IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20100026207 


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 restoration of his rank/grade to sergeant major (SGM)/E-9. 

2.  The applicant states he had extenuating circumstances that prevented him from completing the last 2 weeks of the Sergeant Major's Course:

	a.  He was promoted to SGM and appointed as a command sergeant major (CSM) effective 1 December 1997.  He failed to complete the U.S. Army Sergeant Major Academy (USASMA) within 2 years as stipulated in his promotion orders.  In March 2000, he was reverted back to the rank/grade of master sergeant (MSG)/E-8.  

	b.  In 2002, he received a letter from the U.S. Army Reserve Command (USARC) informing him he had completed 32 years of service as a MSG and he had reached his Retention Control Point (RCP); he had to retire.  However, in November 2002, he elected not to retire and joined the Pennsylvania Army National Guard (PAARNG) instead.  In order to do so, he took a voluntary reduction in grade to the rank/grade of staff sergeant (SSG)/E-6.  He then mobilized with his ARNG unit in January 2003.  He was promoted to sergeant first class (SFC)/E-7 on 28 July 2005 and he again mobilized with his ARNG unit and served in Iraq from July 2005 to June 2006.  



	c.  He was discharged from the ARNG in January 2007 and he subsequently enlisted in the USAR.  He was not told he could do so as a MSG/E-8.  Accordingly, he enlisted as an SFC thinking the rank he held in the ARNG was the rank he had to reenlist in when he entered the USAR.  He remained with a troop program unit (TPU) in Pennsylvania from October 2007 through January 2009.  In October 2009, he mobilized with the Army Materiel Command and deployed to Afghanistan.  He returned to the continental United States in February 2010 due to medical reasons.  He ultimately retired on 19 January 2011 (on his 60th birthday).

3.  The applicant provides:

* DA Form 1059 (Service School Academic Evaluation Report)
* Memorandum, Headquarters, USARC, Fort McPherson, GA, Subject: Restoration of Promotion to SGM, dated 7 October 2002
* Orders 7343-001 (promoting the applicant to SGM)
* Orders 97-345-015 (appointing the applicant to CSM)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 19 January 1951.

2.  Having had prior service, he enlisted in the USAR on 15 July 1977.  He served in a variety of assignments through multiple reenlistments.

3.  On 16 March 1991, the USAR Personnel Center, St. Louis, MO, issued the applicant a Notification of Eligibility for Retired Pay (20-year letter).  This letter notified him that he had completed the required years of service and would be entitled to retired pay upon application at age 60.

4.  He was promoted to MSG/E-8 on 1 February 1995.

5.  The applicant was issued two sets of promotion orders as follows:

	a.  On 9 December 1997, Headquarters, 78th Division, Edison, NJ, published Orders 7343-001 promoting him to SGM/E-9 effective 1 December 1997.  These orders stipulated that his promotion was contingent upon completion of the SMC within 2 years of enrollment.

	b.  On 2 February 1998, Headquarters, 78th Division, Edison, NJ, published Orders 8033-001 revoking the above orders.

	c.  On 21 April 1998, Headquarters, 78th Division, Edison, NJ, published Orders 8111-001 promoting him to SGM/E-9 effective 3 March 1998.  These orders stipulated that his promotion was contingent upon completion of the SMC within 2 years of enrollment.

6.  On 11 December 1997, Headquarters, USARC, Fort McPherson, GA, published Orders 97-345-015 awarding him primary military occupational specialty (MOS) 00Z (CSM).  

7.  He received an Annual DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) for the period March 1998 through February 1999 and a Change of Rater NCOER for the period March 1999 through September 1999 for his duties as a battalion CSM, 1678th Logistical Support Battalion, 78th Division, Uniontown, PA. 

8.  On 6 June 2000, he received a DA Form 1059 that shows he was dismissed from the Sergeant Major's Course, Class Number 25.  His dismissal was based on academic failure/failure to achieve course standards.

9.  On 7 August 2000, the U.S. Army Personnel Command, St. Louis, MO, published Orders B-08-080069 awarding him MOS 92A (Automated Logistical Specialist) and reverting him to the rank/grade of MSG/E-8 effective 6 June 2000. 

10.  On 27 November 2002, prior to discharge from the USAR by reason of having reached his RCP he elected not to retire and instead executed a
3-year enlistment in the PAARNG, in the rank/grade of SSG/E-6.  

11.  On 24 December 2002, Headquarters, 78th Division, Edison, NJ, published Orders 02-358-00003 ordering the applicant's honorable discharge from the USAR, effective 30 November 2002, after having achieved maximum authorized years of service as a MSG/E-8 (32 years). 

12.  On 30 January 2003, he entered active duty as a member of his ARNG unit. He was promoted to the rank of SFC/E-7 on 28 July 2005.  He subsequently served in Kuwait/Iraq from 2 September 2005 to 12 June 2006.  He was honorably released from active duty in the rank/grade of SFC/E-7 on 30 June 2006. 

13.  He was honorably discharged from the ARNG on 10 January 2007 for the purpose of enlisting in another component of the armed forces.  His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows his rank/grade as SFC/E-7.
14.  On 11 January 2007, he enlisted in the USAR in the rank/grade of SFC/E-7. He entered active duty on 30 October 2009 and subsequently served in Afghanistan in support of Operation Enduring Freedom.  He was honorably released from active duty on 17 January 2011. 

15.  On 11 March 2011, USARC, St. Louis, published Orders P03-942343 placing him on the retired list in his retired rank/grade of SFC/E-7 on 19 January 2011 on his 60th birthday.

