IN THE CASE OF:	  

		BOARD DATE:	 25 June 2013 

		DOCKET NUMBER:  AR20120013486 


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 records to show he retired in the rank/grade of sergeant first class (SFC)/E-7
* revocation of the orders reducing him to staff sergeant (SSG)/E-6
* back pay as an SFC/E-7 for the period he served as an SSG/E-6 after he was reduced

2.  He states he was reduced to SSG/E-6 on 26 April 2011 for administrative reasons.  He was told he did not complete all phases of the Basic Noncommissioned Officer (NCO) Course (BNCOC).  He served honorably for almost 7 years as an E-7 platoon sergeant and readiness NCO in the Michigan Army National Guard (MIARNG), to include two deployments to Iraq for which he was given awards.  As shown on the NCO evaluation reports (NCOER) he provides, he has always done his job with enthusiasm and with an emphasis on mission accomplishment.  He believes the documentation he provides shows he not only completed BNCOC, but also that a grave injustice was allowed to happen.  He was administratively reduced without regard to his family or career.  He was never counseled on being reduced.

3.  He provides:

* memorandum for record (MFR) from the Commander, Detachment 2, Company B, 351st Aviation Support Battalion, Grand Ledge, MI, dated 9 July 2012
* MFR from the Commander, Headquarters, 3rd Battalion, 238th Aviation Regiment, Grand Ledge, MI, dated 1 March 2012
* printouts of pages from the Army Training Requirements and Resources System (ATRRS)
* DA Form 1059 (Service School Academic Evaluation Report), dated 24 January 2003
* multiple orders
* class roster
* memorandum, dated 21 December 2003, subject:  Suspension of Conditional Promotions – SGT [Sergeant] through SFC
* memorandum, dated 24 March 2004, subject:  Change 1 to Suspension of Conditional Promotions – SGT through SFC
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 24 October 2005 and 2 January 2010
* DA Forms 638 (Recommendation for Award) dated 1 June 2005, 15 January 2009, and 15 October 2009
* extract from Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
* Army Commendation Medal Certificate
* e-mail correspondence
* DA Form 4856 (Developmental Counseling Form), dated 8 February 2012
* extract from Army Regulation 635-200 (Active Duty Enlisted Administrative Separations)
* six NCOER's
* extract from Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations)

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the U.S. Air Force, the applicant enlisted in the MIARNG on 2 December 1999 for a period of 3 years beginning in pay grade 
E-5.  On 8 May 2000, he was ordered to active duty in support of Global War on Terrorism operations.  His records show he served on active duty in a mobilized status and an Active Guard Reserve (AGR) status until he retired in 2013.

2.  On 10 February 2002, he completed the Primary Leadership Development Course.

3.  On 21 June 2002, he completed BNCOC Phase 1.

4.  On 15 July 2002, the MIARNG issued Orders 196-023 promoting him to SSG/E-6 in primary military occupational specialty (PMOS) 67N (UH-1 


Helicopter Repairer) effective 21 June 2002.  The additional instructions state that this is a conditional promotion.  The Soldier must complete the NCO Education System (NCOES) course prescribed for the grade to which promoted as a condition of this promotion.  Failure to meet the condition will cause reduction per National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 11-56e.

5.  On 12 December 2002, he completed BNCOC Phase 2.

6.  On 24 January 2003, he completed BNCOC Phase 4.

7.  On 11 May 2004, the MIARNG issued Orders 132-025 promoting him to SFC/E-7 in PMOS 15U (CH-47 Helicopter Repairer) effective 1 May 2004.  The additional instructions state:

* the promotion was not valid and this order will be revoked if the Soldier concerned is not in a promotable status on the effective date of the promotion
* the Soldier must enroll in the appropriate NCOES course within 90 days of the effective date of promotion or release from active duty
* failure to enroll, attend, or complete any portion (of the NCOES) within the allowable time frames will result in referral to a reduction board in accordance with National Guard Regulation 600-200, paragraph 11-60

8.  On 4 November 2004, he was released from active duty for training for the purpose of mobilization on 5 November 2004.  Item 14 (Military Education) of the DD Form 214 for the period ending 4 November 2004 shows he completed BNCOC Phases 1, 2, and 3.

9.  He was ordered to active duty on 5 November 2004 in support of Operation Iraqi Freedom.  On 24 October 2005, he was honorably released from active duty upon completion of required active service.  On 25 October 2005, he reentered active duty in an AGR status.

10.  Two National Guard Bureau (NGB) Forms 4100-R-E (Enlisted Promotion Point Worksheet), printed on 30 August 2005 and 1 July 2006, show the entry "NCOES:  2 – Basic" in Section I (Personnel System Data).

11.  On 2 February 2009, he was released from his AGR status and ordered to active duty for mobilization in support of Operation Iraqi Freedom.

12.  On 2 January 2010, he was honorably released from active duty upon completion of required active service.  On 3 January 2010, he reentered active duty in an AGR status.

