IN THE CASE OF:	  

		BOARD DATE:	  23 May 2013

		DOCKET NUMBER:  AR20120022176 


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 promotions to the higher grades dating back to 
29 March 2007, when he enlisted in the Texas Army National Guard (TXARNG). 

2.  The applicant states there is absolutely no reason why he should not be a 
sergeant first class/E-7 by this date in his career.  He requests information on how to get his promotion backdated.  He believes he was discriminated against due to his injuries during war time.  He adds, in effect:

	a.  On 29 March 2007, he enlisted in the TXARNG as an E-4 promotable, with a Bachelors Degree in Criminal Justice.  He enlisted for military police (MP) which was his previous military occupational specialty (MOS).  He attended several promotion boards with the 712th MP Company in Baytown, TX, which is now in Houston, TX and he was passed over for promotion.  His civilian education, awards and certificates, and his service records were not properly adjudicated into the promotions system.  He was passed over for the Noncommissioned Officer (NCO) Academy possibly because of his upper level education (Bachelors Degree) and due to discrimination regarding his cultural diversity.

	b.  He was attached to Company G, 949th Brigade Support Battalion (BSB), El Paso, TX, for deployment in 2008 when he had another promotion board and he was not selected.  All his civilian education, awards, and certificates were placed in his Interactive Personnel Electronic Management System (iPERMS) record when he enlisted and none were ever placed in his National Guard Bureau (NGB) Form 4100 (Working Copy for Enlisted Promotion System) promotion packet.  He continued to re-submit all of his documentation and all of the units failed to submit the information to be included in the promotion system; therefore, he was placed very low on the promotion list.  Again, he was denied promotion because the units failed to input his information in the Texas Enlistment Promotions Department.  

	c.  He was injured in August 2008 while on pre-deployment to Iraq.  He was sent home in September 2008 and a medical evaluation board (MEB) was started on him.  He was transferred to Detachment 2, 132nd Forward Support Company, San Angelo, TX, which no longer exists, and he was told by Staff Sergeant (SSG) Exxx Gxxxxxes that he would never be promoted or allowed to attend any schools because he was as he put it "(broke)" injured.  Regardless of what he was told, he continued to submit his information for promotion along with the other Soldiers in the unit, but the unit kept failing to input his information into the system for his promotion points and of course he was passed up for promotion.

	d.  In June 2010, he was placed on active duty orders and assigned to the Warrior Transition Brigade, Fort Hood, TX, due to a stroke and then he moved to a Community Based Warrior in Transition Unit (CBWTU), in Arkansas, and that is when he was told that even though he was in the WTU, he was still eligible for promotion.  He was a 297 Army Physical Fitness Test Soldier, with Sharpshooter qualifications and an outstanding military record dating back to Operation Desert Storm.  He believes he has been discriminated against since March 2007.  

	e.  On or about March 2010, when he found out Detachment 2, 132nd Forward Support Company was closing, he asked SSG Gxxxxxes to place him in an MP Company and he was advised that he could not go back to that type of unit because he was broke and they would not take him.  Since June of 2010, he has made a couple of complaints to the Texas Inspector General (IG) on a few issues and was awarded what he was complaining about.  The IG got him back into an MP Company, awarded him the second half of his bonus, and got him promoted to sergeant (SGT)/E-5 with his date of rank (DOR) back dated to 
25 June 2007.  SFC Rxxxxxa Dxxz at the IG's office also informed him that the IG could not investigate the charge of discrimination regarding any further promotions or back pay for those promotions and advised him to contact this Board.  He believes the units he has been assigned to in the past have discriminated against him due to his injury.  He requests that he be granted the appropriate rank based on his time in the service and that his time in grade be appropriately calculated.



