IN THE CASE OF:	  

		BOARD DATE:	    16 September 2010

		DOCKET NUMBER:  AR20100020860 


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 earlier request for promotion to staff sergeant (SSG)/E-6 retroactive to July 1986 as an exception to policy.

2.  The applicant states that his witness statements show he was recommended and selected for promotion to SSG/E-6 by a promotion board, but orders were never published after the drill weekend because his unit, the 550th Military Intelligence (MI) Battalion (Combat Electronic Warfare (EW) Intelligence), as a new organization, was not fully staffed with administrative personnel and the battalion's highest priority was correcting deficiencies from a previous organizational readiness evaluation and preparation for follow-up inspection.  His chain of command clearly remembers and recognizes their administrative error due to lack of manpower and failure to follow through to ensure promotion orders were published.

3.  The applicant provides copies of the following documents:

* a memorandum, dated 15 July 2009, from the Deputy Inspector General (IG)
* his previously-submitted applications with allied documents and statements of support
* previous Army Board for Correction of Military Record (ABCMR) Records of Proceedings and/or administrative letters


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 Numbers AR2001056777 on 11 September 2001, AR2002070780 on 23 July 2002, and AR2003093256 on 24 February 2004.

2.  The applicant submitted a copy of a memorandum from the Deputy IG, U.S. Army Reserve Command, Fort McPherson, GA, in which the Deputy IG compiled the applicant's previously-submitted evidence in the form of a new argument.  Although all of the evidence considered by the Deputy IG was previously considered by this Board, as an exception to policy the Board accepts the Deputy IG's argument as an argument which was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show he was born on 17 April 1939.

4.  Having had prior service in the U.S. Air Force, his records show he enlisted in the U.S. Army Reserve (USAR) on 23 August 1975 and initially held military occupational specialty (MOS) 36C (Wire Systems Installer).  He served through multiple extensions or reenlistments in the USAR and attained the rank/grade of sergeant (SGT)/E-5 on 13 August 1978.

5.  In or about August 1978, the applicant was assigned to Detachment 1, 453rd Division Support Company (DSC) (EW), 78th Division (Training), Red Bank, NJ, as a cook in MOS 94B (Food Service Specialist).

6.  His DA Form 2166-6 (Enlisted Evaluation Report) for the period September 1984 through August 1985 shows he served as a cook in duty MOS 94B3O (an SSG/E-6 position).

7.  On 1 August 1985, he completed a formal Reserve Component (RC) 2-week Food Service MOS Enhancement Training course (22 July 1985-1 August 1985).

8.  On 5 July 1986, he completed the RC Noncommissioned Officers Primary Leadership Development Course.

9.  On 15 July 1986, while serving with the 453rd DSC (EW), in Pedrickton, NJ, his immediate commander recommended him for promotion to SSG/E-6 by memorandum addressed to the Commander, 550th MI Battalion.  His immediate commander stated the applicant was qualified, experienced, and had met all the requirements for the grade authorized for his position.
10.  There is no indication in the applicant's available records that shows what the outcome of that recommendation was or:

	a.  if the 550th MI Battalion had the authorization to promote him to SSG/E-6 or

	b.  if the applicant appeared before the 550th MI Battalion promotion board, was recommended for promotion by the battalion promotion board, the battalion commander approved the promotion board proceedings, or the applicant's name was incorporated onto the promotion standing list.

11.  At some point in July 1986, the 453rd DSC (EW) was inactivated and the 550th MI Battalion was activated.  Several members of the 453rd DSC (EW), including the applicant, were transferred to the newly-activated 550th MI Battalion.

12.  On 30 December 1986, he was reassigned from the 550th MI Battalion to the 198th Army Security Agency Detachment, Armed Forces Reserve Center, Fort Wadsworth, NY, as an SGT/E-5.  In connection with this transfer, the applicant's battalion command sergeant major (CSM) stated the following on 21 July 2008:

When the 550th MI Battalion was activated, the 453rd in Pedricktown was the nucleus and the detachment was effectively deactivated.  Members of the detachment, including [the applicant], were required to drill in Pedricktown.  There were no provisions for overnight accommodations in Pedricktown and the approximate two-hour, one-way travel time from the Fort Hancock area to Pedricktown was a significant deterrent to regular drill attendance.  I agree that [the applicant] was fully qualified for promotion to 94B3O (E-6), and that he was occupying the unit vacancy.  His commander recommended him for promotion and a promotion package was prepared.  Unfortunately, [the applicant] was unable to drill with the battalion in Pedricktown due to the distance from his residence in North Jersey.  He transferred to a unit closer to his home prior to his consideration by the promoting authority (1175th USATTU).  Also, there may well have been administrative irregularities that I am not unaware of.

