IN THE CASE OF:	  

		BOARD DATE:	  18 April 2013

		DOCKET NUMBER:  AR20120019015 


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 retroactive promotion to command sergeant major (CSM)/E-9 in the U.S. Army Reserve (USAR).

2.  The applicant states:

* He was ignored and deliberately pushed too far but feels confident he was always well qualified; his track record clearly demonstrated his qualification
* He was a recipient of multiple awards and decorations in the military and Employee of the Year with Lockheed Martin Aeronautics
* There was a unpleasant conflict in 1991 when he was selected for the U.S. Army Sergeants Major Academy but withdrew because of unmanageable and uncontrollable testing 
* He transferred to the 3rd Brigade, 75th Division in Dallas, TX to start anew but the conflicts followed him
* He was delayed and ignored, but assigned as the operations sergeant only for another master sergeant to take his place and get promoted months later
* The work environment was unbearable and he was not even allowed to perform annual training
* He then prepared an excellent promotion packet but this packet never arrived at the promotion selection board in Houston, TX, at the time
* He requested a meeting with the CSM in an effort to understand what was happening but his request for a meeting was denied
* He spent 50 percent of his time dealing with the harassment and he ultimately contacted the Office of the Inspector General (IG) in Houston; the IG thought his case was too weak and closed it
* He is a Vietnam veteran who was wounded in combat and the way he was treated at the end of his military career was disgraceful
* His next action was to transfer to another unit but he did not have another opportunity to apply for promotion
* He feels he was qualified for CSM; he maintained his physical fitness, education, experience, and track record that clearly shows he was qualified

3.  The applicant provides:

* Congressional correspondence
* Medical screening summary
* Dental records
* Promotion checklist
* DA Form 705 (Army Physical Fitness Test Scorecard)
* Photograph
* Letter to the promotion board president
* DA Form 2A (Personnel Qualification Record - Part I)
* Multiple Noncommissioned Officer Evaluation Reports (NCOER)
* Multiple Enlisted Evaluation Reports
* Multiple service and individuals awards, decorations, and badges
* Multiple certificates and letters of achievement, appreciation, commendation, and recognition
* Multiple diplomas and service school academic evaluation reports
* Multiple certificates of training
* Multiple certificates of completion, training, participation, and recognition
* Verification of security clearance
* Multiple civilian certificates and letters

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's records show he was born on XX October 1945.  

3.  He enlisted in the U.S. Marine Corps (USMC) on 1 November 1965 and he held an administrative specialty.  He served in Vietnam from 26 August 1967 to 23 August 1968.  He was honorably released from active duty on 31 October 1968 and transferred to the USMC Reserve.  

4.  He enlisted in the USAR on 7 April 1980.  He served through multiple reenlistments in a variety of stateside assignments, mostly with the 4159th USAR School, Fort Worth, TX.

5.  He held or performed duties in military occupational specialties (MOS) 71L (Administrative Specialist) and 11B (Infantryman).  He was promoted to sergeant first class/E-7 in the USAR on 8 December 1984 and master sergeant (MSG)/E-8 on 9 April 1988.

6.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* USMC Combat Action Ribbon
* Republic of Vietnam Campaign Medal 
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Presidential Unit Citation (Navy)
* USMC Reserve Medal
* Army Reserve Component Achievement Medal (3rd Award)
* NCO Professional Development Ribbon with Numeral 3
* Army Service Ribbon
* Army Achievement Medal (2nd Award) 

7.  His DA Form 2-1 also shows he completed the Advanced NCO Course; the Nuclear, Biological, and Chemical Defense Course; Senior Reserve Component NCO Course; Reserve Component Primary Leadership Course, and Reserve Component Instructor Training Course. 

8.  In February 1994, he was transferred to Headquarters and Headquarters Company, 3rd Brigade, 75th Division (Exercise), where he performed duties as the operations sergeant.  
9.  On 19 August 1998, the U.S. Army Reserve Personnel Command, St. Louis, MO, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  

10.  On 29 December 1998, subsequent to his request, he was reassigned to the Retired Reserve.  He completed 21 years of qualifying service toward non-regular retirement.  

11.  On 14 June 2005, the U.S. Army Human Resources Command, St. Louis, MO, published orders placing him on the Retired List in his retired grade of MSG (E-8) effective XX October 2005, his 60th birthday.  

12.  He submits a promotion packet, dated 28 February 2005, with allied documents (awards, evaluations, schools, certificates, and other related documents).  With his promotion packet, he included a memorandum through the Commander, 3rd Brigade, 75th Division, which shows he:

* Requested promotion consideration to sergeant major (SGM) against a vacancy for which he qualifies
* Listed his preferences as Houston, TX; Oklahoma City, OK; and Fort Sill, OK

13.  He also submitted a letter, dated 27 February 1995, to the president of the promotion board (E-7 through E-9) in Houston, TX, indicating that when he transferred to the 75th Division, his military personnel records jacket had not been received.  However, all documentation required for the promotion board (except his DA Form 2-1) were available.  He requested the president accept the documents he submitted. 

14.  There is no indication in his records he was appointed to or performed duties as a company first sergeant.  Likewise, there is no indication in his records he completed the U.S. Army Sergeants Major Course or was recommended or selected for promotion to SGM or considered for appointment to CSM.  

