IN THE CASE OF:	

		BOARD DATE:	    23 April 2014

		DOCKET NUMBER:  AR20130009470 


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: 

* a pay inquiry to determine why a pay transaction was submitted to collect funds from her annual training pay
* revocation of her Individual Ready Reserve (IRR) transfer orders, Orders Number 12-200-00024, dated 18 July 2012, and reinstatement as an active Reservist 
* if her reinstatement as an active reservist is not possible, she requests that she be issued orders reinstating her to the rank/grade of sergeant major (SGM)/E-9.

2.  The applicant states she was serving in a valid dual status military technician (MILTECH) position in accordance with the condition of employment she signed on 28 July 2010.  On 21 April 2011, she was promoted to SGM per Army Board for Correction of Military Records (ABCMR) Docket Number AR2010013642, dated 22 February 2011.  On 19 May 2012, she accepted a voluntary reduction in rank from SGM to MSG/E-8 to maintain her condition of employment (COE).  On 18 July 2012, she was removed from her position and transferred to the IRR due to senior grade over-strength; however, she did not receive a copy of the IRR transfer transaction/packet.  On 1 September 2012, she was subsequently removed from her civilian employment for failure to maintain Reserve membership.  She believes she was removed from her position as a dual status military technician as an act of retaliation in connection with the ABCMR's decision to promote her to SGM.  Additionally, she is currently going through the Merit System Protection Board (MSPB) process in an effort to resolve the issue related to her civilian employment.

	a.  She was reassigned to the 365th Combat Support Sustainment Battalion (CSSB), Jackson, MS, in June 2007 due to reorganization of the 3rd Personnel Command (PERSCOM) in September 2007.  She was assigned to the 814th Personnel Replacement Company, Starkville, MS, which did not affect her COE. She did not transfer to the 365th CSSB, Jackson, MS, as a Troop Program Unit (TPU) Soldier until 19 July 2010 (Position:  Paragraph Number (PARA) 108, Line Number (LN) 06 - Operations Sergeant, Grade:  E-8, military occupational specialty (MOS) 88Z (Transportation Senior Sergeant)).  

	b.  In November 2011, her unit, UIC WQ7HAA, mobilized.  All the Soldiers in the rear were assigned to the 365th CSSB, UIC WQ7HDD, in position number 9992 (Incoming Assigned Personnel).  There were five MSG/E-8 Soldiers including herself assigned to this UIC and position number, three of whom were "pending medical."  With the exception of herself, all of these MSGs are still assigned.  Due to no fault of her own, she was left in the rear as part of the 365th CSSB full-time support (FTS) and replaced by a cross-leveled Soldier, MSG VT.  If she had mobilized with her unit she would have mobilized in her assigned position (UIC WQ7HAA, PARA 108, LN 06, MOS 88Z5O) in accordance with her COE and been given the opportunity to reclassify along with all the other Soldiers assigned who qualified under the provisions of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers).  In an email, Ms. SL stated E-8s couldn't reclassify; however, two other E-8s in her unit were permitted to reclassify.

	c.  On 15 March 2012, the U.S. Army Reserve Command (USARC) G-1, Lieutenant Colonel (LTC) CG, printed a copy of the [356th CSSB] unit manning report (UMR).  The UMR had an effective date of 16 September 2005.  LTC CG forwarded the UMR to Ms. PR of the Career Program Management Office (CPMO), USARC, G-1, stating there were no MSG/E-8 MOS 42A (Human Resources Specialist) positions assigned to the 365th CSSB UIC (WQ7HAA)) as of 2006 and that the applicant had been misaligned for several years.  She believes her command used the effective date of the applicant's promotion to SGM (22 August 2007) in the decision for this action rather than the date her promotion orders were published (21 April 2011).  

	d.  On or about 15 June 2012, the 321st Sustainment Brigade Commander (Colonel (COL) SC) submitted her Realignment of the 365th CSSB and the 375th CSSB with an effective date of 16 August 2012.  On 25 June 2012, COL SC sent an email to Ms. SL stating that she wanted to place the applicant in a unit that would be under the 365th on 16 August 2012.  However, the applicant was never notified of the request for her reassignment.

	e.  On 25 June 2012, Ms. SL sent an email to the USARC, G1, (LTC G and MSG M) wherein she stated, "They want [Applicant] to reclass[ify] into a position in a unit that is currently [not] in the downtrace of the [battalion] but under another [battalion].  This unit will realign on 16 August [2012] because [Applicant] still [will not] meet her COE until 16 Aug[ust 2012].  My thinking is that she needs to be in a valid unit now.  I also [was not] sure about letting her reclassify because she has 31 years of service and the QRB [Qualitative Retention Board] may not retain her.... Please advise."  However, the applicant was retained as an 
MSG/E-8.  The QRB results retaining her were released in October 2012.

	f.  On 5 July 2012, she received notification from Ms. TW (also known as Captain (CPT) TW), Service Support Activity (SSA), 321st Sustainment Brigade, Baton Rouge, LA, stating that she had been instructed, by the Brigade Commander, COL SC, to execute an overstrength counseling (with further reduction to staff sergeant (SSG)/E-6) in her capacity as CPT TW.  On 12 July 2012, the applicant submitted her response to Ms. TW.

	g.  On 6 July 2012, she received notification from the 81st Regional Support Command (RSC) Surgeon’s office in reference to a change in her medical readiness.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 9-13(a) (Disposition of Reservists temporarily disqualified because of medical defects), states "Normally.  Ready or Standby reservists temporarily disqualified because of a medical defect will be transferred to the Standby Reserve inactive list (AR 140-10).  Transfer will be made if- (1) The Soldier is not required by law to remain a member of the Ready Reserve; (2) The Soldier is currently disqualified for retention in an active USAR status; (3) The condition is considered to be remediable within 1 year from the date disqualification was finally determined."

	h.  On 17 September 2012, the 365th CSSB, UIC WQ7HAA reorganized, and, as a result of that reorganization, PARA 108, LN 06 changed from MSG/E-8 position in MOS 88Z to 92A (Automated Logistical Specialist).

	i.  The applicant cited the below guidance:

		(1)  In accordance with Army Regulation 140-10, overstrength is defined as:  assigned strength which exceeds that authorized by the Table of Organization and Equipment (TOE) and Table of Distribution and Allowances (TDA).  Assignment of a Soldier as overstrength may be the result of a unit reorganization, deactivation or relocation. It may also be as a result of an assignment error, or as an authorized exception to policy to correct an injustice. 

		(2)  USARC Memorandum (Clarification of Personnel Actions Impacting Dual Status Military Technicians), dated 30 July 2012, states in paragraph 5 that "IAW Title 10 U.S. Code (USC) 10216(e)(2), a technician may be retained in their civilian position for up to 12 months as long as the loss of Reserve membership was not due to the failure of the technician to meet military standards.  Those actions amounting to voluntary relinquishment of dual status by a technician… are considered to be a failure to meet military standards, and these technicians must be removed from their civilian positions immediately."

		(3)  USARC Memorandum (COE for DSMT, Non-Dual Status Technicians (NDST), Combat Related injured-non-Dual Status Technicians (CRI-NDST), and Technicians (TECH)), dated 24 October 2008, states in paragraph 12 that "on a limited basis, DSMTs, who maintain military membership in a unit which they are employed to support, may use future force structure changes to meet COE.   For example, a DSMT may be assigned to a unit that is currently not one they are employed as a DSMT to support, provided the organization will realign under the DSMTs downtrace and there is both an approved command plan and a published execution order.  The effective date of the realignment must be within one year of the date the DSMT is assigned to the unit.  The intent is to minimize civilian personnel reassignments in those situations where structural realignments that will allow employees to meet COE will be complete with a one year period."