13.  His record contains five NCOER's covering periods during which he was rated for various principal duties while serving in the rank/grade of SFC/E-7.  During these periods he received "Among the Best" ratings from his raters and the highest possible "Successful" ratings from his senior raters.

14.  On 26 April 2011, the MIARNG issued Orders 116-008 reducing the applicant from SFC/E-7 to SSG/E-6 effective 26 April 2011 under the provisions of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-18.  These orders show his date of rank (DOR) for SSG/E-6 as 21 June 2002.

15.  Section VI (Military Education) of his Enlisted Record Brief, dated 4 October 2012, shows the entry "BASIC NON-COMMISSIONED OFFICER COURSE" in the block for his military education level and "NOT ENROLLED" in the block for military education status.  Section VI further shows he completed:

* BNCOC Phase I in 2002
* BNCOC Phase II in 2002
* BNCOC Phase IV in 2003

16.  On 6 January 2013, the MIARNG issued Orders 006-015 discharging him from the ARNG effective 31 March 2013 and assigning him to the Retired Reserve the following day.

17.  On 31 March 2013, he retired after completing 20 years and 5 days of active military service.  His DD Form 214 for the period ending 31 March 2013 shows he held the rank/grade of SSG/E-6 and the effective date of his pay grade was 1 May 2004.

18.  The applicant provides, in part:

	a.  An MFR from the Commander, Detachment 2, Company B, 351st Aviation Support Battalion, Grand Ledge, MI, dated 9 July 2012, which states the applicant followed his chain of command to get his reduction order revoked.  He appealed to the Inspector General (IG) of Michigan in 2011.  The IG determined all rules and regulations were followed with regard to his reduction to SSG/E-6.  The detachment commander believes the IG did not take the time to thoroughly investigate this case.

	b.  An MFR from the Commander, Headquarters, 3rd Battalion, 238th Aviation Regiment, Grand Ledge, MI, dated 1 March 2012, which states:

		(1)  He believes the applicant was erroneously reduced to SSG/E-6 and the reduction was handled improperly, causing unnecessary and additional hardship on the applicant and his family.  He believes the reduction order should be revoked.

		(2)  The applicant attended BNCOC Phases I, II, and IV in 2002 and 2003.  During this period, BNCOC Phase III for MOS 67N was not offered.  Since his promotion to SFC/E-7 in 2004, he performed in an outstanding manner as an acting detachment NCO in charge and during two combat deployments;

		(3)  In 2008 the applicant attended the Advanced NCO Course (ANCOC), but the "school house" sent him home stating he needed a waiver for not having completed BNCOC Phase III.  In 2010, following a deployment, the applicant requested a waiver through the State of Michigan.  The State determined he was required to attend the BNCOC phase that had not been offered and reduced him to SSG/E-6 immediately with no notification to the applicant or his unit.  The applicant used his chain of command and the IG in an attempt to resolve the issue.  He agreed to attend the "missing" BNCOC phase to be reinstated to SFC/E-7 while the IG worked on his case.  While attending BNCOC Phase III in January 2012, the applicant's family suffered a severe medical emergency.  He was allowed to leave the course for compassionate reasons and return home.  The applicant decided to retire because he could no longer leave his family for extended periods of time.

		(4)  He provides a detailed timeline of events relating to the applicant's reduction.

	c.  Pages from his ATRRS record which show –

* he had a reservation for BNCOC Phase I in Fiscal Year (FY) 2002 and reservations for BNCOC Phases II and IV in FY03
* he had reservations for ANCOC Phase I in FY04 and in FY08

	d.  A memorandum from the MIARNG, dated 21 December 2003, subject:  Suspension of Conditional Promotions – SGT through SFC, announced the suspension of conditional promotion to the ranks which indicated in the subject line effective 1 January 2004.  It stated NCOES requirements and timelines for completing required courses had not changed.  The memorandum stated an SSG must have completed all phases of BNCOC to be promoted to SFC.

	e.  E-mail correspondence related to his attempts to resolve the issue that led to his reduction which show, in part, the following:

		(1)  On 29 March 2011 after consulting with NGB and a subject matter expert (SME), a training NCO in the MIARNG Office of the Deputy Chief of Staff for Operations stated the applicant should take all phases of the Advanced Leader Course (ALC) (ALC has replaced BNCOC under the current NCOES).  He stated classes designed to address (the transition from 67-series MOS's to 15-series MOS's) had been offered for a sufficient amount of time that the applicant could have attended.  The transition courses were no longer offered, nor was the 67-series BNCOC.  The only valid training path was to attend all phases of ALC.

		(2)  On 26 April 2011, the applicant informed Master Sergeant P____ that he had enrolled in ALC Phase I.

