as then in effect, provided for retroactive promotions in those cases where a selected Soldier is, through no fault of their own, selected but not promoted.       


3.  The applicant provides, in support of her application, approximately 27 documents.  She notes that she has submitted a copy of all documents that were previously furnished to the Department of the Army Inspector General (DAIG) and the ARNG IG, but that not all are relevant to this case.  Therefore, she 
indicates that she has used brackets, { }, to mark the applicable portions. 

4.   In her rebuttal to an advisory opinion the applicant declared most of these references and the attendant arguments irrelevant and misleading.  Therefore, the tabs provided by the applicant have been removed, but her designations remain.  The tabs are attached to the enclosures submitted with the rebuttal, just as she submitted them.   

CONSIDERATION OF EVIDENCE:

1.  The applicant, a sergeant first class, pay grade E-7, was a member of the CA ARNG.  She was serving in a State (USC Title 32) AGR position.    

2.  The applicant's Noncommissioned Officer Evaluation Report (NCOER) for the period from May 2004 through March 2005 evaluates and rates her performance as a sergeant first class (E-7) as a Human Resource Specialist doing personnel management and analysis for the state AGR program.  It lists First Sergeant, HHD, JFHQ in Part III d. as an area of special interest. 

3.  An NCOER for the period from April 2005 through July 2005 shows her rank as SFC, pay grade E-7.  It evaluates and rates her performance as the First Sergeant for HHD, JFHQ.    

4.  In an email message dated 4 August 2005, the applicant indicated that she had been informed that she could not be promoted because she was assigned to an E-7 AGR position and that her duty assignment was in an E-7 position with the 49th Military Police (MP) battalion.

5.  An 8 August 2008 letter to the applicant from the CA Inspector General pointed out that there had been no control grade associated with the position for which she was selected.  This was validated by the fact that there had been no control grade provided in the announcement.  The Inspector General went on to explain that several AGR NCO's had been in similar positions and had subsequently competed for other positions.    

6.  The 1 June 2006 memorandum from the commander CA ARNG JFHQ, Command Section relates that the applicant was selected for the first sergeant's position with the JFHQ, Command Section by a Command Sergeants Major Board chaired by the State Command Sergeant Major.  
7.  In a 5 December 2008 memorandum to the National Guard Bureau (NGB), she complained that there had been no response to her request for a copy of the Inspector General's report on her case.  Currently attached to it is a letter to her from the CA Inspector General that explains that there was no control grade associated with her First Sergeant's position and that since there was not she would have to re-compete.  She also included a copy of a 1 June 2006 memorandum from Lieutenant Colonel M____ [apparently her commanding officer while deployed to Iraq].  It states that she had started the duties of the First Sergeant's position in December 2004. 
  
8.  An email exchange between the CA ARNG Inspector General's office and the NGB noted that there was no control grade available for the unit vacancy the applicant was selected to fill and that the composition of the selection board that chose the applicant for the position was not in accordance with the governing CA ARNG pamphlet.   

9.  A 10 December 2008 advisory opinion from the NGB focused on regulatory provisions that became effective after the applicant's unit vacancy board.  It was concluded that the selection board was improperly constituted and recommended that the entire action be set aside.  
   
10.  In her 22 February 2009 rebuttal the applicant contends that the governing directive in this case is National Guard Regulation (NGR) 600-5 and that the provisions of the Enlisted Promotion System (EPS) and CA ARNG supplement  to NGR 600-200 were not applicable in this case concerning an AGR vacancy.  She observes that the citation and application of these and other irrelevant references may have confused the issue.  She asserts that the only applicable references are NGR 600-5, dated 20 February 1990; NGR 600-200 chapter 11, dated 1 March 1989; and the CA ARNG SOP, dated 15 March 2003.  She contends that a properly constituted board selected her for an authorized AGR control grade position.  She also points out that she completed phase 1 of the First Sergeant's course within 3 weeks of her selection for the position and that her May 2005 attendance at phase 2 was cancelled "pending determination of deployment." 

11.  She submits additional documents including her application packages for several CA AGR vacancy announcements including the one she was selected for, several subsequent to it and documents showing that other soldiers, whom she says, were selected for promotion after her, had been assigned.



12.  The applicant concludes, in effect, that any EPS provisions were irrelevant, that the selection board was properly constituted and that she was selected for permanent promotion to pay grade E-8.  She believes that the promotion to pay grade E-8 should have continued, uninterrupted and despite her [voluntary] deployment with another unit. 

13.  Item 7 of the 29 October 2004 vacancy announcement, that the applicant was selected for, lists "Minimum Grade: E7 promotable (with ANCOC and on EPS)"  Item 8d states, "Must commit to 24 months in position."
  
14.  NGR 600-5 (The Active Guard Reserve (AGR) Program Title 32, Full-Time National Guard Duty (FTNGD)), prescribes policies and procedures for management of Army National Guard soldiers in the AGR program who serve on 
active duty in State Army National Guard positions.  In pertinent part, it provides, that promotion of an AGR Soldier requires that the individual meet the promotion requirements of NGR 600-200 and be in a position requiring a higher grade. 

15.  NGR 600-200 provides, in pertinent part the promotion requirements including time, educational and assignment provisions.   

DISCUSSION AND CONCLUSIONS:

1.   The applicant states that she assumed the duties of the unit First Sergeant's position in December 2005 and served until June 2005 when she deployed.  She has been unable to locate any entity that can or will hold the California (CA) Army National Guard (ARNG) responsible for abiding by the governing regulation(s).  Since her return for deployment, other unit vacancies have been filled by Soldiers who were selected for E8 positions after she was.

2.  The applicant was selected to fill a specific position, which she was expected to "commit to" for 24 months, but which she started abandoning almost simultaneously with her assignment.  This is demonstrated by her own admission that her May 2004 attendance at Phase 2 of the First Sergeant's course was cancelled, "pending determination of deployment." 

3.  Furthermore, although she contends that the provisions of the EPS did not apply to her case, the vacancy announcement specified that applicants had to be on the EPS. 
     
4.  There is no available evidence to show that the applicant was selected for promotion to pay grade E8.  She was selected to fill a specific unit vacancy position that was authorized for that pay grade.  Given the circumstances of the case it is not surprising that she was neither promoted nor frocked.
5.  Her contention is that her selection for this unit vacancy had no connection to the EPS but that it gave her permanent promotion status appear mutually exclusive.  Additionally, there is no available evidence that anyone led the applicant to believe that she had been selected for permanent promotion or that she would be either reinstated or assigned to another E8 position when she returned from the deployment.  Indeed she does not even allege that this is the case.  

6.  While her desire to deploy with a unit that apparently needed her help is commendable, it may also be presumed that she was also doing something that she wanted to do.  It does not justify affording her benefits that she was not entitled to receive. 

7.    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)                                         AR20080012570





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ABCMR Record of Proceedings (cont)                                         AR20080012570



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