IN THE CASE OF:	  

		BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20130012725 


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 favorable consideration for:  

* Restoration of his rank/grade to sergeant major (SGM)/E-9
* Reinstatement to active duty
* Reenrollment in the U.S. Army Sergeant Major Academy (USASMA) in order to complete Phase I (Non-resident) and Phase II (Resident) of the course

2.  The applicant states that he failed to complete Phase I by the 31 August 2011 deadline and he accepts full responsibility for his action.  However, he was unable to complete the online part due to Hurricane Irene that struck the State of Virginia on 27 August 2011, causing dangerously devastating damage and severe electrical power outages across the entire state that lasted through early September 2011.  Nevertheless, he completed 116 classes out of the 122 classes required.  He only needed six more to complete Phase I.  Although advance notice was given for the Blackboard (the online software) outages, often times, there was no notice provided by Blackboard outages.  Throughout the duration of the course, there was a total of 89 days when Blackboard was not accessible to students.  Additionally, prior to enrollment in this course as well as throughout the time spent in this course, he suffered from severe depression, anxiety, and deterioration of short-term memory which are symptoms of post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) experienced in the aftermath of deployments to Panama, Kosovo, Iraq, and Afghanistan.  He experienced extreme duress throughout the course.  Yet, he was able to complete nearly 95 percent of the requirements.  
3.  The applicant provides the following documents:

* Promotion to SGM order and revocation orders
* Noncommissioned Officer Evaluation Reports (NCOER) throughout his service
* Administrative reduction and removal from the Fiscal Year 2008 (FY08) Promotion Selection List 
* Approval of an exception to policy to the Retention Control Point (RCP)
* Email exchange with the U.S. Army Human Resources Command (HRC)
* Approval memorandum of his voluntary retirement
* Retirement orders
* Denial memorandum of appeal of dismissal from USASMA
* DA Form 1059 (Service School Academic Evaluation Report)
* Referral memorandum of a derogatory DA Form 1059
* Acknowledgement memorandum and rebuttal statement
* Enlisted Record Brief
* DD Form 214 - Worksheet (Certificate of Release or Discharge from Active Duty)
* Behavioral health letters
* Multiple letters of support/character reference letters
* Non-Resident Course grades and progress reports
* Email exchange with USASMA registrar
* Listing of outpatient active medications

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 January 1984 and he held military occupational specialties 11B (Infantryman), 19K (Armor Crewman), and 92F (Petroleum Supply Specialist).   

2.  He served through multiple reenlistments, in a variety of stateside and overseas assignments, including Germany, Iraq, and Afghanistan, and he attained the rank/grade of master sergeant (MSG)/E-8 on 1 July 2004.  

3.  He was selected for promotion to SGM/E-9 by the FY08 Sergeant Major Selection and Training List.  He was enrolled in USASMA Class 36, non-resident, beginning on 1 September 2009.  He was also promoted to SGM/E-9 by authority of Order Number 294-4, issued by HRC - Fort Knox on 21 October 2010.  The orders stated:

Soldiers promoted to Sergeant Major who do not have U.S. Army Sergeants Major Course (USASMC) credit are promoted conditionally.  Those Soldiers who receive a conditional promotion will have their orders revoked and their names removed from the centralized list if they fail to meet the Noncommissioned Officer Education System (NCOES) requirement. 

4.  He also enrolled in USASMA Class 36.  The non-resident course is a 2-year program of instructions consisting of two phases.  Courses are offered in a distant learning format through Blackboard.  Blackboard is accessible by an Army Knowledge Online username and password.  Phase I consists of the distant learning course and Phase II consists of a resident course at Fort Bliss, TX.  

5.  On 28 November 2011, the applicant's USASMA Course facilitator initiated a derogatory DA Form 1059 that indicated the applicant "Failed to Achieve Course standards" and the below comments.  The DA Form 1059 was referred to the applicant for comments:

* Applicant is dismissed from the Sergeant Major Course for lack of progress
* The dismissal is based on his failure to complete Phase I of the Sergeants Major Course.
* No determination is made regarding whether this course failure reflects on [Applicant's] character, behavior, or lack of aptitude in certain areas
* [Applicant] received a satisfactory rating on the H101A (Argumentative Essay); he was not evaluated on the P561 Haines Research paper

6.  On 28 November 2011, the applicant acknowledged receipt of the DA Form 1059 and indicated he would appeal and desired to submit comments.

7.  On 10 January 2012, he submitted a memorandum to the USASMA Commandant.  He requested to remain enrolled in the course and contended that he completed 116 sub-courses as well as the written assignments.  He again took responsibility for his action and acknowledged it was his responsibility to complete this course on time.  However, the power outage caused by a hurricane in his state caused him not to be able to access the computer for nearly 2 weeks. 

8.  On 7 February 2012, by memorandum, the USASMA Commandant notified the applicant that he has considered his appeal and dismissal from USASMA Class 36 and that based on his review, dismissal was proper in his case.  His appeal was, therefore, denied. 

9.  On 8 January 2013, by memorandum, an official at HRC Promotions Branch notified the applicant that as a result of his failure to meet the NCOES requirements of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-27b(2), his promotion orders to the rank/grade of SGM/E-9 have been revoked, effective 7 February 2012 and with a date of rank of 1 January 2004.  However, he was granted defacto status (keep the E-9 pay) from 7 February 2012 to 9 January 2013.  