13.  On 30 July 1990, the applicant enlisted in the New Jersey Army National Guard for a period of 3 years in the rank/grade of SGT/E-5.

14.  On 15 March 1995, he was voluntarily transferred to the U.S. Army Reserve Control Group (Individual Ready Reserve).

15.  On 17 April 1999, on his 60th birthday, he was placed on the Retired List.

16.  He previously submitted the following documents:

	a.  Copies of various unit manning reports, dated 3 August 1985 and 15 March 1985, show him assigned to the SSG/E-6 position.  These forms also show his unit had an administrative clerk assigned to the "Clerk Typist" position.  He also submitted copies of various unit manning charts, dated 24 September 1984 and 15 March 1985, that show him assigned to an SSG/E-6 position.  These forms also show the 453rd DSC [shown as Army Security Agency (ASA) (Division Support)] had an administrative clerk assigned to the "Clerk Typist" position.

	b.  Copies of a unit manning report, dated 1 August 1986, show he was assigned to a SSG/E-6 position within the Food Service Section of the 550th Military Intelligence Battalion, Pedricktown, NJ.  The battalion S-1 (Personnel) section is not shown; therefore, it is unclear if this battalion had appropriate personnel support assigned.

	c.  A copy of his DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)) for the period December 1988 through November 1989 shows he was assigned to Company A, 1st Battalion, 309th Infantry, 1st Brigade, 78th Division, Red Bank, NJ, in the rank/grade of SGT/E-5 as a first cook.  This NCOER shows he needed improvement in physical fitness and that he was rated as a marginal Soldier with fair overall potential.

	d.  A letter from is former company commander who is now a retired major, states this was the third letter of support for the applicant's promotion that he has submitted.  He further states, in effect, that he is puzzled as to why the Board cannot ascertain that an error or injustice has occurred because the applicant was recommended for promotion twice and was never formally selected for promotion, which he attributes to the considerable disruption of personnel administration at the time.

	e.  A memorandum from a former company commander who is now a lieutenant colonel, supports the applicant's request because the applicant's former first sergeant (1SG) supports it.

	f.  A memorandum from the former 1SG contends the applicant was qualified for promotion to the pay grade of E-6 during the 1988-1989 time frame.

	g.  His supervisor during the 1988-1990 time frame asserts in a letter that he submitted recommendations for promotion of the applicant in 1988 and 1989 
to the senior noncommissioned officer in charge, only to find out that nothing had been done.  He states that prior to his retirement in 1990, he inquired to the CSM as to the status of the applicant's promotion and was informed that the applicant would not be promoted and that the CSM did not want to discuss the matter.  He further states that he informed the applicant, who in turn went to the CSM and was told that he could not be promoted.  Shortly thereafter, the applicant transferred to the Army National Guard.

	h.  A copy of a reconstructed DA Form 3355 (Promotion Point Worksheet) shows he reconstructed a request for re-computation of his promotion points.  The reconstructed request is signed by an unknown individual in one block and contains no signature in the approval authority block.

17.  The applicant also submits a copy of a memorandum from the U.S. Army Reserve Command Deputy IG who opines that after reviewing the applicant's various documents and the previous ABCMR decisions, he found new and compelling evidence provided by the applicant's former company and battalion-level chain of command concluding the applicant would have been promoted to SSG/E-6 had it not been for a series of errors as follows:

	a.  The former company commander indicated the applicant was qualified for promotion.  He held the appropriate MOS, was assigned to the higher grade, had completed the appropriate education, and possessed the proper time in grade.

	b.  His battalion commander stated his policy was to promote Soldiers who were fully qualified for promotion and recommended by their company commanders.

	c.  The CSM agreed the applicant was qualified for promotion.

	d.  The former operations and training officer attributed the errors to lack of required support from higher headquarters during a complex transition time.

	e.  The 1SG stated the applicant was qualified for promotion and that an appropriate promotion packet was forwarded to his reporting command promotion board.

18.  The U.S. Army Reserve Command Deputy IG concluded that the preponderance of evidence shows that at the time the applicant was submitted for promotion, his unit was experiencing extreme turbulence as a result of restructuring/transformation and a failed inspection.

