IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100026078 


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 previous request for promotion to first sergeant (1SG) or that he be placed on the Active Guard Reserve (AGR) master sergeant (MSG)/E-8 controlled grade list ahead of another AGR Soldier who was behind him on the promotion list, but was selected for promotion ahead of him.

2.  As a new argument the applicant states:

* The State of South Carolina Military Department provided the Army Board of Correction for Military Records (ABCMR) erroneous information
* The ABCMR improperly interpreted the intent of an agreement between him and the State 
* The ABCMR violated its own regulation in overturning a correct decision

3.  As new evidence the applicant provides a memorandum.  He also provides a self-authored statement, three memoranda, a promotion list, a DA Form 4856 (Developmental Counseling Form), and two pages titled Standby Advisory Board Minutes.

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 Number AR20080011760, on 1 September 2009, and in a Supplemental Record of Proceedings (ROP) in Docket Number AR20090018217, on 18 May 2010.
2.  The applicant's new argument is that the ABCMR made an improper interpretation of the agreement between the applicant and the State.  He also submits a memorandum which was not previously reviewed by the ABCMR; therefore, both warrant consideration by the Board.

3.  Having had prior service, the applicant's records show he enlisted in the South Carolina Army National Guard (SCARNG) on 18 January 1994 and he held military occupational specialty (MOS) 14S (Air and Missile Defense Crewmember).  He was ordered to full-time National Guard duty in an AGR status on 23 August 1995.  He was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 19 December 2003.

4.  The 2007 First Sergeant Leadership Roster, dated 27 March 2007, shows the applicant was on the list, had 775 leadership points, and that he was the first on the list of two AGR Soldiers assigned to the unit with the same MOS.

5.  On 1 June 2007, the applicant's battalion commander forwarded a memorandum to the Adjutant General of South Carolina requesting that the applicant's name be removed from the First Sergeant Leadership Roster.  In the memorandum, the battalion commander stated the applicant had been counseled by the command sergeant major and that he had been informed it would be best if he waited until the next Enlisted Promotion System list to be considered for a leadership position.  The battalion commander stated the applicant also understood that this action would not interfere with him being considered for a MSG position.

6.  On 12 July 2007, a Standby Advisory Board (STAB) convened and recommended that the applicant's name be approved for removal from the First Sergeant Leadership Roster.

7.  On 13 July 2008, the AGR Enlisted Controlled Grade List was published for MSG/E-8 and sergeant major/E-9.  The applicant's name was not reflected on this list; however, the name of the other AGR Soldier serving in the same unit as the applicant with the same MOS and less leadership points than the applicant was reflected on the list with an effective date of promotion of 12 October 2007.

8.  On 27 August 2008, an advisory opinion was obtained from the National Guard Bureau (NGB) Personnel Division Chief who recommended disapproval of the applicant's request to be promoted to 1SG or to be placed on the AGR MSG controlled grade list ahead of his peers.  According to the information contained in the advisory opinion, the Chief, Personnel Division, based his recommendation on the results of the STAB, which showed the applicant's name was removed from the First Sergeant Leadership Roster.
9.  On 31 July 2009, a second advisory opinion was obtained from the NGB Personnel Division Chief who recommended approval of the applicant's request to be promoted to 1SG based on the STAB results dated 12 July 2007.  The NGB Personnel Division Chief stated that according to the email from the SCARNG Enlisted Branch Chief, dated 1 July 2009, the State prepared a removal letter, dated 1 June 2007, removing the applicant from the First Sergeant Leadership Roster but there was no record from the State showing he acknowledged receipt of the letter.

10.  The ABCMR determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommended that the applicant's SCARNG records be corrected by promoting him to the rank/grade of 1SG/E-8 with an effective date and date of rank of 12 October 2007 and paying him all back pay and allowances due as a result of this correction.

11.  On 13 October 2009, new information was received from the NGB in regard to the ABCMR's decision and a Supplemental ROP was prepared.  

12.  The evidence submitted consisted of a Memorandum for the Chief, Army NGB, Army National Guard Readiness Center, dated 1 October 2009, from the South Carolina Office of the Adjutant General, which stated they chose not to comply with the directive from the Deputy Assistant Secretary, Army Review Boards Agency.  The memorandum indicated the applicant was investigated under Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) for violating a regulation by failing to deposit government funds in his trust for the period 9 March through 10 March 2007.  On 3 May 2009, the applicant, with the advice of civilian counsel, signed an agreement resolving allegations in the Army Regulation 15-6 Investigation.  The applicant agreed to be removed from the MSG promotion list and he made a $600.00 payment to the state for missing funds.  The subsequent ABCMR action to promote him violated this agreement.