10.  Also on 8 January 2013, by memorandum, an official at the HRC Separation Branch approved an exception to the RCP and authorized the applicant to remain on active duty for 6 months through 31 July 2013.  

11.  On 9 January 2013, HRC published Orders 9-2 revoking the applicant promotion to E-9 orders, dated 21 October 2010. 

12.  On 30 April 2013, the applicant's request for voluntary retirement effective 31 July 2013 was approved and on the same date, Headquarters, U.S. Army Combined Arms Support Command, Fort Lee, VA, published his retirement orders.  

13.  He submitted:

	a.  A memorandum for record, dated 19 March 2013, from a licensed clinical social worker, who states the applicant had been under the care of the Department of Behavioral Health, Fort Lee, VA, from 13 November 2012 to the present.  Throughout his treatment program, he was considered psychiatrically fit for duty. 

	b.  A memorandum for record, dated 12 December 2011, from a staff psychologist, who states the applicant had been under the care of the Department of Behavioral Health, Fort Lee, VA, from 21 July to 3 November 2010.  Throughout his treatment program, he was considered psychiatrically fit for duty. 

	c.  Multiple letters of support and/or character reference letters from senior officers (including a general officer), civilians, and NCOs (including multiple command sergeants major) who have known or worked with the applicant over the years.  Each author comments on the applicant's professionalism, selfless service, outstanding performance, record of accomplishments, and talent.  They all agree that the applicant should be allowed to complete the remaining six sub-courses and restore his grade to SGM.  

	d.  A statement, dated 8 April 2013, from the Directorate of Public Works, Fort Lee, VA, confirming the power outage at Fort Lee, VA, from 15:04 on 27 August 2011 to 13:00 on 3 September 2011. 
	e.  certified copy of his grade progress sheet and NCOERs throughout his service. 

14.  Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions.  It states in:

	a.  Paragraph 1-16, defacto status may be granted by the promotion authority or higher commander after legal review by the servicing Staff Judge Advocate’s office.  In determining whether a Soldier is entitled to de facto status, a factual evaluation must be made to determine whether a promotion order has been issued, the Soldier occupied the higher grade in good faith, the Soldier actually discharged the functions of the higher grade; and/or there is no absolute statutory bar to his or her receipt of the pay at the higher grade.  De facto status for Soldiers erroneously promoted to SGM will be determined by HRC. 

	b.  Paragraph 1-27 (NCOES requirements for promotion and conditional promotions), a Soldier must be a USASMC graduate for promotion to SGM.  Soldiers who fail to successfully complete, fail to remain eligible to be scheduled for or attend, who are denied enrollment in, or who do not attend their scheduled NCOES class (through fault of the Soldier) will be administratively reduced or removed from the promotion list.  The effective date of administrative reduction is the date of the action that caused the Soldier to be ineligible to retain the promotion.  The date of rank will be the previous date held at the reduced grade. Conditionally promoted SGMs who have been reduced or removed from the promotion list as a result of failure to meet the NCOES requirement are ineligible for future promotion consideration.  For conditionally promoted SGMs the following statement will be entered on the promotion instrument:  "Soldier has not met the NCOES requirement and is promoted conditionally.  If the Soldier fails to successfully complete, fails to remain eligible for, is denied enrollment in, or does not attend his/her scheduled NCOES class (through fault of the Soldier), then the Soldier will be administratively reduced."

15.  Army Regulation 350-1 (Army Training and Leader Development) prescribes policies, procedures, and responsibilities for developing, managing, and conducting Army training and leader development.  Paragraph 3-16 states Soldiers and Army civilians selected to attend courses will attend the class for which selected, unless deferred by the selection authority.  There are three categories of deferment: compassionate, medical, and operational.  Deferment for medical reasons may be requested when the individual’s physical condition will not allow full participation in the selected course.  Medical deferments will be processed following the procedures for enrollment denials outlined in paragraph 3–9.  Individuals receiving a medical deferment will be eligible for enrollment when the condition leading to the medical deferment no longer exists.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant accepted a conditional promotion to SGM on 1 November 2010.  His promotion was contingent on completing the USASMC.  He was enrolled in the non-resident course and was required to complete a certain number of sub-courses by 31 August 2011.  He failed to do so.  

2.  The natural disaster and subsequent power outage that occurred in Virginia in late August 2011 is not in question.  Although natural disasters are outside his control, time management was within his control.  Waiting until the last week of August 2011 to complete the remaining sub-courses is a reflection of his lack of due diligence.  

3.  As for his medical condition, the two medical statements he provides clearly state he was psychiatrically fit for retention.  But even if he was not medically fit, students who have medical conditions that prevent them from attending the resident phase must request a medical deferment through their chain of command to their respective proponent.  Here, there is no evidence the applicant raised the medical issue while attending the non-resident phase. 

4.  After a comprehensive review of the facts in this case, there is insufficient evidence to support the applicant's contentions or grant him any of 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)                                         AR20130012725





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ABCMR Record of Proceedings (cont)                                         AR20130012725



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