IN THE CASE OF: 

		BOARD DATE:	    23 July 2013

		DOCKET NUMBER:  AR20140006311 


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 his military records to show the effective date and date of rank for his staff sergeant (SSG) promotion as earlier than 1 December 2013.

2.  The applicant states that it appears an E-6 position vacancy in the 9th Legal Operational Detachment was not reported to the 88th Regional Support Command (RSC) until approximately October 2013.  This delayed his promotion and resulted in his loss of pay and allowances.  He contends that he was placed on the Permanent Promotion Recommended List (PPRL) to E-6 on 2 July 2013.  He was promoted to SSG/pay grade E-6 on 1 December 2013.  He spoke with his retention noncommissioned officer on 23 August and 15 September 2013 concerning unit vacancies.  Based on these conversations and email communications, it appears there were unit vacancies prior to October 2013 that were not reported and should have been available when he was placed on the PPRL.  He respectfully requests that the Board find that he has established an error and injustice and that his effective date and date of rank should be backdated to account for the gap between when the vacancies likely existed and when he was assigned to one of these vacant positions.

3.  The applicant provides copies of:

* U.S. Army Reserve (USAR) Joint and Special Troops Support Command Orders 13-023-00014, dated 23 January 2013
* email communication from the USAR Legal Command, dated 10 July 2013
* email communications from the USAR Legal Command, dated 21 August to 27 September 2013
* email communication from the applicant to the USAR Legal Command, dated 23 August 2013
* email communication, USAR Legal Command, dated 16 September 2013
* email communication, USAR Legal Command, dated 2 October 2013
* 88th RSC Orders 13-330-00183, dated 26 November 2013
* unit identification code (UIC) listing of unit positions and assigned positions for unit Soldiers (3 pages)
* Army Regulation 600-8-19 (Enlisted Promotions), paragraph 1-13 (Date of Rank and Effective Date)
* Army Regulation 600-8-19, paragraphs 5-2d and 5-25 (Promotion from the PPRL)

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the USAR in the rank of SSG/
pay grade E-6.

2.  USAR Joint and Special Troops Support Command Orders 13-023-00014, dated 23 January 2013, ordered the applicant to active duty as a member of his Reserve Component unit for a period of 365 days with a reporting date of 18 March 2013.  The purpose of this mobilization was to provide continental United States-based support for Operation Enduring Freedom.

3.  An email communication from the USAR Legal Support Command, dated 10 July 2013, stated the applicant had been recommended for promotion to SSG by the 1 June 2013 promotion board and was added to the PPRL as of 2 July 2013.

4.  An email communication from the USAR Legal Support Command, dated 23 August 2013, stated there were eight positions and six were currently filled by mobilized Soldiers.  The author stated he could tell which positions were vacant if the chief could identify the positions held by the deployed Soldiers on the unit manning report (UMR).

5.  An email communication from the USAR Legal Support Command, dated 16 September 2013, stated the Retention NCO could not assume any position was vacant because all positions appeared as vacant while the Soldiers were mobilized.  Now that the "range" was over, the author could determine if a valid vacant position existed.  The applicant could not be promoted into a position that is not actually vacant and is held by a Soldier who is mobilized.

6.  An email communication between the USAR Legal Support Command and the applicant, dated 2 October 2013, stated that most of the vacant E-6 positions were court reporter positions.  He would have to attend the 10-week Court Reporter Course within a year after returning from mobilization.  He was also informed that should he accept a court reporter position and then tried to transfer within a year, he could lose his rank.  The applicant provided three unit location preferences and stated he would attend the Court Reporter Course soon after completing his mobilization.

7.  88th RSC Orders 13-330-00183, dated 26 November 2013, announced the applicant's promotion to SSG/pay grade E-6 with an effective date and date of rank of 1 December 2013.  He was awarded a new primary military occupational specialty (MOS) of 27D (Paralegal Specialist) and a secondary MOS of 88M (Motor Transport Operator).

8.  An email communication from the USAR Legal Support Command, dated 5 December 2013, provided a copy of the modified table of organization and equipment that shows the applicant assigned to an E-6 paralegal position.

