BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130008619 


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 reinstatement of his rank/grade of sergeant major (SGM)/E-9. 

2.  The applicant states he followed guidance from his student advisor and the U.S. Army Human Resources Command (HRC) SGM branch to request reassignment to the next U.S. Army Sergeants Major Academy (USASMA) non-resident class.  He was told the paperwork was signed with a favorable recommendation from his chain of command but HRC and USASMA failed to follow through which is no fault of his. 

3.  The applicant provides:

* DA Form 1559 (Inspector General (IG) Action Request) 
* Letter from the Office of the IG, U.S. Army Civil Affairs and Psychological Operations Command (Airborne) (USACAPOC(A)), Fort Bragg, NC
* Request for disenrollment from USASMA Class Number 35 with chain of command endorsements
* Transfer to the Retired Reserve orders

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 July 1951.  He turned 60 years of age in July 2011. 

3.  He enlisted in the U.S. Army Reserve (USAR) on 28 March 1983.  He served through multiple reenlistments in a variety of assignments and he was promoted to master sergeant (MSG)/E-8 on 1 September 2003. 

4.  On 21 April 2007, Headquarters, USACAPOC(A), Fort Bragg, NC, published Orders 07-111-0001 promoting him to SGM/E-9 effective 1 April 2007.  The promotion orders stated: 

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 if he fails to meet these conditions or is subsequently denied enrollment or becomes an academic failure, or does not meet graduation requirements, or is declared a no show, he will be subject to reduction under Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), paragraph 7-12d, to the grade and rank he 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. 

5.  The applicant was enrolled in USASMA Class Number 35, non-resident course which began in or around April 2008. 

6.  In April 2009, he communicated with his Faculty Advisor at USASMA regarding a deferment from Class 35 to Class 36.  His Faculty Advisor responded on 22 April 2009 and advised him that given the personal circumstances he described, he recommended that "if all possible you should remain in Class 35, but as I learn more of your situation, perhaps it would be better if your component requests an administrative drop."
7.  On 15 October 2009, by email, an official at the SGM Team, HRC, notified the applicant of the following:

	a.  She (the official) had called and left a voicemail for him concerning the submission of his administrative disenrollment packet that she had yet to receive.

	b.  She had sent him an email on 27 July 2009 with the instruction for submitting a disenrollment packet, but as of this date she still had not received anything from him.  He was in grave danger of receiving a "Lack of Progress Dismissal." 

	c.  He was given 30 days from this email to send in his disenrollment packet with the necessary documents.  Request for Deferment/Disenrollment are forwarded through his chain of command to HRC for review for completeness.  Once verified, his packet will then be forwarded to the USAR Command (USARC) for approval/disapproval.  There are three categories of deferments: Compassionate, Medical, and Operational.  A request MUST be fully justified by the first General Officer in the chain of command and submitted to HRC.  The medical deferments MUST have a DA Form 3349 (Physical Profile) in addition to a memorandum from the chain of command (concur/non-concur), a memorandum from the major command, command sergeant major (CSM) (concur/non-concur), a memorandum from the Soldier and ANY supporting documentation, such as DA Form 4856 (Counseling Form), DA Forms 2A/2-1 (Personnel Qualification Record), and memorandum from the Office of the CSM, USARC. 

8.  On 3 November 2009, after additional questions from the applicant, an HRC official provided him with a sample request for deferment and highlighted the need for the supporting documents. 

9.  On 9 November 2009, he submitted a request for disenrollment from Class Number 35 and enrollment in Class Number 36.  He cited several personal reasons, including family member's hospitalization, death, and estate; the death of his uncle; and rebuilding his own personal business difficulties that included income tax issues, that made it impossible for him to satisfactorily participate in Class Number 35. 

10.  On 12 and 30 November 2009, and 14 December 2009, his senior commander, battalion CSM, and higher-headquarters CSM recommended approval of his request.   

11.  On 7 December 2009, HRC officials reviewed his request and advised him that upon review of his application and prior to forwarding it to USARC, it was noted that he did not submit anything that would substantiate his compassionate issues such as death certificates and or obituaries on his aunt, uncle, and his stepfather. 

12.  There is no indication on file that his request was approved by USARC. 

13.  On 8 March 2010, by memorandum, the USASMA Deputy Commandant notified the applicant that a DA Form 1059 (Service School Academic Evaluation Report) would be initiated to dismiss him from the course due to lack of progress. He advised the applicant of his rights.  

14.  By 7 April 2010, the suspense date, the applicant had failed to acknowledge receipt of the memorandum to dismiss him and failed to indicate if he desired to submit a statement. 

15.  A DA Form 1059 was initiated and states in item 11 (Performance Summary) the applicant failed to achieve course standards.  Furthermore, item 14 (Comments) states: 

* [Applicant] is dismissed from the course for lack of progress
* This dismissal is based on his failure to complete Phase I
* No determination is made regarding how this course failure reflects on [Applicant's] character, behavior, or lack of attitude in certain areas
* [Applicant] was not evaluated on the Information Brief, Guest Speaker Presentation, Argumentative Essay, and Research paper
* Rated Soldier refuses to sign

16.  On 30 September 2010, Headquarters, 81st Regional Support Command, Fort Jackson, SC, published Orders 10-273-00029, reducing the applicant to MSG/E-8 effective 1 September 2003 and with a date of rank of 1 September 2003. 