		(3)  On 19 May 2011, Sergeant Major D____, Deputy Chief of Staff for Personnel, G-1, MIARNG, informed the applicant's command sergeant major that:

* a waiver request to give the applicant constructive credit for BNCOC had been forwarded from NGB to the proponent
* the proponent SME had told NGB there was little chance of approval
* "they" believed there was an opportunity for the applicant to go to school
* if the applicant received constructive credit, he would be eligible for promotion to E-7, but he would have to regain promotion list status
* when the applicant was promoted to SFC/E-7, the policy required completion of all phases of BNCOC prior to promotion
* at the time, the unit entered the NCOES level into SIDPERS
* putting a "2" under his NCOES which meant BNCOC complete was an error, but the error would have made it appear he was promotable
* "the simple fact is he should never have been promoted to E-7 in the first place"

		(4)  On 4 January 2012, a civilian staff member of the Michigan IG office informed him that her office worked closely with the G-1 and determined that, ultimately, the decision properly belonged with the "school house," who denied his request.  She stated the investigation involved SME's from G-1, G-3, and the "school house."

	f.  A DA Form 4856, dated 8 February 2012, which shows he was recommended for disenrollment from ALC for compassionate reasons due to his "family's sensitive medical situation."  He was informed that he could return to ALC once his unit had coordinated a future class date for him.

	g.  A class roster for the BNCOC Phase IV course he completed which notes "all E-7's now who have not completed Phase 3 of BNCOC."

	h.  An excerpt from Army Regulation 635-200, chapter 12 (Retirement for Length of Service), which states, in part, that ARNG Soldiers serving on active duty at the time of retirement in a grade lower than their highest active duty enlisted grade, who were administratively reduced in grade not as a result of their own misconduct, will retire at the highest enlisted grade in which they served satisfactorily on active duty.

	i.  An excerpt from Army Regulation 600-8-19, chapter 7 (Enlisted Promotion and Reduction of ARNG Personnel), dated 20 March 2008, states a Soldier will receive constructive credit for a phase of an NCOES course that has not been taught within 2 years after the Soldier completes Phase I.  The request for and approval of constructive credit are to be filed in the Soldier's Army Military Human Resource Record (formerly called the Official Military Personnel File).  Soldiers will generally retain credit for all courses completed even if they are reclassified into another MOS.

19.  Army Regulation 600-8-19, chapter 7, incorporates policy for the promotion and reduction of ARNG personnel formerly contained in National Guard Regulation 600-200.  It states that if a Soldier is accidentally or intentionally promoted when not in a promotable status, the promotion will lack original basis of authority and will therefore be voided.

20.  Army Regulation 600-8-19, paragraph 10-18, 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 or removed from the promotion list.  Soldiers will only be reduced when NCOES is required for his/her current grade.

21.  All Army Activities Message 146/2003, dated 21 November 2003, suspended conditional promotions of Soldiers in grades E-5 through E-7.  The message stated an SSG must be a BNCOC graduate to be eligible for consideration for promotion to SFC.  The policy applied to all Active Army, ARNG, and U.S. Army Reserve Soldiers.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's requests for correction of his record to show he retired as an SFC/E-7, revocation of the orders reducing him to SSG/E-6, or back pay as an SFC/E-7 for the period he served as an SSG/E-6 after he was reduced.

2.  The records show the applicant was erroneously promoted to SFC/E-7 before he had completed all phases of BNCOC.  Although a statement in support of the applicant's request indicates the phase of BNCOC he did not complete was not offered at the time, there is no compelling documentary evidence to support that statement.  In fact, the record shows that coordination with SME's at NGB, the State G-1, and the training proponent found the applicant could have attended the BNCOC phase he missed or an equivalent course.  Accordingly, a request for constructive credit was denied and he was reduced because completion of BNCOC is required to hold the rank/grade of SFC/E-7.

3.  At the time of his erroneous promotion to SFC/E-7, Army policy stated an SSG had to be a BNCOC graduate to be eligible for consideration for promotion to SFC.  Although various documents in his record show he completed BNCOC, the available evidence clearly shows this was not the case.  There is no evidence showing he attempted to obtain constructive credit for the missing phase of BNCOC until several years after his erroneous promotion to SFC.

4.  He indicates other NCO's who did not take BNCOC Phase III were promoted.  The training records of the other NCO's are not available.  If they were, in fact, promoted, it would be inappropriate to presume that they were promoted without completing all phases of BNCOC or without having received constructive credit from the appropriate authority.

5.  The length of time involved in discovering and correcting the erroneous promotion is unfortunate; however, the length of time that passed is not, in itself, a basis for revoking the reduction orders.

6.  In light of the NCOER's he received, there is no doubt that the applicant's service was successful.  However, there is a distinction between a Soldier serving successfully in a grade for which he was fully qualified and a Soldier serving in a grade to which he was promoted in error.  In this case, because he was promoted in error, there is no basis for correcting his record to show he retired as an SFC/E-7.

7.  Because there is no basis for revoking his reduction orders or correcting his records to show he retired as an SFC/E-7, there is also no basis for paying him any back pay.

8.  In view of the foregoing, there is an insufficient basis upon which to grant the requested relief.

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)                                         AR20120013486



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ABCMR Record of Proceedings (cont)                                         AR20120013486



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