IN THE CASE OF:	

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100015331 


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 reconsideration of his previous application for correction of his record to restore his rank to sergeant (SGT)/E-5.

2.  The applicant states, in effect, that the denial of his previous application did not take into account the regulation in force at the time of his promotion to SGT/E-5 and subsequent reduction to specialist (SPC)/E-4.  Conditional promotions were suspended at the time he was promoted to SGT/E-5 and the requirement to complete the Primary Leadership Development Course (PLDC) to retain the rank/grade of SGT/E-5 had been removed.

3.  The applicant provides copies of a National Guard Bureau (NGB) memorandum, dated 16 December 2003, regarding suspension of conditional promotions to SGT/E-5 through sergeant first class (SFC)/E-7; his DD Form 214 (Certificate of Release or Discharge from Active Duty); his NGB Form 22 (Report of Separation and Record of Service; and promotion and reduction orders.

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 ABCMR in Docket Number AR20090018057 on 13 April 2010.

2.  The applicant submitted a new argument which was not previously considered by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  After serving in the Regular Army and U.S. Army Reserve, the applicant enlisted in the California Army National Guard (CAARNG) on 5 April 2003.

4.  A DD Form 214 shows he served on active duty in support of Operation Iraqi Freedom during the period 15 November 2003 to 15 March 2005.

5.  CAARNG Orders 240-1022, dated 27 August 2004, show the applicant was promoted to SGT/E-5 effective 1 June 2004.  The orders include the following statement:  "Soldier must enroll in the appropriate [Noncommissioned Officer Education System (NCOES) course] within 12 months of the effective date of this promotion."

6.  CAARNG orders in the applicant's record in the interactive Personnel Electronic Records Management System show he was transferred among CAARNG units several times after his release from active duty (REFRAD) on 15 March 2005.

7.  The record shows the last transfer prior to his discharge from the CAARNG was effected by CAARNG Orders 634-1002, dated 30 December 2005.  The orders attached him to Headquarters and Headquarters Company, 578th Engineer Battalion, for administration, training, and pay.  The orders do not show the duty position he held.

8.  CAARNG Orders 144-1108, dated 14 May 2006, show the applicant was administratively reduced from SGT/E-5 to SPC/E-4 effective 4 April 2006 by authority of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 11-58.

9.  On 4 April 2006, the applicant was honorably discharged from the CAARNG.  Items 5a (Rank) and 5b (Pay Grade) of his NGB Form 22 show, respectively, "SPC" and "E4."

10.  The record is void of documentation showing the applicant enrolled in or completed PLDC prior to his administrative reduction to SPC/E-4.

11.  NGB memorandum, dated 16 December 2003, provided guidance on the suspension of conditional promotions to SGT through SFC.  The memorandum was applicable to mobilized and non-mobilized enlisted Soldiers in the ARNG.

	a.  Effective 1 January 2004, conditional promotions to SGT through SFC were suspended until further notice.  NCOES requirements and timelines for completing required courses were not changed.

	b.  All SPC's, with or without PLDC credit, were promotable to SGT.  Soldiers were required to enroll for the appropriate level of NCOES within 12 months of the effective date of promotion.  Mobilized Soldiers were required to apply for enrollment within 12 months of REFRAD.  Soldiers who failed to enroll in the appropriate NCOES course were to be boarded for reduction action.

	c.  Soldiers who elected to voluntarily separate or retire were to be considered fully eligible to separate or retire in their current grade regardless of their NCOES status, provided they were otherwise eligible.

	d.  Promotion instruments were to include one or more of the following statements:

* "Promotion is not valid and is not effective if the Soldier is not in a promotable status on the effective date of promotion."
* "An earlier effective date has been approved per National Guard Regulation 600-200, paragraph 11-60."
* "The Soldier must enroll in the appropriate NCOES course within 12 months of the effective date of (this promotion)(REFRAD).  Failure to enroll, attend, or complete any portion within the allowable time frames will result in a referral to a reduction board per National Guard Regulation 600-200, paragraph 11-60."

12.  National Guard Regulation 600-200, chapter 11 in effect at the time the applicant was promoted to sergeant/E-5 in 2004, prescribed policies, procedures, and systems to advance, promote, laterally appoint, reduce and restore in grade for all ARNG enlisted Soldiers except those included in the end-strength of the Regular Army and who were covered by the active Army promotion system.

	a.  Paragraph 11-32 states Soldiers may only be promoted into vacant positions (with certain limited exceptions).

	b.  Paragraph 11-56 stated to reduce without board action or appeal Soldiers who failed to successfully complete an NCOES course that was a condition of a promotion due to their failure to apply for, enter, or meet standards, or through misconduct or voluntary withdrawal.

	c.  Paragraph 11-58 stated to reduce without board action or appeal Soldiers who involuntarily lost their positions due to unit reorganization, inactivation, full-time support utilization requirements, or downgrading Support Personnel Management Document positions.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for reinstatement to the rank/grade of SGT/E-5.

2.  The evidence of record indicates two possible reasons for the applicant's reduction to SPC/E-4.

	a.  Under the rules in effect at the time, he was required to enroll in the appropriate NCOES course, in this case PLDC, within 12 months of his REFRAD.  There is no evidence he did so.  However, the CAARNG orders reducing him to SPC/E-4 do not show this as the reason for his reduction.  Although NGB published guidance suspending conditional promotions, NCOES requirements were not suspended.  Notably, the NGB guidance specified that reduction for failure to meet NCOES requirements required referral to a board.  There is no evidence this happened in this case.

	b.  Generally, a Soldier holds the rank/grade required by the position to which he is assigned.  In this case, prior to his discharge the applicant was attached to a CAARNG unit in an unspecified duty position for administration, training, and pay.  It appears he was not assigned to a position requiring the rank/grade of SGT/E-5 and, as a result, he was reduced to SPC/E-4 as required by regulation.  This aligns with the citation of National Guard Regulation 600-200, paragraph
11-58, as the authority for his reduction.

3.  In the absence of evidence showing the applicant met the NCOES and duty position requirements to maintain the rank/grade of SGT/E-5, there is no basis for granting 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 the overall merits of this case are 
insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090018057, dated 13 April 2010.



      ____________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)                                         AR20100015331



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ABCMR Record of Proceedings (cont)                                         AR20100015331



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