15.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, prescribes policy and procedures governing the classification, advancement, promotion, reduction, and grade restoration of USAR Soldiers.  Chapter 6 concerns the USAR CSM program.  

	a.  Paragraph 1-8(b) states promotions to corporal through SGM will be announced in orders.  Orders may be issued for promotion to sergeant and above before the effective date of assignment to a position authorized the Soldier’s grade.  This is provided:  (1) The promotion requires reassignment to a command authorized the Soldier’s grade; (2) The effective date of the reassignment will not exceed 90 days from the date of the promotion order, except for promotions under the provisions of chapter 4; (3) The date of rank (DOR) for troop program unit (TPU) promotions under chapter 3 will be the date the promotion order is published and the DOR for Active Guard Reserve, Individual Mobilization Augmentees, and Individual Ready Reserve promotions under chapters 4 and 5 will be according to the sequence number on the promotion selection list.

	b.  Paragraph 1-8(b)(1), conditional promotion to SGM, states this promotion is awarded with the condition the Soldier must be enrolled in, and successfully complete, the U.S. Army Sergeants Major Course (SMC) within 36 months from the effective date of this order under the SMC corresponding studies, or within 
18 months from the effective date of the order under the SMC resident course.  The Soldier understands and agrees that if he or she fails to meet these conditions, or is subsequently denied enrollment, or 1 becomes an academic failure, or does not meet graduation 1 requirements, or is declared a "No-Show," the Soldier is subject to reduction to the grade and rank held prior to this promotion.  The Soldier further understands that if reduced, service performed in the higher grade will not be considered for retirement, date of rank, or any other determinations dependent on the higher grade.

	c.  Paragraph 3-3 (Consolidates selection and promotion authority and procedures) since promotions to SFC, MSG, and SGM are based on requirements within a geographical area, the senior NCO promotion system is more effective where consolidated selection boards and recommended lists are established. 

	d.  Paragraph 3-38 (Promotion to SFC, MSG, and SGM) states the senior enlisted selection and promotion system outlined in this section prescribes the policy and procedures governing the promotion of TPU Soldiers to SFC, MSG, and SGM.  

		(1)  Paragraph 3-28a states the selection and promotion process for senior enlisted grades is centralized at Army Reserve Command, USAR General Officer Command, or Reserve Support Command headquarters and general officer commands outside the continental United States. 

		(2)  Paragraph 3-28b states senior enlisted promotions result when data is provided to the promotion authority that reflects requirements based on current and projected position vacancies; the promotion authority announces the convening date of the selection board, location and description of current and projected position vacancies, zones of consideration for promotion selection, and administrative instructions; personnel records of Soldiers within the zone of consideration are reviewed by the board; the board selects the best qualified Soldiers to fill required positions and the names are placed on a selection list.  As position vacancies occur, Soldiers are promoted off the list in sequence by MOS and geographical location.

		(3)  Paragraph 3-28(d) states the enlisted promotion system is a function of the overall enlisted personnel management system.  An important factor for the management of these systems is the command cumulative vacancy accountability.  Promotions may not exceed the cumulative vacancies for that pay grade as computed per paragraph 3-4 of this regulation. 

	e.  Paragraph 6-24 (Promotion to SGM under the USAR CSM program) states a 1SG or MSG, in one of the categories cited below, may be considered by a USAR CSM selection board for selection as a CSM designee:  (1) on a promotion selection list for promotion to SGM; or (2)  assigned to a USAR TPU, not on a promotion list, but is otherwise eligible for promotion consideration per paragraph 3–31 without a waiver.  A Soldier who has been selected by the USAR CSM selection board is identified on a list issued by the Department of the Army Secretariat as a CSM designee pending assignment to a CSM duty position.

16.  In 1991 Department of the Army linked the NCO Education System (NCOES) to promotions, requiring graduation from the appropriate level of NCOES as a prerequisite for promotion.  In October 1993, the Deputy Chief of Staff for Personnel modified that requirement for Soldiers selected for promotion to SGM and in August 1994 modified the requirement for all NCO grades.  Those modifications allowed conditional promotion until completion of the appropriate NCOES, and stated that the conditional promotion would be revoked if the Soldier failed to complete the appropriate NCOES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the USAR from 7 April 1980 to 29 December 1998.  The highest rank/grade he attained during his military service was MSG/E-8.  There is no evidence he was selected for promotion to SGM or appointed to CSM during his military service.  Likewise, there is no evidence he completed the U.S. Army Sergeants Major Academy or was assigned and/or served in the higher position.  He acknowledges that he withdrew from Academy attendance.

2.  Each senior promotion board considers all NCOs eligible for promotion consideration, but it may only select a number within established selection constraints.  The selection process is an extremely competitive process based on the "best qualified Soldier" concept.  It is an unavoidable fact that some NCOs considered for promotion will not be selected.  There are always more outstanding NCOs who are fully qualified to perform duty at the next higher grade, who are not selected because of selection capability restrictions.

3.  It is unfortunate that the applicant was not selected for promotion to SGM or appointed to CSM; however, it is a well-known fact that not everyone who is eligible for promotion during a given selection board is selected, because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.  

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)                                         AR20120019015





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ABCMR Record of Proceedings (cont)                                         AR20120019015



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