IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090009206 


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, reconsideration of an earlier request to restore his rank to sergeant major (SGM)/pay grade E-9 and to have his records corrected accordingly. 

2.  The applicant states, in effect, that there is additional evidence or argument that was not considered by the Board when it denied his original application.  

3.  The applicant provides a personal memorandum; promotion orders to SGM, dated 16 April 2003; orders releasing him from active duty, dated 18 June 2004; and a disenrollment notification from the SGM Course Class Number 30, dated 12 October 2004. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070014070, on 10 April 2008.

2.  The applicant's personal statement, orders releasing him from active duty, and the disenrollment notification sited in paragraph 3 above is the new evidence that requires the Board to reconsider the applicant's initial request.

3.  The applicant enlisted in the Regular Army on 3 July 1984.  He was trained, schooled, and awarded military occupational specialty 92Y (Unit Supply Clerk).  He remained on active duty through continuous reenlistments serving as an Automated Logistical Sergeant. 

4.  Order Number 106-16, dated 16 April 2003, issued by U.S. Army Total Personnel Command promoted the applicant to SGM in MOS 92Z5O effective 1 May 2003.  The orders state the promotion is not valid and will be revoked if he is not in a promotable status on the effective date of promotion.  Further, acceptance of a promotion constitutes acceptance of the 2-year active duty service obligation (ADSO) requirement from the effective date of promotion.  

5.  On an unknown date, the applicant submitted a request for retirement.  

6.  Orders 107-02, dated 18 June 2004, issued by Flight Concepts Division, Fort Eustis, VA released the applicant from active duty effective 30 September 2004 and transferred him to the retired list on 1 October 2004.  Pertinent information shown on this separation order are as follows:

	a.  the retired grade of rank was MSG/pay grade E-8;

	b.  the current grade effective date is shown as MSG, 1 March 1999;

	c.  the statute authorizing his retirement is 1293/1371; and  

	d.  his retirement type is shown as nondisability.

7.  On 30 September 2004, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Retired) for sufficient service for retirement.  The applicant was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows his net active service was 20 years, 2 months, and 28 days.  Pertinent rank and grade information is as follows:

	a.  item 4a (Grade, Rate or Rank) shows the entry, “MSG”;  

	b.  item 4b (Pay Grade) shows the entry, “E8"; and  

	c.  item 12h (Effective Date of Pay Grade) shows the entry "Year(s) 1999, Month(s) 03, Day(s) 01."

8.  On 12 October 2004, the Commandant of the U.S. Army Sergeants Major Academy at Fort Bliss, TX disenrolled the applicant from the Sergeants Major Course, Class Number 30, due to the applicant's release from active duty and retirement effective 1 October 2004.
9.  As new evidence and argument in support of his application, the applicant provided a rebuttal in memorandum format.  He states, in pertinent part, that the Board should consider the following points:

	a.  ALARACT Message 146_2003 that authorized Soldiers to retire in their current grade regardless of their Noncommissioned Officer Education School (NCOES) status; 

	b.  Title 10 U.S. Code, Section 3961(b) states, in effect, that a Soldier will be retired in the grade held on the date of retirement; and

	c.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions)  paragraph 7-13(d) states, in effect, that an administrative reduction for failure to complete training is effective the date the student is officially informed of failure in writing and that the reduction authority is the school commandant.

10.  In his statement, the applicant indicates in pertinent part that he was promoted to SGM pursuant to official orders, that he requested retirement based on meeting the minimum 20 qualifying years of active Federal service, and that on his actual date of retirement he was a SGM with no administrative reduction orders published reducing him to MSG.  He states that he was told he had to request retirement as a MSG or his "retirement would be disapproved."  He states he accepted retirement as a MSG because he had accepted immediate civilian employment.  He states he believes his reduction to MSG was improper. 

11.  He continued by stating he received notification from the ABCMR that his initial request to restore his retired rank to SGM was denied.  With further research, he obtained a copy of the Army Review Boards Agency legal opinion.  In this opinion, it states in pertinent part, that the applicant was a "victim of bad timing," and recommended the Board deny the application. 

