BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090018217 


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).


CONSIDERATION OF ADDITIONAL EVIDENCE:

22.  On 13 October 2009 new information was received from the National Guard Bureau (NGB) in regard to the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080011760, dated 1 September 2009.

23.  The evidence submitted consists of a Memorandum for Chief, Army National Guard Bureau, Army National Guard Readiness Center (ARNGRC), dated 1 October 2009, from the South Carolina Office of the Adjutant General, which states that office chooses not to comply with the directive from the Deputy Assistant Secretary, Army Review Boards Agency (ARBA).  The memorandum indicates the applicant was investigated under Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) for having violated a regulation by failing to deposit government funds in his trust for the period        9 March through 10 March 2007.  On 3 May 2009, the applicant, with advice of civilian counsel, signed an agreement resolving allegations in the AR 15-6 Investigation.  The applicant agreed to be removed from the Master Sergeant  (E-8) Promotion List and he made one $600.00 payment to the state for missing funds.  A subsequent ABCMR action to promote him violates this agreement.

24.  In the Agreement Resolving Allegations in an AR 15-6 Investigation the applicant signed and agreed to the following:

* issuance of a General Officer Memorandum of Reprimand (GOMOR)
* removal from the E-8 promotion list

* no further assignment to armory rental duties
* one payment of $600.00 to any unit readiness fund or any other appropriate fund designated by the command
* retirement on the first date that he will be eligible to do so in order to achieve a 20-year active retirement under the active duty retirement system
* no further adverse action beyond the listed actions, administrative or otherwise be taken against him related to the allegation of the AR 15-6 Investigation, the incident, or the dispute including, but not limited to any action to bar his continuation in the Active Guard Reserve (AGR) Program and enlistment in the Army National Guard.

25.  In a memorandum to ARBA, dated 13 October 2009, NGB non-concurred with the ABCMR's decision reiterating the information contained in the memorandum to the Chief, Army National Guard Bureau, dated 1 October 2009.

26.  On 22 October 2009, the applicant submitted a rebuttal to NGB's memorandum stating that his application to the ABCMR was based on actions taken by the Standby Advisory Board (STAB) on 12 July 2007 and it was in no way related to the agreement he signed on 3 May 2009, nearly 2 years later.  He goes on to state that the list that he was to be removed from is the 2009 E-8 promotion list.  He states Army Regulation 600-8-19 paragraph 7-28b clearly states that each list is a new list and is superseded by the following list approximately 1 year later.  He states that the 2007 promotion list has been superseded by the 2008 promotion list, and the 2008 promotion list has been superseded by the 2009 promotion list.  He states there are no provisions that allow retroactive removal or removal from a further promotion list and the regulation clearly states that each promotion list must be individually considered. He states that his application to the ABCMR was based solely on improper removal from the 2007 First Sergeant Promotion List.

27.  On 23 October 2009, the applicant submitted a rebuttal statement and he indicated that in accordance with Army Regulation 600-8-19, paragraph 7-4f, removal from promotion lists is effective as of the date it is signed by the promotion authority.  He states, in his case, the date cannot be any earlier than 3 May 2009.  He states to his knowledge, the removal of his name from the 2009 promotion list has not been approved by the State Adjutant General.

28.  Attached to a memorandum to the ABCMR dated 11 November 2009, the applicant introduces a Developmental Counseling Form which shows that he was counseled on 9 November 2009 regarding pending action to remove his name 

from the 2009 E-8 promotion list.  He was informed that the action was the result of a STAB approval and the recommendation due to the filing of a GOMOR.  He was further informed that following the counseling session he would be removed from the E-8 promotion list.  He agreed with the information contained in the counseling form and he wrote "I understand this removal is for one year only 2009 – 2010 list.  This is not a permanent removal per agreement."

29.  Also attached is a memorandum dated 4 November 2009 showing that a STAB convened on 29 October 2009.  The memorandum shows the applicant's name was approved for removal from the 2009 Master Sergeant AGR List.

ADDITIONAL DISCUSSION AND CONCLUSIONS:

6.  At the time of the decision of the ABCMR in Docket Number AR20080011760, dated 1 September 2009, it was the intent of the ABCMR to make the applicant’s record as administratively correct as it should properly have been at the time.

7.  The ABCMR's decision in Docket Number AR20080011760 erroneously recommended that his request be granted.  The applicant was counseled regarding the removal of his name from the 2007 Leadership Roster.  After his name was removed he submitted an application to this Board which was received on 23 July 2008.  Before his case could be reviewed by the Board, he entered into an agreement with NGB officials on 3 May 2009.  He agreed that his name would be removed from the 2009 E-8 promotion list, he would make a
one-time payment of $600.00 to the State for an incident involving missing funds, he would be furnished a GOMOR and he would retire after obtaining 20 years of service.

8.  When the applicant entered into the agreement, he was serving in the rank of sergeant first class (E-7).  The whole intent of the agreement between the applicant and his chain of command was for him not obtain the pay grade of E-8 and to retire after obtaining 20 years of service and he agreed, even after he had applied to the ABCMR for relief.  

9.  The applicant should not be allowed to benefit from the previous ABCMR decision because the ABCMR was unaware of the agreement made between him and his chain of command prior to the time the Board rendered its decision.

10.  He now states that he was referring to his name being removed from the 2008 and/or 2009 E-8 promotion list.  However, his name was not removed from the 2009 E-8 promotion until after the STAB convened on 4 November 2009, which was well after he made his initial application to the ABCMR.  Based on the contention he made in his initial application to the ABCMR, he was clearly referring to the 2007 E-8 promotion list from which his name was removed.  

11.  The applicant has provided STAB Minutes dated 4 November 2009 showing that his name was approved for removal from the 2009 E-8 promotion list.  But he has not made application to the ABCMR regarding this issue.  Therefore, this contention will not be considered at this time.  Additionally, according to the counseling statement he submitted, the removal of his name from the 2009 promotion list was based on the GOMOR he was issued and not based on any breach of agreement between him and his chain of command.

12.  It is concluded that the action taken to remove his name from the 2007 E-8 promotion list was correct. 

BOARD VOTE:

___x____  ___x____  ___x_____  APPROVE STAFF RECOMMENDATION

________  ________  ________  DISAPPROVE STAFF RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20080011760, dated 1 September 2009, to show denial of his request for:

* promotion to first sergeant 
* promotion date and date of rank of 12 October 2007
* back pay and allowance




      _______ _   _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)                                         AR20090018217



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Supplemental Record of Proceedings (cont)                 AR20090018217



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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