IN THE CASE OF:	  

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120009448 


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 he be promoted to the rank/grade of master sergeant (MSG)/E-8 with a date of rank (DOR) of 16 October 2010.

2.  The applicant states:

	a.  He is a member of the Colorado Army National Guard (COARNG) in an Active Guard Reserve (AGR) status.  The COARNG Pamphlet 600-8-19 (Enlisted Promotion System (EPS)) added a 14 year active Federal service (AFS) requirement for the promotion to MSG.  He was number 1 on the promotion list but on 16 October 2010 the AGR manager selected the number 2 Soldier on the promotion list to fill a MSG vacancy as he (the applicant) did not have 14 years of AFS.  He is still number 1 on the promotion list but the State is going to select the number 4 Soldier on the promotion list because that Soldier meets the AFS requirement.  

	b.  He has been performing successfully in an E-8 position for the last 3 and 1/2 years and has been number 1 on the promotion list for the last 2 years.  His battalion will have three E-8 positions opening this cycle and they are selecting the numbers 4, 5, and 6 Soldiers on the promotion list.  In October 2010, his battalion requested a waiver for the AFS requirement but it was denied.  He currently has 26 and 1/2 years time in service (TIS), 16 and 1/2 years time in grade (TIG), and 12 1/2 years AFS.  He would like to be promoted to the MSG job that he has been performing for the past 3 and 1/2 years.  

3.  The applicant provides three memoranda and COARNG Pamphlet 600-8-19.
CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the COARNG on 1 March 1985 and he held military occupational specialty (MOS) 79T (Recruiting and Retention Noncommissioned Officer (NCO)).  He was promoted to the rank of sergeant first class (SFC) on 1 March 1995.  His pay entry basic date (PEBD) was 1 March 1985 and his basic active service date (BASD) was 25 March 1999.

2.  On 30 May 2000, he was ordered to active duty as an SFC in the AGR program.  He served on active duty in the AGR program in various positions and was assigned to the Recruiting and Retention Battalion, Centennial, CO.

3.  The applicant provides:

	a.  A memorandum for record, dated 4 November 2008, subject: AFS Requirement for AGR Promotion, issued by the Joint Force Headquarters - Colorado, Colorado National Guard, Centennial, CO, wherein an AFS requirement was implemented for AGR promotions in the COARNG.  This memorandum stated the minimum AFS for promotion to E-8 was 14 years.  This memorandum also stated the AFS requirement would be incorporated into the final COARNG Pamphlet 600-8-19.

	b.  A memorandum, dated 13 October 2010, from his commander to the State AGR manager, wherein the commander requested a 2 and 1/2 year waiver of the AFS rule for the applicant.  The commander stated the applicant had 25 years TIS, 15 and 1/2 years TIG, and 11 and 1/2 years of AFS.  He had worked for the COARNG as a recruiter, military entrance processing station (MEPS) guidance counselor, and as the north team NCO in charge (NCOIC) for the last 3 years which was an E-8 position.  The commander further stated the applicant was at the top of the 79T promotion list and was the most qualified leader.

	c.  A memorandum, dated 16 October 2010, from the State AGR manager to his commander, wherein the State AGR manager denied the request.  The AGR manager stated, in pertinent part, the purpose of the AFS policy was to create upward mobility for Soldiers and to date no AFS waivers had been granted.  He further stated that while the applicant was clearly a top-performer, there were five other NCOs who were fully qualified and possessed the required TIG and AFS.  The number 2 Soldier on the list was only 1 point behind the applicant and possessed the required TIG and AFS.  If a Soldier who possessed the required AFS was promoted now, the command would have the ability to ensure the controlled grade was available in the future through the uses of the Active Service Management Board (ASMB) if retirement did not occur voluntarily.  If the applicant was promoted the command would not have that flexibility.
4.  In connection with the processing of this case an advisory opinion, dated 17 May 2012, was obtained from the Chief, Personal Policy Division, National Guard Bureau (NGB).  The advisory official recommended the applicant be promoted to MSG/E-8 in the first available E-8 vacancy for which he is qualified and for which an E-8 AGR controlled date is available.  The advisory official also stated that:

	a.  Although the purpose of the COARNG AFS requirement for promotion was to ensure upward mobility of Title 32 AGRs, it violates regulatory guidance in Army Regulation (AR) 600-8-19 (Enlisted Promotions), chapter 7, wherein it states "Soldiers will be offered assignment to available vacancies for which they are eligible and available starting with the lowest promotion sequence number (having the most points) within each CPMOS (career progression MOS) and continuing until the selection objective is exhausted, all vacancies are filled, or the list expires."  Table 7-1 lists the TIS requirements for promotion consideration.