3.  The applicant provides:

* self-authored statement
* Orders Number 40-28, dated 6 June 1988
* Orders Number 14-8, dated 2 December 1992
* three Standard Forms (SF) 50-B (Notification of Personnel Action) ranging in date from 13 June 2002 to 15 August 2010
* two Fort McCoy Forms (FM) 421 (COE-Reserve Membership - TPU), dated 15 March 2002 and 3 August 2010 
* information paper, dated 23 October 2004
* eight UMRs ranging in date from 1 March 2007 to 13 July 2012
* Orders Number 07-179-00001, dated 28 June 2007
* four letters ranging in date from 29 June 2007 26 April 2013
* 17 memoranda ranging in date from 24 October 2008 to 28 August 2012
* Orders Number 10-025-00027, dated 25 January 2010
* civilian TDA, dated 26 February 2010
* various email transmissions ranging in date from 21 May 2010 to 
		4 December 2012
* Orders Number T-06-039064, dated 3 June 2010
* Orders Number 10-200-00001, dated 19 July 2010
* internet document from the U.S. Army Human Resources Command (HRC) Assignments Portal, dated 28 July 2010
* fax coversheet, dated 2 August 2010
* Orders Number 11-111-00007, dated 21 April 2011
* two DA Forms 4856 (Developmental Counseling Form), dated 17 July 2011 and 1 October 2011
* Permanent Orders (PO) Number 1A-11-097-001 (A1), dated 14 October 2011
* mobilization roster, undated
* Orders Number 12-140-0002, dated 19 May 2012
* Interactive Web System (IWS) - Assignments and orders, printed on 
23 May 2012
* spreadsheet/QMP Roster, undated
* four PowerPoint slides, undated
* DA Form 3349 (Physical Profile), dated 5 July 2012
* Orders Number 12-200-00024, dated 18 July 2012
* Commander's Profile Report, printed on 20 July 2012
* spreadsheet, undated

CONSIDERATION OF EVIDENCE:

1.  Civilian employment and civilian records are not within the purview of the ABCMR.  The ABCMR corrects military records and addresses military issues.  Therefore, the issue of civilian employment will not be addressed further in this case.

2.  The applicant requested a pay inquiry to determine why a pay transaction was submitted to collect funds from her annual training pay and if her rank/grade is properly reflected on her finance records.  However, this portion of her request cannot be processed at this time.  Army Regulation 15-185 (ABCMR), Section II, paragraph 2-5, states that the Board will not consider any application if it determines the applicant has not exhausted all administrative remedies available to them.  There is no evidence she contacted her unit S-1, servicing finance office, or the Defense Finance and Accounting Service (DFAS) to request a pay inquiry and was denied; therefore, this portion of her request will not be addressed further in this record of proceedings.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 25 July 1980 and served through a series of reenlistments or extensions.  

4.  Her DA Form 2-1 (Personnel Qualification Record) shows she held MOSs 42L (Administrative Specialist), 27D (Legal Specialist), 88N (Movement Specialist), and 42A (Human Resources Specialist).  

5.  Her record contains a Notification of Eligibility for Retired Pay at Age 60 
(20-Year Letter), dated 31 August 2000.

6.  She provided an SF-50-B (Notification of Personnel Action) dated 2 June 2002 which shows her Career Conditional Appointment as a GS 0303 08 Staff Administrative Assistant with the 81st Reserve Sustainment Command (RSC), 3rd PERSCOM UIC:  WZDEAA.  Additionally, she provided a Fort McCoy Form 421 (COE - Reserve Membership - TPU) which shows her military position as 27D4O, Senior Paralegal NCO in the grade of SFC/E-7.

7.  Her record contains promotion orders showing she was promoted to the grade of MSG/E-8 on 1 March 2003.  Her PMOS was shown as 27D5O; SMOS 75H5O (later converted to 42A); and AMOS 71L5O.

8.  The applicant provided a UMR, prepared on 1 March 2007.  The UMR titled HHC, 3rd AG Command, was for 3rd PERSCOM (UIC: WNEVR1 (UIC effective date:  16 September 2007) and shows the applicant was assigned to position PARA/LN: 132/01 and:

* the duty title was listed as 1SG
* the authorized MOS was listed as 42A5M
* the authorized grade was listed as E-8
* she held primary MOS (PMOS) 27D, secondary MOS (SMOS) 42A, and additional MOS (AMOS) 42L
* she held the rank/grade of MSG/E-8 
* her date of rank (DOR) was listed as 1 March 2003
* her date of unit assignment was listed as 20 May 2004
* her date of position assignment was listed as 25 October 2004

9.  She provided an SF-50, effective 22 July 2007, which shows she was reassigned as a Staff Admin Assistant, GS 0303 08 from the 81st RSC, 3rd PERSCOM (Headquarters element) to the 365th Support Battalion, 81st RRC, 3rd PERSCOM.  A letter from Civilian Personnel Advisory Center (CPAC), Fort McCoy, WI, dated 29 June 2007, congratulates her on her selection to the position with the 365th Support Battalion.

10.  Orders Number 07-179-00001, issued by Headquarters, 3rd PERSCOM, Fort Jackson, MS, on 28 June 2007 assigned her to the 814th Adjutant General (AG) Replacement Company, UIC WRN9AA, Starkville, MS.  
11.  The applicant provided a UMR, prepared on 5 November 2008.  The UMR was for the 814th AG Replacement Company (UIC: WRN9AA (UIC effective date:  18 September 2009).
	
a.  the applicant was assigned to position number 0020, PARA/LN: 132/01 and:

* the duty title was listed as Chief Human Resources Sergeant
* the authorized MOS was listed as 42A5O
* the authorized grade was listed as E-9
* she held PMOS 27D and SMOS 42A
* she held the rank/grade of 1SG/E-8 
* her DOR was listed as 1 March 2003
* her date of unit assignment was listed as 28 June 2007
* her date of position assignment was listed as 22 August 2007

   b.  Records and evidence indicate that in January 2009 another SGM/E-9 42A was brought into the unit and assigned to that same position.  

12.  She provided a memorandum, dated 12 May 2009, which shows she filed an Inspector General (IG) complaint with the USARC IG Office who further referred the complaint to the 81st Regional Support Command.  It was stated that due to an administrative error by the 81st RRC, the position was never announced as a vacancy; however, the administrative error had no effect on her current promotion sequence number.  It was also stated that Military Technicians (MT) could not be double slotted and the applicant needed to be assigned to POSN 9992 immediately.  This made her ineligible for promotion to SGM as long as another SGM of the same MOS was assigned to the unit. 

13.  Orders 10-025-00027, dated 25 January 2010, shows she was awarded PMOS 27D5M; SMOS 42A5M; and AMOS 88Z5O.  The "M" SQI indicates she had served and was qualified as a 1SG.  AMOS of 88Z appears to have been awarded to her effective the date of the orders.

14.  She provided an email, dated 20 May 2010, from the 143rd ESC G1, HR Specialist/FTUS Manager, Ms. SL, who requested a list of all subordinate units' MILTECH personnel who were in overstrength positions not later than 25 May 2010.  She also explained the DSMT portion of the USARC Policy Guidance on Overstrength Assignments of Soldiers Based on the Army Reserve Transformation, dated 9 January 2009, and that action needed to be taken in accordance with the Chief, Army Reserve memorandum, dated 6 May 2010.

15.  She provided an email, dated 2 June 2010, from the 143rd ESC, 207th Regional Support Group, Supervisor Staff Administrator, LTC KKD, who informed the applicant that because of her 88Z SMOS she should be required to immediately transfer into the 365th CSSB POSN and Line Number 0925 108-06 88Z Operations Sergeant in order to maintain her COE.  She referred the applicant to the attachments (365th UMR and applicant's PQR).

16.  She provided Orders T-06-039064, issued by the U.S. Army Human Resources Command (HRC), on 3 June 2010.  These orders show she was ordered to active duty for training (ADT) to attend the U.S. Army Sergeant Major Academy (USASMA), Fort Bliss, TX, for a 339-day period beginning on 24 July 2010.  Her unit of assignment on the orders shows the 814th AG Company.

17.  She provided an FM 421 and an FM 423 (Veterans Recruitment Appointment Agreement), dated 28 July 2010.  These forms show that effective 19 July 2010 she was assigned to UIC WQ7HAA, position number 925, PARA/LN 108/06 (Operations NCO), in duty MOS 88Z.

18.  The applicant provided three UMRs, dated 2 June 2010, 24 August 2010, and 16 July 2011, which show:

	a.  On 24 August 2010, the UMR for Headquarters and Headquarters Company, Service Supply Company, 365th CSSB (UIC: WQ7HAA (UIC effective date:  16 September 2011) was prepared.  This UMR shows the applicant was assigned to position number 0925, PARA/LN: 108/06 and:

* the duty title was listed as Operations Sergeant
* the authorized MOS was listed as 88Z5O
* the authorized grade was listed as E-8
* she held PMOS 27D, SMOS 42A, and AMOS 88Z
* she held the rank/grade of MSG/E-8 
* her DOR was listed as 1 March 2003
* her date of unit assignment was listed as 19 July 2010
* her date of position assignment was listed as 20 July 2010

	b.  On 16 July 2011, the UMR for Headquarters and Headquarters Company, Service Supply Company, 365th CSSB (UIC: WQ7HAA (UIC effective date:  
16 September 2011) was prepared.  This UMR shows the applicant was not assigned to position number 0925, PARA/LN: 108/06, another MSG with the PMOS of 88Z5O was assigned to the position on 17 June 2011.  

