IN THE CASE OF:	  

		BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140011646 


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 correction of his records to show he was advanced on the retired list to the rank of sergeant major (SGM)/pay grade E-9 or master sergeant (MSG)/pay grade E-8.

 2.  The applicant states that he would have been promoted to MSG (E-8) in the Arkansas Army National Guard (ARARNG), except for his (then) impending medical separation.

   a.  He states he was promoted to sergeant first class (SFC)/pay grade E-7 while serving in Iraq.  He was recommended for promotion to E-8 as soon as he became eligible.  He then signed paperwork for promotion to E-9 in June 2010.

   b.  He was number four or five in the ARARNG for promotion to E-8 in military occupational specialty (MOS) 13Z (Field Artillery (FA) Senior Sergeant).  When he arrived for a new position at 1st Battalion, 206th FA (1/206 FA), 39th Infantry Brigade Combat Team (IBCT), it was discovered that another E-8 in the unit was "over slotted."  As a result, he was not promoted and he was transferred back to his original unit.

   c.  In the fall of 2010 he had back surgery for an injury he had sustained while in Iraq.  Shortly thereafter, he was referred to the Physical Disability Evaluation System (PDES) due to the severity of his condition.
   
   d.  A new promotion list was released and he dropped to sequence number 16 in the ARARNG for MOS 13Z and sequence number 126 overall.  Then, in 2012, he dropped to sequence number 136 overall.  He attributes this to his injury and the PDES process.

   e.  In 2013, he was informed that he was not eligible to submit a promotion packet because he did not have a current weapons qualification or a current Army Physical Fitness Test (APFT), which was due to his physical profile.  He was also informed that since he was on the promotion list at the time he was referred to the PDES, he would be promoted to the recommended grade upon retirement.  At the time he was assigned to the 1st Battalion, 153rd Infantry (IN) (1/153 IN), 39th IBCT.

   f.  He was then informed that he was not on the promotion list that was released in 2014 because he did not complete the Structured Self-Development, Level 4 (SSD4) requirement.  At the time he was assigned to the 1/206 FA, 
39th IBCT.  He states that he was assigned to the unit due to his physical restrictions and then transferred to many other units so that others could be promoted.  He adds that this resulted in him not being informed of unit drills, new requirements for promotion packets, the SSD4 requirements, and other important information.

   g.  He learned that he would not be retired in grade E-8 because he was not on a promotion list.  He states the full-time battalion readiness noncommissioned officer (NCO), SGM, and commander then realized that their actions had affected his career, but they could not resolve the issue.

   h.  He contacted the ARARNG Inspector General (IG) and was informed that regulations precluded his promotion.  He contacted the U.S. Army Human Resources Command (HRC) IG at Fort Knox, KY, who informed him that the Regular Army (RA) does not require SSD4, if the Soldier is already on the 
E-8 promotion list.  He then contacted the National Guard Bureau (NGB) and was informed SSD4 was not required to be on the promotion list, but must be completed before the individual can be promoted.  He adds that Active Guard Reserve program Soldiers fall under the control of the RA and do not have a requirement to complete SSD4.  Thus, as a traditional "M-Day" Soldier, he is being held to a higher standard than the AGR Soldier.

   i.  He concludes that he was treated unfairly and requests advancement to the grade he would have achieved but for being processed through the PDES.

3.  The applicant provides copies of the ARARNG's 2011 and 2012 MSG Promotion List/First Sergeant (1SG) Leadership Selection Board memoranda, eight ARARNG orders, and an email message from the HRC IG.


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard of the United States (ARNGUS) and ARARNG on 2 April 1986.  He was awarded MOS 13F (Fire Support Specialist) in 1996.  He was promoted to SFC (E-7) on 23 December 2004.

2.  On 3 June 2006, the Adjutant General (AG), ARARNG, notified him that he had completed the necessary qualifying service to receive retired pay at age 60.

3.  A review of the applicant's Official Military Personnel File (OMPF) revealed he had a physical profile when he passed the APFT in October 2009 and in October 2010.  This review failed to reveal copies of his Medical Evaluation Board (MEB)/ Physical Evaluation Board (PEB) proceedings.

4.  An AG ARK Form 4187E (Personnel Action – Request for Discharge), shows the applicant was honorably discharged from the ARNG, effective 29 April 2014, and transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-36s (Placement on the permanent disability retired list).

