IN THE CASE OF: 

		BOARD DATE:	    3 April 2014

		DOCKET NUMBER:  AR20130010496 


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, in effect, correction of her record to show she was promoted to staff sergeant (SSG)/E-6 effective 1 February 2010.

2.  The applicant states she was hired into Army Reserve Careers Division (ARCD) as an exception to policy and they were unable to promote her to SSG.  If the proper military occupational specialty (MOS) change had been done at the completion of her MOS school she would have been promoted on time.

3.  The applicant provides:

* email correspondence related to her delayed promotion
* two DA Forms 1059 (Service School Academic Evaluation Report)
* Orders Number 10-237-00027, dated 25 August 2010
* Memorandum, Request Date of Rank (DOR) Change, dated 8 January 2013
* Memorandum, Request DOR Change, dated 13 February 2013
* DA Form 4187 (Personnel Action), dated 13 February 2013
* DA Form 4187-1-R (Personnel Action Form Addendum), dated 14 January 2013
* Office of the Deputy Chief of Staff for Personnel (ODCSPER) Memorandum, Request for ETP to Award MOS 79S to Sergeants, dated 
7 June 1999 with 1st and 2nd endorsements
* U.S. Army Recruiting and Retention School Memorandum, ETP to Award MOS 79V to Sergeants, dated 28 January 2002
* Office of the Chief, Army Reserve (OCAR) Memorandum, ETP to Award MOS 79V to Sergeants, dated 31 January 2002
* OCAR Memorandum, Rescind ETP for Awarding MOS 79V to Sergeants, dated 22 April 2009
* ARCD Memorandum, Initial Award of MOS 79V, dated 18 May 2009
* DA Form 2A (Personnel Qualification Record)

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.  Her record shows:

	a.  She had prior service in the Regular Army and the U.S. Army Reserve (USAR) and she is currently serving in the Active Guard Reserve (AGR) Program.  The Total Army Personnel Database-Reserve (TAPDB-R) shows she is serving in primary MOS 79V (Army Reserve Career Counselor).

	b.  On 31 July 2009, she completed the Army Reserve Career Counselor course at Fort McCoy, WI.  At the time of her attendance the applicant held MOS 21E (Heavy Construction Equipment Operator) in the grade of sergeant (SGT/E-5).  The comment section of her DA Form 1059 contains the entry "SGTs/E5s will be awarded MOS 79V after successful completion of requirements IAW AR 611-21, 22 JAN 07 and DAAR-CD Memorandum dated 18 MAY 09."

	c.  On 17 November 2009, she completed the Basic Noncommissioned Officer Course (BNCOC) Phase I class at Fort Lewis, WA as a SGT/E-5.

	d.  On 25 August 2010, she was promoted to SSG into the progression MOS of 21N3O (Construction Equipment Supervisor).

3.  On 8 January 2013, the applicant requested an ETP to have her DOR to SSG be adjusted to 1 February 2010.  She contended that in January of 2012, while assigned to the 9th Battalion, ARCD, she was on the Permanent Promotion Recommended List (PPRL) for 88th Regional Support Command (RSC).  She contends that she was not promoted due to an administrative error in that she was not awarded the MOS of 79V upon her graduation from BNCOC.  It took approximately 8 months after her graduation for her to receive the MOS and she was ultimately forced out of ARCD back to her former unit and MOS to be promoted.  She did not understand the effect that this error would have on her promotion to sergeant first class (SFC/E-7) until now.  Based on the guidance published in the ARCD Memorandum, dated 18 May 2009, she should have been awarded MOS 79V at the completion of BNCOC and been promoted to SSG in January of 2010 with the DOR of 1 February 2010.

4.  Her chain of command concurred with her request stating that, due to no fault of the Soldier, she was not promoted because of policy inconsistencies in place at the time which did not permit a SGT to be promoted to SSG in MOS 79V as a progression MOS.

5.  She provides e-mail correspondence showing that on 28 January 2010 her unit requested the applicant be promoted to SSG in MOS 79V based on meeting the requirements of having completed the 79V BNCOC course on 31 July 2009, completion of all requirements for promotion, and being slotted in a valid E-7 position.  Follow-up emails show that her promotion was delayed for several reasons to include pending waiver approval from Department of the Army, G1 to promote SGTs, verification of a position vacancy and promotion eligibility, and her request to be released to the Active Duty.

6.  In addition, she provides several policy memoranda in regard to award of MOS 79V to sergeants.  The memoranda applicable to her period of service are dated 22 April 2009 and later.

	a.  On 22 April 2009, the U.S. Army Recruiting and Retention School rescinded the ETP to award MOS 79V to SGTs because there were no longer any SGTs in the 79V force structure.

	b.  On 18 May 2009, a memorandum issued by ARCD states that all Soldiers reclassified into this MOS must be a minimum skill level 3 (SSG/E-6), have completed BNCOC, and have 12 months contractual obligation remaining upon completion of the ARCC course.

