IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100026346 


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:

	a.  reinstatement onto the Fiscal Year 2008 (FY08) U.S. Army Reserve (USAR) Active Guard Reserve (AGR) Command Sergeant Major (CSM)/Sergeant Major (SGM)/U.S. Army Sergeant Major Course (USASMC) and Troop Program Unit (TPU)/Individual Mobilization Augmentee (IMA) CSM Selection List;

	b.  retroactive promotion to SGM based on his original sequence number of 15 and all back pay and allowances; and

	c.  withdrawal of his approved retirement for 1 February 2011 and continued service in the AGR program.

2.  The applicant states he was originally on the 2008 USAR AGR CSM/SGM Selection List.  He received a general officer memorandum of reprimand (GOMOR), dated 16 January 2009, and it was placed in his official military personnel file (OMPF).  On 1 May 2009, he was notified his packet would go before a Standby Advisory Board (STAB) for possible removal from the promotion list.  On 11 July 2009, he was informed he was taken off the promotion list.  The Department of the Army Suitability Evaluation Board (DASEB) granted him full relief and removed the GOMOR from his record.  Since the GOMOR was the reason he was taken off the promotion list he should be reinstated with a DOR based on his original sequence number and he should receive all back pay due as a result.

3.  The applicant provides:

* GOMOR
* Two DA Forms 268 (Report to Suspend Favorable Personal Actions (FLAG))
* Two memoranda
* Two pages titled FY08, Selection Board Results
* DASEB Report of Proceedings (ROP)
* Four DA Forms 2166-8 (NCO (Noncommissioned Officer) Evaluation Report (NCOER))
* DA Form 1059 (Service School Academic Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  The applicant requested approval of his request to withdraw his approved retirement for 1 February 2011 and continued service in the AGR program.  In a phone conversation and an email, dated 4 May 2011, an official from Retirements and Separations Branch, Human Resources Command (HRC), confirmed the applicant never had an approved retirement or retirement orders.  The applicant is currently assigned to Fort Dix, NJ, as a USAR MSG on active duty in the AGR program.  As there is no retirement action pending on the applicant and he is serving in the AGR program, this issue will not be addressed further in this ROP.

2.  The applicant's records show he enlisted in the USAR on 18 September 1986 and he held military occupational specialty (MOS) 75B (Personnel Administration Specialist).  This MOS was later changed to MOS 42A (Human Resources Specialist).  

3.  On 18 September 1989, he was ordered to active duty as a USAR enlisted Soldier in the AGR program.  He served on active duty in the AGR program through multiple reenlistments/extensions and in various positions throughout the continental U.S. and attained the rank/grade of MSG/E-8 on 1 May 2004.  He was assigned to the U.S. Army Noncommissioned Officer Academy (NCOA), Fort Dix, NJ, as a first sergeant (1SG).

4.  On 24 July 2008, the FY08 USAR AGR CSM/SGM/USASMC and TPU IMA CSM Selection List was released and he was selected for promotion to SGM and placed on the promotion list with a sequence number of 15. 

5.  In September 2008, the Commanding General (CG), 84th Training Command, Fort McCoy, WI, initiated an informal investigation into complaints about the living conditions at Headquarters and Headquarters Company, 84th USAR Readiness Training Center, Fort McCoy, WI.  He appointed a major as the investigating officer (IO).

6.  On 23 September 2008, the investigation commenced and it was completed on 26 November 2008.  The IO found that the issues related to the living conditions were not due to negligence by anyone, but were caused by the age of the building and the lack of funds.

7.  On an unknown date, the approving authority approved the IO findings with the following exceptions/substitutions: 

	a.  the applicant should not be reinstated as the 1SG of the Fort Dix NCOA; 

	b.  those recommendations which the Staff Judge Advocate opined were not supported by the evidence and his (the approving authority's) personal observations during a command inspection from 4-6 August 2008 would not be considered; and

	c.  he (the approving authority) would pursue all appropriate administrative actions and pull all potential administrative actions to his level.

8.  On 16 January 2009, the CG, 84th Training Command, Fort McCoy, WI, reprimanded the applicant for failing to maintain proper safety and hygiene standards at the Fort Dix NCOA.  In the GOMOR he stated it was his (the applicant's) charge inherent as 1SG of the academy.  The GOMOR imposing authority directed the GOMOR be filed in the applicant's OMPF.  However, the GOMOR is no longer in the applicant's records and is not available for review with this case.

9.  On 1 May 2009, he was notified by memorandum from HRC that he had been identified for removal consideration from the SGM promotion standing list because he received a GOMOR that was directed for filing in his OMPF and his records.  His records were referred to a Headquarters, Department of the Army (HQDA) STAB for determination on whether he would be retained or removed from the promotion list.

10.  On 11 July 2009, he was notified by memorandum from HRC that as a result of the STAB his name had been removed from the FY08 promotion list.

