IN THE CASE OF:	  

		BOARD DATE: 	       25 June 2009

		DOCKET NUMBER:  AR20080015712 


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 master sergeant (MSG)/E-8.

2.  The applicant states that he believes his non-selection for promotion to MSG was unjust because the E-8 position is a controlled billet and that for a major subordinate command (MSC) to relinquish a controlled grade forever to promote a technician, who was much lower on the promotion list, was highly questionable and calculated to promote someone who was not as qualified as he (the applicant) was.  He adds that the job was first announced for Active Guard Reserve (AGR) personnel only, then later re-announced to allow technicians and that the candidate was a technician much lower on the promotion list.  He also adds that at the time of the injustice, he was mobilizing his battalion for deployment to Iraq and asking a medical board to allow him to deploy for his hearing.  He was deep in his deployment for more than a year and upon redeployment, he retired.

3.  The applicant provides copies of his NCO (Noncommissioned Officer) Evaluation Reports, Academic Evaluation Reports, various awards and certificates, a counseling form, a promotion application, an AGR bid, a technician job bid, multiple emails, and several other administrative documents, all dated on miscellaneous dates, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the U.S. Marine Corps, the applicant's records show he enlisted in the Regular Army on 19 January 1982 and held military occupational specialty (MOS) 11B (Infantryman).  He was honorably discharged in the rank/grade of specialist four (SP4)/E-4 on 28 February 1986.

2.  After a break in service, the applicant enlisted in the New Jersey Army National Guard (NJARNG) on 27 May 1987.  He was subsequently ordered to full-time National Guard duty in AGR status in the rank of SP4 on 29 June 1987 and he was assigned to 2nd Battalion, 114th Infantry.

3.  On 1 September 1991, the applicant requested and was authorized an inter-State transfer from the NJARNG to the Kansas Army National Guard (KSARNG). He subsequently served in various positions in MOS 75H (Human Resources Specialist) (later redesignated as 42A), he completed several service schools, and he was promoted through the ranks to staff sergeant (SSG)/E-6 on
3 November 1997.

4.  On 26 June 2001, the State Adjutant General, KSARNG, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

5.  On 31 January 2002, the applicant was honorably released from active duty in the rank/grade of sergeant first class (SFC)/E-7 to the control of the ARNG.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 18 years, 7 months, and 3 days of creditable active military service.

6.  On 1 February 2002, the applicant was ordered to active duty in support of Operation Enduring Freedom and subsequently served in Germany from 21 February 2002 to 26 August 2002.  He was honorably released from active duty to the control of his ARNG unit on 25 September 2002.  The DD Form 214 he was issued shows he completed a total of 19 years, 2 months, and 27 days of creditable active military service.

7.  On 12 June 2003, the applicant was selected by the KSARNG Qualitative Retention Board (QRB) for continued retention in the ARNG.

8.  On 26 September 2002, the applicant was again ordered to active duty in an AGR status.  

9.  On 22 November 2004, the applicant submitted an enlisted promotion point worksheet electing consideration for military education and/or promotion to MSG. He indicated that he wanted to be considered for first sergeant (1SG) positions only and did not want to be considered for a traditional position.  It appears that he was selected for promotion to E-8 on an unknown date and was assigned sequence number 117.
10.  On 24 January 2005, the Human Resources Office of the KSARNG announced a military (AGR) vacancy announcement for a Title 32 member of the KSARNG to fill a 42A/E-8 position at Headquarters, 69th Troop Command, Wichita, KS.  The vacancy announcement stipulated, in pertinent part, that persons receiving or eligible to receive a Federal military retired or retainer pay were not eligible.

11.  The applicant submitted an unsigned copy of a National Guard Bureau (NGB) Form 34-1 (Application for AGR Position) that shows he provided information for use in determining his eligibility for this vacancy announcement.

12.  On 12 February 2005, the Human Resources Office of the KSARNG made a second announcement for a GS-0203-08, non-supervisory position, open to all interested eligible KSARNG technicians and non-technicians to what appears to be the same position that was previously announced for AGR only, at Headquarters, 69th Troop Command, Wichita, KS.  

13.  On 12 April 2005, by letter, the KSARNG notified the applicant that he was not selected for the Personnel Staff NCO position.
  
14.  On 31 August 2005, he was honorably released from active duty to the control of his ARNG unit.  The DD Form 214 he was issued at the time shows he completed a total of 22 years, 2 months, and 3 days of creditable active military service.

15.  On 1 September 2005, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 4 November 2005 to 1 November 2006.  He was honorably released from active duty to the control of his ARNG unit on 10 November 2006.

16.  On 11 November 2006, the applicant was ordered to active duty in support of contingency operations.  However, it appears that he submitted a request for retirement during this period of active duty service.  Accordingly, he was honorably released from active duty on 28 February 2007 and he was placed on the retired list in his retired rank/grade of SFC/E-7 on 1 March 2007.  The DD Form 214 he was issued shows he completed a total of 24 years, 1 month, and
2 days of creditable active military service.

17.  There is no indication in the applicant's records that he was promoted to MSG.  Furthermore, his NCO Evaluation Reports show he held the rank/grade of SFC/E-7 and performed duties of an SFC/E-7, Senior Personnel Sergeant. 



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be promoted to MSG/E-8 and, in effect, advanced on the retired list to the rank/grade of MSG/E-8.

2.  There is no evidence in the available records and the applicant did not provide any documentary evidence that show he was promoted to MSG/E-8, held the rank/grade of MSG/E-8, or performed any duties in that rank/grade.   Therefore, there is insufficient evidence to grant him the requested relief.

3.  With respect to the applicant's argument, he contends that he and the other Soldier who was eventually selected for the position were both on the promotion list.  However, there is no evidence that the applicant was higher on the promotion list than the Soldier who was selected for the position.  Furthermore, at the time of the position vacancy announcement, the applicant had completed over 22 years of creditable active military service and was eligible for retirement. Accordingly, he was not eligible for the announced vacancy which stipulated that persons receiving or eligible to receive a Federal military retired or retainer pay were not eligible.

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)                                         AR20080015712



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ABCMR Record of Proceedings (cont)                                         AR20080015712


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