IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110019374 


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 his retirement rank be changed to sergeant major (SGM)/E-9 instead of master sergeant (MSG)/E-8.

2.  The applicant states:

* the Oregon Army National Guard (ORARNG) did not follow a consistent policy of interpreting Army Regulations when they reduced him after retirement
* he was promoted to the rank of E-9 and served successfully on active duty in this rank
* after successfully completing Phase I of the U.S. Army Sergeants Major Course (USASMC) his unit was deployed to Iraq
* he did not attend Phase II of the course because his brigade issued a policy letter stating no Soldier would be excused from deployment to attend Noncommissioned Officer Education System (NCOES) courses
* other Soldiers in his State were retired in the rank of E-9 even though they did not successfully complete USASMC
* Army Regulation 600-8-19 (Enlisted Promotions and Reductions) supports retirement in the rank of E-9 if failure to complete USASMC was due to no fault of the Soldier
* he was prevented from attending Phase II of USASMC because of an overseas deployment
* Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) supports retirement in the grade held on the date of retirement
* on the day he retired he was an E-9, but his State administratively reduced him after he retired
* Title 10, U.S. Code, section 369 supports retirement at the highest grade held if misconduct is not a factor
* he did not receive any disciplinary action which resulted in a reduction
* he was administratively reduced
 
3.  The applicant provides 10 attachments outlined on the "Sequence of events" page.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 27 May 1965.  Having had prior active service in the Regular Army, he enlisted in the U.S. Army Reserve (USAR) on 9 March 1988.  He was discharged from the USAR on 6 December 1994 and he enlisted in the ORARNG on 7 December 1994.  

3.  Orders show the applicant was promoted to the rank of SGM/E-9 effective
2 September 2002.  These orders state the Soldier must complete USASMC as a condition of the promotion.  Failure to meet the condition will cause reduction per National Guard Regulation (NGR) 600-200, paragraph 3-56e.

4.  He was ordered to active duty on 12 October 2003 in support of Operation Iraqi Freedom.  

5.  A memorandum, dated 24 October 2003, requests the applicant's school date for Phase II of USASMC be deferred.  This memorandum states the Soldier:



	a.  Would not be in the Continental United States in June 2004 for Phase II.

	b.  Is not released from post mobilization training during 2003.  The 39th Separate Infantry Brigade’s policy is all NCOES must conclude by 2 November 2003 or Soldier cannot attend.

	c.  Is already in the Army Training Requirements and Resources System for November 2003 Phase II.

	d.  Requests deferment until his release from active duty tentatively scheduled for May 2005.

	e.  Chain of command at home station supports the request for deferment.  

6.  He served in Iraq from 22 March 2004 to 20 January 2005.  He was released from active duty on 28 March 2005. 

7.  Orders, dated 10 May 2005, show he was administratively reduced from SGM/E-9 to MSG/E-8, effective 28 March 2005.  

8.  Orders, dated 10 May 2005, also show he was honorably discharged from the ORARNG and transferred to the Retired Reserve in the rank of MSG, effective 28 March 2005.  

9.  A DA Form 1059 (Service School Academic Evaluation Report), dated 26 July 2005, shows the applicant was disenrolled from the USASMC due to retirement.  This form also states he completed the first phase of the course with superior scores. 

10.  Army Regulation 600-8-19 states a Soldier must be a USASMC graduate for promotion to SGM.  Soldiers selected for promotion to SGM who are nongraduates of the USASMC will be conditionally promoted.  Soldiers who fail to successfully complete, fail to remain eligible to be scheduled for or attend, who are denied enrollment in, or who do not attend their scheduled NCOES class (through fault of the Soldier) will be administratively reduced or removed from the promotion list.  The effective date of administrative reduction is the date of the action that caused the Soldier to be ineligible to retain the promotion. 

11.  Paragraph 2-3 (Automatic Grade Determinations) of Army Regulation 15-80 states most grade determinations do not require action by the AGDRB or the 


exercise of discretion by other authorities because they are automatic grade determinations that result from the operation of law and this regulation.  For example, under Title 10, U.S. Code, section 3961(b), an enlisted Soldier will normally retire at the grade held on the date of retirement. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's promotion to SGM was contingent upon him completing the USASMC.  The governing regulation states Soldiers who fail to successfully complete, fail to remain eligible to be scheduled for or attend, who are denied enrollment in, or who do not attend their scheduled NCOES class (through fault of the Soldier) will be administratively reduced.

2.  His promotion effective date was 2 September 2002.  

3.  The available evidence shows he successfully completed Phase I of USASMC and prior to completing Phase II he was mobilized in 2003 and deployed to Iraq in early 2004.

4.  He contends, through no fault of his own, he was prevented from attending Phase II of USASMC due to deployment.  However, the evidence shows he requested deferment of Phase II of the course until his release from active duty tentatively scheduled for May 2005.  However, he was released from active duty on 28 March 2005, and he was transferred to the Retired Reserve that date.  It is presumed he voluntarily requested transfer to the Retired Reserve.  

5.  There is no evidence showing he completed Phase II of USASMC or that he was prevented from completing Phase II after he returned from Iraq and was released from active duty or prior to voluntary transfer to the Retired Reserve. 

6.  He was disenrolled from USASMC due to retirement and he was assigned to the Retired Reserve effective 28 March 2005.  He did not fulfill his conditional promotion obligation to retain the rank of SGM and orders show he was properly reduced to MSG.  Therefore, there is an insufficient basis for granting the applicant's request.

7.  His contention that other Soldiers were allowed to retire in the rank of E-9 was noted.  However, each case considered by this Board is decided on its own merits.



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)                                         AR20110019374



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ABCMR Record of Proceedings (cont)                                         AR20110019374



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