IN THE CASE OF:	  

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20100022398 


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, in effect, restoration to the rank/grade of Command Sergeant Major (CSM)/E-9, reenrollment in the U.S. Army Sergeants Major Academy (USASMA), and all due back pay. 

2.  He states, in effect, the record of reduction to the grade of Master Sergeant (MSG)/E-8 is both in error and unjust.  He contends that when his orders were published, the wrong regulatory cite was used.  The orders issuing authority cited Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 
10-19a, U.S. Army Reserve (USAR), voluntary request for reduction.  He believes the more accurate cite to use should have been paragraph 10-16, reduction for failure to complete training.

3.  He contends his deployment in support of Operation Iraqi Freedom (OIF) impeded completion of the online distance learning portion [hereafter referred to as Non-Resident - Sergeants Major Course (NR-SMC), Phase I].  The same conditions contributed to his security clearance being revoked (unbeknownst to him), which further impeded completion of NR-SMC, Phase I and also precluded his attendance at the Resident – SMC (R-SMC), Phase II. 

4.  He provides numerous forms, orders and memoranda listed as A through F.3 of the Attached Document List.   




CONSIDERATION OF EVIDENCE:

1.  His records show he is currently assigned to the USAR Control Group (Reinforcement), Individual Ready Reserve (IRR), in the grade of MSG/E-8.

2.  Orders 05-206-00028, dated 25 July 2005, show that while assigned to a Troop Program Unit as a drilling Reservist, he was conditionally promoted to the grade of Sergeant Major (SGM)/E-9, effective 14 July 2005.  At the time of his conditional promotion to SGM, he had over 27 years of military service.  The additional instructions on his orders stated that the promotion to SGM was awarded with the condition he must be enrolled in and successfully complete the SMC within 36 months of the effective date of the order under the SMC corresponding studies, or within 18 months from the effective date of the order under the SMC resident course.

3.  The same order stated the Soldier understands and agrees that if he or she fails to meet the conditions; is subsequently denied enrollment; becomes an academic failure, does not meet graduation requirements, or is declared a “No-Show,” the Soldier is subject to reduction under the provisions of Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), paragraph 7-12(d), to the grade and rank held prior to the promotion.  

4.  A printout from the USASMA website showed he was enrolled in Class 32, which was scheduled to begin on 1 April 2005.   

5.  The applicant provided four messages sent from his course facilitator, SGM L__, that show the following:

	a.  On 13 December 2005, he was granted an extension until 31 December 2005 to allow his time to complete Module (MOD) 2.

	b.  On 3 February 2006, he was placed in a Red Status for failure to complete MOD 2 due to a missing sub-course.  He was asked to fax the document immediately.  He was also reminded that he had not begun working on MOD 3 and the required completion date was 31 March 2006.  

	c.  On 21 February 2006, the facilitator acknowledged receipt of the missing sub-course from MOD 2; however, he mentioned the instruction and evaluation forms were missing from MOD 1 and asked the applicant to have his grader complete and fax the forms. 

	d.  On 24 April 2006, he was placed in a Red Status for failure to complete three sub-courses within MOD 3. 
	e.  On 1 June 2006, the applicant's new course facilitator for Phase I, NR-SMC requested the status of uncompleted briefings which were due on 
30 November 2005 and 31 March 2006.  She noted that if the applicant was having a problem getting the briefs done, he needed to let her know; if not, she would have to send his chain of command a CSM Help letter. 

6.  He provided a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 1 October 2005 through 30 June 2006.  The report shows, in Part IV (Rater – Values/NCO Responsibilities) he received all “excellence” ratings.  Key bullets:

* Assumed responsibility for a 10-month vacant CSM position and he achieved superior results despite limited resources  
* Chosen ahead of his peers to prepare and deploy the unit for short notice OIF mission
* Sacrificed personal time to brief Soldiers on career enhancement opportunities in today’s Army

7.  A review of the Army Human Resources Command (AHRC) Integrated Web Services (IWS) shows that on 16 May 2006, he volunteered for current operational deployment.  His record contains Orders 06-186-00055, dated 5 July 2006, which show he was mobilized in support of OIF for a period of 543 days and was scheduled to report on 7 July 2006. 

8.  He provided a second NCOER for the period 2 July 2006 through 30 June 2007.  The report shows he served in the position of battalion CSM for a Combat Support Battalion in the deployed theater of Iraq.  He was responsible for six companies supporting OIF.  His duties consisted of development of training, mission, leadership, discipline, NCO and Soldier welfare programs, and combat operations of the battalion.  He received three “excellence” ratings and his leadership was noted to have resulted in “No Wartime” mission failures during his tenure in Iraq.

