BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20100027840 


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 correction of his date of rank (DOR) to sergeant first class (SFC)/E-7 and retroactive pay.

2.  He states:

	a.  he was selected for promotion to SFC in 2008 but was not promoted into any of the numerous available vacant positions in his current unit;

	b.  he was promoted in military occupational specialty (MOS) 88M4X (motor transport operator, drill sergeant qualified) in February 2009 while mobilized as a drill sergeant at Fort Benning, GA;

	c.  he requested a position within a 75-mile radius of his home of record;

	d.  in October 2008, an email informed his chain of command that paragraph 007/position 0300/line 05 was an open position as a senior drill sergeant in Company A, 3rd Battalion, 485th Basic Combat Training (BCT) Regiment, 1st Brigade, 98th Division (Institutional Training), 108th Training Command (Initial Entry Training (IET)), and asked why the applicant could not be promoted into this position;

	e.  he believes his records are in error because he was promoted with an "X" skill qualification identifier (SQI) and there was a vacant position for him within his unit;

	f.  due the lack of adequate information or a formatting problem, the "X" SQI was not listed because, although incorrect, it appeared the 98th Division (IT) did not have any vacant E-7 drill sergeant positions; and

	g.  as a result, he was promoted as an 88M4O into a position within the 498th Transportation Company although there were still valid vacant E-7 senior drill sergeant positions available in the 98th Division (IT), including paragraph 007/position 0300/line 05.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* reassignment orders
* promotion orders
* Excel spreadsheet
* email

CONSIDERATION OF EVIDENCE:

1.  After previously serving in the Army National Guard and the Regular Army, the applicant:

* enlisted in the U.S. Army Reserve (USAR) on 9 June 1990 and was awarded MOS 88M
* completed the Drill Sergeant Course and was awarded SQI "X" on 25 August 2005

2.  Orders 07-017-00012 issued by Headquarters, 98th Division (IT), dated 17 January 2007, show he was reassigned to the 3rd Battalion, 485th BCT Regiment, 1st Brigade, 108th Training Command (IET).

3.  Orders 08-148-00003 issued by Headquarters, 98th Division (IT), dated 27 May 2008, show he was mobilized and ordered to Fort Benning on 14 June 2008 in support of Operation Enduring Freedom.

4.  Orders 325-2240 issued by Headquarters, U.S. Infantry Center, Fort Benning, dated 20 November 2008, released him from active duty effective 9 December 2008 and transferred him to Detachment 6, 3rd Battalion, 485th BCT Regiment, High Point, NC.

5.  Orders 09-033-00063 issued by Headquarters, 98th Division (IT), dated 2 February 2009, show he was mobilized and ordered to Fort Benning on 18 February 2009 in support of Operation Enduring Freedom.

6.  Orders 09-034-00007 issued by Headquarters, 108th Training Command (IET), dated 3 February 2009, show he was promoted to SFC in MOS 88MX4 effective 15 November 2008.  These orders further show that upon his release from active duty he was required to:

	a.  inform the 108th Training Command (IET) G-1 Enlisted Management Branch by email that he was no longer on active duty;

	b.  report to his assigned unit (498th Transportation Company, position 0150/
paragraph 103/line 02) in MOS 88M4O as a platoon sergeant in Mobile, AL;

	c.  understand that as a condition of this promotion he must transfer to the above position and remain in that position for 12 months from the assignment date;

	d.  understand that if he did not transfer or declined the promotion after his release from active duty, his promotion would be revoked and he would incur a debt to the government for funds received at the higher grade; and

	e.  if he voluntarily transferred from this position, he understood that his promotion orders would be revoked and he could incur a debt to the government for funds received at the higher grade.

7.  Orders 09-038-00003 issued by Headquarters, 98th Division (IT), dated 7 February 2009, show that effective 10 December 2008 he was reassigned to Detachment 3, Company C, 3rd Battalion, 485th BCT Regiment, Fort Benning

8.  Orders 09-049-00007 issued by Headquarters, 98th Division (IT), dated 18 February 2009, revoked Orders 09-038-00003.

9.  Orders 10-148-00023 issued by Headquarters, 81st Regional Support Command, dated 28 May 2010, show:

* he was reassigned to the 498th Transportation Company, Mobile, effective 1 June 2010
* his reassignment was based on his acceptance of promotion into this unit

10.  Orders 10-295-00004 issued by 81st Regional Support Command, dated 22 October 2010, revoked Orders 10-148-00023.

11.  He submitted a copy of the 98th Division (IT) Senior Promotion Vacancies Excel spreadsheet for the 81st Regional Support Command Senior Promotion Vacancies, dated 15 November 2010, which highlighted MOS 11B4X E-7 and
E-8 positions within the 485th BCT Regiment, 98th Division (IT).

12.  He submitted email, dated from 5 September through 8 November 2008, which show communications between personnel within his command regarding the availability and non-availability of vacant SFC/E-7 positions within his elected mileage of 75 miles from his home.