17.  On 1 July 2011, Headquarters, 81st Regional Support Command, Fort Jackson, SC, published Orders 11-182-00092, transferring him to the Retired Reserve effective 2 July 2011 by reason of maximum age. 

18.  On 24 May 2012, he submitted an IG complaint wherein he contended, in effect, that USASMA failed to act on his request for deferment and administratively reduced him to MSG/E-8. 

19.  On 24 May 2012, he submitted an IG Action Request contending that he filled out a response to the USASMA dismissal notification but he never heard back from USASMA.  He then received the dismissal DA Form 1059.  He believes he should not be penalized for USASMA's failure to act on his request. 

20.  On 22 February 2013, by letter, an IG official responded to his inquiry.  The IG official stated: 

	a.  This letter is in response to his correspondence received on 24 May 2012 concerning his administrative reduction in rank from E-9 to E-8.  The IG initiated an inquiry into his request for assistance.  Information gathered supports that the USACAPOC(A) chain of command at that time concurred with the justification and endorsed his request for deferment from his scheduled course to a subsequent SMA distance learning course.  His packet containing required documentation was, with delay induced by missions and communication, sent to USARC G-1 for review.  Information indicates the packet was screened and returned to HRC as incomplete due to the absence of a specific statement from a medical provider.  In his (IG) dialogue, he (the applicant) confirmed he was not made aware the packet was returned or the specific requirement for the statement from a medical provider.

	b.  Furthermore, it appears that communication, as recorded in notes made by an HRC manager tracking this matter, demonstrate that he was not alerted to the return of his packet.  The notes reflect a dialogue about requesting a copy of an obituary as a supporting document, which may have stymied this process as this was not the justification needed.  An interview of a Soldier familiar with the review of his initial packet noted that an obituary was not required.  His packet was returned because it did not have a statement from a medical provider attesting to his status as a care provider for ailing members of his family.  

	c.  It appears that confusing and/or ineffective communication from a management official at HRC failed to alert him (the applicant) about the status of his packet and the need for correction.  Subsequently, he was not able to respond in a timely way, to return the appropriate document, and receive a fair look at his request for deferment to another course.  It is clear that based on his mandatory removal date (MRD) at the time of the request for deferment, it appears if granted the deferment to a subsequent class that enough time was available to complete the coursework for the USASMA.

	d.  Although he requested a deferment to a subsequent class it was just a request.  Because he did not make satisfactory progress in his assigned class it is not appropriate to speculate on potential outcomes had he been granted the deferment.  The Office of the IG can only provide him the obvious result that in accordance with Army Regulation 140-158, he was reduced in grade to E-8.  
At this time, this office can take no further action in this matter.
21.  According to the official USASMA website the Sergeant Major Non-Resident Course (SMNRC) provides tools to develop adaptability, critical reasoning, creative thinking, and decision-making skills.  Soldiers are provided an education that teaches them to enhance their character, self-expression, and strengthen teamwork abilities.  The course assists in the development of logical, practical and original reasoning abilities necessary for problem solving.  Students analyze problems based on available information, arrive at logical solutions and decisions with reasonable speed, communicate reasoning and decision orally and in writing, and supervise to ensure proper execution.  Intellectual honesty, integrity, and professional values and standards are highly stressed.  The SMNRC is     18-24 months long containing instructional hours delivered through 40 hours of senior enlisted joint professional military education, 338 hours of interactive multimedia instructional (distance learning) and 120 hours of resident instructions and covers all course content delivered in the resident SMC.  Phase I consists of on-line distant learning and/or correspondence courses and Phase II is a 14-day resident courses at Fort Bliss, TX, that commences with the in-processing weigh-in and administering the Army Physical Fitness Test, and concludes on day 14 with graduation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SGM/E-9 on 1 April 2007.  His promotion was contingent on completion of the SMC within 36 months from the effective date of this order under the SMC corresponding studies.  He understood and agreed that if he failed to meet these conditions or was subsequently denied enrollment or became an academic failure, or did not meet graduation requirements, or was declared a no-show, he would be reduced under Army Regulation 140-158 to the grade and rank he held prior to this promotion.  

2.  He was enrolled USASMA Class 35, distant learning.  However, it does not appear he was making satisfactory progress.  He was advised via correspondence that he risked dismissal and he was even issued a dismissal DA Form 1059 alerting him to this fact.  He did not acknowledge receipt of this correspondence and he did not exercise his right to respond.  

3.  Once the DA Form 1059 was processed and he failed to achieve course standards, he was reduced to the rank/grade of MSG/E-8 as stipulated in his promotion orders.  

4.  He argues that he submitted a request for deferment to Class 36 but both USASMA and HRC failed to act on his request.  Although he submitted a request that was favorably endorsed by his chain of command, this was just a request. His records do not contain the response from USARC and any attempt to speculate on the outcome of his progress if his deferment request was approved would be just that, speculative.  There is insufficient evidence to show he exercised due diligence by inquiring into the status of his request for deferment.

5.  Nevertheless, the absence of a response to his request does not indicate it was approved or negate the fact that he was not making progress.  Because he did not make satisfactory progress in his assigned class, the obvious result was his administrative reduction to MSG/E-8.  There is neither an error nor an injustice in his case.  He does not provide sufficient evidence that his reduction was in error. Therefore, he is not entitled to 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 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)                                         AR20130008619



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ABCMR Record of Proceedings (cont)                                         AR20130008619



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