IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100024351 


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 she be reinstated to sergeant major (SGM)/pay grade E-9 with an effective date of 15 January 2009.

2.  The applicant states her request for an exception to policy to retain her promotion was submitted through her unit to the Department of the Army (G-1) and was disapproved.  She was initially placed on the 99th Reserve Resource Command (RRC) (now known as the Reserve Support Command (RSC)) Permanent Promotion Recommended List (PPRL) with a board date of 
25 January 2007.  Her tenure on the list was to expire on 25 January 2009.  

	a.   A sergeant first class (SFC) at the 99th RSC told her on 26 January 2009 she could be promoted if a position was found by 1 February 2009.  After checking  with the unit to verify the position was valid the SFC called her and stated the position was valid and he would email her promotion orders.  She agreed to all conditions and emailed her acceptance letter but did not receive the promotion orders.

	b.  The SFC then told her he made a mistake and had to offer the position to another Solder who was ahead of her on the PPRL.  He told her he could still cut promotion orders if she found a valid position under the 99th RSC by 
1 February 2009.  She requested an exception to policy to maintain her position on the PPRL but did not receive a response from U.S. Army Reserve Command (USARC) at Fort McPherson, GA.


	c.  In March 2009 she was introduced to a policy that suggested the 99th RSC was mistaken in their action and could have promoted her in January 2009. The SFC researched the situation and determined he did make a mistake and issued promotion orders with a 15 January 2009 effective date.  As a condition of promotion she was required to end her mobilization and report to her unit within 90 days.  

	d.  She reported to her new unit on 8 August 2009 and a week later, her promotion orders were revoked and she was given de facto status as a SGM.  A master sergeant (MSG) at USARC stated she was not in a promotable status and although the position was valid it wasn't advertised until February 2009 and therefore the promotion was erroneous.

3.  She states her request for an exception to policy to retain her promotion to sergeant major was disapproved by USARC and the Department of the Army, Office of the Deputy Chief of Staff, G-1.

	a.  She states the vacancy she was promoted into fell under the 75th Division so the 80th Training Command could not have reported it.  According to the SFC the 75th Division position was a valid vacancy as confirmed by 2nd Brigade, 75th Division, S1 on 26 January 2009.  She states they did not exceed their cumulative vacancies since the position was available and vacant.  She states she did not know what her position sequence on the PPRL was.

	b.  There is no published guidance that stated due to overstrength numbers military occupational specialty (MOS) 42A (Human Resources Specialist) would not be promoted to E-9.

	c.  According to an updated PPRL distributed by the 99th RSC on 
29 January 2008 her board date was 25 January 2007 not 16-20 January 2007.  Both SFC's at the 99th RSC told her she could still be promoted if she found a valid vacancy by 1 February 2009.  The SFC did not realize he made a mistake on her promotion until March 2009; therefore, the promotion orders were dated March 2009 but the effective date was in January 2009.

	d.  She argues the Army Reserve should strive to uphold published guidance and regulatory requirements since it has proven that policies are commonly misinterpreted, Soldiers are misinformed/misled, and personnel practices among organization are inconsistent as it pertains to senior enlisted promotions.

	e.  She states the option of requesting a standby advisory board is unacceptable as this would put her approximately two years behind in sequence 

on the PPRL and her chances would be nil since, according to USARC, 42A 
E-9's are 244.4 percent overstrength.

4.  The applicant provides her request for an exception to policy to retain promotion to SGM, dated 19 November 2009, with enclosures.

CONSIDERATION OF EVIDENCE:

1.  She enlisted in the USAR on 9 June 1990 and has served continuously since that date.  She was awarded MOS 91R (Veterinary Food Inspection Specialist).  She was awarded MOS 75H (Personnel Services Specialist) in 2000, which converted to MOS 42A (Human Resources Specialist) in 2004.  She was promoted to master sergeant on 15 July 2004.

2.  She was ordered to active duty effective 15 May 2008 to be assigned to the 72nd Field Artillery Brigade at Fort Dix, NJ not to exceed 365 days.

3.  Human Resources Command (HRC) Orders A-02-906475, dated 26 February 2009, ordered her to active duty effective 16 May 2009 to be assigned to 72nd Field Brigade Headquarters for contingency operation for active duty operational support (CO-ADOS) in support of OEF.  The period of active duty was not to exceed 112 days.

4.  Headquarters, USARC Orders 09-072-00007, dated 13 March 2009, promoted her to sergeant major in MOS 42A with an effective date of 
15 January 2009.

5.  HRC Orders A-02-906475A01, dated 1 May 2009, modified her previous active duty orders from 112 days active duty to 77 days active duty with an end date of 31 July 2009.  She was released from active duty on 31 July 2009.