	b.  The ARNG has adhered to the use of the Soldier's PEBD for computing TIS for promotion.  The ARNG instituted the Select, Train, Promote, and Assign (STPA) Policy as a personnel management system designed to increase readiness through more effective personnel management practices.  STPA did not include AFS as a promotion criteria for AGRs.  STPA was incorporated into AR 600-8-19 and years of AFS is not listed as promotion criteria in the current or previous versions of AR 600-8-19.

	c.  The COARNG Pamphlet 600-8-19 policy for AFS requirements for selection conflicts with the TIS requirements of AR 600-8-19.  However, the State was acting in good faith when creating the pamphlet and given the length of time the COARNG has been following their procedures, it would be administratively infeasible to promote the applicant before the next E-8 vacancy opens, or to make his DOR retroactive to the date he was first passed over.  Additionally, the COARNG should rescind those portions of COARNG Pamphlet 600-8-19 that conflict with this opinion or with other Department of the Army (DA) or NGB policy and regulations.

	d.  The State does not concur with this recommendation.

5.  The NGB also provided:

	a.  An email, dated 23 August 2011, from the NCOIC, COARNG Enlisted Personnel Management Office Division to the NGB.  The NCOIC stated the COARNG AFS policy was not an eligibility criteria but a selection criteria in order to control career movement of AGRs.  The guidance they used for the selection criteria was AR 600-8-19, paragraph 7-2, which states "Soldiers selected for promotion will be in sequence of the CPMOS list and meet all promotion requirements in this chapter…  Promotion authorities can establish written selection criteria as long as they are global and do not contradict or waive any portion of requirements or prohibition in this chapter."  

	b.  A memorandum, dated 1 April 2011, subject: Determination of Compliance with U.S. Army Enlisted Promotion Regulations and ARNG Polices, from the Chief, Personnel Policy Division, NGB to the COARNG, wherein it stated "In response to your email inquiry on 30 March 2011 regarding AGR enlisted promotions, I directed my staff to thoroughly research the issue of requiring specific years of AFS for AGR promotion selections.  Although the inquiry was approached from the perspective of seeking a regulatory provision to support the State policy, the findings revealed no such basis.  Further, the State policy was found to violate the controlling regulation (reference 1a, chapter 7-40a) and if challenged, we will be unable to provide any relief to the State."  A State official responded that they did not agree with the NGB determination. 

6.  On 31 May 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, he did not respond.

7.  AR 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 SFC, MSG, and sergeant major (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.

	b.  Paragraph 5-32 states commanders will ensure Soldiers who meet eligibility criteria as of the convene date of the board are considered for promotion by the board.  

	c.  Chapter 7 prescribes, policies, procedures, and systems to advance, promote, laterally appoint, and administratively reduce all ARNG and ARNGUS enlisted Soldiers.  Table 7-1 shows the requirements for promotion to MSG are 24 months TIG as SFC and 13 years TIS. 

	d.  Paragraph 7-2 states Soldiers selected for promotion will be in sequence of the CPMOS list and meet all promotion requirements in this chapter and the promotion board Memorandum of Instruction.  Promotion authorities can establish written selection criteria as long as they are global and do not contradict or waive any portion of requirements or prohibition in this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that although the applicant was number 1 on the MSG promotion list on 16 October 2010 and met the regulatory requirements in AR 600-8-19 for promotion the COARNG selected the Soldier who was number 2 on the promotion list for promotion to MSG in contradiction of governing regulations.  The selection was based on the arbitrary policy the COARNG established requiring Soldiers to meet minimum AFS criteria for selection to promotion.

2.  The COARNG official stated the AFS criteria was based on the portion of AR 600-8-19 that stated "Soldiers selected for promotion will be in sequence of the CPMOS list and meet all promotion requirements in this chapter …and that promotion authorities can establish written selection criteria as long as they are global and do not contradict or waive any portion of requirements or prohibition in this chapter."  However, a policy that affects only COARNG Soldiers is not global and does contradict the regulatory requirement that Soldiers will be selected for promotion in sequence of the CPMOS list.  It allowed the COARNG to ignore the sequence number of Soldiers on the promotion list and to pick and choose which Soldiers to promote based on invalid State requirements. 

3.  Notwithstanding the advisory opinion that stated the applicant should be promoted when the first available E-8 vacancy for which he is qualified is available, the advisory official confirmed that on 16 October 2010 the COARNG inappropriately promoted the number 2 Soldier on the promotion list instead of the applicant.  He also stated the AFS requirement implemented by the State conflicted with DA and NGB policy and regulations and should be rescinded.  

4.  Therefore, in the interest of justice and equity, it would be appropriate to promote the applicant to the rank/grade of MSG/E8 with a date of rank of 16 October 2010 and pay him any back pay and allowances due as a result of this correction.





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:

* Promoting him to the rank/grade of MSG/E-8 with a date of rank of 16 October 2010
* Paying him all back pay and allowances due as a result of this correction



      _______ _   _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)                                         AR20120009448



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ABCMR Record of Proceedings (cont)                                         AR20120009448



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