IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100007392 


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 promotion to sergeant major (SGM)/E-9 with back pay to the date he was first denied promotion.

2.  The applicant states he submitted a promotion packet through the G-1, 87th U.S. Army Reserve (USAR) Support Command for the 99th Regional Readiness Center (RRC) Senior Enlisted Promotion Board that convened from 16 to 20 January 2007.  He was considered, selected, and placed on the permanent promotion recommended list (PPRL) on 25 January 2007.  Additionally, he states: 

	a.  At this time he was enrolled in the U.S. Army Sergeants Major Academy (USASMA) Phase 1 non-resident Sergeants Major Course (SMC) to commence April 2007.  After 16 months on the PPRL, an e-mail requesting assistance on the status of his promotion was sent to the Command Sergeant Major of the 87th USAR Support Command.  The response, dated 5 May 2008, informed the applicant he had "not gotten a straight answer from the 99th [RRC]."  

	b.  He received a memorandum, dated 3 December 2008, from USASMA stating he had completed the course curriculum for Phase 2 and invited him to attend the Phase II resident course.  On 27 January 2009, he submitted a request to attend Phase II from 7 to 21 April 2009.  The dates were confirmed by e-mail, but on 18 February 2009, an e-mail from the Army Human Resources Command-St. Louis (HRC-St. Louis) informed him there were no seats available for the course during the requested dates.  He requested alternate dates of 5 to 19 June 2009, which were confirmed on 23 February 2009.  
	c.  An e-mail was sent from Mr. J--- H---, a Human Resources Specialist at the 87th USAR Support Command, to Sergeant First Class S------ B---- and Mr. D----- R---- at the 99th RRC requesting the status of his promotion.  Mr. J--- H--- asked if the applicant could have been promoted during his 2 years on the PPRL and, if not, that it was too late and there was no reason for him to attend [Phase 2 of the SMC].  The applicant followed up with Mr. D----- R---- by telephone and e-mail, but neither the applicant nor Mr. J--- H--- received a response.

	d.  From February to June 2009, he could not get a definitive status of his promotion.  After he had been told it was too late for him to be promoted, he cancelled his attendance of Phase 2 of the SMC because it would have been a misuse of government resources.  On 9 June 2009, he filed an Inspector General (IG) Action Request with the 87th USAR Support Command IG concerning his promotion.  A response from the 99th RRC, dated 24 November 2009, stated vacancies were available beginning in February 2008, and he should have been identified for promotion but was overlooked.  

	e.  The applicant further states proper procedures and guidelines were adhered to in submitting his promotion packet and he was fully eligible for promotion.  

3.  The applicant provides 11 enclosures identified in a list and a response to an advisory opinion obtained from the U.S. Army Reserve Command (USARC) during the processing of this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) on 2 April 1969 and served until 1 April 1977.  On 20 September 1982, he again enlisted in the ARNG, where he served until he enlisted in the USAR on 20 September 1991.  The record shows he served on active duty in support of Operation Enduring Freedom from 27 January 2003 to 11 December 2009.  

2.  The applicant's record shows his date of birth (DOB) is 7 February 1950.  He reached age 55 on 7 February 2005.  

3.  The applicant's transaction history in the Integrated Web Services (IWS), a human resources management database maintained by the HRC shows on 
1 February 2007, he was identified for enrollment in the USASMA non-resident course based on a roster received from the 99th RRC.

4.  A memorandum, dated 3 December 2008, from the USASMA to the applicant shows he had completed Phase 1 of the SMC and was invited to submit a request to attend Phase 2.  

5.  The applicant was accepted for enrollment in Phase 2 of the SMC, but IWS shows he requested disenrollment prior to attending the course due to his age.  His request for disenrollment was approved.  

6.  Effective 1 March 2010, the applicant was placed on the Army of the United States Retired List.  He completed 34 years, 5 months, and 12 days of service qualifying for a non-regular retirement.