13.  In the Agreement Resolving Allegations in an Army Regulation 15-6 Investigation the applicant signed and agreed to the following:

* issuance of a General Officer Memorandum of Reprimand (GOMOR)
* removal from the E-8 promotion list 
* no further assignment to armory rental duties
* one payment of $600.00 to any unit readiness fund or any other appropriate fund designated by the command
* retirement on the first date that he will be eligible to do so in order to achieve a 20-year active retirement under the active duty retirement system
* no further adverse action beyond the listed actions, administrative or otherwise will be taken related to the allegation of the Army Regulation
	15-6 Investigation

14.  On 23 October 2009, the applicant submitted a rebuttal statement to the advisory opinion and he indicated that, in accordance with Army Regulation 
600-8-19 (Enlisted Promotions and Reductions), paragraph 7-4f, removal from promotion list is effective as of the date it is signed by the promotion authority.  He states, in his case, the date cannot be any earlier than 3 May 2009.  He states to his knowledge, the removal of his name from the 2009 promotion list had not been approved by the State Adjutant General.

15.  Attached to a memorandum, dated 11 November 2009, the applicant introduced a Developmental Counseling Form which shows he was counseled on 9 November 2009 regarding pending action to remove his name from the 2009 MSG promotion list.  He was informed the action was the result of a STAB approval and the recommendation due to the filing of a GOMOR.  He was further informed that following the counseling session he would be removed from the MSG promotion list.  He agreed with the information contained in the counseling form and he wrote "I understand this removal is for one year only 2009 – 2010 list.  This is not a permanent removal per agreement."

16.  Also attached was a memorandum, dated 4 November 2009, showing that a STAB convened on 29 October 2009.  The memorandum shows the applicant's name was approved for removal from the 2009 MSG AGR Promotion List.

17.  The ABCMR's Supplemental ROP, in Docket Number AR200918217 dated 18 May 2010, concluded that the ABCMR's decision in Docket Number AR20080011760 erroneously recommended his request be granted.  The ROP noted that the  applicant was counseled regarding the removal of his name from the 2007 Leadership Roster.  After his name was removed, he submitted an application to this Board which was received on 23 July 2008.  Before his case could be reviewed by the Board, he entered into an agreement with NGB officials on 3 May 2009.  He agreed that his name would be removed from the 2009 MSG Promotion List, he would make a one-time payment of $600.00 to the State for an incident involving missing funds, he would be furnished a GOMOR, and he would retire after obtaining 20 years of service.

18.  The ROP further states that when the applicant entered into the agreement, he was serving in the rank of SFC/E-7.  The whole intent of the agreement between the applicant and his chain of command was for him not to obtain the grade of E-8.  He agreed to retire after obtaining 20 years of service after he had applied to the ABCMR for relief.  The applicant should not be allowed to benefit from the previous ABCMR decision because the ABCMR was unaware of the agreement made between him and his chain of command prior to the time the Board rendered its decision.  It concluded that the action taken to remove his name from the 2007 1SG promotion list was correct.

19.  The Board determined that the evidence presented was sufficient to warrant amendment of the decision of the ABCMR set forth in Docket Number AR20080011760, dated 1 September 2009, to show denial of his request for promotion to 1SG, promotion date and date of rank of 12 October 2007, and back pay and allowance.

20.  The applicant now states the ABCMR incorrectly interpreted the agreement between him and his chain of command by stating promoting him to E-8 based on improper removal from the 2007 promotion list would violate the agreement he made on 3 May 2009 to voluntarily be removed from the 2009 promotion list.  He states he is listed as number one under MOS 14Z on the 2010 E-8 AGR promotion list.  His placement on the 2010 promotion list clearly disproves the statement the Board made that the intent of the agreement was for him to retire as an E-7 and never obtain the grade of E-8.  

