IN THE CASE OF:	  

		BOARD DATE: 	        23 June 2009

		DOCKET NUMBER:  AR20090001111 


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 the rank of sergeant major (SGM) with an effective date of rank in January 2002; all back pay and allowances due as a result of this promotion; and placement on the Retired List in the rank of SGM.  

2.  The applicant states, in effect, that his improper non-selection for promotion
to SGM in January 2002 is evidenced in a National Guard Bureau (NGB-ZC-EO) memorandum, dated 24 July 2007, and in an NGB Investigation (Case Number 
M-0055-SC-A-01-05-R).  The applicant also refers to a Settlement Agreement between him and the South Carolina Army National Guard (SCARNG), in which the SCARNG agreed, in effect, to support his promotion to SGM, effective in 2002, to support back pay and allowances for the promotion, and repayment of Survivor Benefit Plan payments from 30 September 2004 to the current date; and the applicant agreed to withdraw the discrimination complaint he had pending with prejudice.  

3.  The applicant provides the following documents in support of his application:  Settlement Agreement, dated 24 July 2007; SCARNG, The Adjutant General (TAG), Memoranda, dated 3 May 2004 and 1 November 2008; Self-Authored Statement, dated 25 November 2008; NGB Form 22 (Report of Separation and Record Service); SCARNG Orders Number 157-806, 157-807, 157-808, and 157-809, dated 5 June 2004; and Supreme Court of the United States Case Number 00-760.


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 shows that after having prior active and Reserve Component (RC) service, he enlisted and entered the SCARNG on 
6 March 1979.  

3.  On 1 September 1999, the applicant was promoted to the rank of master sergeant (MSG) and on 1 October 2001, he was laterally appointed to the grade of first sergeant (1SG). 

4.  The applicant’s Official Military Personnel File (OMPF) contains a SCARNG, TAG Memorandum, dated 15 May 2003, which shows the Qualitative Retention Board recommended the applicant among the best qualified for continued retention in a unit of the ARNG and the SCARNG TAG approved this recommendation.  

5.  The OMPF includes a DA Form 1059 (Service School Academic Evaluation Report), dated 20 June 2003, which shows the applicant completed the United States Army Sergeant’s Major Course and achieved course standards on 20 June 2003.  

6.  The OMPF also includes a SCARNG TAG Memorandum, dated 3 May 2004, which shows an Active Service Tour Continuation Board (ASTCB) convened on 16 March 2004 and reviewed the applicant's records.  The applicant was not selected for continuation and it was directed that he be released from the Army Guard Reserve (AGR) program upon attaining 20 years of active federal service on 30 September 2004.


7.  On 30 September 2004, the applicant was honorably discharged from the SCARNG and transferred to the Retired Reserve after completing 27 years, 9 months, and 4 days total military service.  The NGB Form 22 issued him at that time shows that he held the rank of 1SG.

8.  The applicant provides a copy of a Settlement Agreement made between the SCARNG and himself.  In it, the SCARNG stipulates, in pertinent part, that it would agree to recommend and support the promotion of the applicant to the rank of SGM in exchange for his withdrawal, with prejudice, of his presently pending complaint of racial discrimination filed with the agency on 26 June 2004.

9.  The applicant provides a memorandum from the SCARNG TAG, dated 
1 November 2008, in which the TAG recommends this Board approve the applicant's retroactive promotion to SGM and that he receive all back pay and allowances as he requested.

10.  During the processing of this case an advisory opinion was obtained from the Chief, Personnel Division, NGB.  This official indicates the NGB recommends approval of the applicant's request for promotion to SGM with an effective date of 15 December 2002, and that the applicant be provided all back pay and allowances due as a result up to his retirement date of 30 September 2004, and that his record be corrected to show he was placed on the Retired List in the grade of SGM and that he receive all back retired pay and allowances due as a result.  

11.  The Chief, Personnel Division, NGB, confirms that the career progression for the applicant’s Military Occupational Specialty (MOS) dictates that he would be placed on the MOS 31Z Select, Assign, Train, Promote (SATP) list for promotion to SGM.  The SCARNG AGR SATP in career progression MOS (CPMOS) 31Z, published on 16 November 2001, lists the applicant in the top position with a total of 899 points and MSG J.P. was listed in the fourth position with a total of 774 points.  

12.  The Chief, Personnel Division, NGB, indicates that the SCARNG Leadership Points List, dated 1 December 2001, lists the applicant in the first position for the 228th Signal Brigade with 899 points and MSG J.P. is not listed on any leadership list in the SCARNG that year.  The following Leadership Points List, dated 4 October 2002, again lists the applicant in the first position with 900 points and MSG J.P. was not on any leadership list in the SCARNG that year.