16.  An advisory opinion was obtained from Headquarters, USARC, Fort McPherson, GA, in the processing of this case.  An official recommended the applicant be reinstated from SFC/E-7 to SGM/E-9 only for the time served in the USAR prior to his voluntary enlistment in the ARNG.  

	a.  The applicant was promoted to CSM on 1 December 1997 but his orders were revoked and he received new orders on 3 March 1998 promoting him to SGM/E-9 contingent upon completion of Sergeant Major's Course with 2 years.  In March 2000, he was reduced to MSG/E-8 for failure to complete this course within 2 years.  In calendar year 2002, he was informed that he had reached his RCP in the USAR and he was no longer eligible for continued service.  At the time the RCP for CSM and MSG was 32 years. 

	b.  He elected not to retire but to voluntarily enlist in the ARNG.  He did so as a SSG on 27 November 2002.  On 28 March 2005, RCPs were discontinued in the USAR.  He was then promoted in the ARNG to SFC/E-7 on 28 July 2005 and he continued to serve in the ARNG until 11 January 2007 when he rejoined the USAR as a SFC/E-7.  He continued serve in the USAR until he was placed on the retired list in the rank/grade of SFC/E-7 on 2 March 2011.

	c.  On 7 December 2002, the USAR policy was revised to allow restoration of SGMs promoted between 26 October 1993 and 16 January 1998 and previously reduced for failure to complete the Sergeant Major's Course.  At the time of the policy change, the applicant had voluntarily contracted with the ARNG.  This policy would have allowed him to be reinstated to CSM/E-9 but it would not have changed the RCP of 32 years at the time he was separated from the USAR.  

	d. According to the revised policy a subsequent contractual entry into the USAR would not authorize grade restoration.  Due to this requirement, he is only authorized grade restoration to the rank of CSM/E-9 between the time he was promoted to CSM on 3 March 1998 and the time that he voluntarily enlisted in the ARNG on 27 November 2002.  Additionally, at retirement, he should retire as a CSM.

17.  He was provided a copy of this advisory opinion but he did not respond. 

18.  A Headquarters, USARC Memorandum, dated 7 October 2002, authorized the restoration of promotions to SGM.  It stated:

* Soldiers promoted to SGM between 26 October 1993 and 16 January 1998 were required to enroll in and complete the Sergeant Major's Course
* Soldiers conditionally promoted to SGM between these two dates and whose orders were revoked were entitled to restoration to their former rank of SGM
* The promotion effective date would be the date the Soldier was originally promoted to SGM.  

19.  Title 10, USC, section 101 sets forth various definitions.  Section 101(d) states the following definitions relating to duty status apply in this title: 

	a.  Section 101(d)(1) states the term "active duty" means full-time duty in the active military service of the United States.  Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned.  Such term does not include full-time National Guard duty.  

	b.  Section 101(d)(3) states the term "active service" means service on active duty or full-time National Guard duty. 

	c.  Section 101(d)(4) states the term "active status" means the status of a member of a Reserve Component who is not in the inactive ARNG or inactive Air National Guard, on an inactive status list, or in the Retired Reserve. 

	d.  Section 101(d)(5) states the term "full-time National Guard duty" means training or other duty, other than inactive duty, performed by a member of the ARNG of the United States or the Air National Guard of the United States in the member’s status as a member of the National Guard of a State or territory, the Commonwealth of Puerto Rico, or the District of Columbia under section 316, 502, 503, 504, 505, of Title 32 for which the member is entitled to pay from the United States or for which the member has waived pay from the United States. 

20.  Title 10 of the U.S. Code, section 1406(b)(2) provides for non-regular service retirement and states that in the case of a person who is entitled to retired pay under section 12731 of this title, the retired pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at any time in the armed forces.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant was initially issued promotion orders to SGM/E-9 on 9 December 1997 to be effective 1 December 1997.  However, his promotion orders were revoked on 2 February 1998.  New orders were issued, on 21 April 1998, promoting him to SGM/E-9 effective 3 March 1998.  These orders stipulated that his promotion was contingent upon completion of the SMC within 2 years of enrollment.  

2.  He did not complete the required course.  Accordingly, he was reduced to MSG/E-8 in March 2000.  Two years later, he was informed that he had reached his RCP of 32 years as a MSG and would have to be discharged and/or retired.  

3.  Instead, he elected to enlist in the PAARNG in the rank/grade of SSG/E-6 in November 2002.  He was later promoted to SFC/E-7 on 28 July 2005 and he was honorably discharged from the ARNG on 10 January 2007.  He subsequently enlisted in the USAR in the rank/grade of SFC on 11 January 2007 and continued to serve until he retired on 19 January 2011 (his 60th birthday).  

3.  The USAR policy was revised to allow grade restoration of SGMs promoted between 26 October 1993 and 16 January 1998 and previously reduced for failure to complete the Sergeant Major's Course.  At the time of the policy change, the applicant had voluntarily contracted with the ARNG.  This policy would not have allowed him to be reinstated to SGM or CSM because he was promoted to SGM on 3 March 1998 and the revised policy to allow restoration of his grade did not apply to him.   

4.  Notwithstanding the USAR advisory opinion that recommended a grade restoration to the rank of CSM between the time he was promoted to CSM on 3 March 1998 and his voluntary enlistment in the ARNG on 27 November 2002, the policy did not apply to the applicant.  

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)                                         AR20100026207



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100026207



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1