IN THE CASE OF:	  

		BOARD DATE:	  6 August 2014

		DOCKET NUMBER:  AR20130018049 


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 promotion to the rank and pay grade of sergeant major (SGM)/E-9.

2.  The applicant states:

* in February 2008, she was recommended for promotion to the rank of SGM by the 81st Regional Readiness Command (RRC) Senior Enlisted Promotion Board
* she was transferred to a SGM position within the Office of the Deputy Chief of Staff, G-8, 84th Training Command (Leader Readiness), at Fort Knox, KY
* in January 2010, she received a telephone call from the 81st RRC, in which they stated the RRC could not promote her because they had previously over-promoted within the command
* she should have been promoted to the rank of SGM on 1 June 2008, when she assumed the vacant G-8 SGM position
* she is being penalized for something over which she had no control

3.  The applicant provides:

* copies of two pages of the Recommended List for Promotion (known as the Permanent Promotion Recommended List (PPRL))
* an email from her command with an attached DA Form 4651 (Request for Reserve Component Assignment or Attachment)
* Orders 08-122-00009, issued by Headquarters, U.S. Army Reserve Command (USARC), Fort McPherson, GA on 1 May 2008
* DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), covering the period 1 June 2008 through 31 May 2009
* DA Form 2-1 (Personnel Qualification Record – Part II)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was serving in the USAR when on 1 July 2005; she was promoted to the rank/pay grade of master sergeant (MSG)/E-8.  

3.  In January 2008, she was recommended for promotion to the rank of SGM by the 81st RRC Senior Enlisted Promotion Board.  The 81st RRC PPRL, dated 13 February 2008, shows she was selected for promotion in military occupational specialty (MOS) 44C (Financial Management Technician).  The full text of the 81st RRC PPRL is not available for review; consequently, there is no way to ascertain her overall sequence or position on the list, in comparison to other Soldiers recommended for promotion in the same MOS.

4.  Orders 08-122-00009, issued by Headquarters, USARC, on 1 May 2008, reassigned her from the USARC Augmentation Unit, Fort McPherson, GA, to the 84th Training Command (Leader Readiness), Fort McCoy, WI, effective 1 June 2008.  These orders do not specify the position (or position grade) to which she was being reassigned; however, a corresponding DA Form 4651, dated 12 April 2008, shows she was being reassigned to an E-9 position.  This form further shows she voluntarily requested this reassignment.

5.  Item 34 (Record of Assignments) of her DA Form 2-1 shows she was assigned to the G-8 SGM position in the 84th Training Command (Leader Readiness), Fort Knox, KY, effective 1 June 2008.

6.  Her record is void of documentation that clearly shows her promotion status (i.e. list sequence and compliance with promotable status requirements of Army Regulation 600-8-19 (Enlisted Promotions and Reductions)) on her effective date of assignment to the 84th Training Command (Leader Readiness).  Consequently, there is no way to ascertain whether or not she was in a promotable status at the time.

7.  Her NCOER, covering the period 1 June 2008 through 31 May 2009, shows she was evaluated as a SGM during the rated period, which is essentially a maximum report that recommends her promotion to SGM.

8.  On 6 May 2009, according to case details found in the Soldier Management System (a database containing personnel and training data on all USAR Soldiers maintained by the U.S. Army Human Resources Command (HRC) at Fort Knox, KY), she was enrolled in Course 36 (non-resident instruction) of the U.S. Army Sergeants Major Course (SMC), conducted under the auspices of the U.S. Army Sergeants Major Academy (USASMA), Fort Bliss, TX. 

9.  Her record is void of documentation that shows her course graduation status vis-à-vis the SMC.

10.  On 12 June 2010, she was reassigned back to the USARC Augmentation Unit at Fort McPherson, GA, and is currently assigned to the USARC Augmentation Unit at Fort Bragg, NC.  In both of these reassignment actions, she was reassigned to E-8 positions.

