BOARD DATE:	  7 May 2013

		DOCKET NUMBER:  AR20120015106 


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 promotion to master sergeant (MSG)/E-8.

2.  The applicant states that in July 2009 an Active Guard Reserve (AGR) promotion opportunity within the Ohio Army National Guard (OHARNG) AGR program opened up for which he was qualified.  He states when filling this slot, he was bypassed on the list and someone else below him on the promotion list was promoted with a date of rank of 31 August 2009.  He claims he was told the reason for his being bypassed was because he was not deployable.  However, the governing regulation states Soldiers pending referral to a military occupational specialty (MOS) medical retention board (MMRB) or to a Medical Evaluation Board (MEB) will not be denied promotion, if already promotable, on the basis of medical disqualification.  He states at the time he was bypassed, he was not pending a referral to an MMRB, MEB, or Physical Evaluation Board (PEB).  He further states the regulation also states under no circumstances will a Soldier on a promotion list who is eligible and available for the vacancy be bypassed.

3.  The applicant provides numerous documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a member of the OHARNG serving on active duty on AGR status in the rank/grade of sergeant first class (SFC)/E-7.


2.  On 28 November 2011, the Joint Force Headquarters, Columbus, Ohio, Inspector General (IG) provided a final response to the applicant's 2009 request for IG assistance in regard to his being passed over for promotion.  The IG noted at the time the unit promotion request was submitted, the applicant was
by-passed because he was not deployable based on his medical fitness.  The IG stated the OHARNG in concert with the NGB decided it was appropriate to
by-pass the applicant for promotion even though he was eligible because he was not deployable.  He further indicated the DCS, G-1 reviewed this action and concluded the policy memorandum published by the National Guard Bureau (NGB) was contrary to Army policy.

3.  During the processing of this case, on 4 February 2013, an advisory opinion was obtained from the NGB, Acting Chief, Personnel Policy Division.  The advisory official recommends disapproval of the applicant's request.  He states the applicant was second on the Fiscal Year 2009 (FY 09) promotion list for MOS 21X (General Engineering Supervisor).  He indicates that in September 2008 the applicant went to Fort Knox, KY for a medical evaluation based on his experiencing medical problems that originally resulted from a training accident in March 2006.  A final determination on his medical status was not documented until September 2010 with a finding of return to duty, deployable.  He further states that in July 2009 the 8th Engineer Brigade, which was under alert for mobilization, submitted a request to fill an Operational Noncommissioned Officer (NCO) T32 AGR position.  The first Soldier on the list declined and the State decided to by-pass the applicant.  The third Soldier on the list declined and the fourth Soldier on the list was offered and accepted the position.

4.  The advisory official indicates the NGB addressed the issues related to the regulatory requirements for promotion of Soldiers referred for MMRB, MEB, or PEB in NGB-ARH Policy Memorandum #10-029 issued in September 2010.  This policy memorandum pertains to the promotion of enlisted personnel in units under official notification of sourcing, alert orders, or mobilization orders as promulgated pursuant to that directive, in order to maximize the ability of the ARNG to field fully-ready mission-capable units for contingency operations whenever called upon by the National Command Authority.  The policy defines the meaning of available in the following definitions:

* Completed all pre-deployment training requirements with the unit in which the Soldier is to be promoted
* Deploy with the unit in which he or she is to be promoted and complete the entire projected deployment with the unit
* Perform the principle duties of the position in which the Soldier is to be promoted

5.  The NGB advisory official also indicates the policy defined in the memorandum cited above states that if the next eligible candidate on the Enlisted Promotion System (EPS) list does not meet the definition of available, the State is authorized to by-pass that Soldier and promote the first available Soldier.  Based on NGB-ARH Policy Memorandum #10-029, the applicant's request for promotion to MSG/E-8 lacks merit.

6.  A copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On
11 February 2013, the applicant responded to the NGB advisory opinion.  He states, in effect, the Deputy Chief of Staff, G-1 is the proponent for the promotion regulation and supplementation of that regulation is not authorized without prior approval of the G-1.  He further states the governing regulation defines availability and that the NGB completely disregarded the regulation.  He further requests a personal appearance hearing before the Board to discuss his issues and provide more information pertaining to the abuses.

7.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) contains the Army's promotion policy.  Chapter 7 contains guidance on promotion of ARNG personnel.  Section IV contains guidance on promotions to sergeant through sergeant major.

	a.  Paragraph 7-22 contains guidance on promotion actions.  It states Soldiers may be promoted into vacant positions on the basis of selection by a promotion board and placement in the selection objective of a promotion list.  All documented positions including those on carrier unit identification codes (UICs), provisional units, and derivative UICs that are part of the State's structure are valid for promotion purposes subject to the policies of National Guard Regulation (NGR) 600-200 (Army National Guard Enlisted Personnel Management),
NGR 600-5 (The AGR Program, Title 32, Full-Time National Guard Duty (FTNGD), and regulations governing the Military Technician Program.  State military personnel officials will verify questionable cases and coordinate with the State Human Resource Officer, as needed.

	b.  Paragraph 7-40 contains guidance on selecting Soldiers from promotion lists.  It states that NGR 600-200 covers and chapter 3 refers to utilization of Soldiers.  State Military Personnel Management Offices (MPMOs) will ensure senior grade vacancies are filled without delay.  Failure to fill valid vacancies in a timely manner has a direct impact on the unit status report and the overall unit retention program.  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 career progression MOS and continuing until the selection objective is exhausted, all vacancies are filled, or the list expires.

8.  NGR 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted Soldiers.  Chapter 4 states AGR personnel must compete for vacancies solely identified on the Unit Manning Document and the Support Personnel Manning Document for full-time AGR manning.   Based on the restrictions, Soldiers may be ineligible or unavailable for the assignment due to program requirements or geographic location.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), the regulation under which the ABCMR operates, prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be promoted to MSG/E-8 because State and NGB officials violated the Army regulation for enlisted promotions when it by-passed him for promotion based on non- availability has been carefully considered.  However, there is insufficient evidence to support his claim.

2.  While it is true the governing Army regulation for enlisted promotions prohibits a member from being denied promotion when pending an MMRB. MEB, or PEB; it is equally true that the States and NGB are granted wide latitude in promotion selection based on position vacancy and operational readiness requirements.  In this case, the applicant admits he was not formally pending an MMRB, MEB or PEB when he was by-passed for promotion.  However, he did seek medical treatment in September 2008 for injuries related to a 2006 training accident, and he was pending evaluation of this condition at the time the unit was alerted for mobilization in July 2009, which is when the request to fill an operations noncommissioned officer AGR position was submitted.  The applicant remained unavailable until September 2010 when he was returned to duty, which is after the required position had been filled and another Soldier was promoted.

3.  In this case, while the NGB memorandum used to defend its actions is questionable given it was not cleared with the enlisted promotions regulation proponent, this is not the determinative factor in this matter.  The operational and readiness requirements of the unit is the primary factor driving promotions for vacancies for units who are or have been alerted for mobilization and it is within the regulatory discretionary authority of State and NGB officials to make promotion decisions in these cases based on availability.

4.  In view of the foregoing, and given it does not appear the applicant was formally pending an MMRB, MEB, or PEB, there is an insufficient evidentiary basis for granting the applicant's requested relief.

5.  Additionally, the applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

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)                                         AR20120015106



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ABCMR Record of Proceedings (cont)                                         AR20120015106



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