BOARD DATE:	  5 August 2014

		DOCKET NUMBER:  AR20130019668 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the Board's denial of the applicant's previous request for an adjustment of his promotion date to the rank of master sergeant (MSG)/E-8 to 8 August 2002 and all back pay and allowances due as a result of this adjustment.

2.  Counsel states, in effect, in 2002 the applicant was on the Texas Army National Guard (TXARNG) Troop Promotion List (TPL) for military occupational specialty (MOS) 75H.  His promotion points totaled 758 at the time he was placed on the promotion list.  The number 758 was not a promotion sequence number as indicated in the original Army Board for Correction of Military Records (ABCMR) decision.  Counsel states the applicant did not decline a promotion to MSG/E-8 at the time he was on the promotion list, either in writing or verbally.  Therefore, MSG JC, with 723 total promotion points, was erroneously promoted ahead of the applicant.

	a.  In 2004, the applicant found a memorandum from the TXARNG Program Manager for the TXARNG Inspector General concerning the promotion of MSG JC ahead of others on the promotion list.  The resulting investigation shows a memorandum from Warrant Officer One BDT stated the promotion list showed "declined" beside the applicant's name.  The applicant wrote to the Deputy Assistant Adjutant General explaining this error and requested this error be addressed.  In April 2005 the applicant was promoted to MSG with a date of rank (DOR) of 1 April 2004 which was a partial redress for the error of MSG JC's promotion ahead of him.

	b.  Counsel further states the remarks section of the DA Form 4187 (Personnel Action) promoting the applicant has the effective date changed from 1 August 2003 with a DOR of 5 August 2002 to an effective date and DOR of 1 April 2004.  He states the date was arbitrarily chosen and had the effect of keeping the National Guard Bureau out of the process of investigating the erroneous promotion of MSG JC ahead of more qualified Soldiers.

	c.  Counsel cites Army Regulation 600-8-19 (Enlisted Promotions and Reductions) as the controlling regulation for ARNG promotions and declination of promotions.  (It is noted that National Guard Regulation 600-200 (Enlisted Personnel Management) provided the promotion policy for ARNG promotions during the time in question.  However, the current promotion and promotion declination policy for the ARNG contained in Army Regulation 600-8-19 has only minor changes from the policy in effect at the time.)

3.  Counsel provides a copy of the original case with an enclosure listing.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120002576, on 18 September 2012.

2.  Counsel requests a waiver of the requirement for submission of new evidence or argument within 1 year for Board reconsideration due to the material error in the interpretation of the TPL.  Given that the Record of Proceedings for ABCMR Docket Number AR20120002576 did erroneously indicate promotion points were sequence numbers on the TPL, the Board's reconsideration of the applicant's request is warranted.

3.  On 16 June 1987, with prior enlisted service, the applicant enlisted in the TXARNG.

4.  He entered full-time National Guard Duty (FTNGD) in a Title 32 Active Guard Reserve (AGR) status on 25 September 1987 and continued to serve in that status with the exception of an active duty period in support of Operation Desert Shield.

5.  He was promoted to the rank of sergeant first class in MOS 75Z (Personnel Sergeant) effective 1 June 1995.

6.  State of Texas, Adjutant General's Department Orders 241-298, dated 29 August 2001, ordered the applicant to FTNGD effective 26 September 2001 for the purpose of AGR tour continuation.

7.  He provides one page (a portion) of the TPL printed on 7 May 2002 that shows his name with 758 (promotion points).  The list contains seven names between (below) the applicant's name and above MSG JC's name, who had 723 (promotion points).  The TPL has "declined" annotated next to the applicant's name and next to three of those seven individuals listed between the applicant's name and MSG JC's name.  The page of the TPL provided shows all Soldiers listed with either a primary or secondary MOS of 75H (Personnel Services Specialist).

8.  A Texas Military Forces Joint Forces Headquarters memorandum, subject: STPA (Select, Train, Promote and Assign) Selection and Promotion of MSG JC, dated 23 January 2004, addressed to the TXARNG Inspector General (IG), states the agency's hard copy records were unintentionally destroyed during the recent force structure changes.  All further-said statements were solely based off of what little records were on hand and by recollection.  The AGR Program Manager stated in the memorandum that the agency had concluded that MSG JC was selected for a higher-grade position fairly and without bias.  Additionally, every individual who was listed higher on the Promotion Eligibility List during that time frame was also offered similar higher-grade positions.  Some were accepted and many others were declined.