7.  In connection with the processing of this case, an advisory opinion was obtained from the U.S. Army Reserve Command (USARC), Chief, Personnel

Management Division.  That office recommended disapproval of the applicant’s request for promotion to the rank of SSG/E-6 with a DOR adjustment to 
1 February 2010 for the following reasons:

	a.  In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions) Soldiers recommended for promotion are integrated onto an order of merit list called a PPRL.  Then, as vacant positions are reported, the RSC will identify the first Soldier on the list who meets the reported requirements of these positions within their MOS and elected commuting distance.
	
	b  On 18 May 2009, the MOS 79V structure changed to begin at skill level
4, sergeant first class (SFC/E-7).  Effective that date, all Soldiers must be a minimum skill level 3 (SSG/E-6) to be reclassified into MOS 79V.

	c.  The applicant was a SGT at the time and as such she was recommended for promotion in MOS 12N (formerly MOS 21N), and was integrated onto the PPRL managed by the 88th RSC.  She completed the Army Reserve Career Counselor course in July 2009; however, she was not eligible for award of the 79V MOS or promotion because she was a SGT/E-5.  Consequently, the applicant was retained on the PPRL to await promotion within her primary MOS.  Upon promotion to SSG in February 2010, she met the eligibility criteria for award of MOS 79V as indicated on her DA Form 1059 and the referenced policy guidance, dated 18 May 2009.

8.  On 6 December 2013, the applicant provided a rebuttal to the advisory opinion wherein she requests that the extenuating circumstances surrounding her promotion which include the fact that officials advised her that she would be promoted in the MOS that she reclassified into, 79V; and her chain of command stated they would not promote her on the MOS 12N PPRL because she would be promoted in and awarded the MOS 79V.  

9.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 5 prescribes policy for the promotion of USAR Soldiers assigned to troop program units, Army Reserve elements, and multi-component units.  

	a.  Paragraph 5-18 states a consolidated PPRL will be established, published, and maintained by the regional promotion list manager.  The regional promotion list manager will announce the suspense dates for receiving a copy of the report of board proceedings from the promotion authorities.  The reports will be consolidated into one permanent recommended promotion list.  The names of recommended Soldiers will be extracted from the reports and placed on the list according to a certain format.  The list will be revised every 3 months (or as often as needed) to add, delete, or remove.

	b.  Paragraph 5-25 states that based on cumulative vacancy computations, the unit will report a current or projected vacancy requirement to the authority responsible for maintaining the PPRL.  The regional promotion list manager will identify the Soldier on the PPRL who will be promoted into the vacancy and notify the promotion and/or orders publishing authority.  The promotion and/or orders publishing authority will publish the promotion and reassignment orders (if applicable) and provide a copy to the regional promotion list manager.  The effective date of the promotion will be the date of the assignment to the vacancy.

	c.  Paragraph 5-38 states the PPRL will be used for promotion purposes. Supported units and organizations will be provided copies with SSNs NOT included.  As a vacancy is reported the convening authority will identify the first Soldier on the list who meets the reported requirements.

10.  The ARCD policy memorandum, dated 8 May 2009, Subject:  Initial Award of MOS 79V, states that due to changes in Department of the Army Pamphlet 611-21, MOS 79V begins at skill level 4 (SFC/E-7).  All Soldiers reclassified into this MOS must be a minimum skill level 3 (SSG/E-6) Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant request for correction of her record to show she was promoted to SSG/E-6 effective 1 February 2010 was carefully considered and found to lack merit.

2.  The applicant contends that an administrative error based on policy inconsistencies delayed her promotion to SSG in MOS 79V.  Further, her DA Form 1059, guidance from her chain of command, and other Army officials led her to believe that she would be promoted to SSG in MOS 79V.  The ARCD policy memorandum, dated 18 May 2009, clearly states that only Soldiers who are SSGs upon completion of BNCOC are eligible for promotion (reclassification) in MOS 79V.  The applicant was a SGT at the time she completed BNCOC; therefore, she was not eligible to be reclassified or promoted in MOS 79V.  It is unclear why her chain of command misinterpreted the policy guidance but she was promoted in accordance with the applicable Army regulations based on her position on the PPRL; therefore, no error or injustice exists. 

3.  In view of the foregoing, there is insufficient evidence to support an adjustment of her effective date of promotion and/or DOR.


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)                                         AR20130010496





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ABCMR Record of Proceedings (cont)                                         AR20130010496



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