19.  Orders 10-200-0001, issued by the 207th Regional Support Group, Fort Jackson, SC, on 19 July 2010, reassigned her from the 814th AG Company to HHC Supply, 365th Combat Support Battalion effective the date of the orders.  The reason is shown as released from current assignment TPU to a TPU within the Command. 

20.  She provided a web document from the HRC assignments portal that shows she was assigned to the 365th Combat Support Battalion, Para Line POSN 108/06/0925, Operations Sergeant, MSG effective 20 July 2010.  She is shown as duty position "Qualified."

21.  She provided a Fort McCoy Form 423 (Veterans Recruitment Appointment (VRA) Agreement), dated 28 July 2010, which shows she was selected for a VRA to the position of Staff Operations and Training Specialist (SOTS) in the 377th TSC, 365th Combat Support Battalion, 321st Brigade, 143rd ESC.  This form further shows:

* she agreed to participate in appropriate training and/or education while serving under this appointment
* she understood that this training plan is to be prepared jointly by her supervisor and herself.  Training and education included in the plan will be of a type meaningful to her, and consistent with the needs of the Department of the Army and will be attainable within 2 years
* she further understood that her appointment will be converted to a Career Conditional Appointment within 30 days after she completed 2 years of service, provided her performance has been satisfactory and the education/training on her plan has been satisfactorily completed
* she recognized that failure to meet the conditions of this agreement may be grounds for removal from her position

22.  She provided a Fort McCoy Form 421 (COE), dated 3 August 2010, which shows she was assigned to the 365th CSSB, UIC WQ7HAA, MTOE Para/Line Number 108/06/0925, Military Duty MOS 88Z, Military Position Title Operations NCO with an established date of membership of 19 July 2010.

23.  She provided an SF-50-B, dated 15 August 2010, which shows she was "Converted to Excepted Appointment" under Public Law 107-288 from GS 0303 08 Staff Admin Assistant with the 377th Sustainment Command, 365th CSSB, 321st Sustainment Brigade, 143rd ESC to GS 0301 09 Staff Operations and Training Specialist with the same unit.  She was slotted in UIC W6KFAA, Para and Line Number 503B/013 on the TDA.  The trial period is shown as completed. 

24.  On 28 February 2011, the ABCMR corrected her record (per her application, dated March 2010) to show she was promoted to the rank of SGM with an effective date of 22 August 2007.  The decision was based on her consideration and recommendation for promotion to SGM by the July 2007 Senior Enlisted Promotion Selection Board.  She was noted to have been assigned to a valid SGM position (Chief Human Resources Sergeant) within her unit of the 814th AG Company by an appropriate authority.  However, due to no fault of her own she was not promoted to SGM and the position was filled by another Soldier which created an overstrength within her unit.  

25.  Orders Number 11-111-00007, issued by Headquarters, USARC, Fort McPherson, GA, on 21 April 2011 promoted her to SGM in PMOS 27D, SMOS 42A, and AMOS 88Z with an effective date and date of rank of 22 August 2007.

26.  She provided a DA Form 4856 (Developmental Counseling Form) which  indicates the applicant was counseled on 17 July 2011 by CSM DM.  This form shows an "X" was placed in the Plan of Action section, item number 3 "I am overgrade and voluntarily elect an administrative reduction to remain assigned to the position for which I am overgrade.  I have read and understand the provisions of Army Regulation 600-8-19 (Enlisted Promotions) concerning my DOR and restoration of grade."  The applicant agreed with the counseling and she and the CSM both signed the form on 17 July 2011.

27.  The applicant provided a series of email traffic ("Enlisted/MilTech Counseling Requirements - [Applicant]") ranging in dates from 22 April 2011 to 2 September 2011:

	a.  On 22 April 2011, MSC CJ sent an email to notify the applicant's unit and career management personnel that there were MILTECH counseling requirements with a suspense of 27 May 2011.  This email included Ms/CPT TW. MSG CJ's email states that there was a strong focus on the management of MILTECHs in the rank/grade of MSG/E-8 and SGM/E-9, but that the policy in place applied to all MILTECHs.

		(1)  There must be grade/position equivalency, i.e., SGMs must occupy an E-9 position and MSGs must occupy an E-8 position.  There was no exception for SGMs.  However, a MSG could occupy an E-9 position (this would be considered under-grade).

		(2)  MSG CJ asked that the email recipients identify all the E8/E9 MILTECHs who fell into this category by 27 April 2011.  Additionally, MSG CJ asked that the email recipients identify the next battle assembly when the affected Soldiers would be counseled (not later than 27 May 2011).

		(3)  MSG CJ stated the affected Soldiers would have 12 months from the date of counseling (but not later than 27 May 2011) to occupy a valid position equivalent to Soldier's grade or be involuntarily reassigned to the IRR.  However, if no positions were available, the Soldier could request a reduction, reclassification, transfer to the IRR, retirement, or they had the option of finding a new unit with a position that met their rank/grade requirements.

	b.  On 14 July 2011, MSG CJ sent an email to Ms/CPT TW asking her to review the email message she sent on 22 April 2011 and to confirm whether or not the applicant was a MILTECH.  MSG CJ further stated that if the applicant was a MILTECH, that she was occupying a 9992 position and, therefore, fell within the aforementioned counseling guidelines and requirements as over-grade or overstrength.  MSG CJ also stated that the applicant must complete the attached counseling and, by 27 May 2012, be reassigned to a valid position that meets COE and grade requirements or be subject to involuntary transfer to another unit, to the IRR, or elect retirement.

	c.  On 1 September 2011, MSG CJ sent an email to CSM DM wherein she stated she had not received any action in regards to the applicant's overstrength status and that the applicant was currently occupying an E-8/88Z position which was considered mismatched and over-grade.  MSG CJ further stated she needed the applicant's counseling form returned, indicating her selections for either voluntary reduction, transfer to the IRR, or transfer to the Retired Reserve.  Furthermore, MSG CJ still had not received any confirmation of whether or not the applicant was a MILTECH.  

	d.  On 2 September 2011, CSM DM sent an email to Ms/CPT TW stating he needed the applicant's counseling to be completed as soon as possible.

28.  She provided a second DA Form 4856, dated 1 October 2011, that shows in Part III (Summary of Counseling):

* the Soldier has been advised that he/she must be reassigned to either a valid unit vacancy (rank and skill), the IRR, or the Retired Reserve (voluntarily, if eligible) within 90 days of this counseling.  Soldier will initial and respond to all questions, and make an election on reverse within 30 days
* Yes - she was currently overstrength in her unit
* Yes - As a DSMT, she was assigned to this unit as a result of her prior unit inactivating/reorganizing (UIC of prior unit WR67AA (not legible)).  Effective date of transformation 16 September 2010.  She may remain assigned overstrength only 3 out of 5 years
* Promotion/Training Obligation:  DOR 22 August 2007, NCOES completed:  USASMA
* Yes - she understood she must make one of the elections below within 30 days of this counseling or she would be reassigned involuntarily to either a position for which she qualified (rank and skill) within her commuting distance or the IRR.  She also understood that her reassignment (voluntarily or involuntarily) will be effective within 90 days of this counseling 
* she placed her initials on line number 2 under Exceptions which states - If she was a Dual Status Military Technician (DSMT), she must be reassigned within 1 year of counseling, or if affected by transformation, I must be reassigned upon completion of 3 out of 5 years.  She signed the form on 1 Oct 2011 and placed an "X" in the agree space

29.  The applicant provided an email, dated 6 October 2011, which shows her as the Lead Civilian/SOTS as part of the 365th's Headquarters, Rear Detachment while the majority of the unit was mobilized and forward deployed in support of OEF.  The 365th was scheduled to report to the mobilization station (Fort Hood, TX) on 27 November 2011.  The mobilization period was for 400 days.

30.  She provided a copy of her Integrated Web Services (IWS), Assignments and Orders screen which shows she was assigned to Paragraph and Line Number 9992 (Pending Reassignment), as duty position qualified, 365th CSSB Rear Detachment, effective 31 October 2011.