11.  On 23 March 2010, he submitted an appeal to the DASEB requesting the GOMOR be removed from his OMPF.  On 21 September 2010, the DASEB, by unanimous vote, determined the evidence submitted revealed the applicant was inequitably treated in that he was the only individual reprimanded for problems not under his responsibility and control.  The DASEB granted him the relief requested and determined the GOMOR would be removed from his OMPF and the ROP and allied documents would not be filed in his OMPF.  

12.  The ROP noted the NCOER the applicant received covering the period the GOMOR was issued, from 21 April 2008 to 31 March 2009, did not make reference to the GOMOR incident.  He was rated as the NCO in Charge, Emergency Operations Center, Fort Dix, NJ, and he was assessed as "Among the Best" and "Successful/Superior" by his rater and senior rater, respectively, and recommended for promotion ahead of his peers.  The ROP also noted there was no other derogatory information in his OMPF, except for the GOMOR.

13.  In connection with the processing of this case, an undated advisory opinion was obtained from the Chief, Enlisted Career Systems Division, Office of the Deputy Chief of Staff (ODCS), G-1, HQDA.  The advisory official stated that based on their review, they could not provide administrative relief.  The decision to remove him from the FY08 promotion list was made through a properly administered, fair, and equitable process after the STAB considered the applicant's entire service record.  The official stated he (the applicant) is eligible for consideration by all future promotions boards.

14.  On 8 April 2011, the applicant responded to the advisory opinion and stated he considered the ODCS G-1 advisory opinion as being in his favor.  He stated the advisory opinion had stated that while initiation of the removal consideration process was due to the receipt of a GOMOR, the decision by the STAB to remove him from the promotion list was made after consideration of his entire service record.  He further stated he was placed on the promotion list with the same record the STAB was presented with only one difference, the presence of the GOMOR.  At no time had there been reference to any other (derogatory) items (in his records).  If he had not received the GOMOR he would have been promoted in December 2008 with his peers as his record earned him the rank of SGM.  

15.  Army Regulation 600-8-19 (Enlisted Promotions) states, in pertinent part, the senior enlisted selection and promotion system prescribes the policy and procedures governing the promotion of unit Soldiers to Sergeant First Class, MSG, and SGM.  This regulation also shows the following:

	a.  paragraph 5-30 states all SSGs through MSGs/1SGs who meet the basic eligibility requirements will be considered for promotion.  The promotion selection board will select the best qualified Soldiers for placement on the permanent recommended promotion list.  Soldiers will be promoted sequentially from the list to fill vacancies in accordance with paragraph 3-38c.

	b.  paragraph 5–43 states enlisted standby advisory boards will consider records of Soldiers on whom derogatory information has been properly substantiated, which may warrant removal from a selection list.  When adverse information is discovered concerning a Soldier recommended but not yet promoted, and the information would appear to warrant removal from the promotion recommended list, disposition will be considered by the standby advisory board.  The board’s recommendation will be submitted to the promotion authority for a final decision.

	c.  paragraph 5-35 states a Soldier removed from a promotion selection list and later considered exonerated will be reinstated on the promotion selection list.  To be considered exonerated, the action that caused the initial removal must have been erroneous or should not have been imposed. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR based on an investigation into complaints about the living conditions at the Fort Dix NCOA, despite the IO's findings that the issues related to the living conditions were not due to negligence by anyone; they were due to the age of the building and the lack of funds.  

2.  At the time he received the GOMOR, he had been selected for promotion to SGM with a sequence number of 15.  However, as a result of the GOMOR, a STAB removed his name from the promotion list.

3.  He petitioned the DASEB for removal of the contested GOMOR.  In September 2010, the DASEB determined the evidence submitted revealed he was inequitably treated in that he was the only individual reprimanded for problems not under his responsibility and control.

4.  Notwithstanding the advisory opinion that stated while initiation of the removal consideration process was due to the receipt of a GOMOR, the decision by the STAB to remove him from the promotion list was made after consideration of his entire service record.  It is evident his removal from the promotion list was based entirely on the GOMOR that was previously filed in his OMPF. 

5.  Therefore, in the interest of justice and equity, it would be appropriate to restore the applicant to the FY08 USAR AGR CSM/SGM/USAMC and TPU IMA CSM Selection List with a sequence number of 15, promote him to the rank/grade of SGM/E-9 with a date of rank in accordance with his sequence number, and pay him any back pay and allowances due from his date of rank to
SGM/E-9.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Setting aside his removal from the FY 2008 USAR AGR CSM/SGM/USAMC and TPU IMA CSM Selection List 
* Reinstating him to the FY 2008 USAR AGR CSM/SGM/USAMC and TPU IMA CSM Selection List with a sequence number of 15
* Promoting him to the rank/grade of SGM/E-9 with a date of rank in accordance with his sequence number he would have received had he not been removed from the Selection List
* Paying him all back pay and allowances due from his date of rank to SGM/E-9



      _______ _   _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)                                         AR20100026346



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ABCMR Record of Proceedings (cont)                                         AR20100026346



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