9.  He provided two memoranda, dated 14 June and 1 July 2007, subject:  Intent to Revoke Security Clearance.  These documents were addressed to the applicant and to his chain of command showing a preliminary decision was made by the U.S. Army Central Personnel Security Clearance Facility to revoke his clearance due to security concerns.  A suspense date was given to both parties to submit required documentation and/or rebuttal.


10.  A memorandum, dated 10 August 2007, shows his forward-deployed battalion commander highly recommended him to serve in any open position requiring his skills, leadership, and background.  

11.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from active duty on 15 October 2007 and transferred to his Reserve unit after completing 1 year, 3 months, and 12 days of net active service for this period.  

12.  The AHRC, IWS system also shows that on 7 March 2008, the USASMA contacted the applicant through email and notified him that a deferment to attend the Phase II, R-SMC had not been received and he was asked to contact the academy in reference to his current status.  He was provided with specific points of contact and accompanying phone numbers.  He was also given instructions for submitting a request for deferment through his chain of command.  

13.  On 15 April 2008, the applicant acknowledged receipt of the dismissal from Phase I, NR-SMC and elected to submit an appeal.  

14.  A memorandum from the commandant of the USASMA, dated 28 April 2008, shows a DA Form 1059 (Service School Academic Evaluation Report) was prepared showing the applicant failed to achieve course standards and was dismissed from Phase I, NR-SMC effective 28 April 2008. 

15.  An email transmission between the applicant and SGM I____ during the period 13 and 19 May 2008 shows he requested additional time to complete Phase I, NR-SMC due to his recent deployment.  He was informed that there were no deferments for Phase I, NR-SMC because his class graduated in 2007 and he had two years to complete the course, and that a Lack of Progress Dismissal had been mailed to his unit commander.  

16.  On 1 June 2008, the applicant submitted a request for reconsideration to complete the SMC.  He stated that during his enrollment in Phase I, NR-SMC, he was cross leveled and deployed with less than a month's notice.  He contacted the school upon notification of his pending deployment and was told he could continue the course upon his return.  He contended he was not afforded access to computers while at the mobilization site and upon entry to the deployed theater, computer access was limited in the location he was assigned.

17.  He also stated that once he returned home in September 2007, he tried to access the system but was not able to.  He contacted the school and was informed he had a new counselor.  He requested assistance with re-enrollment from one of the course facilitators and then contacted the academy on different occasions as shown in the email transmissions which occurred between 16 and 19 May 2008.

18.  Orders 08-318-00021, dated 13 November 2008 show he was reduced from SGM to MSG, effective 1 June 2008 and a date of rank of 1 November 1994.  The authority used was Army Regulation 600-8-19, chapter 10, section VII, paragraph 10-19a(3).

19.  On 9 December 2008, he was released from his current assignment and transferred to the Retired Reserve due to completion of 20 years or more of qualified service for retired pay at age 60. 

20.  An email transmission between parties at Headquarters (HQ), U.S. Army Reserve Command (USARC) and the Office of the Chief, Army Reserve (OCAR) shows the commands agreed that there was no reason he could not complete Phase I, NR-SMC while in the deployed environment, stating he had two years to do so. 

21.  A letter addressed to the Commandant, USASMA, dated 16 December 2008 from the CSM, OCAR shows he found no reason that would have precluded the applicant from completing the course in the required two-year time frame.  He also took into consideration that the applicant's security clearance has been revoked, thereby making him ineligible for promotion to SGM in accordance with Army Regulation 600-8-19, paragraph 1-15a.  He concluded that he supported the USASMA with the Lack of Progress Dismissal and recommended disapproval of the applicant's request for appeal.

22.  On 20 July 2010, a favorable determination was made and his Secret Security Clearance was reinstated. 

23.  A memorandum was initiated by the Office of the Assistant Secretary of the Army to AHRC, St. Louis, requesting the applicant's reinstatement to the USASMA and to the rank of CSM.  It was noted that upon approval, he would serve in a CSM billet with the 641st Regional Support Group.

24.  On 15 September 2010, the applicant submitted a request for restoration to the rank of SGM to the CSM, OCAR.  An email response shows he was directed to seek relief through the ABCMR.

25.  During the processing of this case, an advisory opinion was obtained from HQ, USARC.  USARC recommended disapproval of his request to be reinstated as a SGM and to be reappointed as a CSM in the USAR with subsequent reenrollment in the USASMA based on the following reasons:
   a.  Soldiers selected for promotion to SGM who are nongraduates of the USASMA will be conditionally promoted.  He was informed that he must complete all phases of the NR-SMC within 36 months from the effective date of his promotion orders.  By accepting promotion to SGM on 14 July 2005, he agreed that if he failed to meet these conditions for promotion, or was subsequently denied enrollment, became an academic failure, or did not meet graduation requirements, he would be subject to reduction to the grade and rank held prior to promotion.  He was also informed that if reduced, service performed in the higher grade would not be considered for retirement, date of rank, or any other determinations dependent on his grade.
   
   b.  Annotations made in his Soldier Management System record indicates the following:
   
   	(1) He was notified by AHRC on 13 January 2005 that he was enrolled in the NR-SMC.
   