3.  The applicant provides:

* DA Form 4187 (Personnel Action)
* "JVAVS Person Summary" 
* DA Form 1059 (Service School Academic Evaluation Report)
* Diploma for a Bachelor of Arts
* ARNG Enlisted Promotion Worksheet
* Certificate of training for MOS 95B Basic Military Police Course
* Addendum to NGB Form 4100-1-R-E
* Certificate of completion of 324 hours of instruction involving Oklahoma statutes
* Three Army Achievement Medal certificates
* Army Good Conduct Medal certificate
* Distinguished Meritorious Achievement certificate
* Army Commendation Medal certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Multiple certificates of appreciations, achievement, training, and commendation
* Multiple certificates for completion of various training

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he previously served in the:

* Regular Army from 22 February 1989 to 19 February 1993 and he held MOS 13B (Cannon Crewmember)
* The TXARNG and Oklahoma ARNG from 20 February 1993 to 12 May 1996
* The U.S. Army Reserve (USAR) from 13 May 1996 to 21 September 1999

2.  He enlisted in the TXARNG in the rank of specialist (SPC)/E-4 for 6 years on 29 March 2007.  He enlisted for training in MOS 31B (MP) and other incentives. He was assigned to the 712th MP Company, Unit Identification Code (UIC) WP79AA, Baytown, TX.  

3.  His mobilization orders are not available for review; however, his DD Form 214 shows he entered active duty on 29 March 2007. 

4.  On 29 April 2008, the TXARNG published orders transferring him from the 712th MP Company to Company G, 949th BSB, UIC WG55V0, El Paso, TX, for the purpose of mobilization. 

5.  On 18 July 2008, the TXARNG published orders ordering him to active duty as a member of his unit in support of Operation Iraqi Freedom, beginning on or about 28 August 2008.

6.  He entered active duty in El Paso, TX, on 28 August 2008.  However, after being seen at the Troop Medical Clinic, Win Army Hospital, Fort Stewart, GA, he was deemed non-deployable by medical authorities.  He acknowledged on the DD Form 220 (Active Duty Report) "I do not believe that I am now qualified to perform satisfactory military service."  As such, he was demobilized and released from active duty on 19 September 2008.  

7.  On 19 September 2008, the TXARNG published orders reassigning him from the 949th BSB to the 712th MP Company (WP79AA), Baytown, TX, effective 17 September 2008. 

8.  On 5 December 2009, his chain of command initiated an NGB Form 4100, Working Copy for the Enlisted Promotion System, Cycle 2010, UIC WY07A2, MOS 31B.  The cutoff for eligibility and documentation was 31 December 2009. 

9.  On 14 June 2010, the U.S. Army Human Resources Command published orders ordering him to active duty under the Active Duty Medical Extension (ADME) program, effective 27 May 2010.  He was assigned to the WTU (UIC W2M530), Fort Hood, TX, effective 27 May 2010.

10.  On 1 July 2010, Headquarters, U.S. Army Medical Command, Fort Hood, TX, published orders assigning him to the Arkansas Community Based Health Care Organization (CBHCO), effective 25 July 2010.  He remained assigned to the WTU, Fort Hood, but attached to CBHCO and with duty in San Angelo, TX.

11.  In or about December 2011, his chain of command initiated an NGB Form 4100, Working Copy for the Enlisted Promotion System, Cycle 2010, UIC WPM0B1, MOS 31B.  The cutoff for eligibility and documentation was 31 December 2011. 

12.  On 8 December 2011, a narrative summary (NARSUM) was dictated pertaining to the applicant's medical evaluation board (MEB).  His NARSUM states:

	a.  He suffered from intermittent episodes of low back pain for several years.  His current problem started in 2008 during training at Camp Maxai, TX, during a road march.  He was seen by his primary care manager who diagnosed him with acute exacerbation of his lower back.  He was released from active duty and returned home.  
	b.  He saw his primary care manager again in December 2009.  A magnetic resonance imaging of the lumbar spine showed spondylolisthesis of the L5-S1 with bilateral neuriforaminal narrowing.  He was then seen by a spine surgeon in Dallas, TX, who referred him for pain management injections but this did not work.  He was transferred to the WTU in June 2010.  During a follow-up angiogram, he suffered a retinal branch artery occlusion of the right eye.  His vision, however, remained 20/20 bilaterally. 

	c.  His final diagnosis was that of lumbar disc disease that did not meet retention standards.  He was also diagnosed with multiple ailments that did not independently impair the performance of his duties.  He was determined to be unfit for active duty in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and recommended for entry into the physical disability evaluation system (PDES).