19.  Army Regulation 140-158 (Army Reserve Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, provided the policies and procedures pertaining to promotion of USAR enlisted Soldiers.  It provided that in order to standardize promotion qualifications throughout the USAR and to ensure promotion of the best qualified individual, enlisted promotion selection board action would be required for all individuals promoted to the pay grades of E-5 through E-9.  The promotion of Soldiers to pay grades E-5 through E-9 would be based solely on Soldiers' qualifications and appropriate position vacancies.  Promotions would not exceed the cumulative vacancies for each pay grade.

20.  Chapter 3 (Promotion of Soldiers Assigned to Troop Program Units) of Army Regulation 140-158 stated that field commanders of any unit authorized a commander in the grade of lieutenant colonel or higher could promote Soldiers to the grades of SGT and SSG who were assigned to units that were assigned or attached to their command.  Soldiers in units attached to their command would be promoted only after coordination with the parent unit for determining a valid vacancy.  Commanders used a formula in the computation of unit and command vacancies by grade and position.  The maximum number of promotions that would be made in each pay grade above E-4 in a unit was referred to as "cumulative vacancies" and was determined by adding or subtracting several categories of Soldiers, including overstrength personnel, Active Guard Reserve personnel, Army Reserve Technicians, Simultaneous Membership Program personnel, and other categories.  These numbers are compared against the required, permitted, and assigned strength to reach a cumulative vacancy.  Promotions would not exceed the cumulative vacancies.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been promoted to SSG/E-6 in July 1986.

2.  The evidence of record shows the applicant was indeed recommended by his company commander for promotion to SSG.  However, there is no evidence which shows that a vacancy existed in his grade (within the cumulative ceilings for each grade) and that he was unjustly denied a promotion.  Absent approval by the promotion authority and the issuance of a promotion order, the company commander's recommendation was just that – a recommendation.

3.  There is conflicting information regarding his recommendation for promotion.  On the one hand, his former battalion commander states it was his policy to promote an individual who was fully qualified for promotion, but for unknown reasons the same battalion commander did not take action.  On the other hand, his battalion CSM, who normally runs the SGT/SSG promotion system in a battalion, agrees that the applicant was fully qualified for promotion, was occupying a unit vacancy, and his commander recommended him, but also states the applicant was unable to drill with the battalion due to the distance from his residence.

4.  The applicant was assigned to the 550th MI Battalion from on or about July 1986 to 30 December 1986, but he did not drill with the unit due to the geographical distance, as evidenced by his former CSM's statement.  It is reasonable to presume a battalion commander would not take action on a member who is recommended for promotion, but is not drilling with his unit.

5.  The applicant was reassigned in December 1986 from the 550th MI Battalion to the 198th ASA, where he remained until July 1990 when he enlisted in the Army National Guard.  It is unclear why he did not raise the promotion issue with the 550th MI Battalion's chain of command or the 198th ASA's chain of command.  He had a chain of command and other avenues (such as the Inspector General at that point in time) in which to pursue relief at that time if he believed that he was not being treated fairly.  The evidence does not suggest that it was believed at the time that such was the case and given the amount of support he has now garnered from his chain of command, it is unlikely that the issue would not have been resolved if he had a case.

6.  The numerous letters from various members of his chain of command speak highly of the applicant and support his promotion to SSG/E-6.  However, these types of statements or letters may often reflect retrospective thinking or second thoughts, situational ethics, or are perceived as such.  Normally, the authors acknowledge an administrative error and articulate their positions accordingly.  As such, none of these statements corroborate the applications promotion to SSG/E-6.  Further, his NCOER for the period December 1988 through November 1989 indicates he may not have kept up high standards.

7.  Many Soldiers in the Army who are qualified and deserving of promotion and are recommended for promotion do not get promoted, and in most cases it is because of the ceilings placed on the number of promotions authorized.  While there is no evidence to show that such was the case here, there is also no evidence to explain why he was not promoted, just speculation.

8.  While all of the individuals concerned assert it was a faulty administrative system that failed the applicant, no evidence has been presented to show that such was the case or that actions were taken on the part of the chain of command to follow-up any actions that were not acted upon in a timely manner.

9.  In view of the foregoing evidence, the applicant is not entitled to 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 to amend the decision of the ABCMR set forth in AR2001056777 on 11 September 2001, AR2002070780 on 23 July 2002, and AR2003093256 on 24 February 2004.



      __________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)                                         AR20100020860



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ABCMR Record of Proceedings (cont)                                         AR20100020860



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