21.  The applicant provides a memorandum, dated 10 February 2011, wherein Command Sergeant Major (CSM) M states:

	a.  He recommended to the 12 July 2007 STAB that the applicant be removed from the 2007 First Sergeant Leadership Roster based on information given by the applicant's supervisor about the applicant's work performance.  The applicant's supervisor stated there were other Soldiers better suited for 1SG.  At the time of the removal he, CSM M, had the command's best interest in mind but he is not sure if the information was substantiated or sufficient to warrant removal from the list.

	b.  The applicant's removal from the 2009 E-8 MSG list was part of the applicant's agreement with the command after the investigation for his mishandling of funds related to the rental of an armory.  CSM M was a member of the 2009 STAB that removed the applicant from the 2009 E-8 MSG list.  It was the STAB's intent that the removal last the rest of that year per the agreement with the applicant and the command; it was not related to his removal in 2007.  The applicant is on the 2010 E-8 list and he will be on the 2011 E-8 list if he is otherwise eligible.

22.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 7 provides for promotion and reduction of ARNG enlisted personnel.  It states the State AG is the convening and promotion authority for all promotion boards to SGT through SGM.  They may delegate this authority to their Assistant AG (Army) or Deputy Commander, Joint Forces Headquarters.  They also may delegate promotion authority to subordinate commanders.  

	a.  Paragraph 7-43 states, in pertinent part, once a Soldier is removed [from a promotion list] the action is final.  If a Soldier requests removal for personal reasons without penalty, commanders will approve and counsel Soldiers in writing to ensure the Soldier understands that they will not be reinstated on the list under any circumstances, but may be considered by future boards if they remain eligible.

	b.  Paragraph 7-44 states, in pertinent part, commanders may recommend that a Soldier’s name be removed from an approved list at any time.  Removal from a promotion list has far-reaching, long-lasting effects on the Soldier.  Commanders will evaluate the circumstances to ensure that all other appropriate actions have been taken (training, supervision, and formal counseling have not helped) or the basis for considering removal is serious enough to warrant denying the individual’s promotion.  The commander may submit a recommendation for removal for one or more of the following reasons: 
(1) punishment under the Uniform Code of Military Justice, Article 15, or comparable criminal conviction, whether directed for filing in the performance or restricted portion of the Soldier’s Official Military Personnel File (OMPF);  (2) any court-martial conviction;  (3) a memorandum of reprimand, signed by a general officer, placed in the Soldier’s OMPF;  (4) adverse documentation directed for filing in the Soldier’s OMPF;  (5) other derogatory information received in official channels, but not filed in the Soldier’s official records, if it is substantiated, relevant and reasonably and materially affects a promotion. 

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding CSM M's statement that he is not sure his recommendation to remove the applicant from the 2007 First Sergeant Leadership Roster was based on information that was sufficient to warrant removal, his recommendation and the recommendation of the battalion commander were considered by the 2007 STAB and the applicant was removed from the list. 

2.  In addition, prior to the ABCMR's 1 September 2009 decision to promote him to the rank/grade of 1SG/E-8, the applicant entered into an agreement with ARNG officials on 3 May 2009 for the removal of his name from the 2009 E-8 promotion list.  

3.  The applicant contends that his agreement with ARNG officials to be removed from the E-8 promotion list does not prohibit the relief initially granted by the ABCMR and does not invalidate the conclusion that he was improperly removed from the list.  However, his argument attempts to avoid the plain language agreement that he made to serve until he was able to retire in exchange for removal from the promotion list.

4.  It appears he entered into the agreement to avoid adverse action that could have affected his retirement.  He should not benefit from the previous ABCMR decision because the decision was reached due to his failure to keep the Board informed of his status with the SCARNG.

5.  Based on the new information the Board determined that the evidence presented was sufficient to warrant a denial of his request for promotion to 1SG with an effective date and date of rank of 12 October 2007 and back pay and allowances.  The applicant's standing on any subsequent promotion list does not impact the Board's decision.  Therefore, the applicant is not entitled to the requested relief.

6.  The ABCMR cannot direct changes/corrections to state National Guard records.  It can only recommend that states make changes.  The states are free to refuse.  Even if the ABCMR continued to believe that its original decision was correct and the State of South Carolina was in error, it has no authority to order a correction.

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 Docket Number AR20080011760, on 1 September 2009, and the Supplemental Record of Proceedings in Docket Number AR20090018217, on 18 May 2010.



      _______ _   __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)                                         AR20100026078



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ABCMR Record of Proceedings (cont)                                         AR20100026078



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