31.  The applicant provided a series of email traffic ("Enlisted/MilTech Counseling Requirements - [Applicant]") ranging in dates from 10 February 2012 to 24 April 2012 and shows a dialogue between USARC, G1; 143rd ESC members; USARC CPMO; and the applicant.  This appears to be argument over whether the 3 out of 5 year rule applied in the applicant's situation and if she actually served in a valid position on the MTOE during the period in question to meet her COE.

	a.  On 27 February 2012, Ms. SL (143rd ESC, G-1) sent an email to Ms. PAR (USARC Career Program Management Office) wherein she stated USARC had a suspense date of 27 March 2012 for all E8 and E9 TPU personnel who were not in a valid position to either go to the IRR or to take a voluntary reduction.  Ms. SL was the applicant's personnel manager and noted that the applicant was not assigned either to a valid position on the Army side or was not in the correct unit and had to be moved on several occasions.  The applicant kept trying to get promoted but there was no valid position in either the 365th or the down trace.  She attended the resident SGM academy and got promoted there.  Ms. SL did not know how this happened because the unit did not have a SGM vacancy.  Either way, she was not involved in a unit reorganization.  Some of the units in the 365th reorganized but she was not affected by this.  Ms. SL further stated that she recalled that the applicant had not been in a valid position since her promotion and she was double-slotted when she was an E-8. 

	b.  On 14 March 2012, LTC CAG (USARC G-1) sent an email to the applicant and Ms. PAR, wherein she stated she researched the applicant's issue and determined that, as far as the military side was concerned, the applicant had four available options:

		(1)  Take a reduction to stay in the unit.  However, this option could prove problematic in her current unit because there were no career management field (CMF) 42 positions available.  Additionally, LTC CAG checked the UIC prior to the structure changes and could not find a valid E-9 or E-8 42 position for the unit.

		(2)  Find a new position that meet her COE; however, this position must meet rank and MOS requirements.

		(3)  Retire or reassign to the IRR/ individual mobilization augmentee (IMA); however, both of those options would affect her COE.  

		(4)  According to Shaping the Force, MILTECHs only have 1 year (12 months) to find a new position based on either overgrade or reorganization maximum.  LTC CAG ran some queries to see what positions were open in Mississippi that the applicant would be eligible to fill.

	c.  On 15 March 2012, LTC CAG sent an email to Ms. PAR, wherein she stated she pulled off a copy of the UMR.  The UMR was valid from 2006 until the requested changes became effective later that year.  According to the applicant's claims, she was affected by a reorganization in 2007 and assigned to the 365th that year.  However, the UMR shows there were no E-8 42A positions assigned to her UIC (as of 2006).  She has been misaligned for several years.  As to the applicant's assertion that they pulled someone from another unit and put them in the E-9 position, it was LTC CAG's understanding that the unit was holding that position for a mobilized Soldier, which they are supposed to do by policy.  LTC CAG stated the applicant was out of options.

	d.  On 15 March 2012, Ms. SL sent an email to the applicant and Ms. PAR, wherein she stated the applicant was never assigned to an E-9 position in the 365th, she was always assigned to an E-8 position.  Soldiers have to apply for CSM positions and be selected by a board.  

	e.  On 24 April 2012, LTC CAG sent an email to the applicant, Ms. SL, and Ms. PAR, wherein she stated the applicant was never in a valid position.  She needs to either take a reduction or find a valid slot.  LTC CAG informed the applicant that the UMR shows that the position she was promoted against was correctly held for a mobilized MILTECH.  Therefore, she should not have been promoted against that position as it was being held for a deployed Soldier.  The only way forward was to find a position within the unit that she was qualified for and assign her against the position; however, that might require a reduction to sergeant first class (SFC)/E-7 or lower.  According to the documents the applicant had submitted, LTC CAG did not see any other available options.

32.  On 10 May 2012, she received a Notification of Qualitative Retention Board Review memorandum.

33.  The applicant accepted a voluntary reduction in rank.  Orders Number
12-140-00022, issued by Headquarters, 81st RSC, Fort Jackson, SC on 19 May 2012, confirm her reduction in grade/rank from SGM/E-9 to MSG/E-8 with a DOR of 1 March 2003 and an effective date of 19 May 2012.  The authority is cited as Army Regulation 600-8-19, chapter 10, section VII, paragraph 10-19a.

34.  On 1 June 2012, she indicated that she reviewed her military records on    12 May 2012 for the Qualitative Retention Board and noticed several discrepancies.  She placed her initials next to the block requesting transfer/reassignment to Control Group (Reinforcement) if she was not selected for retention.

35.  She provided an undated unit roster containing the categories: "Not Retained" and "Retained" which shows the applicant's name listed under the "Retained" category assigned to the 365th CSSB and serving as a MILTECH.

36.  She provided a memorandum, dated 3 June 2012, subject:  Violation of Condition of Employment (MILTECH) from the 321st Sustainment Brigade, Baton Rouge, LA.  This memo indicates a telephone conversation took place between the applicant and the USARC G1 in which the applicant allegedly indicates she had not been in compliance with the COE since September 2008 as a result of a unit reorganization.  The period of violation is shown as an additional 8 months over the allotted 3 years of 5-year period.  She was given the options of transferring to a valid position within the 365th CSSB or resignation not later than 8 June 2012.  She signed this memo on 3 June 2012.

37.  She provided an undated memorandum, subject:  Violation of COE (MILTECH) Notification - Rebuttal, dated 15 June 2012, which shows she submitted this as a request to the Civilian Personnel Manager, 143rd ESC for assistance due to the severity of her case.  

38.  She provided a memorandum, dated 15 June 2012, that shows the 249th AG Detachment and 818th AG Detachment inactivated in September 2012 and the 303rd Quartermaster Company activated the same month.  The purpose of the memorandum was to provide courses of action to realign the 365th and 375th CSSBs under the 321st Sustainment Brigade. 

39.  She provided a series of email transmissions between 12 and 28 June 2012 which show a dialogue between various offices of the USARC, G1; various offices within the 143rd ESC Command Group; 365th CSSB Commander; USARC, CPMO; and the applicant.  There appears to be questions on the validity of her SMOS and AMOS of 88Z and 27D; placing her in an E6/42A position (thus creating a reduction from MSG to SSG) to meet the COE; the fact that the valid MSG/E-8 position she was slotted in was actually being held for a forward-deployed Soldier's return; and if she did not want to take the reduction to E-6 then she needed to transfer to the IRR within 10 days of 28 June 2012.  Furthermore, an email within this chain of traffic dated 25 June 2012 from LTC CAG, USARC, G1 states the applicant had plenty of time to fix her situation.  The unit needed to put her in the IRR NLT 29 June 2012.  Any COE issues must be addressed by the CPMO after that occurred.  "We have helped the Soldier enough.  It is time for action."  

40.  She provided a series of email transmissions from 15 June 2012 through 
16 July 2012 which show a dialogue between Ms. TAW (also CPT TAW) 143rd ESC Command Group, 365th CSSB Commander and the applicant.  The following key points are noted:

* a request for 143rd ESC approval on the 321st Sustainment Brigade Internal Realignment Decision was sent to the 143rd ESC Command Group from the brigade commander on 15 June 2012
* on 5 July 2012, 143rd ESC CPT TAW was directed to counsel the applicant on her overstrength status and as such, a counseling form and memorandum (Shaping the Force) were forwarded to the applicant for signature
* the applicant acknowledged receipt of the notification; however, she requested an extension based on a memorandum, subject:  Policy Guidance on Overstrength Assignments of Soldiers Based on the Army Reserve (AR) Transformation, dated 30 January 2009, which was not included
* the applicant outlined how her situation lined up with paragraph 3b (DMST) of the policy guidance
* the applicant also quoted guidance that was listed in the DA Form 4856 she signed on 11 October 2011 and how it applied to her situation - she also noted that based on that counseling, a paragraph and line number was not required and that she had 1 year from date of initial counseling 
* CPT TAW granted her an extension until 12 July and stated it was imperative that the applicant move to a valid position as she had ample time to seek and obtain a valid position
* On 12 July 2012, the applicant responded to CPT TAW and stated she did not see why she needed to sign another counseling form or DA Form 4187 for further reduction from E8 to E6 as she had 1 year from the date of her initial counseling to identify a valid position 
* she provided a list of units that she identified to transfer to and again reiterated she had not been given the time indicated by USARC policy (1 year)
* since the 294th had not received its inactivation orders she would submit a request to fill the first sergeant position
* with the reorganization for the 365th and 375th and approval from the brigade commander she could also transfer to the 296th in Brookhaven or the 658th in Tupelo to fill the first sergeant positions and could transfer to either unit prior to the reorganization
* the applicant also noted that CPT TAW issued her a notification during the battle assembly on 3 June 2012 with a suspense date of 8 June 2012 to meet the COE by finding a valid position or resigning from her civilian employment
* the applicant noted the undue stress and emotional hardship that the various notifications had caused her and the affect it had on her ability to concentrate and focus on the day-to-day activities
* CPT TAW noted the applicant's response to the counseling as a refusal to sign and advised her that the next step would be the presentation of a notice to involuntary separate her as over-strength senior grade
* CPT TAW also noted that the 294th had an inactivation order effective    16 September 2012 and that it was not a viable position - she also noted the reorganization was pending and did not meet the time requirements for compliance of a valid military position to meet conditions of employment as a MILTECH
* CPT TAW stated the fact remained that the applicant was an overstrength NCO who had received multiple notifications and ample opportunity to seek and obtain a valid position, the command had no alternative but to transfer her to the IRR to resolve the grade imbalance

