BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140009714 


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 record to show he was promoted to staff sergeant (SSG)/pay grade E-6 effective 1 November 2010.  

2.  He states:

	a.  While deployed to Iraq in 2009, he was recommended for field-grade nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  He elected trial by a summary court-martial instead of NJP.  He was convicted and sentenced to a fine and reduction in grade from SSG to sergeant (SGT)/pay grade E-5.  

	b.  After redeploying, he worked hard to prove himself.  After earning the respect and support of his company commander and first sergeant, he was recommended for promotion to SSG.  On 1 November 2010, he was selected for promotion to SSG.  In December 2010, his battalion command sergeant major (CSM) told him the promotion would be taken away because he was "permanently non-promotable."  The CSM cited Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-10, which states a Soldier is non-promotable to a higher grade when the Soldier has been convicted by court-martial during the current enlistment.  His orders were rescinded.

	c.  He was later informed that the Army G-1 is aware that Army Regulation 600-8-19 has not been adjusted to accommodate a noncommissioned officer (NCO) with an indefinite enlistment status.  He was also told it was not the intent of the Army G-1 that an NCO would serve indefinitely without an opportunity for promotion.  He was told to contact the Chief, Junior Enlisted Promotions, at the U.S. Army Human Resources Command (HRC).  She informed him that the only way to bring the issue to the G-1 was to submit a request for an exception to policy (ETP) from the G-1.  She stated there was no guarantee the G-1 would approve the request, and she confirmed that the portion of the regulation in question should have been changed.  

	d.  Regardless of the input he had received, his battalion and brigade commanders refused to support his request for an ETP, and the request stopped at the brigade.  He requested assistance from a member of Congress.  The response confirmed his beliefs regarding the regulation, but provided no redress.  

	e.  He has done everything possible to address this issue with his chain of command with no success.  It is unfair and against Army values that he should be denied a valid promotion based on an outdated regulation.  As it is written, the regulation has the potential of creating a "second class" of Soldier, one who is good enough to deploy, but never given the opportunity to advance and move beyond mistakes.  

3.  The applicant provides:

* DA Form 4430 (Department of the Army Report of Result of Trial)
* Headquarters, Department of the Army (HQDA) SGT/SSG Promotion Selection Name List (Selected for 1 November 2010 Promotion)
* Permanent Order (PO) 003-03, dated 3 January 2011, issued by Headquarters, 504th Battlefield Surveillance Brigade, Fort Hood, TX
* e-mail
* memorandum, subject:  Request ETP [Applicant]
* letter from the Installation Adjutant General, Fort Hood, TX, to a member of Congress

CONSIDERATION OF EVIDENCE:

1.  With prior service in the Regular Army (RA) and U.S. Army Reserve, on 30 August 1999, the applicant enlisted in the RA.  Effective 1 January 2007, he was promoted to SSG.

2.  On 22 September 2007, he reenlisted for an indefinite period.

3.  A DA Form 2329 (Record of Trial by Summary Court-Martial), dated 3 September 2009, shows that, on 25 August 2009, he was found guilty of two charges and sentenced to reduction to pay grade E-5 and forfeiture of $750.00 pay.  The sentence was approved by the convening authority, establishing his date of rank for SGT/E-5 as 25 August 2009.  

4.  On 14 October 2014, he was retired for permanent disability as a SGT.  

5.  His Official Military Personnel File is void of documentation showing he was recommended for promotion to SSG after 25 August 2009.  

6.  He provides the following:

	a.  The HQDA SGT/SSG Promotion Selection Name List (Selected for 1 November 2010 Promotion) states the listed Soldiers were selected for promotion to SSG on 1 November 2010 and instructs the listed Soldiers to contact their Personnel Service Battalion or Military Personnel Division to determine their qualification for promotion on the date specified.  The applicant's name appears on the list.  

	b.  PO 003-03, dated 3 January 2011, issued by Headquarters, 504th Battlefield Surveillance Brigade, Fort Hood, TX, revoked PO 335-001, dated 1 November 2010, issued by the same headquarters.  It shows PO 335-001 pertained to his promotion to SSG.  