11.  On 20 December 2013, in the processing of this case, an advisory opinion was obtained from the Chief, Personnel Management Division, Office of the Deputy Chief of Staff (G-1), USARC, Fort Bragg, NC, which recommended disapproval of her request.  The advisory official stated the following:

* the applicant was placed on the PPRL, which is managed by the servicing Regional Support Command (RSC)
* as vacant positions are reported, the RSC identifies the first Soldier on the PPRL who meets the reported requirements of the position within the elected commuting distance
* in no case will promotions be made to pay grade E-7 and above for Soldiers who are in an over-strength status
* Soldiers who have not been promoted within 2 years from the date of board appearance will automatically be removed from the PPRL
* the applicant was recommended for promotion to SGM in January 2008 with an elected commuting distance of 150 miles
* during her tenure on the PPRL, no vacant positions were reported to the RRC within her MOSs and elected commuting distance
* accordingly, she was administratively removed from the PPRL in January 2010
* additionally, she was unsuccessful in completing Phase I of the SMC, which made her ineligible for further promotion consideration
* since January 2008, six boards have been conducted to consider Soldiers for promotion to SGM; she has not remained eligible for consideration and has not been recommended for promotion to SGM by any of those boards
* a member the USARC headquarters contacted her and explained these policies and procedures in detail

12.  On 23 December 2013, the advisory opinion was provided to the applicant for comment and/or possible rebuttal.  She responded to the effect that she changed her elected commuting distance and contends she had difficulty getting on the USASMA website, presumably to complete the SMC.  She provides a copy of a change to her selected commuting distance, wherein she changed it to 435 miles; however, it is dated 4 November 2009, more than 18 months after her integration onto the PPRL.

13.  There is no way to ascertain either the aggregate E-9 strength throughout the USAR in June 2008 or the E-9 strength within her recommended MOS.  Consequently, there is no way to know how many, if any, Soldiers were promoted to E-9 (either in the aggregate or within her MOS) at that given time.  

14.  Army Regulation 600-8-19 prescribes the enlisted promotion and reduction function of the military personnel system.  It provides the objectives of the Army’s Enlisted Promotions System, which include filling authorized enlisted spaces with the best qualified Soldiers.  

	a.  Paragraph 1-27 (Noncommissioned Officers Education System (NCOES) Requirement for Promotion and Conditional Promotion) provides that:

* Soldiers selected for promotion to SGM who are non-graduates of the SMC will be conditionally promoted
* 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
* conditionally promoted SGM 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
	
	b.  Paragraph 5-4 (Cumulative Vacancies) provides guidance on computing cumulative vacancies within a given command.  It stipulates that an overstrength in NCOs in a pay grade will reduce or eliminate promotion possibility for NCOs in that grade and lower grades.

	c.  Section III governs the promotion of USAR Soldiers to the ranks of sergeant first class, master sergeant, and SGM.

	d.  Paragraph 5-30 (General), sub-paragraph b.(4), provides that promotions off the PPRL will not exceed the cumulative vacancies for that pay grade.

	e.  Paragraph 5-38 (Convening Authority Responsibilities) provides that the convening authority will take the names of Soldiers recommended for promotion and integrate them on the PPRL.  As a vacancy is reported, the convening authority will identify the first Soldier on the list who meets the reported requirements. 
	
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should have been promoted to SGM/E-9 on 1 June 2008, the date she assumed a SGM position was noted; however, it appears to lack merit.

2.  The applicant was selected for promotion to the rank of SGM and was placed on a PPRL awaiting a valid position vacancy in her MOS.  It appears she was legitimately assigned to an E-9 position within the 84th Training Command; however, due to a lack of relevant information, there is no way to ascertain what her promotion status was at the time.  In the absence of such information, there is no way to know her sequence or position on the PPRL with respect to others on the PPRL with the same recommended MOS.   

3.  There is no way to know the overall strength picture throughout the USAR at the time, both within her MOS and across the E-9 aggregate.  Army Regulation 600-8-19 prohibits promotions in the USAR in cases where there are no cumulative vacancies.  It appears there were no available vacancies during the 2 years she was retained on the PPRL; consequently, she was properly removed from the PPRL in January 2010.

4.  Her graduation status, vis-à-vis the SMC, is unknown; however, the advisory opinion alludes to her inability to successfully complete the SMC.  Failure to complete any portion of the SMC would be grounds for removal from the PPRL and would have rendered her ineligible for future promotion consideration.

5.  Her response regarding her failure to complete the SMC because she could not get on the USASMA website has been noted; however, it lacks merit as she provided no evidence that shows her attempts to resolve the issue over the years that have passed.  The responsibility to complete the education requirements rests squarely with the applicant.

6.  It is also noted that she comes to the Board 5+ years after the fact and has not provided sufficient evidence to dispute or overcome the explanation contained in the advisory opinion from the HRC.

7.  Therefore, in the absence of evidence that shows that both aggregate and MOS E-9 strengths within the USAR would have supported her promotion in June 2008, and that shows she met the education requirements for promotion, there appears to be no error or injustice in her case and no basis to grant her request.

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 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)                                         AR20130018049



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ABCMR Record of Proceedings (cont)                                         AR20130018049



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