41.  On 5 July 2012, the applicant was issued a temporary profile for an illness/disease which was due to expire on 5 October 2012.  On 6 July 2012, an email was generated from the 81st RSC Surgeon's Office stating a Nurse Case Manager from the Surgeon's Office was assigned to manage her case.  

42.  The applicant provided a series of email traffic ("Military Counseling for Overstrength") ranging in dates from 5 July 2012 to 18 July 2012.  These emails include various individuals at the USARC G-1 the applicant's chain of command. This email traffic shows that COL ESC, Brigade Commander, suggested placing the applicant in a 1SG slot that belonged to a unit not currently in the units down trace.  The Army G-1 indicated that this assignment could not be made, and even if they could the unit with the 1SG position was preparing to deactivate and the applicant would soon be in the same situation.  Additionally, the staff at the USARC G-1 felt the applicant had been sufficiently briefed and assisted by their offices.  She had ample time to find a valid assignment.  Additionally, the only position (possibly) coming open was a SSG/E-6 42A position.  However, the availability of this position depended on whether or not the incumbent decided to vacate the position.  Additionally, acceptance of this position would require the applicant to take another reduction in rank to SSG/E-6.  If the applicant was unwilling to do so the unit would have to transfer her to the IRR.  Additionally, COL ESC directed Ms/CPT TW to conduct the military overstrength counseling with the applicant.  

	a.  On 5 July 2012, Ms/CPT TW sent the applicant counseling materials/forms and the Shaping the Force Memorandum by e-mail and asked the applicant to contact her via phone after she had read the material and completed the forms so they could conduct the counseling session via phone.

	b.  The applicant responded via email the same day stating she was in receipt of the notification; however, she requested an extension based on Memorandum Subject: Policy Guidance on Overstrength Assignments of Soldiers Based on the Army Reserve Transformation, dated 30 Jan 2009 which was not included in Ms/CPT TW email.  Ms/CPT TW agreed to grant an extension until 12 July 2012, However, she stated that this was not a new issue and it was imperative that the applicant move to a valid position.  Ms/CPT TW further stated that the applicant had received ample time to seek and obtain a valid position.

	c.  On 12 July 2012, the applicant responded to Ms/CPT TW wherein she stated that there was no reason why she should have to sign another counseling form or DA Form 4187 (Personnel Action) for a further reduction from E-8 to E-6. She further stated that she had 1 year from the date of her initial counseling on 
11 October 2011 to identify a valid position and had not been given the time indicated in the USARC guidance to resolve her overstrength issue.  She further stated that the 294th had not received their official inactivation orders and she would, therefore, be submitting a request to transfer before their flag is officially 
folded.  She also stated that COL ESC had proposed her reorganization for the 365th and the 375th and that there was a 1SG in the 296th Brookhaven location and the 658th in Tupelo and that with approval from COL ESC she could transfer to either unit prior to the reorganization.

	d.  On 16 July 2012, Ms/CPT TW replied to the applicant's email and stated that she would note the applicant's response to the counseling as a refusal to sign.  Ms/CPT TW advised that the next step would be presentation of a notice to involuntarily separate the applicant as an overstrength senior grade.  Ms/CPT TW told the applicant that the 294th had an inactivation order effective 16 September 2012; therefore, the 1SG position in that unit was not a viable position.  She further informed the applicant that the reorganization was pending and did not meet the time requirements for compliance of a valid military position to meet her COE as a MILTECH.  Additionally, Ms/CPT TW further stated, "The fact remains that you are an over-strength NCO that has received multiple notification[s] of being over-strength and [have been given] ample opportunity to seek and obtain a valid position… the command has no alternative but to transfer you to the IRR to resolve the grade imbalance."  

43.  Orders Number 12-200-00024, issued by Headquarters, 81st RSC, Fort Jackson, SC on 18 July 2012 show she was released from her assignment and transferred to the IRR as a result of senior grade overstrength, effective 18 July 2012.  The authority used was Army Regulation 140-10 and USARC Memorandum, subject:  Shaping the Force - Eliminating Senior Grade Overstrength, dated 6 May 2010.

44.  On 20 July 2012, she sent a letter to her Member of Congress wherein she addressed issues pertaining to a physical profile and her transfer to the IRR.

45.  On 8 August 2012, the USARC G-1 responded to a letter from her Member of Congress referencing her concerns.  The USARC G-1 stated:

	a.  The applicant had been counseled regarding the Shaping the Force-Eliminating Senior Grade overstrength program objectives.  According to this policy as a MILTECH she had a maximum of 12 months to find a position commensurate with her rank and MOS.  However, because the applicant was employed as a civilian with the 365th CSB she could only be assigned to an available MSG position in the battalion or the battalions down trace that she was required to fill.  Personnel at USARC in conjunction with her unit had actively attempted to locate a valid position that met her COE.  However, they were unable to locate any valid positions.  The applicant's records had been reviewed for accuracy prior to cutting orders transferring her into the IRR.  She was hired 
into the MILTECH program.  As a COE she was required to maintain membership in the Selected Reserve.  There is no exception to this requirement. The applicant had not met her COE as required by law as a MILTECH since 2008.

	b.  She did have a physical health assessment (PHA) which resulted in a temporary profile with several 3 ratings (T-3).  However, prior to her PHA she had been notified of the potential of losing her Ready Reserve status due to being overstrength as well as not being qualified for her current position at her unit of assignment.  She was reassigned to the IRR on 18 July 2012.  At the time she was reassigned she was in receipt of a temporary profile that was good until October 2012.  A temporary profile does not require a Medical Evaluation Board (MEB) because the Soldier's condition my change any time within the period of the profile.  However, anytime a Soldier receives a permanent level 3 (P-3) profile they must undergo an MOS Medical Readiness Board (MMRB) in order to ensure they are qualified to continue to serve in their same job and/or the Ready Reserve.  

	c.  If the applicant requires additional medical consideration or an MEB, she should contact her local Department of Veterans Affairs (VA) and continue her care with them.  The Office of the Surgeon General has assured the USARC G-1 that if she should require an MEB she may continue to pursue and participate in an MEB and seek any treatment necessary through the VA while she is serving in the IRR.

46.  She provided a memorandum, dated 14 August 2012, written by the battalion commander of the 365th CSSB, subject:  Involuntary Transfer of (Applicant) to the Inactive Ready Reserve.  In this document he states:

   a.  He was unaware of the applicant's involuntary transfer to the IRR with an effective date of 18 July 2012 but he did sign off on the applicant's voluntary reduction from SGM to MSG on 19 May 2012.
   
	b.  He had a discussion with the brigade commander (321st Sustainment Command) on 12 August 2012 and she informed him she thought he was aware of the issue and she also had a conversation with the applicant during annual training but was never presented with any supporting documentation from the applicant.

	c.  Based upon the verbal information she (brigade commander) was presented by the brigade staff supervisor/administrator and the 143rd Sustainment Command's Civilian Personnel Manager, and the coordination the two of them had with the USARC, G-1, she signed the paperwork to involuntarily transfer the applicant to the IRR.

	d.  The issue pertaining to the applicant based upon documentation he received from her shows:

		(1)  The applicant was sitting in an E8 position as an E9 and was counseled on being overstrength back in October 2011 by the CSM of 365th CSSB at the time.

		(2)  In May 2012, the CSM and he (battalion commander) signed a DA Form 4187, respectively, to initiate a reduction from SGM to MSG - the applicant was already assigned to a valid MSG position (Paragraph and Line Number 0925 108/06 - Operations Sergeant).

