IN THE CASE OF:	   

		BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140010935 


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 restoration of his promotion to sergeant first class (SFC).

2.  The applicant states his reduction was due to mission requirements creating an inability to attend the required schooling.  He had been scheduled to attend the required schooling on three occasions but all three times his attendance was canceled through no fault of his own.

3.  The applicant provides copies of a February 2012 Active Duty Operational Support (ADOS) release order, 2013 active duty orders, a September 2013 request for an Advanced Leaders Course (ALC) time extension, a November 2013 Joint Services Transcript, Army Training Requirements and Resources System printouts for 2013 and 2014, two requests for Congressional assistance, 14 pages of email correspondence, a DA Form 3349 (Physical Profile), an August 2013 statement from his Battalion Commander, and two statements from a former supervisor.

CONSIDERATION OF EVIDENCE:

1.  The applicant served on active duty in the Regular Army from 24 June 1992 through 19 June 1995.

2.  On 17 May 1995, he completed an enlistment contract with the New York Army National Guard (NYARNG) with entry into the NYARNG effective the day after his release from active duty (REFRAD).  The applicant has remained in an active ARNG status since enlistment. 

3.  The applicant, as a staff sergeant (SSG), was mobilized in support of Operation Enduring Freedom and deployed to Afghanistan from 4 May 2010 through 1 May 2011 with a REFRAD on 15 August 2011.

4.  On 9 November 2010, while mobilized, the applicant was promoted to SFC contingent upon completion of the ALC within 2 years of his REFRAD.  

5.  He is shown to have completed the following training during the period in question –

* 22 June 2010 – Comptrollers Accreditation Course (Fiscal Law)
* 9 August 2010 – Contracting Officer Representative with a Mission Focus, Contracting Overview Ethics, Training for Acquisition Technology and Logistics
* 1 December 2010 – Occupational Safety and Health Administration (OSHA) Hazardous Waste Operations and Emergency Response Standard (HAZWOPER) Site Operations (40 hours) 
* 26 March 2011 – Information Assurance Fundamentals (40 hours), DoD Information Assurance Awareness (1 hour), Phishing Training (1 hour)
* 5 February 2012 – U.S. Army Human Resources Command Resilience Assistant (RTA) Course

6.  On 27 June 2012, he was ordered to AD for Contingency Operation for Active Duty Operational Support (CO-ADOS) with assignment to the U.S. Army Human Resources Command, Fort Knox, for 365 days.  On 18 March 2013, the assignment was continued for an additional year.  

7.  The applicant was reduced to SSG, effective 15 August 2013, for failure to complete his required ALC training.

8.  On 19 September 2013, he requested a six-month extension to complete Phase II for the ALC.  This request was denied by the battalion commander.

9.  On 4 December 2013, the applicant was given a permanent profile with Army Physical Fitness Test (APFT) restrictions of no APFT running, sit-ups, walking, or swimming.



10.  On 26 June 2014, the applicant was ordered to AD for 60 days to participate in Reserve Component Soldier in Transition Medical Retention Processing Program for completion of medical evaluation.  He was extended on AD through 7 November 2014.

11.  An advisory opinion was obtained from Chief, Personnel Policy Division, National Guard Bureau.  It was recommended the applicant's request be denied.  It was noted the applicant was provisionally promoted effective 9 November 2010, REFRAD on 15 August 2011, and because he had not completed ALC he was reduced effective 15 August 2013.  In the opinion the provisions of Army Regulation 600-8-19 (Enlisted Promotions and Reductions) were cited.

12.  The applicant disagreed with the advisory opinion.  He opined that in order to meet the requirements for an automatic reduction in rank the reason for his noncompletion had to be though the Soldier's fault.  He contends that he had been scheduled for ALC on two occasions but due to mission requirements he was unable to attend these sessions.  He was scheduled a third time but due to being given a permanent profile he was removed from this session as well.  He is now facing possible medical separation or retirement and so is unable to attend the ALC.

13.  In concert with the applicant's disagreement he provided letters from his former supervisor and battalion commander.  Both state that due to the applicant's position, a shortage of personnel, and high work load, they were forced to disapprove his attendance at ALC in 2013.  

14.  The available record does not contain medical records or information on the applicant's medical evaluation board (MEB)/physical evaluation board (PEB) processing.

15.  On 1 November 2014, the applicant was transferred from the Kentucky Army National Guard's (KYARNG) 203rd Forward Support Company to the KYARNG's Detachment 1, 2061st Multirole Bridge Company.

16.  Army Regulation 600-8-19 provides the following:

   a.  Paragraph 1-27c(2)(c)1, requires reserve component Soldiers conditionally promoted to SFC to complete ALC within two years of redeployment. 

  b.  Paragraph 1-27c(2)(d), states, "Soldiers who fail to complete the required level of NCOES within the prescribed time frame will be reduced according to the provisions of paragraph 10–18 to their former rank."

   c.  Paragraph 10-18 states, "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 Noncommissioned Officer Education System (NCOES) class (through fault of the Soldier) will be administratively reduced or removed from the promotion list.  Soldiers will only be reduced when NCOES is required for his/her current grade.  Soldiers will be removed from promotion list when promotion is being held in abeyance (for reason set forth in para 1-27, of this regulation).  The effective date of administrative reduction is the date of the action that caused the Soldier to be ineligible to retain the promotion.  The DOR will be the previous DOR held at the reduced grade."

17.  Army Regulation 600–8–19, paragraph 1–20, states:

	a.  Soldiers who are pending referral to a Military Occupational Specialty Medical Retention Board (MMRB), an MEB, or a PEB will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.

	b.  Soldiers who have been conditionally promoted but are unable to meet the condition of their promotion solely because of a medical condition that results in a finding of unfit by the Physical Disability Evaluation System (PDES) will not be subject to administrative reduction if otherwise qualified to retain promotable status.

	c.  Per the provisions of 10 USC 1372, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list.

	d.  Per the provisions of 10 USC 1212, Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the Soldiers separation date.

DISCUSSION AND CONCLUSIONS:

1.  While deployed, the applicant was promoted to SFC in November 2010, contingent upon attendance at ALC within two years of redeployment, and he was redeployed in August 2011.

2.  Based on the statements from the applicant, his supervisor, and the battalion commander, the applicant was unable to attend the first two scheduled ALC dates due to command operational and manning limitations.  The applicant had no control over these factors.  

3.  The applicant's medical evaluation processing at the end of his two-year ALC window and issuance of a physical profile again negatively impacted his ability to attend the course. 

4.  The applicant's third scheduled attendance date was cancelled due to the fact he was facing an MEB/PEB for conditions that precluded his being able to perform the physical requirements for the school.  His injuries cannot be considered to be his fault for not attending the training.

5.  The applicant was precluded on three occasions from attending ALC through no fault of his own.  As the regulation states a reduction based on the Soldier's nonattendance must be due to their fault.  Therefore, as a matter of equity it would be appropriate to restore the applicant's rank (with back pay) and direct he be scheduled to attend ALC at the earliest possible date if not still medically precluded from doing so.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  reinstating the applicant to the rank and pay grade of SFC, E-7;


	b.  paying him the difference in pay from the date of his reduction; and

	c.  scheduling the applicant to attend ALC at the earliest possible date if still not medically precluded from doing so.



      ___________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)                                         AR20140010935



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ABCMR Record of Proceedings (cont)                                         AR20140010935



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