	c.  E-mail, dated 12 June 2013, informed him of a proposed revision to Army Regulation 600-8-19 that would address his situation and informed him of the office to which he should address an ETP request.  

	d.  An unsigned memorandum, subject:  Request ETP [Applicant], dated 24 June 2013, bearing the signature block of the Commander, 504th Battlefield Surveillance Brigade, requests an ETP authorizing the applicant's promotion to SSG effective 1 November 2010 with all back pay and entitlements.  The basis for the ETP request is the fact that Army Regulation 600-8-19, in prohibiting promotion of Soldiers convicted by court-martial during their current enlistment, does not take into consideration the indefinite status of mid-career Soldiers.  

	e.  E-mail, dated 6 September 2013, shows the Noncommissioned Officer in Charge (NCOIC), S-1, 504th Battlefield Surveillance Brigade informed the Chief, Junior Enlisted Promotions, HRC, that the applicant's chain of command did not support his request for an ETP.  The NCOIC noted that the action clearly contradicted language in Army Regulation 600-8-19, paragraph 1-10.  If HRC produced an All Army Activities (ALARACT) message or Military Personnel message changing the regulation, the chain of command would support the ETP.  The NCOIC noted that if the ETP were to be granted, it would set a precedent affecting the entire Army.  
	f.  E-mail, dated 9 September 2013, shows the Chief, Junior Enlisted Promotions, HRC, acknowledged receipt of the applicant's ETP request.  She noted that a draft version of Army Regulation 600-8-19 had been changed to show that Soldiers in the rank of specialist through master sergeant are non-promotable to a higher grade within 12 months following a court-martial conviction.  She also stated her office had drafted an ALARACT message to address the issue that would be staffed to the Army G-1 for approval/disapproval.  

	g.  A letter from the Installation Adjutant General, Fort Hood, TX, to a member of Congress, dated 5 December 2013, confirmed that Army Regulation 600-8-19 prevents promotion of a Soldier convicted by court-martial during the current enlistment and acknowledged that this may seem unfair to Soldiers serving in an indefinite status.  

		(1)  The Installation Adjutant General noted that the applicant had been sent to a promotion board in January 2013 and was recommended for promotion.  However, after his recommendation for promotion, a review of his promotion points revealed that they were below 500 while 798 were required for promotion to SSG.  

		(2)  The Installation Adjutant General stated the chain of command was more than willing to submit a request for an ETP if the applicant was competitive for promotion to SSG, but he was not.  Furthermore, his pending discharge made it highly unlikely that he would earn enough points to warrant an ETP prior to discharge.  

7.  On 26 September 2014, the Chief, Enlisted Career System Division, Office of the Deputy Chief of Staff, G-1, provided an advisory opinion.  The advisory official states:

	a.  Army Regulation 600-8-19, paragraph 1-10a, establishes that a Soldier is non-promotable to a higher grade when the Soldier is convicted by court-martial during the Soldier's current enlistment.  In 1998, the Army shifted its senior enlisted force from a fixed contract system to indefinite reenlistment.  The change requires all Soldiers reaching the grade of SSG with 10 years of service to reenlist indefinitely.  It clearly is not the intent that a Soldier who is serving in an indefinite status would be permanently ineligible for promotion.  

	b.  In August 2010, this issue was identified and approved for change by modifying the policy so that a Soldier will be non-promotable to a higher grade during a 12-month period following a conviction by court-martial.  This is consistent with the reenlistment eligibility criteria established in Army Regulation 601-280 (Army Retention Program).  The Director, Military Personnel Management, approved a policy change in August 2010 and directed it be included in Army Regulation 600-8-19 via the rapid action revision process.  To date, however, the policy change has yet to be formally announced.  It has been incorporated into a major ongoing revision of the regulation.  

	c.  His office would have favorably considered a request for an ETP authorizing promotion list integration at any time after the 12-month period following a court-martial conviction, provided otherwise eligible.  Because the applicant's conviction was approved on 25 August 2009, a request for an ETP would only be supportable if applicable in September 2010 or later.

	d.  A review of the applicant's promotion points reveals he was integrated into the SSG recommended list during July 2010 as a result of command list integration policy.  Consistent with the published criteria and the intended revised policy, the applicant was not otherwise eligible for promotion list integration in July 2010.  A request for an ETP would not have been supported at that time.  