13. The Chief, Personnel Division, NGB, indicates the SCARNG conducted an additional selection board in accordance with the South Carolina Adjutant General Pamphlet (AG PAM) 600-200, appendix B, Section B-3, paragraph 2b which states, "the command in which the vacancy exists will submit a request to fill by SATP through channels to The Adjutant General Human Resources Office Army Guard Reserve Section (TAG-HR-AGR).  Upon receiving the request to fill, TAG-HR-AGR will verify points of top five Soldiers on the appropriate SATPL, consider their leadership points, and submit the name of the top three Soldiers to the command along with other appropriate documents requesting a fill.  The command will convene a board, notify the three Soldiers, interview and evaluate them, form an Order of Merit List (OML), submit the OML to TAG-HR-AGR, and TAG-HR-AGR will then notify the selected Soldier."  MSG J.P. was selected for promotion to SGM in MOS 31Z by this process and subsequently promoted on 15 December 2002.

14.  The Chief, Personnel Division, NGB, states that the purpose of the SATP and Leadership Points List is to ensure a fair and standardized process is used to fairly evaluate and rate all enlisted Soldiers for possible promotion.  He further states that the applicant had established himself as the most qualified Soldier in the SCARNG to be promoted to SGM in MOS 31Z as evidenced by his standing on the SATP in 2002, which was based on standard Army values and competencies as measured against all Soldiers in his CPMOS.  He additionally states that the interview process in this case used other than the standard Army values and competencies as evidenced by the fact that the applicant had already established himself at the top of his CPMOS prior to the interview process and then was not promoted.  He continues that the interview process used to make the selection was not in accordance with the guidance in National Guard Regulation (NGR) 600-200, dated 1 March 1997, Chapter 11, paragraph 45a; and Army Guard (AG) PAM 600-200, appendix B, section B-3, paragraph 1a.

15.  The applicant was provided a copy of the advisory opinion on 20 May 2009, and on 25 May 2009, he responded and indicated that he did not want to submit any further documentation or comments in his case and requested the Board proceed with processing his case. 

16.  The applicant petitioned the Army Grade Determination Review Board (AGDRB) for his placement on the Retired List in the rank of SGM.  On 
4 February 2009, the AGDRB determined that their board did not have the authority to correct the applicant’s record and as a result, it forwarded his case to this Board.


17.  SCARNG AG PAM 600-200, Appendix B, Section B-3, Paragraph 2b states, in pertinent part, the command in which a vacancy exists will submit a request to fill by SATP through channels to TAG-HR-AGR and, upon receiving that request to fill, TAG-HR-AGR will verify points of the top five Soldiers on the appropriate SATPL and submit the name of the top three Soldiers to the command with their DA Form 2-1 and last three NCOERs.  The command will convene a board, interview the three Soldiers, form an OML, submit the OML to TAG-HR-AGR, and TAG-HR-AGR will notify the selected officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be promoted to the rank of SGM with a DOR of January 2002 and be given all appropriate back pay and allowances has been carefully considered and found to have merit. 

2.  The evidence of record in this case confirms that the appropriate regulatory guidance was not used during the promotion selection process that considered and did not select the applicant for promotion to the rank of SGM, and that as a result another less qualified Soldier was considered and selected for promotion to SGM on 15 December 2002, as evidenced in the NGB advisory opinion.  As a result, an injustice has occurred in the promotion selection process and it would be appropriate to correct the applicant’s record to show he was promoted to SGM, effective and with a date of rank of 15 December 2002.  It would also serve the interest of justice to provide him all back active duty back pay and allowances due through the date of his retirement on 30 September 2004, and all back retired pay and allowances due from 1 October 2004 through the present.  

3.  The evidence of record confirms that the first position vacancy promotion available that the applicant was improperly denied was 15 December 2002; therefore, this was the promotion date granted the applicant.  There is no evidence indicating the applicant was improperly denied an available promotion anytime between January 2002, the promotion date the applicant requests, and 15 December 2002, the date the applicant and not the other Soldier should have been promoted.  As a result, this is an insufficient evidentiary basis to grant the applicant an effective date of promotion in January 2002, as requested by the applicant, or on any other date prior to 15 December 2002, the date a less qualified Soldier was promoted instead of the applicant. 


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  __X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  promoting him to the rank and grade of sergeant major/E-9 on 15 December 2002, and providing him all active duty pay and allowances due through the date of his retirement on 30 September 2004;
   
   b.  placing him on the Retired List in the rank and grade of sergeant major/
E-9, on 1 October 2004, and providing him all back retired pay and allowances due from 1 October 2004 through the present; 
   
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a SGM/E-9 promotion date earlier than 15 December 2002.



      ___________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)                                         AR20090001111



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ABCMR Record of Proceedings (cont)                                         AR20090001111



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