IN THE CASE OF:	  

		BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100023061 


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 promotion to sergeant first class (SFC)/E-7.

2.  The applicant states he was in a promotable status upon demobilization in 2005; however, he was told he was not promoted because of his incapacitation status and he was pending a medical evaluation board (MEB).  He claims each time he requested promotion the reason he was denied was changed.  

3.  The applicant provides the following documents in support of his application:

* Army Regulation 600-8-19 (Promotion Regulation) Excerpt
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* DD Form 261 (Line of Duty and Misconduct Status)
* 2005 Noncommissioned Officer Evaluation Report (NCOER) 
* Enlisted Promotion System (EPS) e-mail messages 
* Army National Guard (ARNG) Enlisted Promotion Point Worksheet
* Third Party DD Forms 2823 (Sworn Statements)
* e-mail message on main body return, dated 30 June 2010.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that on 15 August 2008, he was honorably discharged from the Idaho Army National Guard (IDARNG), by reason of medical unfitness for retention, and transferred to the Retired Reserve.
2.   The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) issued to the applicant upon his discharge from the ARNG shows he held the grade of staff sergeant (SSG)/E-6 and he had completed a total of 17 years, 11 months, and 23 days of military service for retired pay purposes. 

3.  The applicant’s record shows he was promoted to SSG/E-6 on 15 December 2000, and that this is the highest rank he held during military service.  

4.  The applicant’s record is void of any evidence that he was ever selected for unit vacancy promotion to SFC/E-7 by the State while serving in the IDARNG. 

5.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  This official recommends disapproval of the applicant’s request.  He states the IDARNG confirms the applicant was on promotion lists dated 1 July 2005 and 16 November 2006; however, there are no records in the State indicating a position vacancy was available to the applicant during those periods.  It further states the applicant failed to meet the eligibility for promotion at the time because he was not in a drilling status from 1 November 2005 through 
31 October 2006, and the governing regulation stipulates a member must complete a minimum of 1 year of active duty immediately prior to the convening date of the board.  

6.  The NGB opinion further indicates the reference the applicant made to the regulatory policy regarding the promotion for members pending a military occupational specialty (MOS) medical retention board (MMRB), medical evaluation board (MEB), or physical evaluation board (PEB) will not be denied if otherwise qualified is not applicable in this case because the applicant was not qualified.  Further, the effective date of this regulatory policy was 1 April 2008, and is not applicable in the applicant’s case.  The NGB confirms this opinion was coordinated with the State, which concurs with its recommendation to deny the applicant’s request for the reasons stated.   

7.  The applicant responded to the NGB opinion by indicating while the State denies it can locate a record of a request for fill for an available vacancy, the statement he provides from a Chief Warrant Officer Three (CW3) from his unit confirms there were vacancies and that he was not selected to fill them although the unit requested him for the fill.  He claims he was not drilling due to injuries he received in Iraq and was actually hospitalized for a large portion of the period in question.  Therefore, he was essentially denied promotion on the basis of his medical condition. 
8.  In his rebuttal to the NGB opinion, the applicant further claims while attempting to resolve this issue at the lowest possible level, the ARNG came up with several different reasons he could not be promoted.  As he refuted each reason, they continued to move on to another reason.  He states he was clearly eligible for promotion and until discharged, he had fully intended to return to his unit.  He claims his leadership clearly intended for him to be promoted.  He states he earned the promotion, was eligible for the promotion, and should receive the promotion.  

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), effective 
25 January 2005, provides the Army’s enlisted promotion policy.  The authority to authorize position vacancy promotions rests with the State.  Paragraph 1-8 contains standards of service and stated promotions are based on position vacancies.  

10.  Paragraph 1-10 of the same regulation outlines conditions that place members in a non-promotable status. The versions of the regulation prior to 
10 January 2006, stated a Soldier undergoing medical evaluation proceeding to determine ability to perform in recommended MOS was in a non-promotable status.  The version of the regulation, effective 10 January 2006, added provisions ensuring Soldiers pending evaluation by an MMRB, MEB or PEB would not be denied promotion.  

11.  Enlisted ARNG promotions were not governed by Army Regulation 600-8-19 until the version of the regulation that became effective on 21 August 2006.  Prior to this date, the regulatory guidance for ARNG promotions was contained in National Guard Regulation 600-200.  In both governing regulations, the authority to authorize position vacancy promotions rests with the State. 

12.   Paragraph 7-20 of Army Regulation 600-8-19, effective 21 August 2006, provided the promotion criteria for sergeant to sergeant major for ARNG Soldiers.  It stated Soldiers undergoing MMRB/MEB will be considered for promotion board action.  However, they cannot be selected for promotion until they have been found qualified by a board.  Soldiers who are already promotable and pending referral to a MMRB, MEB, or PEB will not be denied promotion based on medical disqualification if they are otherwise qualified for promotion. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been promoted and was unjustly denied promotion contrary to the governing regulation based on his 


medical condition has been carefully considered.  However, there is insufficient evidence to support this claim. 

2.  By regulation, the authority to authorize unit vacancy promotions rests with the State.  ARNG enlisted promotion policy was not included in Army Regulation 600-8-19 until the version published on 21 August 2006.  Further, prior to the version of the regulation effective 10 January 2006, Soldiers undergoing MMRB/MEB/PEB were in a non-promotable status.  As a result, even under promotion policy of Army Regulation 600-8-19 the applicant was not eligible to be promoted prior to 21 January 2006.  

3.  Contrary to the applicant’s assertions that he was recommended for a unit vacancy promotion by unit leadership, the State indicates there is no record of the promotion recommendation or of unit vacancies at the time.  State officials further indicate that even subsequent to the regulatory change ensuring members pending MMRB/MEB were not denied promotion based on their medical conditions if otherwise qualified, the applicant was not qualified for promotion because he had not been in a drilling status from 1 November 2005 through 31 October 2006, a qualification for unit vacancy promotions. 

4.  Absent State confirmation of a unit vacancy and authority to promote the applicant and verification that other than his medical conditions he was otherwise qualified for promotion there is an insufficient evidentiary basis to support 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 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)                                         AR20100023061



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ABCMR Record of Proceedings (cont)                                         AR20100023061



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