DOCKET NUMBER:  AR20080017577 


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, promotion to master sergeant (MSG).  

2.  The applicant states, in effect, that in January 2008, he was informed he would not be eligible to extend, but since he had over 18 years of active service, he was eligible for the sanctuary program, and he submitted an application for sanctuary.  In April 2008, he became eligible for promotion to MSG and given he had not received a response to the sanctuary program request, he submitted a promotion packet to the MSG selection board at the 88th Regional Readiness Command (RRC), and during the second week of May 20008, he was informed he had made the selection list for promotion and was then in a promotable status.   He states that on 28 May 2008, he received an eligibility memorandum for the sanctuary program, but would not enter the program until 30 July 2008, the day after he was released from active duty (REFRAD) and/or his mobilization assignment/orders.  

3.  The applicant further states that in June 2008, he inquired about his promotion to MSG and was informed there were no positions within his stated mileage limit.  He extended his mileage limit on 19 June 2008, and on 25 July 2008, he was notified the effective date of his promotion to MSG would be 1 July 2008, and was given a paragraph and line number for the MSG position he had been assigned to.  This promotion notification on 25 July was the first notification his command and he had received in regard to the effective date of his promotion, 25 days before.  On 11 July 2008, he had submitted his REFRAD orders and DD Form 214 to the Mobilization Support Branch so they could publish his sanctuary orders, which began on 30 July 2008, not knowing his promotion effective date was 11 days earlier.
  
4.  The applicant claims the errors in this process resulted from the untimely notification of his promotion to his unit, which prevented the timely publication of promotion orders prior to the date he entered the sanctuary program.  He states that had he known of his promotion prior to 11 July 2008, he could have made the decision to accept the promotion and stay in the Reserve, which he would have done.  However, because he was not informed of the promotion in a timely manner, he accepted the sanctuary program.  He now requests his promotion be granted, which he clearly was entitled to based on the sequence of events outlined.  

5.  The applicant provides the following documents in support of his application:  April 2008 Senior Enlisted Promotion Board Recommended List; 88th RRC Promotion/Position Assignment Notification (electronic mail (e-mail)), dated 
25 July 2008; Department of the Army, Office of the Assistant Secretary Manpower and Reserve Affairs (ASA & MRA)  dated 28 June 2006, Subject:  Promotion Policies for Reserve Component (RC) Enlisted Soldiers on Active Duty for Operational Support (ADOS) in Excess of 12 Months; Headquarters, United States Army Reserve Command (USARC) Memorandum, dated 11 September 2006, Subject: Promotion Policies for Reserve Component (RC) Enlisted Soldiers on Active Duty for Operational Support (ADOS) in Excess of 12 months and Sanctuary Soldiers; USARC Memorandum, dated 30 April 2007, Subject:  Clarification and Change to Promotion Policies for Army Reserve Troop Program Unit (TPU) Enlisted Soldiers on Active Duty for Operational Support (ADOS) and Sanctuary Soldiers;  and Sanctuary Orders.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he served on active duty in the Regular Army (RA) from 23 September 1987 through 1 September 2001, at which time he was honorably discharged, in the rank of staff sergeant (SSG), and transferred to a TPU of the United States Army Reserve (USAR).  

2.  The applicant subsequently entered active duty from his USAR TPU in an ADOS status.  In January 2008, the applicant was informed he was ineligible to extend, but based on his having completed over 18 years of active duty service, he was eligible for the sanctuary program, and he submitted his application for this program. 


   

3.  On 29 May 2008, a Notification of Eligibility for Retired Pay at Age 60
(20-Year Letter) published by the United States Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis) informed the applicant that he had completed the creditable military service necessary to qualify for non-regular retired pay at age 60.  

4.  The applicant was selected for promotion to MSG by the April 2008 RC Senior Enlisted Promotion Board and was placed on the selection list published on 
28 April 2008.  

5.  On 11 July 2008, HRC-St. Louis published Orders A-07-813075, which ordered the applicant to active duty, effective 30 July 2008, for the purpose of obtaining 20 years of service under the extended active duty (EAD) sanctuary program.

6.  An e-mail message from the 88th RRC, dated 25 July 2008, directed the applicant’s assignment to a valid MSG position and his promotion to MSG, effective and with a date of rank of 1 July 2008.  

7.  On 28 July 2008, a USARC G-1 official directed the applicant’s command not to publish promotion orders because the applicant was entering the sanctuary program in 2 days.  