   	(2) On 6 February 2007, AHRC notified his command on his lack of academic progress.
   
   	(3) On 7 March 2008, AHRC notified him that they had yet to receive a deferment request to attend the R-SMC, Phase II; however, it was discovered that he had not completed the NR-SMC, Phase I and as a result, he was subsequently disenrolled from the course on 28 April 2008.

   c.  On 1 June 2008, he requested an appeal of the disenrollment; however, the OCAR CSM agreed with the disenrollment, and the appeal was denied.
   
   d.  The applicant was mobilized and deployed in support of OIF during the period 4 July 2006 through 15 October 2007.  HQ, USARC stated it understood the complexities Soldiers face in deployed operations due to technological inadequacies and deployment conflicts.  
   
   e.  The applicant indicated he was unable to complete all modules of the NR-SMC, Phase I during his deployment; however, based on the information provided, he had adequate time to complete the course prior to (over 1 year) and after his deployment.  Documents in his request also indicate that many other students in his class had been deployed and successfully completed Phase I.
   
   f.  In June 2007, the applicant was notified through his command of the intent to revoke his security clearance due to financial issues.  This also made him ineligible for attendance to the USASMA, which was not resolved prior to his disenrollment.
26.  A copy of the advisory opinion was sent to the applicant for response and/or rebuttal.  In his response he stated he appreciates that HQ, USARC understands the complexities Soldiers face in deployed operations due to technological inadequacies and deployment conflicts.  However, challenges faced by Soldiers in deployed operations vary in scope and depth and it is presumptuous to infer that the 16 months prior to April 2006 was adequate time to complete the NR-SMC, Phase I, when the standard clearly provides 24 months for completion.  

27.  He also states that eight months of the 24-month time allotment for completion of the NR-SMC, Phase I was consumed by the responsibilities and demands of pre-mobilization followed by the rigors of deployment where his combat environment stretched across 50,000 square miles.  He contends he had sporadic use of computers and unreliable access to the internet, as well as no time for pursuits other than those affecting mission accomplishment and concerning the safety, welfare, and morale of 800 Soldiers.	
	
28.  He states he was not notified of the intent to revoke his security clearance in June 2007 and neither was his command.  It was not until he redeployed back to the states did he learn of the intent or the revocation of his security clearance.  He states his marriage could not withstand the hardship of his deployment.  Marital problems led to financial problems, which resulted in not only the security clearance revocation but divorce.  The security clearance was revoked without procedural benefits afforded under Army Regulation 380-67 (The Department of the Army Personnel Security Program), which created an injustice, and contributed to his disenrollment from USASMA. 

29.  Army Regulation 600-8-19 governs enlisted promotions and reductions in the military personnel system.  Paragraph 1-27 pertains to the Noncommissioned Officers Education System (NCOES) requirement for promotion and conditional promotion.  It states that a Soldier must be a USASMA graduate for promotion to SGM.  Soldiers selected for promotion to SGM who are non-graduates of the SMC will be conditionally promoted.  Soldiers who fail to successfully complete, fail to remain eligible to be scheduled for or attend, who are denied enrollment in, or who do not attend their scheduled NCOES class (through fault of the Soldier) will be administratively reduced and/or removed from the promotion list.  The effective date of administrative reduction is the date of the action that caused the Soldier to be ineligible to retain the promotion.  The DOR will be the previous DOR held at the reduced grade.

30.  Paragraph 7-63 of the same regulation pertains to other reasons for reduction.  Subparagraph 7-63e states Soldiers conditionally promoted to SGM or MSG with concurrent appointment to CSM or 1SG who fail to successfully complete USASMA, respectively, due to their failure to meet standards, or through misconduct or voluntary withdrawal, will be reduced without board action or appeal.  Soldiers will be automatically reduced on the effective date the Soldier fails the course, withdraws from the course, or on expiration of the time set for completion at promotion.  

31.  Army Regulation 350-1 (Army Training and Leader Development) provides the policy for individual military education and training.  Paragraph 3-14f(4)(d) pertains to disenrollment from the USASMA.  It states that Soldiers disenrolled from the USASMA for any reason other than compassionate or medical reasons, will not be eligible to re-enter the course.  Disenrollment for compassionate transfer or other reasons beyond control of the individual will be made without prejudice.

32.  Paragraph 3-16 of Army Regulation 350-1 provides guidance on the request for deferment.  It states that operational deferments will only be granted for unit deployments.  Enlisted Soldiers may be deferred one time for operational reasons by any commander in the grade of colonel or higher and all requests must be made through AHRC.  