12.  The applicant references an ALARACT Message 146_2003 that allowed Soldiers to retire in their current grade regardless of their NCOES status.  He cites paragraph 4 directly, "Soldiers currently promoted conditionally to SGT (sergeant) through SFC (sergeant first class) based on the NCOES promotion requirement, will be considered promoted without further condition."  He continues by stating that this message applied to all active Army, Army National Guard, and Army Reserve Soldiers; therefore, he concludes that this message applied to him for he was an active Army Soldier.  He states that this message showed it was applicable to SGT through SFC in paragraphs numbered 2, 3, and 4 but that paragraph 7 applied directly to him for it allows Soldiers to voluntarily retire in their current grade regardless of their NCOES status.  
13.  The applicant continues by saying the Board's original findings are contrary to Title 10 U.S. Code, Section 3961(b) which states that a Soldier will be retired in the grade held on the date of retirement.  To the applicant, the critical point is that on the date of retirement he held the rank of SGM.  Further, he states the Board did not consider Army Regulation 600-8-19, paragraph 7-13(d) that says that an administrative (reduction) for failing to complete required NCOES training is effective the date the student is officially informed of the failure in writing by the school commandant.  As he was officially withdrawn from the SGM Academy weeks after his retirement date, the justification to reduce him to MSG upon his retirement is invalid.  He again cites his position that under Title 10 U.S Code, Section 3961(b) he is a SGM and should be retired as a SGM.  

14.  In his statement, he indicates that he was not under suspension of favorable personnel actions or flagged for not completing NCOES.  He stated that he was not disenrolled from the SGM course while on active duty.  Had he been told prior to out- processing for retirement, he could have made an informed decision.  With the termination of the SGM course after his retirement on 12 October 2004, he states that he should be retired on 30 September 2004 in the rank of SGM.   

15.  ALARACT Message 146_2003, dated 21 November 2003, Subject:  Suspension of Conditional Enlisted Promotions for SGT through SFC cites the importance and linkage of NCOES and promotions as remaining an important and integral aspect in the professional development of the NCO Corps.  In pertinent part, the guidance in paragraph 2 states "in support of ongoing operation efforts, effective 1 January 2004, NCOES requirements for promotion pin-on (SGT through SFC) cited in Army Regulation 600-8-19 are suspended until further notice."  Paragraph 3 cites that "existing NCOES requirements for promotion recommendation or consideration remain in effect."  With paragraph 4 citing "Soldiers currently promoted conditionally to SGT through SFC based on the NCOES promotion requirement, will be considered promoted without further condition."  In paragraph 7, the guidance states that "Soldiers who elect to voluntarily separate or retire will be considered fully eligible to separate or retire in their current grade regardless of their NCOES status, provided they are otherwise eligible."

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of enlisted Soldiers serving on active duty.  In pertinent part, the authority for retiring active Army Soldiers in the rank of staff sergeant (promotable) or above with less than 30 years of active Federal service (AFS) is the commander of Human Resource Command, Alexandria, VA who may approve, disapprove, or delay the requested retirement date.  A Soldier who has completed 20 but less than 30 years of AFS in the U.S. Armed Forces may be retired at his or her request provided the Soldier completed all required service obligations at the time of retirement.  Soldiers are eligible to retire, but not entitled to retire upon their personal request.  Soldiers who have completed 19 or more years of AFS may apply for retirement.  The request must be made within 12 months of the requested retirement date.  Soldiers must complete at least 20 years of AFS and all service obligations by the requested retirement date.  Soldiers who are promoted to the grade of sergeant first class, master sergeant/first sergeant or SGM/command sergeant major (CSM) incur a 2-year service obligation.  This obligation will be from the effective date of promotion and it must be completed before voluntary retirement.  Before applying for retirement, the Soldier should be firm in his or her decision to retire on a certain date.  Upon application for retirement, Soldiers are required to read Chapter 12 in this regulation and to sign their retirement request stating that they understand the retirement process to include entitlements and benefits.  Further, requests are individually considered on their own merits and are normally approved with exceptions to service obligations granted when in the best interest of the Service. 

