IN THE CASE OF:	  

		BOARD DATE:  20 August 2013

		DOCKET NUMBER:  AR20120021330 


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 reconsideration of his request for correction of his records to show he was transferred to the U.S. Army Reserve Control Group (Retired Reserve) in the rank/pay grade of sergeant major (SGM)/E-9, the rank he held at the time of his discharge from the Oregon Army National Guard (ORARNG).

2.  The applicant states that during the previous consideration of his case the Board noted he had requested a deferment from the U.S. Army Sergeants Major Course (USASMC) Phase II until his return from Iraq; however, such was not the case.  The deferment was requested by his supervisor without his knowledge.  He states he was told that Noncommissioned Officer Education System (NCOES) course attendance was unavailable to him because of his deployment; however, once in country he encountered other Soldiers who were leaving theater to attend USASMC Phase II and then returning to duty.  When he requested to do the same, he learned that a deferment had been requested without his knowledge.  He attempted to attend USASMC Phase II using his leave, but his commander denied the leave because he was deemed mission essential.  Immediately after he requested his leave he was informed that his 
20-year letter had been issued and that he should plan to retire upon his release from active duty (REFRAD).  At that time he inquired about the status of his completion of USASMC Phase II and was informed by the ORARNG G-1 that since he had received his 20-year letter as an E-9 – and since he had missed USASMC Phase II through no fault of his own – he could retire as an E-9 without completing the course.  However, 6 years after retiring he was informed that he was being reduced to pay grade E-8, much too late to do anything about the situation.

3.  The applicant provides a self-authored letter, amendment orders to his promotion orders, and a letter from the unit personnel officer at the time corroborating the applicant's contentions.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110019374 on 3 May 2012.

2.  The applicant was born in May 1965 and served in the Regular Army as an infantryman from 30 November 1983 - 8 May 1988.  He served in the U.S. Army Reserve (USAR) until he enlisted in the ORARNG on 7 December 1994.  He continued to serve through continuous reenlistments.  He deployed to Bosnia during the period 18 September 2001-2 April 2002.

3.  He was promoted to the rank/pay grade of SGM/E-9 on 2 September 2002.  His promotion orders stated the promotion was conditional on completion of the USASMC and that failure to meet the conditions of promotion would result in reduction per National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 3-56e.

4.  He was ordered to active duty on 12 October 2003 in support of Operation Iraqi Freedom.  A memorandum, dated 24 October 2003, requested deferment of the applicant's school date for USASMC Phase II.  This memorandum states the applicant:

	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 that all NCOES must conclude by 2 November 2003 or the Soldier cannot attend;

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

	d.  requests deferment until his REFRAD tentatively scheduled for May 2005; and

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

5.  He deployed to Iraq on 22 March 2004.  He was issued his 20-year letter on 30 November 2004.  He served as the battalion operations SGM until his departure on 20 January 2005.  He was REFRAD at Fort Lewis, Washington, on 28 March 2005.

6.  ORARNG Orders 130-007, dated 10 May 2005, show he was administratively reduced from SGM/E-9 to MSG/E-8 effective 28 March 2005.

7.  ORARNG Orders 130-008, dated 10 May 2005, show he was honorably discharged from the ORARNG and transferred to the Retired Reserve in the rank of MSG effective 28 March 2005.

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

9.  The letter provided by the applicant from the battalion personnel officer at the time confirms the applicant's contentions that he did not request a deferment and that he was told that he would not have to attend USASMC Phase II to retire in pay grade E-9.

10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) 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, are denied enrollment in, or 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.  Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations), paragraph 2-3 (Automatic Grade Determinations), 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 completing USASMC.  The governing regulation states Soldiers who fail to successfully complete, fail to remain eligible to be scheduled for or attend, are denied enrollment in, or do not attend their scheduled NCOES class through fault of the Soldier will be administratively reduced.

2.  However, the applicant has shown through additional evidence submitted with his application that his failure to attend USASMC Phase II was not through any fault of his own.

3.  The statement from the personnel officer at the time clearly indicates the applicant was unaware that a deferment had been submitted by his chain of command due to mission essential needs and that officials of the ORARNG advised the personnel officer that the applicant did not have to attend USASMC Phase II to retire in pay grade E-9.

4.  While he did not complete the conditions of his promotion to SGM, it appears that the circumstances in his case were unusual and given that his failure to attend as scheduled was the result of a combat deployment and through no fault of his own, the applicant should be allowed to retain the rank of SGM while assigned to the Retired Reserve.

5.  Therefore, as a matter of equity and in the interest of fairness to the applicant, his rank should be restored to show he was transferred to the Retired Reserve in the rank/pay grade of SGM/E-9.

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20110019374, dated 3 May 2012.  As a result, the Board recommends that all Department of the Army and State Army National Guard records of the individual concerned be corrected by revoking ORARNG Orders 130-007 directing his administrative reduction to pay grade E-8 and by showing he was transferred to the USAR Control Group (Retired Reserve) in the rank/pay grade of SGM/E-9.



      _______ _  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)                                         AR20120021330



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ABCMR Record of Proceedings (cont)                                         AR20120021330



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