9.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Management Division, USAR Command, Fort Bragg, NC, who recommended disapproval of the applicant's request.

	a.  A memorandum from the Office of the Chief, Army Reserve, dated 17 February 2009, subject:  Holding Positions for Mobilized Soldiers, states that positions vacated due to involuntary mobilization or cross-leveling for mobilization will be reserved pending demobilization of the involuntarily-mobilized Soldier(s).

	b.  Records indicate the applicant, then a sergeant/pay grade E-5, was recommended for promotion to SSG/pay grade E-6 by a promotion board on 1 June 2013.  The report of promotion board proceedings was submitted to the 88th RSC and he was integrated into the PPRL.  In November 2013, a vacancy within his MOS and 100-mile travel distance was reported; therefore, he was promoted to SSG/pay grade E-6 effective 1 December 2013.  Prior to that time, no vacancies were reported within his MOS and elected travel distance.

	c.  The evidence provided by the applicant indicates the USAR Legal Command reserved multiple positions for involuntarily-mobilized Soldiers as required.  This caused a delay in submission of the vacancy report to the 88th RSC; however, this delay was justified in order to avoid erroneous promotions within the command.

10.  On 13 June 2013, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  On 19 June 2013, the applicant responded with the following comments:

	a.  He agreed that units must reserve positions for mobilized Soldiers while they are deployed.

	b.  He contends that none of the mobilized Soldiers returned to the unit or left the unit until January/March 2014.

	c.  When his unit reported the vacancy in October 2013, he was not placed in a position that was being held for a mobilized Soldier.

	d.  He contends that no other Soldier was promoted to the rank of SSG a month prior to his promotion board.  Therefore, the unit must have had a report on file for current vacancies.

	e.  He contends units normally have a roster that can be inspected by a person in charge to verify such vacancies.  It is normal business practice for any unit administrator to manage such reserved positions and to report accurate vacancies.  It is routinely used to recruit new Soldiers to the unit.  This task does not require 4 months (1/3 of a year) to verify such vacancies.

	f.  He contends that the 9th Legal Operational Detachment roster he submitted with this case must have existed for the months of May through September.  Therefore, if one were to locate the roster on any given day in any of those months, an accurate vacancy could have been confirmed without causing an erroneous promotion.

	g.  He further contends that it was not until questions were asked concerning a promotion delay, did the process become understood and the report get submitted.  Therefore, the delay was more likely due to not knowing the proper process.

	h.  He argues that a promotion delay has different consequences for different Soldiers.  A troop program unit Soldier has an income from his civilian job.  However, a mobilized Soldier's family has to rely solely on the active duty pay.  The mobilized Soldier also has to manage family expenses in two geographical locations.  The loss of income has a very severe impact on a mobilized Soldier's family.

11.  Army Regulation 600-8-19 provides for promotions based on the PPRL.  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 and provide a copy to the regional promotion list manager.  The effective date of the promotion will be the date of the reassignment to the vacancy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military records should be corrected to show the effective date and date of rank for his SSG promotion as earlier than 1 December 2013.

2.  The available evidence shows the applicant was recommended for promotion in June 2013 and was placed on the PPRL effective 2 July 2013.  Per email communications, dated 2 October 2013, it appears the applicant agreed to accept a promotion as a court-reporter in MOS 27D in any one of three stated locations.

3.  In November 2013, a vacancy within his MOS and 100-mile travel distance was reported.  Therefore, he was promoted to SSG/pay grade E-6 effective 1 December 2013.  Prior to that time, no vacancies were reported within his MOS and elected travel distance.

4.  Based on the above, there does not appear to have been any excessive delay of the applicant's promotion.  Furthermore, there is no evidence that convincingly shows his promotion was unnecessarily delayed due to a failure to submit vacancy reports.  Based on the available evidence, the delay was more likely than not due to the applicant's MOS and travel distance which were resolved only a few weeks prior to his promotion.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20140006311



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ABCMR Record of Proceedings (cont)                                         AR20140006311



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