9.  On 17 February 2004, the applicant was reassigned to a 75H AGR Staffing Noncommissioned Officer (NCO) position effective 24 February 2004.

10.  The applicant provides a memorandum, dated 11 March 2005, in which he requested favorable consideration to correct an administrative error which prevented him from being promoted to MSG in August 2002.  Therein, he stated the 2002 TPL for AGR 75H5O indicated he had declined promotion to MSG.  He stated he was never contacted nor did he ever decline promotion to MSG.  The Soldier who accepted that position was promoted to MSG on 8 August 2002 as an AGR.

11.  He provides an incomplete, undated, and unsigned DA Form 4187 requesting his promotion to MSG in an MOS 27D position effective 1 April 2004 with a DOR of 1 April 2004.  It appears that an effective date of 1 April 2003 and DOR of 5 August 2002 were lined through and initialed by an individual in his command channels.  It further appears that the requested promotion was based on the 2005 Enlisted Promotion System List. 

12.  Texas Military Forces Orders 111-1106, dated 21 April 2005, promoted the applicant to MSG effective 1 April 2004 with a DOR of 1 April 2004.  The orders show the MOS he was awarded in connection with the promotion was 27D (Paralegal Specialist).

13.  He was ordered to active duty for special work effective 1 June 2006.  He was conditionally promoted to the rank of sergeant major effective 1 June 2006.  The MOS he was awarded in connection with the promotion was 42A (Human Resources Specialist).

14.  On 28 January 2009, he was administratively reduced from SGM to MSG with a DOR of 1 April 2004 for failure to complete a mandatory training requirement.

15.  On 31 January 2009, he was released from active duty and placed on the Retired List in the rank of MSG/E-8 effective 1 February 2009.

16.  National Guard Regulation 600-200, 1 March 1997, chapter 11 prescribed the policies and procedures for promoting ARNG Soldiers during the time in question.

	a.  Paragraph 11-41 stated the State Military Personnel Management Office (MPMO) would process the data and generate a promotion list for each grade with all individuals considered ranked from highest to lowest by their career progression MOS.  The minimum information on a promotion list would be a Soldier's name, promotion or career progression MOS, promotion points, and a code to determine M-Day, Military Technician (MT) or AGR status.

	b.  Paragraph 11-46 stated promotion declinations would be made in the form prescribed by the State.  However, declination of an assignment for which eligible and available, or refusal of training under the program should be in writing.

17.  Army Regulation 600-8-19 prescribes the policies and procedures for promotion and reduction of Army enlisted personnel.  The version in effect at the time (2 October 2000) specifically stated that it did not apply to ARNG of the United States Soldiers on FTNGD.



18.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  It is accepted that the Board made administrative errors in the original consideration of addressing the "points" column as "sequence numbers."  Nonetheless, the available evidence is not sufficient to support granting the applicant's request.  

2.  The AGR Program Manager stated in a memorandum to the TXARNG IG regarding MSG JC's promotion that the AGR Program’s hard copy records were unintentionally destroyed.  The AGR Program Manager further stated that based on what little records were on hand and by recollection the agency had concluded that MSG JC was selected for a higher-grade position fairly and without bias.  Additionally, every individual who was listed higher on the Promotion Eligibility List during that time frame was also offered similar 
higher-grade positions.  Some were accepted and many others were declined.

3.  The applicant only refers to the position into which MSG JC was promoted and does not indicate whether he was offered a similar higher-grade position while on the promotion list, which he declined to accept.  Based on the annotation of "declined" next to the applicant's name on the TPL provided and the AGR Program Manger's statements, the applicant and his counsel have failed to provide sufficient evidence to show MSG JC was in fact erroneously promoted to MSG ahead of the applicant in August 2002.

4.  Moreover, though the complete circumstances of this case are not available for the Board's review, the Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, absent substantive evidence to the contrary, it is presumed that at the time in question the TXARNG properly followed the prescribed promotion policy for AGR Soldiers.

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120002576, dated 18 September 2012.



      _______ _   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)                                         AR20130019668



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ABCMR Record of Proceedings (cont)                                         AR20130019668



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