IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080016275 


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 correction of his date of rank (DOR) as a sergeant first class (SFC) from 1 September 2007 to an earlier date.

2.  The applicant states that he was promoted to staff sergeant (SSG) on 1 September 2002 but his DOR was adjusted to 22 June 2000 to credit him for his previous service as an SSG.  Subsequent to this promotion, he was required to attend the Basic Noncommissioned Officer Course (BNCOC).  He informed his personnel management noncommissioned officer that he was scheduled to undergo left shoulder surgery in October 2002 at Tripler Army Medical Center, Hawaii.  He further adds that in June 2003 he was reassigned to another unit in Rhode Island, and upon arrival he was notified by electronic mail (email) that he was scheduled to attend BNCOC effective 10 August 2003.  He informed the scheduling officer that he was still on a temporary medical profile through 22 August 2003 as a result of the shoulder surgery and that he should not have been scheduled for BNCOC.  Nevertheless, he was instructed to request a deferment of his BNCOC class and complied by submitting a request for deferment through his chain of command.  Shortly afterward, however, he deployed to Iraq in September 2004 and returned in May 2005.  While in Iraq, a Military Personnel (MILPER) Message, dated 5 October 2004, announced that the Calendar Year (CY) 2005 Army Reserve Active Guard Reserve (AGR) SFC Promotion Selection Board would convene on 7 June 2005 and consider SSGs for promotion to SFC.  Accordingly, he requested a waiver for BNCOC, citing his deployment, so his records could be considered for promotion by that board; however, his request for a waiver was denied because he had received a deferment of his BNCOC class.  He concludes that his military record speaks for itself as he was selected on his "first look" by the CY 2007 AGR SFC Promotion Selection Board.  He would like his DOR corrected to a date that could have been if his records were considered by the CY 2005 Selection Board.

3.  The applicant provides a binder tabbed A through Z that contains numerous documents including memoranda, forms, emails, and letters, dated on miscellaneous dates, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) on 14 November 1980 and subsequently entered active duty, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 95B (Military Policeman).  His records also show he executed a series of reenlistments in the USAR, including a 6-year reenlistment on 18 August 1986 and two 3-year reenlistments on 28 August 1997 and 10 June 2000.

2.  The applicant's records also show he was promoted to sergeant (SGT) on 8 December 1985 and SSG on 24 July 1992.  He also completed the Personnel Administration Specialist Course and was awarded MOS 75H in May 1992.

3.  On 30 September 1997, he voluntarily accepted a reduction in grade and entered the AGR program as an SGT.  He was initially assigned to an AGR position in Delaware and was later transferred to Hawaii.

4.  On 2 February 2001, the U.S. Army Reserve Personnel Command (now known as Human Resources Command or HRC), St. Louis, Missouri, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

5.  On 9 August 2002, the applicant was issued a 90-day physical profile due to left shoulder pain.

6.  On 13 August 2002, HRC-St. Louis published Orders 225-14 announcing the applicant's promotion to SSG with an effective date and DOR of 1 September 2002.  The orders further listed the following additional instructions:

“Soldiers accepting this promotion understand that they have 30 days from the effective date of this order to decline the promotion and acceptance of this promotion will subject him/her to worldwide reassignment to a position commensurate with grade and MOS.  Soldiers accepting a conditional promotion and are subsequently denied enrollment, declared "No Show," become academic failures, or otherwise do not meet the graduation requirement, will be reduced to the grade and rank held prior to the conditional promotion."

7.  On 31 October 2002, the applicant underwent left shoulder surgery at Tripler Army Medical Center.  He was subsequently issued a series of temporary physical profiles including a 90-day profile on 2 December 2002 that expired on 28 February 2003, an 80-day profile on 4 March 2003 that expired on 24 May 2003, and a 90-day profile on 21 May 2003 that expired on 22 August 2003.

8.  On 16 April 2003, HRC-St. Louis published Orders 106-01 adjusting the applicant's effective date and DOR for promotion to SSG from 1 September 2002 to 22 June 2000 to account for his prior service in that grade.

9.  On 21 June 2003, the applicant was released from his assignment in Hawaii and was reassigned to the 443d Civil Affairs Battalion, Warwick, Rhode Island.

10.  On 26 June 2003, the applicant was notified by email that he was scheduled to attend the USAR BNCOC from 9 August 2003 to 19 September 2003 at Fort Pickett, Virginia; and on 10 July 2003, HRC-St. Louis published 
Orders E-07-303159 ordering the applicant to proceed to Fort Pickett on 9 August 2003 to attend BNCOC.

11.  On 22 July 2003, the applicant submitted a DA Form 4187 (Personnel Action) requesting a medical deferment of his 9 August 2003 BNCOC class.  He stated that he was medically unfit at the time due to a temporary medical profile as a result of his shoulder surgery which took place on 31 October 2002.  He further indicated that he would be reevaluated in November 2003 when his recovery period expired.

