IN THE CASE OF:	  

		BOARD DATE:	  24 March 2009

		DOCKET NUMBER:  AR20080018371 


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, restoration of the rank and pay grade of sergeant major (SGM), E-9, with entitlement to all pay and allowances. 

2.  The applicant states, in effect, that his rank and pay grade should be restored in accordance with a memorandum from the United States Army Reserve Command (USARC), dated 7 October 2002.  He was reduced to the rank and pay grade of Master Sergeant (MSG), E-8, for failure to complete the military education of the SGM Academy.  The Office of the Judge Advocate General (OTJAG) rendered an opinion that USARC did not have the authority to make promotions conditional during that timeframe and directed promotions to SGM be restored to the effective date of the promotion orders.  He served over 21 years of honorable service to his country.

3.  In support of his application, the applicant provides copies of his E-9 promotion orders, his reduction orders, his Notification of Eligibility for Retired Pay at Age 60 letter, his orders transferring him to the Retired Reserve, the USARC memorandum, and his Chronological Statement of Retirement Points.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statement to the applicant and does not submit additional documentation in support of his application.



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military record show he enlisted in the USAR in pay grade E-4 on 24 January 1978, with prior Regular Army and USAR enlisted service.  

3.  Orders Number 304-19, dated 31 October 1995, were issued promoting the applicant from MSG to SGM with an effective date and date of rank of 1 November 1995.  The orders stated that this was a conditional promotion based on the completion of the Sergeants Major Course (SMC) within 2 years of enrollment.  If he was disenrolled from the course, the promotion would be revoked and the time served would be declared in a "defacto status."

4.  The applicant's records contain a DA Form 1059 (Service School Academic Evaluation Report), dated 3 August 1999, that shows he failed to maintain satisfactory academic progress for the SMC and was being dismissed.  

5.  Orders Number 9281-027, dated 8 October 1999, were issued reducing the applicant from SGM, E-9 to MSG, E-8, effective 8 October 1999, for failure to meet conditional promotion requirements.  

6.  On 30 March 2000, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 letter.  

7.  Orders Number C-05-213960, dated 22 May 2002, were issued transferring the applicant from the USAR Control Group (Reinforcement) to the Retired Reserve, in the rank and pay grade of MSG, E-8, for non-participation.

8.  On 7 October 2002, Headquarters (HQ), USARC, Fort McPherson, Georgia, published a memorandum, Subject:  Restoration of Promotions to Sergeant 

Major.  The memorandum stated that in accordance with message, dated October 1993, Subject:  Linkage to NCOES (NCO Education System) Promotions (USAR, TPU (troop program unit), IMA (Individual Mobilization Augmentee)) – BNCOC (Basic Noncommissioned Officer Course), ANCOC (Advanced Noncommissioned Officers Course), and SMC), Soldiers promoted to SGM between 26 October 1993 and 16 January 1998 were required to enroll in and completed the SMC after promotion.  That authority also stated the promotion orders would be revoked for those Soldiers who failed to enroll in or complete the SMC.

9.  The memorandum also stated that in accordance with the (Office of the Deputy Chief of Staff for Personnel, G-1) memorandum, dated 26 June 2002, Subject:  Conditional Promotions to USAR SGM – Policy Guidance, the OTJAG had rendered an opinion that the Army Reserve did not have the proper authority to make promotions conditional during the referenced time frame.  As such, those Soldiers whose promotions were revoked for failure to complete SMC were entitled to restoration to their former SGM rank.  

10.  The memorandum further stated that addressees should review their orders files and take immediate action to promote Soldiers who were current TPU members and whose promotions (26 October 1993 through 16 January 1998) were revoked solely because they failed to complete the SMC.  As an exception to Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), paragraph 1-8d, the promotion effective date to SGM would be the effective date the Soldier was originally promoted to that rank.  Those Solders were also entitled to all back pay and allowances.  The Additional Instructions lead line of the promotion order would read as follows:  "Soldier's promotion to SGM was restored to previous date of rank and effective date by direction of Memorandum, HQDA, Deputy Chief of Staff, G-1 (DAPE-MPE), 26 June 2002, Subject:  Conditional Promotions to USAR SGM – Policy Guidance."

11.  The memorandum also stated that Soldiers who were no longer assigned to TPUs would have to seek relief by applying to the Army Review Boards Agency Support Division using DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, United States Codes, Section 1552).

12.  The applicant's Chronological Statement of Retirement Points, dated 3 October 2008, shows that he had completed 21 years, 11 months, and 12 days of qualifying service for retirement purposes as of 22 May 2002.


13.  Orders Number P-11-817920, dated 19 November 2008, were issued placing the applicant on the Army of the United States Retired List effective 26 September 2006 in the rank and pay grade of MSG, E-8.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was conditionally promoted to SGM effective 1 November 1995, and served in that grade for 3 years, 11 months, and 7 days.  That promotion was in accordance with promotion procedures in effect at that time and the applicant accepted the promotion, with the condition and understanding that he was required to enroll in, and successfully complete the SMC, and if he failed to meet those conditions, his promotion would be revoked. 

2.  The applicant failed to achieve course standards for the SMC and was dismissed on 3 August 1999.  He was administratively reduced from SGM to MSG effective 8 October 1999.  On 22 May 2002, he was released from the USAR and transferred to the Retired Reserve in the rank and pay grade of MSG, E-8.  On 19 November 2008, orders were issued placing the applicant on the Retired List, effective 26 September 2006, in the rank and pay grade of MSG, 
E-8.

3.  On 7 October 2002, policy was established for the restoration of USAR promotions to SGM for those whose promotions were revoked solely because they failed to complete SMC as an exception to Army Regulation 140-158, paragraph 1-8d.  The policy memorandum stated that Soldiers who were no longer assigned to TPUs would have to seek relief by applying to the Army Review Boards Agency Support Division.  

4.  Therefore, it is concluded that based on the favorable policy guidance expressed by the Office of the Deputy Chief of Staff, G-1, it would be appropriate to correct the applicant's records by restoring his promotion to SGM, E-9, with entitlement to all appropriate back pay and allowances from 8 October 1999, the date of his reduction.  He is also entitled to correction to his records to show he was transferred to the Retired Reserve in the rank and pay grade SGM, E-9, effective 22 May 2002, and that he was placed on the Retired List in the rank and pay grade SGM, E-9, effective 26 September 2006, and entitled to appropriate pay and allowances associated with this correction.

5.  In view of the foregoing, the applicant's records should be corrected 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 all Department of the Army records of the individual concerned be corrected:

	a.  by restoring the applicant's promotion to SGM, E-9, with entitlement to all appropriate back pay and allowances from 8 October 1999; 

   b.  by showing he was transferred to the Retired Reserve in the rank and pay grade SGM, E-9, effective 22 May 2002; and 
   
   c.  by showing he was placed on the Retired List in the rank and pay grade SGM, E-9, effective 26 September 2006, with entitlement to the appropriate pay and allowances associated with 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)                                         AR20080018371



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ABCMR Record of Proceedings (cont)                                         AR20080018371


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