6.  On 5 August 2009, she was assigned to the 75th Battle Command Training Division, 2nd Brigade in Edison NJ.

7.  On 13 August 2009, USARC revoked her orders promoting her to sergeant major with de facto status.

8.  On 19 November 2009, she submitted a request for an exception to policy to retain her promotion to sergeant major to Director Military Personnel Management, Washington DC.  

	a.  The 99th RRC Enlisted Promotion Selection Board (December 2007) PPRL to Sergeant Major was an enclosure to this request.  Her board date shown is 25 January 2007.

	b.  In her request she stated a MSG at USARC stated she wasn't the only SGM whose promotion orders were revoked.  He stated the other SGM who was promoted into the same position decided not to report to the unit.  The MSG investigated the situation and determined that although the position was a true, vacant position, the position wasn't advertised until February 2009 so the 99th RSC couldn't promote against it in January 2009.  He checked the last several vacancy rosters submitted by the brigade and verified the position was not advertised until February so he had the other SGM's orders revoked.  He said he noticed she was also promoted into the same position and since the other Soldier's orders had to be revoked, her orders had to be revoked also.  The MSG stated if someone could show him that the position was advertised in January he would relook the situation.

9.  On 11 May 2010, USARC recommended disapproval of her request for reinstatement to SGM.

	a.  USARC stated the convening authority takes names of those Soldiers on the promotion recommended list and establishes the PPRL.  As a vacancy is reported, the convening authority identifies the first Soldier on the list who meets the reported requirements.  The 80th Training Command did not report the position to which she was promoted as a vacancy and no vacancy existed as the unit exceeded its cumulative vacancies.  In addition, the applicant was not the first Soldier on the list thereby indicating she was actually promoted out of sequence.

	b.  USARC stated an overstrength in noncommissioned officers (NCOs) in a pay grade will reduce or eliminate promotion possibility for NCOs in that grade and lower grades.  The applicant was selected for promotion in MOS 42A and the USAR currently had 54 authorized E-9 42A positions with 132 42A sergeants major assigned; therefore, the USAR is at 244.4 percent strength.

	c.  Soldiers who have not been promoted within 2 years from the board appearance date will be automatically removed from the PPRL.  The applicant's promotion board was 16 - 20 January 2007, requiring her removal from the PPRL no later than 20 January 2009.  Promotion orders were not published until 
13 March 2009.

	d.  The instrument announcing erroneous promotions will be revoked and a determination of de facto status may be made only to allow the Soldier to keep any pay and allowances received at the higher grade.

	e.  USARC stated, in order to shape the force as the Chief, Army Reserved has directed, total transparency in processing promotions must be maintained by upholding all of the published guidance and regulatory requirements.

	f.  USARC stated the applicant may elect to request a standby advisory board as a result of the missed opportunity to be reconsidered by the 99th RSC, January 2009 Senior Enlisted Promotion Board.

10.  On 14 June 2010, the Director of Military Personnel Management, Office of the Deputy Chief of Staff, G-1, Washington DC disapproved her request for exception to policy to retain the rank of SGM.  The administrative decisions leading to her promotion to SGM were not consistent with existing Army policy and she was not otherwise eligible for such promotion.  The number of sergeants major assigned to the unit in which she was promoted exceeded the number authorized.  The cumulative vacancy policy in Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 5-4, was therefore violated.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.

	a.  Paragraph 1-16 states instruments announcing erroneous promotions will be revoked.  When a Soldier has been erroneously promoted and has received pay at the higher grade, a determination of de facto status may be made only to allow the Soldier to keep any pay and allowances received at the higher grade.

	b.  Paragraph 5-4 defines cumulative vacancy policies.  An overstrength in NCOs in a pay grade will reduce or eliminate promotion possibility for NCOs in that grade and lower grades.

	c.  Paragraph 5-38 states the convening authority will take the names of those Soldiers on the promotion recommended list and establish or integrate them on to the PPRL.

	d.  Paragraph 5-40 states the selection list is not a permanent selection list.  Each promotion selection list issued by a promotion board is a new report and 

will be integrated with the PPRL.  Soldiers who have not been promoted within 
2 years from the board appearance date will be automatically removed from the PPRL.  Removal from the PPRL does not preclude consideration by future boards.

	e.  Paragraph 5-41 states promotion will only be made against a current vacancy to which the Soldier is or will be assigned.  A promotion is not valid and the promotion order will be revoked if the Soldier is not, or was not, in a promotable status on the effective date.

DISCUSSION AND CONCLUSIONS:

1.  USARC stated the applicant's promotion board was from 16 - 20 January 2007.  The 99th RRC PPRL shows her board date was 25 January 2007.  Therefore, in either case, she was automatically removed from the PPRL in January 2009.

2.  The MSG at USARC indicated the vacancy to which she was promoted was not advertised until February 2009.  There is no evidence the vacancy was advertised earlier than February 2009.  Her promotion orders indicated her promotion was effective 15 January 2009.  The vacancy was not current on the effective date of her promotion and she was removed from the PPRL prior to the vacancy being announced.  Therefore, she was erroneously promoted.

3.  Unfortunately there is insufficient basis to grant 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)                                         AR20100024351



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ABCMR Record of Proceedings (cont)                                         AR20100024351



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