12.  The applicant's records show his physical profile expired on 22 August 2003.  There is no indication that the applicant attended BNCOC upon expiration of his recovery period.

13.  On 30 August 2004, the applicant was ordered deployed to Iraq in support of Operation Iraqi Freedom.  He subsequently served in Iraq from 8 September 2004 to 20 June 2005.

14.  On 25 April 2005, while serving in Iraq, the applicant requested an exception to the Noncommissioned Officer's Education System (NCOES) BNCOC requirements policy so his records could be considered by the CY 2005 AGR SFC Promotion Board.

15.  On 17 June 2005, the applicant was notified by email through his chain of command that he did not meet the qualification for a BNCOC waiver because his BNCOC reservation was cancelled, not as a result of his deployment, rather, as a result of a medical profile.

16.  On 2 October 2005, the applicant corresponded with the Office of the Inspector General (IG), HRC-St. Louis and requested assistance pertaining to consideration of his records for promotion to SFC by a Standby Advisory Board (STAB).  A copy of this correspondence is not available for review with this case.

17.  On 17 October 2005, the Office of the IG notified the applicant that it conducted an inquiry into his request for an STAB and determined that he was not eligible for an STAB.  The inquiry also determined that the applicant was afforded the opportunity to attend BNCOC in 2003 but did not attend due to his shoulder surgery, physical profiles, and recovery period.  Accordingly, his promotion file did not contain a material error, which indicated that he was not eligible for consideration for promotion by a STAB.

18.  On 18 June 2006, the applicant completed Phase I (Common Core) of MOS 42A BNCOC at Fort Jackson, South Carolina, and on 13 December 2006, he completed Phase II of MOS 42A BNCOC.

19.  On 6 June 2008, the applicant completed MOS 42A Advanced Noncommissioned Officer Course (ANCOC) at Fort Jackson.

20.  On 13 August 2008, HRC-St. Louis published Orders B-080705816 announcing the applicant's promotion to SFC with an effective date and DOR of 1 September 2007.

21.  In addition to the applicant's memoranda, forms, emails, and letters, he submitted the following two letters of support:

	a.  in a letter, dated 9 October 2008, the Deputy Chief, Army Reserve, stated that she is aware of the facts and supporting documentation that the applicant assembled in support of his request and that she fully supports him and recommends approval of his request; and

	b.  in a letter, dated 30 September 2008, the Office of the Chief, Army Reserve, Command Sergeant Major (CSM) stated that he supports the applicant's request for correction of his DOR.  The CSM further adds that during deployment, the applicant requested and was unjustly penalized when he was denied a waiver and promotion consideration and that the denial was based on non-attendance of BNCOC during his temporary profile.  The CSM adds that it appears that management personnel were not aware of the policy regarding non-enrollment of Soldiers with temporary profiles into NCOES and that with his recovery period, he was not eligible to attend BNCOC until 21 November 2003.

22.  MILPER Message Number 04-277, dated 5 October 2004, announced the CY 2005 eligibility criteria for promotion consideration of AGR SSGs to SFC.  In pertinent part, the MILPER Message stated that all SSGs with a DOR of 6 June 2002 and earlier would be considered for promotion in the Primary Zone and all SSGs with a DOR between 7 June 2002 and 6 June 2003 would be considered in the Secondary Zone.  The message further stated that SSGs who were non-graduates of appropriate NCOES (except those with a DOR prior to 1 October 1992) were ineligible for consideration for promotion.

23.  MILPER Message Number 06-006, dated 5 January 2006, announced the CY 2006 eligibility criteria for promotion consideration of AGR SSGs to SFC.  In pertinent part, the MILPER Message stated that BNCOC graduation was a requirement for consideration by the Board and that under ordinary circumstances, NCOs who were not BNCOC graduates were not eligible for promotion consideration.  However, due to operational requirements, some Soldiers were eligible for waivers (for BNCOC attendance) to keep them from being disadvantaged due to multiple deployments.  Headquarters, Department of the Army (HQDA), would conduct a review of the training history of all SSGs otherwise eligible by virtue of basic active service date (BASD) and DOR but were not BNCOC graduates.  If it was determined that the reason an SSG did not have BNCOC was due to the Army's inability to schedule training or as a direct result of operational deployment conflicts, HQDA would waive, or set aside, BNCOC graduation as an eligibility requirement for promotion consideration to SFC.  Soldiers considered for promotion with an HQDA BNCOC waiver, and who were ultimately selected for promotion to SFC, had their promotion held in abeyance until BNCOC was completed.