8.  On 17 October 2014, the applicant responded to the advisory opinion.  He states that his company commander recommended him for promotion based on guidance from the Deputy Chief, Enlisted Promotions Branch, HRC.  (An e-mail attached to his response, dated 5 October 2009, shows this official stated a Soldier becomes eligible for promotion when he again meets time-in-grade criteria.)  As he understands the advisory opinion, his integration into the SSG recommended list was not valid from July to August 2010, but from September 2010 forward, he should have been legitimately added to the list.  If this is the case, he contends his presence on the list in September and October 2010 was legitimate and his 1 November 2010 selection for promotion to SSG was also legitimate.  He hopes the Board will not fault his presence on the SSG recommended list 2 months too early when the decision was based on the best guidance available at the time.

9.  Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  

	a.  Paragraph 1-10 states, in pertinent part, that a Soldier is non-promotable to a higher grade when the Soldier has been convicted by court-martial during the current enlistment.

	b.  Paragraph 1-16 states instruments announcing erroneous promotions will be revoked.

	c.  Chapter 3 provides the rules and procedures for processing promotions to SGT and SSG.  Paragraph 3-17 states that each month, active Army Soldiers in all military occupational specialties who meet the criteria will be automatically integrated onto the SGT and SSG promotion standing lists, provided they are otherwise eligible for promotion consideration.  Integration into the SSG promotion standing list requires the following:  

		(1)  82 months' time in service.

		(2)  10 months' time in grade (to become eligible for promotion at 12 months).

		(3)  Graduate of the Warrior Leaders Course (WLC).

		(4)  Not otherwise ineligible in accordance with this regulation.

		(5)  Not otherwise denied by the commander.

		(6)  Soldier must have a minimum of 90 days remaining service as of the month of integration onto the recommended list.

DISCUSSION AND CONCLUSIONS:

1.  It would be premature at this time to recommend correction of the applicant's records to show he was promoted to SSG effective 1 November 2010.  However, the available evidence does support partial relief.  

2.  He was recommended for promotion to SSG and integrated into the promotion standing list in July 2010, less than 12 months after he had been reduced to SSG by sentence of a summary court-martial.  As a result of his conviction, he was non-promotable to a higher grade, which barred his integration into the promotion standing list.  Because he should not have been on the promotion standing list, his promotion based on that list was revoked in accordance with Army Regulation 600-8-19.   

3.  In its current form, Army Regulation 600-8-19 bars Soldiers in an indefinite enlistment from being promoted to a higher grade when they have been convicted by court-martial.  The advisory official states there is no intent to make these Soldiers permanently ineligible for promotion.  The advisory official further states his office would have favorably considered an ETP authorizing the applicant's promotion list integration at any time after the 12-month period following his court-martial conviction.  Unfortunately, the applicant's chain of command refused to support an ETP request.  

4.  As a matter of equity, it would now be appropriate to correct the record to show an ETP was approved authorizing the applicant's integration into the promotion list in September 2010.  As a result of this correction, the appropriate promotion authority should review his record to determine if he was eligible for promotion to SSG after integration into the promotion list in September 2010.  If he was eligible, these Proceedings should serve as the authority to promote him to SSG with the earliest possible effective date and pay him any back pay and allowances he may be due. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing an ETP was approved authorizing integration of the applicant into the promotion list in September 2010; 

	b.  reviewing his record to determine if he was eligible for promotion to SSG after integration into the promotion list in September 2010;

	c.  if eligible, promoting him to SSG under the authority of these Proceedings with the earliest possible effective date; and

	d.  if promoted, paying him any back pay and allowances he may be due.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of his record to 



show he was promoted to staff sergeant (SSG)/pay grade E-6 effective 1 November 2010 unless the actions recommended result in that conclusion.  



      _______ _  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)                                         AR20140009714





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