		(3)  The applicant was selected to serve as part of the Rear Detachment during the unit's deployment - all Soldiers in the Rear were assigned to POSN 9992 (Awaiting Assignment) while the actual positions on the UMR went with the forward element until redeployment.

		(4)  Upon redeployment, the Soldiers in the Rear who were placed in POSN 9992 (applicant included) would be placed back into their original POSNs.
The 2012 MTOE, effective 17 September 2012, does not remove the Operations Sergeant position but it changes it from MOS 88Z to 92A and remained reserved for a civilian FTUS (MILTECH).

		(5)  It was his belief that although the applicant did not possess MOS 92A she should be allowed to reclassify and given 1 year from the effective date of the MTOE to do so.

		(6)  if the applicant was not allowed to reclassify due to senior NCO grade restrictions, then she should be allowed 1 year from the effective date of the MTOE change to find another MSG/E-8 position within the 365th, find a position for which she is qualified for at a lower rank, or transfer to the IRR, in which instance the applicant would not meet the conditions of employment and lose her civilian job.

		(7)  He prepared a spreadsheet outlining the applicant's career track - this document shows in part:

		(a)  She was promoted to MSG/E-8 in 2003 while deployed with the 3rd PERSCOM and placed in a 1SG position upon redeployment.

		(b)  On 28 August 2007, she was assigned to a 1SG position with the 814th Replacement Company which fell under the 365th CSSB - she submitted a packet for promotion to SGM and was selected by the 2007 promotion board.

		(c)  The 814th Replacement Company redesignated at the 814th Adjutant General "PAT" and the E-8 position became an E-9 position and the applicant was placed in this position on the UMR - the document was prepared on             5 November 2008.

		(d)  She was already on the 2007 list for promotion to SGM and was eligible to be promoted; however, the position was not advertised as a unit vacancy as required.

		(e)  In January 2009 another Soldier in the rank of SGM was assigned to the 814th and was placed in the SGM position along with the applicant.

		(f)  Since the two of them were double slotted, the applicant submitted a request to the ABCMR in April 2010 to review her case.

		(g)  The 814th was also in the process of being realigned under the 321st STB so she transferred to the 365th CSSB in July 2010 in the 88Z Operations NCO POSN/Line Number 0925 108 06 in order to continue to meet her COE for the MILTECH position she held within the 365th CSSB.

		(h)  In the interim she was selected for and reported to USASMA in July 2010 - while at the academy the ABCMR favorably considered her case based on her previous assignment in the SGM position within the 814th AG in 2008 and promoted her to the rank of SGM with an effective date of August 2007.

		(i)  As a COE (MILTECH 365th) and in order to meet the senior grade overstrength guidance, she took a reduction in rank from SGM/E-9 to MSG/E-8 on 19 May 2012 (she was already assigned to a valid MSG position as stated above).

47.  The unit structure of the 365th CSSB, which is a battalion under the 321st Sustainment Brigade, 143rd ESC shows the following effective date and units:

	a.  26 October 2007 - 294th Adjutant General (AG) Company (CO); 818th AG CO; 344th Ordnance (OD) CO; 894th Quartermaster (QM) CO; 441st Transportation (TC) CO; 814th AG Team (TM); 342nd TC Detachment (DET); and 194th AG CO is shown as inactivating.

	b.  1 July 2008 - the 894th QM CO realigned under the 375th CSSB (another battalion of the 321st Sustainment Brigade).

	c.  28 September 2009 - depicts various units that were task organized under the 207th Regional Support Group , Fort Jackson, SC.  Under this organization, the 365th CSSB became the 365th QM Battalion and shows the 294th AG CO was either deployed or facing deployment.  
	d.  22 March 2010 - is shown as a pre-decisional document of the 143rd ESC. It was also labeled Annex C of an Operations Order (OPORD). 

	e.  A UMR for the 365th CSSB prepared on 16 July 2011 shows POSN 0925 changed to show "RSRVD FTUS" and it was no longer encumbered by the applicant but shows a MSG TVL was assigned to the unit on 16 June 2011 and to that position the next day.  His PMOS is shown as 88Z.  

	f.  A UMR prepared on 25 July 2011 shows the applicant was placed back into POSN 0925 while serving in the grade of E-9.  Her date of assignment to the unit is shown as 16 July 2011 with the same date assigned to the position. 

	g.  16 November 2011 - shows the 365th CSSB under the command and control of the 321st Sustainment Brigade.  The units of the 365th are HHC, 365th; 303rd QM CO; 294th AG CO; 441st TC CO; 818th AG CO; and 894th QM CO.

	h.  A UMR prepared on 15 March 2012 shows the applicant annotated the following positions as such:  

* 0035 Command Sergeant Major E-9 00Z5O as held for a mobilized Soldier 
* 0345 Operations Sergeant E-8 88Z5O as one of two positions she could have filled; however, she was promoted as a 42 series
* 0920 Operations Sergeant E-8 88Z5O was labeled with a star in a circle

	i.  A UMR prepared on 13 July 2012 with a UIC effective date of                   17 September 2012 shows the applicant along with several other Soldiers were assigned to POSN 9992 (Awaiting Assignment).  The applicant was assigned in the POSN on 31 October 2011.

48.  U.S. Army Force Management Support Agency (USAFMSA) documents manpower and equipment requirements and authorizations for the Army.  USAFMSA manages and maintains the Force Management System Web Site (FMSWeb), the system that stores the Army's TDAs.  FMSWeb contains the following approved TDAs for the 365th CSSB, UIC: WQ7HAA:

	a.  The TDA in effect from October 2006 through September 2008 shows this UIC had:

* one authorized E-9/CSM position (MOS: 00Z5O) 
* four authorized E-8/MSG positions (MOS: 63Z5O (Mechanical Maintenance Supervisor), 88Z5O, 92A5M (Automated Logistical Specialist), and 92A5O2S)
* the only E-8 88Z position was in PARA/LN 108/05 (Operations Sergeant)

	b.  The TDA in effect from October 2008 through September 2009 shows this UIC had:

* one authorized E-9/CSM position (MOS: 00Z5O) 
* four authorized E-8/MSG positions (MOS: 63Z5O, 88Z5O, 92A5M, and 92A5O2S)
* the only E-8 88Z position was in PARA/LN 108/06 (Operations Sergeant)

	c.  The TDA in effect from October 2009 through September 2011 shows this UIC had:

* one authorized E-9/CSM position (MOS: 00Z5O) 
* four authorized E-8/MSG positions (MOS: 63Z5O, 88Z5O, 92A5M, and 92A5O2S)
* the only E-8 88Z position was in PARA/LN 108/06 (Operations Sergeant)

	d.  The TDA in effect from October 2009 through September 2011 shows this UIC had:

* one authorized E-9/CSM position (MOS: 00Z5O) 
* four authorized E-8/MSG positions (MOS: 88Z5O, 91Z5O (Mechanical Maintenance Supervisor), 92A5M, and 92A5O 2S)
* the only E-8 88Z position was in PARA/LN 108/06 (Operations Sergeant)

	e.  The TDA in effect from October 2009 through September 2011 shows this UIC had:

* one authorized E-9/CSM position (MOS: 00Z5O) 
* two authorized E-8/MSG positions (MOS: 91Z5O  and 92A5O 
* the there were no E-8 88Z position under this UIC

49.  Memorandum/Policy Guidance (COE for DSMT, Non-DSMT, Combat Related Injured – Non-DSMT, and Technicians) issued by Headquarters, USARC, on 24 October 2008 stating that all DSMT whose TPU positions are lost due to Army Reserve transformation may be assigned to a TPU as overstrength or special category position number 9990, reassignment overstrength, when the DSMT's civilian position was unaffected by the USAR transformation, but their unit no longer has a military requirement for his or her grade or MOS, the DSMT may be assigned as overstrength/9990 for 3 out of 5 years (cumulatively) from the effective date of relocation.  

50.  Headquarters, USARC, G-1 issued policy guidance (Overstrength Assignments of Soldiers Based on USAR Transformation), on 30 January 2009 stated the Soldiers in the grade of E-8 and E-9 whose TPU position is lost to 
USAR transformation may be mandatorily assigned to a TPU as overstrength.  These Soldiers will be allowed to remain overstrength in a unit for at least 1 year from the effective date of unit inactivation, reorganization, or from the effective date of a unit relocation from a reasonable commuting distance for the Soldier.  After 1 year in overstrength status, Soldiers will be reassigned to another TPU position of the appropriate grade where they are MOS qualified, as an IMA, the IRR, the Retired Reserve, or be discharged.  Reassignment to the IRR will be the last resort.