33.  Army Regulation 350-1, paragraph 3-49 states the SMC is the capstone of enlisted training.  MSGs and MSGs (Promotable), SGM, and CSM are prepared for both troop and staff assignments throughout the defense establishment.  The SMC is task based and performance oriented.  Areas of study include leadership, combat operations, sustainment operations, team building, communication skills, training management, and professional development electives.  Successful completion of the SMC is a requirement for promotion to SGM and appointment to CSM.

34.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction) prescribes policy and procedures pertaining to the classification, promotion, reduction, and grade restoration of enlisted Soldiers of the USAR.  

35.  Paragraph 8-18 provides for the conditional promotion to SGM and states, if selected for promotion to SGM, or as a CSM designee, by the board, the MSG/ First Sergeant (1SG) will be promoted conditionally to SGM and automatically selected for enrollment in the USASMA.  The promotion will be awarded on the condition the SGM is enrolled in and successfully completes the course or the Soldier will be reduced to the grade and rank previously held per paragraph 
7-13d.  When circumstances beyond the control of a conditionally promoted SGM delay enrollment and completion of the course (that is, funding, seating, contingency operations, and so forth), the Commander, AHRC (USAR Personnel) may extend the required period for enrollment and completion.

36.  Paragraph 8-18 also provides the course timeline for completion.  It states the conditionally promoted SGM must be enrolled in and successfully complete the SMC within:  

   a.  18 months of the date of promotion if scheduled for enrollment in the resident course; or
   
   b.  36 months of the date of promotion if enrolled in the corresponding studies course.
   
   c.  Should a conditionally promoted SGM be denied enrollment, become an academic failure, fail to meet graduation requirements, be declared a “No-Show,” or fail to successfully complete the SMC in the allotted time, the Soldier will be reduced to the grade and rank held prior to the conditional promotion.

37.  Paragraph 8-21 of the same regulation provides the basis for authorized delays in NCOES course enrollments and completion.  It states a conditionally promoted Soldier will be authorized a delay for enrollment in or completion of a required NCOES course when the Soldier:

   a.  Is called to active duty by the President under a Selected Reserve call-up (10 USC 12304);
   
   b.  Is ordered to active duty under a partial mobilization (10 USC 12302) or full mobilization (10 USC 12301a);
   
   c.  Enters on a tour of active duty for training (ADT) or active duty for special work (ADSW), including a temporary tour of active duty (TTAD), when the dates and terms of the tour of duty prevent enrollment or course completion;
   
   d.  Is verified as being ill or injured to a degree that prevents enrollment or course completion;
   
   e.  Has been approved for a delay in writing by a colonel or above in the Soldier’s chain of command based on documented evidence; and  
    
   f.  When the reason for the delay ends, the Soldier must be rescheduled for enrollment/completion within the period of time prescribed. 
   
   
   
   
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to the rank/grade of SGM/E-9 on 14 July 2005 upon the condition that he successfully completes the USASMA.  He began Phase I, NR-SMC on 1 April 2005.  The evidence of record shows that on 
15 May 2006, he volunteered for an operational assignment in support of OIF.   

2.  The applicant was well aware of the requirement to complete the SMC when he requested the reassignment.  He was not cross-leveled and mobilized as he is contending.  He volunteered for the assignment when he was in Phase I, NR-SMC.  

3.  The readiness demand inherent with pre-mobilization and deployment is noted; however, the evidence also shows the applicant’s course facilitator contacted him on several occasions prior to his mobilization for OIF regarding the completion status of various courses within Phase I, NR-SMC.  There is no indication that he requested additional time for completion of the course.

4.  There is no evidence in the available record and the applicant has not provided sufficient evidence to show that he requested a course deferment due to contingency operations prior to his 4 July 2006 mobilization in support of OIF. 

5.  A conditionally promoted SGM with more than 27 years of service at the time of promotion is expected to notify his course facilitator of any difficulties he may have encountered in completing the course, be it operational or for compassion reasons, through a written request for deferment.   

6.  There is no evidence nor has the applicant presented sufficient evidence to show that his disenrollment from the USASMA for failure to achieve course standards and his subsequent reduction to MSG were in error or that an injustice has occurred.  Based on the available evidence, his promotion and reduction appear to have been conducted in accordance with applicable Army regulations and policies.

7.  His voluntary mobilization in support of OIF and the many hours he dedicated to the Soldiers under his charge has not gone unnoticed.  The fact that his marriage was not able to withstand the burden of deployment and ultimately ended in divorce is unfortunate; however, there is insufficient evidence that would warrant granting the relief requested.




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)                                         AR20100022398





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ABCMR Record of Proceedings (cont)                                         AR20100022398



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