13.  Orders 11-271-00047 issued by Headquarters, 81st Regional Support Command, dated 28 September 2011, show:

* he was promoted to SFC in MOS 11B4X effective 1 October 2011 (his previous promotion orders were apparently revoked)
* he was reassigned to Detachment 3, 3rd Battalion, 485th BCT Regiment
* his promotion was based on his acceptance of reassignment into this unit
* failure to initiate and facilitate reassignment would result in promotion being revoked and funds based on higher grade being recouped
* failure to decline promotion within 90 days would not result justify a revocation in de facto status

14.  Orders 11-271-00049 issued by Headquarters, 81st Regional Support Command, dated 28 September 2011, amended Orders 11-271-00047 to show that if he did not ensure that his reassignment orders initiated and effective 90 days after his release from mobilization under Title 10, U.S. Code, section 12302, his orders may be revoked and all funds based on the higher grade might be recouped.

15.  On 13 May 2011, Headquarters, U.S. Army Reserve Command (USARC), Office of the Deputy Chief of Staff, G-1, recommended disapproval of his request for retroactive promotion to the rank of SFC.  USARC stated that in accordance with regulatory guidance, a Soldier who accepts a promotion will incur a 2-year troop program unit (TPU) service remaining requirement effective the date of the promotion.  The Soldier must report for duty in the position to which he is promoted and serve at least 12 months in the position before he is eligible for a voluntary reassignment.

16.  The advisory opinion also states that the applicant was promoted effective 15 November 2008 to a vacant position in the 498th Transportation Company, but his reassignment to that position was delayed due to his mobilization and a subsequent mobilization that the 498th Transportation Company had not authorized.  When reassignment orders were processed he immediately requested reassignment back to his previous unit within the 98th Division (IT).  That action voided his promotion.  The reason given on his transfer request was that the 498th Transportation Company was over-strength, however, that was not the case and he was counseled.  Records indicated that there were vacancies in the 98th Division (IT), however, the 98th Division (IT) did not report the vacancies and he was transferred to the vacancy in the 498th Transportation Company.

17.  The advisory opinion continued by stating the applicant was provided two courses of action with regard to this matter.  He was told he could either continue service with the 498th Transportation Company for a minimum of 12 months or decline the promotion and return to his previous unit.  He elected to decline the promotion and was counseled and understood that by choosing this option his promotion orders would be revoked and all pay and allowances received would be recouped.

18.  On 10 June 2011, he rebutted the advisory opinion by reinforcing some of the facts submitted within his application in November 2010.  He states that the comment regarding him being mobilized again without the consent of the 498th Transportation Company was out of his control because they never published orders until 1 June 2010, which was well after his subsequent mobilization.  He returned in February 2010, and his former brigade mobilized him 30 days after he returned.

19.  He continues that the advisory opinion states that there were positions within the 98th Division (IT), but they did not report them.  He states that he submitted the email traffic along with his application that shows that the positions were sent to the 108th Training Command (IET) from the 98th Division (IT) as required, along with emails from the 81st Regional Support Command showing that the 108th Training Command (IET) never submitted the drill sergeant positions as they were required to do so he would have been promoted into a drill sergeant slot.

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

	a.  Paragraph 5-41 states promotions will only be made against a current vacancy to which the Soldier is or will be assigned.

	b.  Paragraph 5-42 states that by accepting a promotion to SFC and above:

		(1)  The Soldier will incur a 2-year TPU service remaining requirement from the effective date of promotion.  The Soldier must report for duty in the position to which promoted, comply with a reassignment order, if issued, and serve at least 12 months in the duty position before voluntary reassignment.  An exception to this policy occurs when the Soldier has a change of residence or civilian employment, or incurs an extreme hardship requiring such reassignment. 
This policy does not preclude reassignment for the convenience of the government or the good of the command to the Ready, Standby, or Retired Reserve, including Individual Mobilization Augmentee or Active Guard Reserve status.

		(2)  Promotion and reassignment orders will be revoked for a Soldier who fails to decline a promotion based on a concurrent reassignment and who refuses to comply with the reassignment order or fails to meet the service remaining requirement or fail to initiate reassignment to the gaining position within 90 days of release from active duty from mobilization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he should have been promoted to SFC/E7 earlier based upon a valid vacant position within his current command was carefully considered and found to be without merit.

2.  On the effective date of his promotion to SFC/E7 he was on active duty, but upon his release from active duty he was required to report to the 498th Transportation Company.  However, his reassignment to the 498th Transportation Company was revoked and he remained with the 98th Division (IT).

3.  The advisory opinion states he was counseled regarding his two courses of action and he elected to decline the promotion.  Orders 10-148-00023 also informed him that if he did not transfer and remain in the position for 12 months or declined the promotion after his release from active duty, his promotion would be revoked and he would incur a debt to the government for funds received at the higher grade.

4.  Although he submitted a roster showing the senior promotion vacancies for the 98th Division (IT), it shows the vacant positions as of 15 November 2010, not November 2008, the effective date of his promotion.  The email he submitted state there were no vacant positions within a 75-mile radius of his home.  Therefore, the applicant's request should be denied.

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 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)                                         AR20100027840



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1