51.  Memorandum/Policy Guidance (Shaping the Force – Eliminating Senior Grade Overstrength), issued by the Commanding General (CG), USARC, on      6 May 2010, stated the USAR has exceeded its endstrength, and, therefore, commanders must focus on eliminating senior grade overstrength in the grades of E-8/E-9 and O-5/O-6.  The CG stated that he wanted to focus on senior NCOs and commissioned officers who were not assigned to valid positions because carrying these overstrength senior grade Soldiers on USAR rosters was blocking promotion opportunities and inhibiting the ability to fill positions for lower-graded vacancies.  The CG stated that during the transformation period USARC authorized commanders to retain these overstrength Soldiers for up to 1 year.  However, in most cases, the USAR was well past the 1-year transformation window; therefore, the CG directed that commanders take immediate action to correct the E-8/E-9 and O-5/O-6 overstrength conditions within their units.  The CG further stated that if the senior grade overstrength Soldiers did not make voluntary decisions then the commanders would be forced to take actions such as involuntarily reassigning the Soldiers to a valid vacancy within the TPU to a position for which they qualified, involuntarily reclassify the Soldiers to another MOS for which they were qualified, or involuntarily reassign them to the IRR.  Additionally, the CG directed the USARC G-1 to track the progress of each unit and offer assistance where necessary.  This memorandum included the following attachment(s):

	a.  A document entitled Managing the Assignments of our Senior Grade Forces (E-8/E-9 and O-5/O-6) stated that overgrade and overstrength Soldiers may be assigned overgrade when there is a shortage in a lower grade and the units have been unable to fill the vacant position through promotion or normal assignment procedures.  However, Soldiers may only be retained overgrade up to 1 year.  Then they must be reassigned to a valid vacant position for which they qualify or reassigned to the IRR.  Enlisted Soldiers may remain in the position after the 1 year only if they accept an administrative downgrade.

		(1)  Soldiers assigned to a Warrior Transition unit or TPU Soldiers undergoing medical evaluation processing will remain assigned to their current unit, even if overstrength, until a fitness for duty determination has been made.

		(2)  Effective the date of this memorandum (6 May 2010) Soldiers who also serve as DSMTs and are currently assigned overgrade will have a maximum of 12 months to find a valid position that meets their COE and that they qualify for (MOS/grade).  If the DSMT is not in a valid position that meets their COE with in 12 months (by 6 May 2011), he or she will be transferred to the IRR.

		(3)  With respect to retraining or reclassification to meet COE, some military schools will not retrain Soldiers above the grade of E-6.  Therefore, Soldiers will be authorized to request an administrative reduction in rank to meet course requirements for enrollment so that they can become MOSQ.

	b.  A document entitled Eliminate Overgrade Overstrength which stated that commanders were provided with a list of overstrength E-8 and E-9 Soldiers at a conference on 10 May 2010.  Units/Commanders should make every effort to place these Soldiers in valid vacancies for which they are qualified and involuntary assignment to the IRR should be the last resort.  The USARC Strength Management Division could/would assist in identifying vacancies.  Additionally, the following options, in the following order, were available to commanders to manage their overstrength Soldiers.  However, USARC would involuntarily reassign overstrength Soldiers no later than 1 September 2010 if no action was taken in accordance with the below options.  

		(1)  Voluntary reassignment or reclassification to a vacant position to which the Soldier was currently qualified and whose rank was equal to but no more than one grade below that position;

		(2)  Involuntary reassignment or reclassification to a vacant position within a reasonable commuting distance to which the Soldier was currently qualified and whose rank was equal to but no more than one grade below that position;

		(3)  Voluntary reduction in grade for enlisted Soldiers who are overgrade, but qualified in their current position; Soldiers cannot be overgrade for more than 1 year; 

		(4)  Voluntary reassignment to an individual mobilization augmentee (IMA) position; 

		(5)  Voluntary reassignment to the Retired Reserve or discharge, if eligible, or; 

		(6)  Involuntary reassignment to the IRR if no position is available and the Soldier makes no other voluntary action.

52.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  Detailed procedures are given for removing Soldiers from an active status.

   a.  Paragraph 2-6c states a unit commander may accept an enlisted Soldier for unit assignment who is not MOS qualified for the duty position with the understanding the Soldier must enroll within 12 months following assignment and satisfactorily participate in an approved formal course of instruction leading to the award of the MOS within 24 months of assignment.

   b.  Paragraph 2-8 states USAR technicians are normally assigned to the unit they service.  If more than one unit is serviced, they will be assigned to the unit in which there is an authorized position.  When they cannot be assigned to the unit serviced, they will be assigned to the appropriate USAR control group unless they accept some other assignment.

   c.  Paragraph 2-13 provides, in part, direction for order of priorities for assignment of enlisted personnel.  This order of priority applies to both voluntary and mandatory assignments.

   (1)  Priority 1 - reenlistment to fill their own vacancies.

      (2)  Priority 2 - USAR unit Soldiers applying for transfer from another locality. 

      (3)  Priority 3 - USAR unit Soldiers who were relieved from assignment because their unit was reorganized, inactivated, or relocated.

   (4)  Priority 4 - Prior or nonprior service individuals.
   (5)  Priority 5 - IRR Soldiers. 
   
   d.  Paragraph 2-21c(3) and (4) state that area commanders may authorize unit assignments that exceed TOE or TDA grade authorizations if the Soldier will not be reduced in grade or placed in a position degrading to his or her current grade and the Soldier will be assigned against an appropriate vacancy within 24 months. 

   e.  Paragraph 2-21e states when assignment in the Soldier's PMOS is not possible, they may be assigned in a secondary or related MOS and must be compatible with the position vacancy and related to PMOS training received while on active duty. 

   f.  Section III applies to the transfer and reassignment of enlisted Soldiers to the IRR.  Paragraph 4-10 of this section covers the involuntary reassignment of TPU or IMA enlisted Soldiers to the IRR and shows, in part, the involuntary reassignment of a TPU or IMA Soldier to an appropriate control group of the IRR is authorized when: 

		(1)  They reach the maximum years of service. 

		(2)  Unit inactivation or relocation results in a Soldier not being within reasonable commuting distance of another TPU. 

		(3)  A Soldier, staff sergeant (SSG) or above, whose grade of rank is above that authorized for a duty position.

		(4)  A Soldier who is not DMOS qualified and has not begun training in an approved course of instruction within 12 months of assignment to a duty position, or is not DMOS qualified within 24 months of assignment to a duty position. 

   g.  Paragraph 4-17.2 prescribes the guidelines for involuntary reassignment because of overgrade.  A Soldier will be involuntarily reassigned to the appropriate IRR control group when all of the following conditions exist: 

		(1)  The Soldier's grade of rank is SSG or above and the grade is higher than that authorized for a TPU or IMA duty position. 

		(2)  A TPU or IMA duty position in which the Soldier qualifies by MOS and authorized for the Soldier's current grade of rank or higher, is not available. 

		(3)  The Soldier has been serving in an overgrade status for at least 12 months.  
		(4)  Retention in an overstrength status is not authorized, or retention would exceed authorized overstrength limitations. 

   h.  Should a Soldier who meets the conditions outlined be offered a duty assignment in a lower grade and decline voluntary reduction under paragraph   7-12b(3), the Soldier will be reassigned to the appropriate control group of the IRR.

   i.  Paragraph 4-28 states that the reason a Soldier was transferred or reassigned to the IRR determines the limitation, if any, on reassignment to a TPU or IMA position, provided the Soldier has not accumulated the maximum total years of military service for his or her grade.  
   
   j.  Chapter 6 covers the transfer to and from the Retired Reserve.

   k.  Paragraph 7-2 prescribes the guidance for length of service (removal rule 1).  When an enlisted Soldier completes the years of service in the grades shown below, he/she will be removed from an active status.  This policy applies only to unit Soldiers who have completed 20 years of qualifying service for retired pay.  Soldiers who do not request transfer to the Retired Reserve or discharge will be assigned to the IRR. 
   