13.  On 6 June 2012, the TXARNG published orders reassigning him to the 236th MP Company (WPMQAA), San Antonio, TX, effective 20 March 2012, by reason of the applicant’s request.  He was assigned against paragraph and line number 102/08. 

14.  On 3 August 2012, an MEB convened at Darnall Army Medical Center, Fort Hood, TX, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant as having the medically-unacceptable conditions of lumbar degenerative disc disease, L5 radiculoathy, subarachnoid hemorrhage, and mood disorder with depressive features.  The MEB recommended that he be referred to a PEB.  He was counseled and agreed with the MEB's findings and recommendation and indicated that he did not desire to continue on active duty.

15.  On 12 October 2012, the TXARNG published Orders 286-1095 promoting the applicant to SGT/E-5 in primary MOS 31B, effective 25 June 2012.  He was promoted in UIC WPMQAA and against line and paragraph number 104/03.  The State issued PMS Control Number 136MP-12-014.

16.  On 12 October 2012, the TXARNG published Orders 286-1097 revoking his promotion because he did not possess a valid security clearance for his MOS.

17.  On 17 October 2012, the TXARNG published Orders 291-1028 promoting the applicant to SGT/E-5 in primary MOS 31B, effective 25 June 2012.  He was promoted in UIC WPMQAA and against line and paragraph number 104/03.  The State issued PMS Control Number 136MP-12-014.

18.  On 4 December 2012, an informal PEB determined that he was physically unfit due to multiple conditions and rated him under the VA Schedule for Rating Disabilities (VASRD) and assigned the following codes and rating: 

* Code 9343, mood disorder, 50 percent (50%)
* Codes 8199/8100, residuals of subarachnoid hemorrhage, 30%
* Code 5239, lumbar degenerative disc disease, 10%
* Right lower extremity radiculopathy, 10%

19.  The PEB also considered the other conditions listed on his MEB but the conditions were not found unfitting and therefore not ratable.  The PEB recommended that the applicant be permanently retired for physical disability with a combined rating of 80%.

20.  On 28 December 2012, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

21.  On 31 January 2013, Headquarters, III Corps and Fort Hood, Fort Hood, TX, published Orders 031-120 releasing him from active duty with the WTU (UIC W2M530) because of physical disability and placing him on the retired list in the rank of SGT/E-5, effective 28 March 2013.  

22.  He was honorably retired on 27 March 2013 by reason of permanent disability and placed on the retired list effective 28 March 2013.  His DD Form 214 shows in items 4a (Grade, Rate or Rank), 4b (Pay Grade), and 12i (Effective Date of Pay Grade), the entries "SGT," "E-5," and "2007-03-29" respectively. 

23.  An advisory opinion was obtained on 12 March 2012 from the NGB.  An NGB official recommended partial approval of the applicant's request.  The official stated:

	a.  The applicant claimed that he was discriminated against upon his enlistment into the TXARNG, due to injuries sustained while deployed.  The applicant also claimed that at the time of enlistment he had a bachelor's degree and the required time in grade for promotion to the next higher grade.  He argues that his enlisted promotion system points were not accurately updated in the Standard Installation/Division Personnel System (SIDPERS) to reflect on his NGB form 4100-1-R-E, despite the documents being provided and placed in iPERMS.

