IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100013020 


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:

The applicant defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for promotion to sergeant major (SGM) on or about June 1999.

2.  Counsel states the applicant:

* should be retroactively promoted to SGM
* was granted partial relief by this Board, but his request for promotion to SGM was denied
* would have been promoted in 1999 based on the pattern of promotions to SGM within the North Carolina Army National Guard (NCARNG)

3.  Counsel states the evidence shows:

	a.  An Inspector General's (IG) memorandum, dated 26 January 1999, demonstrates the NCARNG's promotion procedures were unclear, misleading, and in violation of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management).

	b.  A report elaborates that "[t]here is no doubt that the procedures NCARNG was utilizing in filling Recruiting and Retention Area NCOs [sic] positions deviated from NGR 600-200."

	c.  The IG stated the allegation that the NCARNG "condoned the promotion of one Soldier over another who was in a higher position on the STPA [Select, Train, Promote, Assign] list is in violation of NGR 600-200 was SUBSTANTIATED."

	d.  The National Guard Bureau (NGB) Personnel Division Chief recommended at least a partial approval of the applicant's request.

4.  Counsel contends:

	a.  The Board's conclusion regarding the applicant's promotion, "speculative at best," appears to be inconsistent with the actual history of promotions within the National Guard.

	b.  The applicant would have been on the top of the STPA list on or about June 1999 if he had been properly promoted in accordance with NGR 600-200.

5.  Counsel provides an affidavit from the applicant.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080018039 on 21 April 2009.

2.  The applicant provided new arguments that will be considered by the Board.

3.  He provided an affidavit, dated 17 March 2010, and stated:

* he served in the NCARNG from 17 March 1982 until he retired on 1 April 2001 [he probably meant 1 May 2001]
* the State of North Carolina refused to follow policy from the NGB concerning promotions for career management field (CMF) 79 (Recruiting and Retention)
* the NCARNG included CMF 79 in their promotion system per NGB guidelines after he initiated a complaint through the Department of Defense (DOD)

4.  He summarized the facts he discovered after researching other promotions to the rank of SGM and stated:

* he had 112 more promotion points than the Soldier who was promoted to SGM
* his promotion to SGM wouldn't have been "speculative at best"
* he would have been a master sergeant (MSG) with the most promotion points if he had been promoted to MSG in accordance with NGR regulation
* he would have been selected by the State Adjutant General or the delegated authority for promotion to SGM unless the State Adjutant General diverted from the established pattern for promotions
* four Soldiers at the top of the promotion list were promoted to SGM in 2004, 2006, and 2008
* the State of North Carolina followed the regulation very strictly after the DOD complaint and all promotions to SGM in CMF 79 were given to the top person on the promotion list

5.  He enlisted in the NCARNG on 18 March 1992.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was awarded military occupational specialty 79T5O (Recruiting and Retention Noncommissioned Officer) on 4 November 1996.

6.  Orders 234-108, dated 1 October 1999, were issued by the NCARNG which promoted him to MSG effective 1 October 1999.

7.  He was discharged from the Army National Guard on 30 April 2001 in the rank of MSG and was transferred to the Retired Reserve.

8.  On 21 April 2009, the ABCMR granted partial relief of his request and corrected his records to show he was:

* promoted to MSG with an effective date and date of rank of 16 June 1997 with entitlement to all back pay and allowances
* discharged from the NCARNG in the rank and pay grade of MSG/E-8 effective 30 April 2001 and placed on the Retired List in the same grade

9.  Orders 155-801, dated 4 June 2009, show the effective date of his promotion to MSG was amended to 16 June 1997 by the authority of the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and his counsel's contentions are acknowledged.  However, the evidence of record does not indicate that any further error or injustice exists in this case.

2.  The evidence of record does not show the appropriate regulatory guidance was not used by the NCARNG during the promotion selection process in 1999.

3.  Counsel contends the applicant would have been promoted to SGM in 1999 based on the pattern of promotions within the NCARNG.  However, there is insufficient evidence to determine that an error or injustice exists.  It is speculative to presume he would have been promoted to SGM in 1999 by a promotion board.  Selection by the board would have come only after a review/comparison of the applicant's records against those of other Soldiers competing for SGM and the needs of the NCARNG.  The ABCMR is not in a position to presume the applicant would have automatically been selected.  It therefore cannot get to the next question, of where he would have been on the list had he been selected..

4.  Based on the previous Board's decision, the applicant's effective date and date of rank to MSG were changed from 1 October 1999 to 16 July 1997.  Orders were published on 4 June 2009 showing this correction.

5.  Counsel contends the Board's conclusion regarding the applicant's promotion to SGM was "speculative at best."   However, the applicant would have had to have been selected for promotion to SGM and the promotion would have required approval by the State Adjutant General or the delegated authority.  It cannot be determined whether he would or would not have been selected for promotion to SGM in 1999.  A promotion board would not have been required to select the applicant, even though he may have had more promotion points than the person who was promoted to SGM.

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 the overall merits of this case are 


insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20080018039, dated 21 April 2009.



      __________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)                                         AR20100013020



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ABCMR Record of Proceedings (cont)                                         AR20100013020



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