8.  In connection with the processing of this case, an advisory opinion was obtained from the Acting Chief, Enlisted Career Systems Division, Department of Army (DA), G-1.  This official reversed an earlier G-1 advisory opinion in which it was opined that the applicant was ineligible for promotion based on his inability to complete necessary service remaining requirements for promotion.  This official opines that the applicant was in fact eligible for promotion on 25 July 2008, the date he was selected for promotion and reassignment by the 88th RRC. He further states that although sanctuary orders are not authorized to be amended to reflect a period beyond the end of the month in which the Soldier attains 20 years of active service, a Soldier serving in sanctuary status can continue to serve past the completion of 20 years of active service provided he/she is placed on another ADOS order or transferred to a TPU to continue service in the Selective Reserve.  He concludes by commenting that the applicant was eligible for promotion but should be aware that acceptance of the promotion will require him to serve 24 months past the effective date of promotion to complete the service remaining requirement and as a result he will be unable to retire upon completion of his ADOS order, unless his service remaining requirement is set aside by an appropriate Army official. 
 

9.  On 18 June 2009, the applicant responded to the G-1 advisory opinion.  He stated that it is indeed his intention to stay in the military in order to meet the time service requirement for MSG.  He indicated that he understands that upon receipt of the promotion to MSG his continued service through at least 30 July 2010 is required and that he cannot retire upon completion of his ADOS order unless his service remaining requirement is set aside by an appropriate Army official.  

10.  Army Regulation 600-8-19 provides the Army’s enlisted promotion policy.  Paragraph 1-30 provides guidance on considering Soldiers for promotion who are enter ADOS.  It sates, in pertinent part, that upon completion of the ADOS tour, RC Soldiers who were promoted while on ADOS will have 12 months to be assigned, either voluntarily or involuntarily, to an appropriate position in their grade and in accordance with established regulatory guidance.  

11.  Paragraph 5-42 of the enlisted promotions regulation contains guidance on accepting promotion to sergeant first class and above.  It states, in pertinent part, that a Soldier who accepts a promotion will incur a 2-year TPU service remaining requirement from the effective date of promotion. The Soldier must report for duty in the position to which promoted, comply with a reassignment order, if issued, and serve at least 12 months in the duty position before voluntary reassignment. An exception to this policy occurs when the Soldier has a change of residence or civilian employment, or incurs an extreme hardship requiring such reassignment. This policy does not preclude reassignment for the convenience of the government or the good of the command, to the Ready, Standby, or Retired Reserve, including IMA or AGR status. 

12.  A 28 June 2006 ASA & MRA policy memorandum regarding promotion policies for RC enlisted Soldiers on ADOS in excess of 12 months, as supplemented in a USARC policy memorandum, dated 30 April 2007, in effect, prohibited the promotion of Soldiers subsequent to their entry into a sanctuary status.  
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the effective date of his promotion was prior to his entering sanctuary status and as a result he should have been promoted to MSG, effective and with a date of rank of 1 July 2008 was carefully considered and found to have merit.  

2.  By law and regulation, the promotion of ADOS Soldiers who have already entered into sanctuary status is prohibited.  There are no regulatory provisions that prohibit the promotion of ADOS Soldiers selected for and promoted prior to entering into sanctuary status.  The only limitation is that they obtain a position authorized the higher grade within 12 months of their release from ADOS.  

3.  The evidence of record confirms the applicant was selected for promotion to MSG in April 2008, and that his assignment to a MSG position and promotion to MSG, effective 1 July 2008, was announced by proper authority on 28 July 2008, prior to his entry into sanctuary status on 30 July 2008.  As a result, as confirmed by the G-1 advisory opinion, the applicant was eligible to be promoted on 1 July 2008.
  
4.  In view of the facts of this case, it would be appropriate to correct the record to show the applicant was promoted to MSG, effective and with a date of rank of 1 July 2008, and to provide him all back pay and allowances due as a result provided he met all other requirements for promotion as of 1 July 2008.  

5.  The applicant is advised that this action does not relieve him of any service remaining or other obligations incurred based on his promotion to MSG, and that his retirement prior to completion of these obligations is not authorized without the approval of the appropriate Army officials.  

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 all Department of the Army records of the individual concerned be corrected by showing he was promoted to master sergeant, effective and with a date of rank of 1 July 2008; and by providing him all back pay and allowances due as a result. 


      _______ _   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)                                         AR20080017577



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017577


5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1