7.  During the processing of this case, on 13 July 2010, an advisory opinion was obtained from the G-1, USARC, recommending disapproval of the applicant's request.  The advisory opinion summarized the circumstances surrounding the applicant's selection for promotion and subsequent removal from the PPRL, showing the following:

	a.  In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 5-32(m), Soldiers who reach age 55 without Noncommissioned Officer Education System (NCOES) completion for the next higher grade prior to the convening date of the promotion board are ineligible for consideration.

	b.  The applicant was considered and recommended for promotion by the 99th RRC on 20 January 2007 and placed on the PPRL at age 56 and he had not completed the SMC.  Therefore, he was ineligible for promotion consideration.  

	c.  He should have been removed from the PPRL, but the error was not discovered.  Army Regulation 600-8-19, paragraph 5-46, states Soldiers who have not been promoted within 2 years of the board appearance date will be automatically removed from the PPRL.  The applicant was removed from the PPRL on 20 January 2009 in accordance with paragraph 5-46.  

	d.  On 24 November 2009, the 99th RSC IG incorrectly informed the applicant he should have been identified for promotion during period of February through May 2008.  The IG findings did not consider that he had not completed NCOES requirements nor the fact that he turned age 58 on 7 February 2008 and would have been unable to fulfill the 2-year Troop Program Unit (TPU) obligation incurred as a result of promotion [because he would have reached his mandatory retirement date upon reaching age 60].

8.  On 27 July 2010, the applicant responded to the advisory opinion, providing the following in a rebuttal:

	a.  The comments from USARC did not address the issue that he was overlooked for promotion during the 2 years on the PPRL.  The 99th RRC stated he should have been promoted in February 2008 but was overlooked due to his home of record.

	b.  A memorandum, dated 28 June 2006, from the Office of the Assistant Secretary for Manpower and Reserve Affairs prescribed policy for promotion of Reserve Component (RC) enlisted Soldiers on active duty for operational support in excess of 12 months.  The memorandum stated it was to remain in effect after publication of [a revision of Army Regulation 600-8-19 consolidating RC and Regular Army enlisted promotion policy].  

		(1)  The memorandum stated Soldiers who entered active duty for operational support (ADOS) from the USAR would be considered for promotion under the provisions of Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction) or the corresponding provisions of the consolidated Army Regulation 600-8-19 soon to be published. 

		(2)  Promotion requirements listed in Army Regulation 140-158 did not pertain to age.  

	c.  The 87th Division IG stated that although the applicant had seniority by rank and military occupational specialty, others were promoted ahead of him.  

	d.  Had he been promoted in February 2008, he would have been able to serve 2 years before reaching age 60 [his maximum age] in February 2010 and there are means to extend beyond maximum age and service.  

9.  In a revision effective on 29 November 2006, Army Regulation 600-8-19 (Enlisted Promotions and Reductions) incorporated promotion policy for Soldiers on ADOS in excess of 12 months.  The regulation stated Soldiers who enter on ADOS from USAR TPU units will be considered for promotion under the provisions of chapter 5 of the regulation.  

10.  Chapter 5 of Army Regulation 600-8-19 states, in pertinent part, that Soldiers who reach age 55 without NCOES completed for the next higher grade or age 57 with NCOES completed for the next higher grade prior to the convening date of the promotion board are ineligible for consideration.  When the promotion authority determines a Soldier was erroneously considered and selected for promotion, the promotion authority will administratively delete the name of the Soldier from the list.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for promotion to SGM/E-9 with back pay to the date he was first denied promotion.

2.  Effective 29 November 2006, a revision of Army Regulation 600-8-19 incorporated promotion policy for Soldiers on ADOS in excess of 12 months.  Upon publication of this revision, Army Regulation 140-158 no longer applied to these Soldiers.  

3.  Under the provisions of Army Regulation 600-8-19, the applicant was not eligible for consideration for promotion because he had not completed the SMC upon reaching age 55.  The regulation does not provide for exceptions to this requirement.  

4.  The evidence of record shows the applicant was erroneously considered and selected for promotion and not properly removed from the PPRL; however, there is no evidence showing these errors constitute an inequity or injustice.  In the end, the applicant was not promoted, which would also have been the result of proper administrative action in this case.  

5.  In view of the foregoing, there is no basis for the requested relief.  

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 for correction of the records of the individual concerned.




      _______ _   __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)                                         AR20100007392





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)