	b.  Based on the information provided by the TXARNG, all SPC/E4's are placed on a decentralized board and promoted to E5 within their battalion. Although this practice is not in compliance with Army Regulation 600-8-19, paragraph 7-34(e), every Soldier in this pay grade is boarded the same. According to the listed regulation, "The Adjutant General (AG) has the authority to conduct decentralized boards, as necessary, to support mission requirements and maximize efficiency.  Results will be consolidated at the Joint Forces Headquarters (JFHQ) and published as a single State list.  Decentralized is defined as a board conducted in a formal setting as specified by the State Memorandum of Instruction (MOl) where board members are subcategorized into panels to review specific packets (for example, by grade and MOS). The respective board results, once approved by the convening authority, will be forwarded to the JFHQ for consolidation and publication of a State enlisted promotion list.

	c.  According to the Enlisted Policy Branch at NGB, it is understood that some States are larger than others and it may not be suitable for the unit or the Soldier to travel more than two to three hours for a promotion; however, Soldiers have the option to decide whether they want to be considered outside their battalion and to determine how many miles they are willing to travel outside their home of record.

	d.  Based on the practices of the TXARNG the applicant was not promoted as soon as he joined the TXARNG due to there not being any vacant E5 positions available with his MOS.  SIDPERS was not updated to reflect his civilian and military education.  However, at the time a board convenes, handwritten corrections are made by the Soldier, and that is what the board members use for evaluation.  This practice does not excuse the fact that every Soldiers’ SIDPERS records be adjusted to reflect correct information for the next upcoming boards.

	e.  According to the TXARNG, the applicant was on a promotion list for 13B from 2008-2011.  In 2008, the battalion the applicant was in did not have any vacant 13B2O slots.  In 2009 he was in a unit that had 00FO (MOS immaterial) positions, but the unit was over strength in SGT/E5's.  He was transferred back to UIC WY07A2 on 20 February 2009 and the battalion still did not have any vacant 13B2O slots.  He was awarded a secret security clearance in MOS 31B on 
22 August 2011.  He later transferred to the WTU on 15 November 2011, and he was promoted on 25 June 2012.  He was later placed on the 31B promotion list in 2012 once he was granted the security clearance required to function in that MOS.

	f.  The TXARNG states one Soldier was deployed and promoted to E5/SGT, MOS 13B2O who would have been below the applicant on the Enlisted Promotion (EPS) List.  His effective DOR was 8 December 2008.  According the State and NGB Policy Initiative Section the Soldier who was promoted did not receive a Battlefield Promotion (BFP).  There is no way to determine how this Soldier was promoted ahead of the applicant, only speculation.  It is recommended that the applicant be granted partial administrative relief; his DOR be adjusted to 8 December 2008, and he should be immediately placed on the SSG/E6 EPS List.

	g.  As stated previously, the TXARNG misinterpreted the process of conducting decentralized boards, and applied this practice across the State.  The Soldier has not provided any evidence that supports he was discriminated against.  However, the process the State has used is not in compliance with Army Regulation 600-8-19, paragraph 7-34(e).  The Soldier should have been considered for promotion to E5 throughout the State along with his peers in MOS 13B.  It is a suggestion that Texas consider their Soldiers by zones rather than battalions to allow for promotion opportunities and, therefore, allowing units to promote the best qualified, while simultaneously limiting the amount of miles the Soldier would be required to travel.

24.  The applicant was provided a copy of this advisory opinion but he did not respond. 

25.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Chapter 7 states the ARNG promotion selection process establishes the means to consider all eligible Soldiers, evaluate each Soldier’s potential, rank and then select the best qualified Soldiers for promotion, and prepare the Soldier with the necessary training for assignment at the next higher grade.

	a.  Paragraph 7-28a states States/territories will conduct annual promotion boards for each grade and publish a promotion list.  States are authorized to supplement their annual promotion lists for specialist to sergeant and sergeant to SSG by conducting quarterly or semiannual boards.  States will follow the same procedures for conducting the supplemental boards; however, the time in grade and time in service will be calculated from the new board date.  Supplemental boards will consider deployed, non-deployed, and WTU Soldiers in the process.  Soldiers selected by supplemental boards will be integrated into annual promotion lists.  The selection objective will list in promotion sequence the best qualified Soldiers who will be assigned to current vacancies (within the State structure) in higher-graded positions that go with the promotions.  