* CSM, 35 years 
* SGM, 31 years 
* 1SG/MSG, 31 years 
* SFC, 29 years 
* SSG and below, 27 years 

53.  Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  It provides the objectives for the Army's Enlisted Promotion System, which includes filing authorized enlisted spaces with the best qualified Soldiers. 

   a.  Paragraph 5-47 provides guidance for the promotion procedures for MILTECHs.  A MILTECH must serve in a dual status as a technician and as a member of the Army Reserve Selected Reserve in accordance with Department of Defense Instructions (DODI) 1205.18.  Eligibility, selection, and promotion policy and procedures outlined in this chapter apply to all MILTECHs assigned to a TPU, except where cited in the following paragraphs.

		(1)  Position vacancy - A TOE or TDA position occupied by a MILTECH will not be considered as a vacancy for promotion consideration.

		(2)  Promotion to SFC through SGM - When a board recommends a MILTECH for promotion to SFC through SGM against a position in a TPU other than that to which he or she is assigned, the MILTECH may accept the promotion with concurrent reassignment, if required.  He/she may also decline the promotion if acceptance would affect his or her status as a MILTECH.  When a position vacancy or projected vacancy occurs in the TPU to which the MILTECH is assigned, he or she will be promoted off the recommended list in sequence provided the MILTE H is qualified in the DMOS by possessing the MOS as a PMOS, SMOS, or AMOS.   

   b.  Paragraph 5-30 states the senior enlisted selection and promotion system outlined in this section prescribes the policy and procedures governing the promotion of unit Soldiers to SFC, MSG, and SGM.

		(1)  The selection and promotion process for senior enlisted grades is centralized at promotion authority headquarters.

		(2)  To standardize promotions throughout Army Reserve units, and to ensure promotion of the best qualified Soldiers, recommendation by promotion selection board and placement on a permanent recommended promotion list are required.

		(3)  In no case will promotions be made to SFC and above for Soldiers in an overstrength status.  Transfers to and from an overstrength status will not be made for the purpose of increasing promotion opportunities.

   c.  Paragraph 5-32 outlines the eligibility criteria for selection board consideration.  It states commanders will ensure that Soldiers who meet eligibility criteria are considered by the board.  Soldiers must meet the eligibility criteria as of the convene date of the board.  In part, the following must be met. 

		(1)  Soldiers may compete for promotion in their PMOS, SMOS, or AMOS. They must be fully qualified in the MOS for which they are selected for promotion.

		(2)  Assignment to a position authorized for the next higher grade is not a requirement for selection board consideration.  Further, position incumbency is not a factor that identifies the Soldier as best qualified among his or her peers.  Only promotion off the recommended list requires the existence of a position vacancy.

		(3)  A Soldier must be a graduate of the NCOES Course (or the equivalency required for his or her current grade) as required by paragraph 1-27 of this regulation, (waivable).  
   
   d.  Paragraph 10-19 states for the USAR, a Soldier may volunteer for reduction to one or more lower pay grades.  The reduction requested by the Soldier will be accomplished by the promotion authority without prejudice.  In part, such reductions will normally be limited to Soldiers desiring reduction for assignment in a lower grade to an existing vacancy in a TPU.  This reduction is authorized provided the Soldier has not attained the maximum years of service in the grade to which reduced.

   e.  Paragraph 10-21 states USAR Soldiers (excluding AGR) who involuntarily lose their positions because of unit reorganization, inactivation, full-time support utilization requirements or downgrade of positions, and therefore cannot be properly utilized within the following timeframes:  24 months (SGT-SSG), 12 months (SFC-SGM), will be involuntarily reduced in grade:

		(1)  If immediate reassignment is not appropriate, Soldier will be retained in current grade for up to 1 year before involuntarily reduction or reclassification to fill valid positions.  Soldiers who refuse an assignment for which eligible and available will be immediately reduced to the grade authorized for the position to which assigned, effective on the date of the refusal.

		(2)  When it is not possible to properly assign these Soldiers, they will be transferred to the IRR without reduction.

DISCUSSION AND CONCLUSIONS:

1.  It is unclear whether or not members from the USARC G1, the 143rd ESC, and the 365th CSSB were trying to help her retain her civilian position.  Nevertheless, it does not appear that her unit did everything in their power to find a viable solution and/or position for the applicant.   

2.  In 2007, the applicant’s unit was affected by a reorganization, and based on the change in her civilian position she was assigned to a MSG/E8 POSN with the 814th AG Co (downtrace of the 365th) in August 2007.  While serving in this position she submitted her packet for promotion to SGM/E9 (MOS 42A).  The unit redesignated as the 814th and the position she was assigned to became a SGM/E-9 position (MOS 42A) and she remained in this POSN.  She was selected by the 2007 promotion board to SGM/E-9 and her name was added to the recommended list.  In January 2009, a SGM/E9 from the 321st Sustainment Brigade came into the unit and was immediately assigned to the same position along with the applicant and thus created a double slotting of senior grade personnel.  This was no fault of the applicant's.  She filed a complaint with the IG who found that the position was never announced as a unit vacancy as a result of an administrative error on the part of the 143rd ESC.  

3.  She was selected to attend USASMA with a reporting date in July 2010.  In February 2011, the ABCMR granted her request for promotion to SGM based on her previous occupancy of the SGM position with the 814th.  She had a DOR of July 2007.  However, due to no fault of her own, she was removed from the SGM/E-9 position with the 814th and reassigned to the 365th CSSB in Duty MOS 88Z, with an established date of membership of 19 July 2010.  She possessed the AMOS of 88Z and was considered MOSQ in the position.  She was also assigned as a GS 0301 09 Staff Operations and Training Specialist with the same unit.  

4.  She returned from USASMA and continued to serve in the 88Z MSG slot as a SGM.  She took a voluntary reduction to MSG/E-8 in order to continue to meet her COE and to be qualified to serve in the 88Z MSG position.  

5.  Based on a memorandum prepared by the applicant's battalion commander in which he outlines the events leading up to her involuntary transfer to the IRR, she was part of the rear detachment during the 365th CSSB's deployment.  The unit opted to place all rear detachment personnel in a 9992 POSN and the forward deployed elements in the actual POSNs on the TDA.  The evidence shows she continued serving in the 88Z position until the unit's deployment at which time she was assigned to POSN 9992.  This involuntary reassignment in POSN generated the failure for the applicant to meet her COE as outlined in her MILTECH agreement, which was not her fault.   

6.  The unit later changed the 88Z position to a 92A position, one for which she was not MOSQ to fill and the USARC memorandum which outlines the COE for DMST states, in part, a DSMT whose civilian position is unaffected by Army Reserve transformation but whose unit no longer has a military requirement for his/her grade or duty AOC/MOS, may be assigned overstrength/9990 for 3 out of 5 years (cumulatively) from the date unit reorganized.  While the change on the UMR does not meet the book definition of unit reorganization, it was clearly the unit's portrayal of no longer needing the applicant's duty AOC/MOS.  

7.  The organization's efforts to place her in a valid position shows she was offered a SSG/E-6 billet.  The applicant rightfully refused the downgrade to SSG which not only would have been humiliating, it would have made her exceed the length of service requirement by grade as she already had over 30 years.  Army regulations state a Soldier may volunteer for reduction to one or more lower pay grades.  Such reductions will normally be limited to Soldiers desiring reduction for assignment in a lower grade to an existing vacancy in a TPU.  This reduction is authorized provided the Soldier has not attained the maximum years of service in the grade to which reduced.  

8.  The evidence shows she was involuntarily transferred to the IRR for failure to find a valid enlisted billet for which she was qualified.  Her involuntary transfer to the IRR created a domino effect in which she no longer met the COE as a MILTECH because she was no longer a member of the unit to which she was employed.  

9.  While it is not possible to reinstate her as an active reservist at this point, in view of the foregoing and as a matter of equity it would be appropriate to revoke the reduction orders to MSG/E-8.  Furthermore, her records should be corrected to show that she continued to serve in POSN 9990 in the grade of SGM/E-9 until she met her length of service of 31 years or one year from the date POSN 0925 changed from 88Z to 92A (whichever is later), show she was transferred to the IRR in the grade of SGM/E-9, and to pay her any back pay and allowances as a result of this correction.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Revoking Orders Number 12-140-00022, issued by Headquarters, 81st RSC, Fort Jackson, SC on 19 May 2012, which reduced her in rank from SGM to MSG.

	b.  Correcting Orders Number 12-200-00024, issued by Headquarters, 81st RSC, Fort Jackson, SC on 18 July 2012 to show she was released from her assignment and transferred to the IRR as a result of senior grade overstrength effective 18 July 2012 in the rank of SGM vice MSG.

	c.  DFAS paying her any pay and allowances to which she is entitled to as a result of these corrections.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reinstating her as an active reservist.



      __________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.



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