17.  Army Regulation 600-8-19 (Active Duty Enlisted Promotion) states, in pertinent part, that the date of rank for a Soldier who does not complete the required level of NCOES training will be the previous date of rank successfully held at the reduced grade.  The NCOES courses for promotion are the Army standard.  Waivers and exceptions to policy are not authorized, as provided in Title XI of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102–484, as amended).  All categories of Soldiers will complete NCOES courses prescribed in their primary or career progression MOS.  Soldiers who fail to successfully complete, fail to remain eligible to be scheduled for or attend, who are denied enrollment in, or who do not attend their scheduled NCOES class (through fault of the Soldier) will be administratively reduced or removed from the promotion list.  Soldiers will only be reduced when NCOES is required for his/her current grade.  The effective date of administrative reduction is the date of the action that caused the Soldier to be ineligible to retain the promotion.  The date of rank will be the previous date of rank held at the reduced grade.  For example, Soldiers promoted to SFC, MSG/1SG, or SGM/CSM incurs a 2-year active duty service obligation (ADSO).  If a Soldier requests a retirement date before the expiration of this ADSO, a retirement approval authority can deny the request or the Commander, HRC-Alexandria can waive the ADSO and approve the retirement.  A promoted enlisted Soldier may not be reduced administratively only to terminate a promotion ADSO, and the waiver of an ADSO will normally result in the individual’s retirement in the grade to which promoted if that is the highest grade satisfactorily held.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was erroneously reduced to MSG at the time he was separated and retired from the active Army.  

2.  The applicant was informed on his promotion order that he incurred a two-year ADSO when he accepted the rank of SGM.  The applicant's 2-year ADSO commitment, based on his effective date of promotion to SGM, would have been completed on 30 April 2005.  The applicant voluntarily applied for retirement prior to completing his promotion ADSO or completing his NCOES for promotion to SGM.  The approval authority, in effect, waived his 2-year ADSO requirement for SGM when it approved his retirement application.  

3.  However, the retirement approval authority did not have the authority to waive the required NCOES training.  Promotions within the senior ranks of the noncommissioned officer corps are conditional until the mandated NCOES course is satisfactorily completed.  The applicant's liberal interpretation of the ALARCT Message 146_203 is unfounded for the message clearly and articulately states it is applicable to noncommissioned officers in the rank of SGT through SFC whose NCOES requirement for promotion pin-on was suspended due to military operations (Operation Enduring Freedom).  There is no reference to noncommissioned officers in the rank of SGM.  The applicant acknowledges that most of the guidance in this message is only applicable to Soldiers in the rank of SGT through SFC.  Yet, he selectively argues that paragraph 7 of this message concerning a Soldier's eligibility to retire in their promoted rank regardless of NCOES completion.  This paragraph does not apply to him.  The applicant has taken liberty to interpret this message completely out of context.  The subject of this message is noncommissioned officers in the rank of SGT through SFC which excludes those in the ranks of MSG and SGM.  

4.  The applicant’s separation orders were issued on 18 June 2004.  On that date, Army Regulation 600-8-19 required the applicant to be reduced to MSG because he had not completed the SGM Course.  The appropriate approval authority did not have the option to waive the NCOES school requirement.  

5.  The applicant could have at any point in time prior to his separation date requested a delay in separation or withdrawal of separation orders to complete the required NCOES with its own associated ADSO.  The applicant had a post separation civilian employment opportunity.  When confronted with the choice of remaining on active duty, and completing his required NCOES and its applicable ADSO, he elected to be separated due to retirement. 

6.  Personnel at the separation and transfer point appropriately processed the applicant for retirement in the rank of MSG effective the date of retirement.  He did not complete the SGM Course.  As such, Title 10 U.S. Code, Section 3961b was applied and the applicant was retired in the rank of MSG.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is insufficient basis to grant the applicant's request to restore his rank to SGM with an effective date of 1 May 2003.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070014070, dated 10 April 2008.




      _______ _   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)                                         AR20090009206



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ABCMR Record of Proceedings (cont)                                         AR20090009206



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