	b.  Paragraph 7-28d states once considered and selected for promotion and assigned to a valid position, per paragraph 7–40, Soldiers are promotable and may be promoted with an effective date and DOR on the date they are assigned to the valid higher-graded position.

	c.  Paragraph 7-29 states the State Military Personnel Management Office will announce each board using a memorandum of instructions (MOI) patterned on figure 7–3, which will include (1) The basic criteria for consideration from section V of this chapter; (2) Guidance for Soldiers to elect the maximum voluntary travel distance based on their personal goals as opposed to the maximum involuntary travel distance under the provisions of Army Regulation 135–91 (Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Procedures); (3) The standard options provided by the State that will apply to all Soldiers in a given grade and category, such as, “I wish to be considered....”  The following are examples from which States will choose or use as a basis to develop their own: current unit; armory; city/town or local area; battalion or major subordinate command; regiment, brigade, group or troop command; area, zone or region; within 50 miles of residence; within 75, 100, or any other number of group number of miles the State sets from which Soldiers may choose.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the TXARNG in the rank/grade of SPC/E-4 for 
6 years on 29 March 2007.  He enlisted for training in MOS 31B (MP) and other incentives.  He was assigned to the 712th MP Company, UIC WP79AA, Baytown, TX in MOS 31B.  He was mobilized on 26 August 2008 and he was found medically unqualified for deployment.  As such, he was demobilized and released from active duty.  

2.  In a large State like Texas, it is reasonable and normal for a Soldier to be eligible and/or compete for promotion within their battalion.  In order to compete for promotion in another battalion the Soldier must be assigned to that battalion. He appears to have been placed on the 2008, 2009, 2010, and 2011 promotion lists.  Between 2008 and November 2009, he was assigned to UICs WV55G0, WP79AA, and WYO7A2.  He was recommended for promotion but could not be promoted due to non-availability of any vacancies in his MOS.  None of these units had a vacancy for an E5 in MOS 31B. 

3.  In January 2009, he was transferred to UIC WYQXT0.  This unit had a position coded as MOS immaterial, but there were too many E5s assigned to that unit.  He was transferred back to UIC WY07A2 in February 2009, but that unit also had too many Soldiers serving in MOS 31B. 

4.  It appears the medical condition that rendered him non-deployable also led to his assignment to the WTU and then the Arkansas CBHCO.  He was awarded a secret clearance in MOS 31B in or about August 2011.  It appears once he became qualified in the MOS and he was placed in a battalion that accepted/agreed to accept him in the higher position, his unit was able to promote him to E-5. 

5.  With respect to the applicant's arguments:

	a.  He contends the reason he was not promoted was because of discrimination due to education and cultural diversity; however, he fails to produce a shred of evidence supporting this contention.  There is no Equal Opportunity (EO) complaint or substantiated findings of an EO violation or an IG complaint or IG findings on file and he provides none to validate his contention.

	b.  He contends his promotion recommendation was not updated with his civilian education and awards/decorations.  This contention is not valid because a pen/ink update can be easily made to the promotion recommendation.  In any case, it was not his qualification that prevented his promotion.  There were simply no vacancies for his MOS.  

	c.  He contends there is no reason he should not be an E-7.  This contention is speculative.  Promotion boards work on a "best qualified" concept after establishing those who are "fully qualified" for a particular board.  The applicant was not fully qualified in MOS 31B until November 2011.  He was promoted to SGT on 25 June 2012 and he retired for physical disability on 28 March 2013.  He was not eligible for promotion consideration to staff sergeant/E-6 let alone SFC/E-7. 

6.  Notwithstanding the NGB's partial favorable recommendation to adjust his DOR, after a comprehensive review of the available evidence, there is insufficient evidentiary basis to support granting the applicant any 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 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)                                         AR20120022176



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ABCMR Record of Proceedings (cont)                                         AR20120022176



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