IN THE CASE OF:	 

		BOARD DATE:	10 February 2011

		DOCKET NUMBER:  AR20100019182 


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 his counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, rescission of the applicant's reduction to sergeant (SGT)/E-5, reinstatement of his promotion to staff sergeant (SSG)/E-6, and payment of all back pay and allowances associated with his reinstatement to SSG/E-6.

2.  Counsel states, in effect, the applicant was unjustly reduced to SGT/E-5 because he did not complete the conditional requirement of his promotion to complete the Warrior Leader Course (WLC) within 270 days of his return to his home station.

	a.  He received orders to report to Fort Totten, NY for active duty in support of Operation Iraqi Freedom (OIF).  He remained on active duty without being released or returning to his home station until 1 June 2009.

	b.  He was scheduled to attend the WLC in July 2008, but his supervisor told him to find another time to attend the course because he was in charge of the range and he was scheduled to redeploy back to Fort Drum, NY.

3.  Counsel provides copies of the applicant's various orders, DD Form 214 (Certificate of Release or Discharge from Active Duty), and correspondence reflecting his efforts to try to attend the WLC.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a U.S. Army Reserve (USAR) SGT, was ordered to active duty in support of OIF.  He was to report on 3 May 2007.  

2.  Headquarters, 3rd PERSCOM (Forward), Camp Arifjan, Kuwait, Orders
07-045-0-0009, dated 14 February 2007, announced the applicant's promotion to SSG/E-6 effective and with a date of rank of 14 February 2007.  The additional instructions state "Soldier is promoted contingent on completing the WLC.  If the Soldier fails to successfully complete, fails to remain eligible for, is denied enrollment in, or does not attend his/her scheduled the WLC class (through fault of the Soldier) within 270 days of redeployment, then the Soldier will be administratively reduced and must recomplete [SIC] for promotion."

3.  The applicant was ordered to proceed on 11 May 2007 to the 174th Infantry Brigade, with duty at Fort Dix, NJ for a period not to exceed 103 days.  His duty was later extended to 30 July 2008, and again until 20 July 2009.

4.  Headquarters, 316th Sustainment Command (Expeditionary), Coraopolis, PA, Orders 09-076-00013, dated 17 March 2009, announced the applicant's reduction in grade of rank from SSG to SGT effective 16 March 2009.  The authority line shows Army Regulation 600-8-19 (Enlisted Promotions and Reductions).  It requires administrative reduction for failing to complete required training. 

5.  The applicant continuously remained on active duty until he was released from active duty effective 1 June 2009.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at that time shows in:

* Item 4a (Grade, Rate or Rank) the entry "SSG"
* Item 4b (Pay Grade) the entry "E-6"
* Iitem 12c (Net Active Service this Period) the entry "3 years, 3 months, and 8 days"
* Item 12h (Effective Date of Pay Grade) the entry "2007  02  14"

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Promotions Branch, U.S. Army Human Resources Command, Fort Knox, KY.  The advisory official stated that there is no apparent reason based on current Army promotion and reduction policies for the applicant to have been reduced.  The applicant did not return to his home station.  Although he informed his unit of his need to attend the WLC, he was told he couldn't attend at the time.  The advisory official recommended granting of the applicant's request.

7.  On 20 December 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant did not respond.

8.  Army Regulation 600-8-19, paragraph 1-27d, in effect at the time states, in effect, that Soldiers deployed who are otherwise eligible for recommendation may be recommended and promoted to SSG without the WLC with a waiver.   Soldiers subsequently integrated onto the SSG list or selected and promoted to SSG, with a waiver, must complete the WLC within 270 days of their redeployment (date returns to home station).  Failure to successfully complete the WLC within 270 days of redeployment will result in administrative reduction to sergeant. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SSG/E-6 with the condition that he complete the WLC within 270 days of his redeployment (return to home station).  Available evidence shows he did not return to his home station until 1 June 2009, when he was honorably released from active duty.

2.  He was scheduled to attend the WLC in July 2008, but was told he couldn't go at the time.  His failure to attend the WLC was clearly through no fault of his own.

3.  In view of the foregoing, the applicant's rank of SSG should be restored with an effective date and date of rank of 14 February 2007, and all his Department of the Army records changed accordingly.  Additionally, the Defense Finance and Accounting Service (DFAS) should review his finance records to determine any pay and allowances owed to him as a result of this determination.

BOARD VOTE:

____X____  ____X__  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  revoking Orders 09-076-00013, dated 17 March 2009 that reduced him from SSG to SGT;

	b.  restoring his rank/grade to SSG/E-6 effective and with a date of rank of
14 February 2007;

	c.  immediately scheduling him to attend WLC and if he is unable to attend WLC in a timely manner, contacting the Noncommissioned Officer Education System (NCOES) Branch for further waiver approval; and

	d.  directing DFAS to audit the applicant's finance records and provide him any pay and allowances due as a result of this action.



      ___________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)                                         AR20100012124



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ABCMR Record of Proceedings (cont)                                         AR20100019182



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