24.  MILPER Message Number 06-362, dated 3 January 2007, announced the CY 2007 eligibility criteria for promotion consideration of AGR SSGs to SFC.  In pertinent part, the MILPER Message stated that the eligibility criteria for promotion consideration to SFC was all BNCOC-qualified SSGs with a DOR of 4 June 2005 and earlier and a BASD on or after 4 June 1988.  It further stated that BNCOC graduation was a requirement for consideration by the Board and that under ordinary circumstances, NCOs who were not BNCOC graduates were not eligible for promotion consideration.  However, due to operational requirements, some Soldiers were eligible for waivers (for BNCOC attendance) to keep them from being disadvantaged due to multiple deployments.  HQDA would conduct a review of the training history of all SSGs otherwise eligible by virtue of BASD and DOR but were not BNCOC graduates.  If it was determined that the reason an SSG did not have BNCOC was due to the Army's inability to schedule training or as a direct result of operational deployment conflicts, HQDA would waive, or set aside, BNCOC graduation as an eligibility requirement for promotion consideration to SFC.

25.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, prescribes policy and procedures governing the classification, advancement, promotion, reduction, and grade restoration applicable to USAR Soldiers.

	a.  Chapter 7 of this regulation outlines policy and procedures governing grade reduction and restoration of USAR Soldiers.  It states, in pertinent part, that a Soldier who accepts a promotion with the condition that he or she must enroll in and successfully complete a specified NCOES course and fails to meet those conditions, or is subsequently denied enrollment, or becomes an academic failure, or does not meet graduation requirements, or is declared a "No-Show," will be reduced to the grade and rank held prior to the conditional promotion.

	b.  Chapter 8 of this regulation governs promotions and the NCOES.  It states, in pertinent part, that NCOES courses are progressive and parallel the Army NCO rank structure.  Therefore, an NCO must be a graduate of the educational course required by the NCOES for their current grade.  A Soldier who has been conditionally promoted must be enrolled and graduated from the NCOES course within the specified period of time.  A Soldier must be enrolled in BNCOC within 12 months of the date of promotion and be a graduate of that course within 24 months of Phase I completion date.  A conditionally-promoted Soldier will be authorized a delay for enrollment or completion of a required NCOES course when that Soldier is ill or injured to a degree that prevents enrollment or course completion.  A Soldier with the rank of SSG/E-6 must be a graduate of:

		(1)  the BNCOC-Active Component (AC).  This includes the resident or non-resident course, or completion of an MOS-specific Army Correspondence Course Program (ACCP) for the Advanced NCO Course (ANCOC)-AC, or

		(2)  the BNCOC-Reserve Component (RC), or

		(3)  the Special Forces Qualification Course, or

		(4)  the ANCOC-AC or ANCOC-RC.
	c.  Soldiers serving on AGR status who have not completed the required NCOES course for the appropriate grade prior to entry on active duty, must complete the AC NCOES course (WLC-AC, BNCOC-AC, and ANCOC-AC).

	d.  A Soldier may be promoted on the condition that he or she enroll in and successfully complete the course required for the grade.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was promoted to SSG on 1 September 2002.  His DOR and effective date were adjusted to 22 June 2000 to account for his prior service in that grade.  His promotion was contingent upon completion of BNCOC within 24 months.  He was accordingly scheduled to attend BNCOC; however, due to his surgery, he requested a deferment in July 2003 of his August 2003 BNCOC class.

2.  The evidence of record further shows that the applicant served in Iraq from September 2004 to May 2005.  During his service in Iraq, he requested a waiver of the BNCOC requirement so he may compete for promotion to SFC in the CY 2005 SFC Selection Board.  However, he was ineligible for a waiver since his non-attendance was not a result of deployment.  He returned from Iraq in May 2005, but did not complete BNCOC until June 2006.

3.  Notwithstanding the favorable recommendations submitted by the Deputy Chief and the Command Sergeant Major of the Office of the Chief, Army Reserve, the applicant was not eligible for consideration for promotion to SFC by the 2005 or 2006 promotion boards because he was not a BNCOC graduate.  By regulation, he was required to attend BNCOC within 24 months of his promotion. He did not do so before he deployed (was medically deferred) and he did not do so when he returned from deployment until a year later.

4.  The applicant states that had he been granted a BNCOC waiver in 2005, he would have certainly been selected for promotion to SFC.  However, he produces no evidence upon which to base this assumption.

5.  The applicant's approved medical deferment from BNCOC attendance and his subsequent deployment allowed him to retain his rank as an SSG.  In effect, a waiver was already applied in the form of allowing him to retain his rank as an SSG beyond the 24 months allowed for completion of BNCOC as required by Army Regulation 140-158.  However, he neither qualified for nor was granted a waiver for attending BNCOC.  In addition, in his request for medical deferment, he indicated he would be reevaluated in November 2003.  However, he provided no evidence to show he informed anyone between November 2003 and August 2004 (when he deployed) that he was medically cleared to attend BNCOC. Therefore, he could not have competed for promotion to SFC by the 2005 or the 2006 promotion boards.

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)                                         AR20080016275



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ABCMR Record of Proceedings (cont)                                         AR20080016275



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