5.  U.S. Army Physical Disability Agency (PDA), Arlington, VA Orders 0084-49, dated 25 March 2014, released the applicant from the ARNGUS because of physical disability and placed him on the retired list in the grade of E-7, effective 30 April 2014.  It also shows the statute authorizing retirement was Title 10, U.S. Code, section 1204 (10 USC 1204), members on active duty for 30 days or less or on inactive-duty training:  retirement.

6.  A review of his military personnel records failed to reveal any evidence that he was promoted to MSG/E-8 during the period of service under review.

7.  In support of his application the applicant provides the following documents.

   a.  ARARNG 2011 MSG Promotion List/1SG Selection Board memorandum, dated 6 March 2011, that shows the applicant was selected for promotion to MSG (Traditional) in Career Progression (CP) MOS (CPMOS) 13Z and assigned sequence number 126.  Paragraph 3 shows, "[t]his promotion list is valid for a one (1) year period or until superseded by the next MSG promotion list.

   b.  ARARNG 2012 MSG Promotion List/1SG Selection Board memorandum, dated 6 February 2012, that shows the applicant was selected for promotion to MSG (Traditional) in CPMOS 13Z and assigned sequence number 136. Paragraph 3 shows, "[t]his promotion list is valid for a one (1) year period or until superseded by the next MSG promotion list.

   c.  Orders pertaining to the applicant that were issued by Military Department of Arkansas, Office of the AG, Camp Joseph T. Robinson, North Little Rock, AR, that show:

* Orders 055-800, dated 24 February 2011, released him from attachment to Detachment (Det) 1, Headquarters and Headquarters Battery (HHB), 1/206 FA, effective 22 March 2011
* Orders 102-840, dated 12 April 2011, released him from Det 2, Headquarters and Headquarters Company (HHC), 2/153 IN, and transferred him to Det 1, HHC, 1/153 IN, effective 8 April 2011
* Orders 313-823, dated 9 November 2011, released him from Det 1, HHC, 1/153 IN, and transferred him to HHC, 1/153 IN, effective
9 November 2011
* Orders 152-842, dated 31 May 2012, released him from HHC,
1/153 IN, and transferred him to HHB, 1/206 FA, effective 31 May 2012
* Orders 214-808, dated 1 August 2012, released him from HHB,
1/206 FA, and transferred him to HHC, 1/153 IN, effective 31 July 2012
* Orders 234-805, dated 21 August 2012, attached him to HHB,
1/206 FA, effective 14 August 2012
* Orders 241-1024, dated 29 August 2013, released him from HHC, 1/153 IN, and transferred him to Det 1, HHC, 1/153 IN, effective 
29 August  2013
* Orders 324-862, dated 20 November 2013, released him from Det 1, HHC, 1/153 IN, and transferred him to Det 1, Headquarters and Headquarters Troop, 1st Squadron, 151st Cavalry, effective 
18 November 2013
* Orders 346-839, dated 12 December 2013, attached him to HHB, 1/206 FA, effective 12 December 2013

   d.  an email message to the applicant from the detailed IG, HRC, Fort Knox, KY, dated 25 April 2014, that shows he advised, "[t]he Directive that placed the requirement for SSD4 by the Secretary of the Army for all components is vague.  It refers to attaining eligibility and does not address those already on the promotion list.  For Active Component Soldiers, the interpretation is that if you are already on a list, you are not required to complete SSD level 4.  The interpretation by the NG [National Guard] may be different and HRC does not play a role in directing the NG."


8.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, Arlington, VA.

   a.  The advisory official does not recommend administrative relief.

   b.  She offered a timeline of events, as follows:

    	(1)  ARARNG Order Number D150-819, dated 30 May 2014, honorably retired him from the ARARNG/ARNGUS, effective 29 April 2014.
   
    	(2)   PDA Order Number D084-49, dated 25 March 2014, placed him on the retired list, effective 30 April 2014.

   c.  She noted the applicant retired on 30 April 2014 in the grade of E-7.

   d.  She stated NGB memorandum, dated 4 November 2014, subject:  Personnel Policy Operational Messages Number 13-037, the ARNG Clarification of Army Directive 2013–2015 (NCO Promotions), effective 1 January 2014, shows SSD4 is required by and must be completed by an SFC (E-7) to attain eligibility for promotion board consideration to MSG.  The applicant was not on the 2014 promotion list because he did not meet the SSD4 requirement.  As such, he was not on the promotion list at the time of retirement; therefore, he is not eligible for promotion under 10 USC 1372.

   e.  The advisory official confirmed that the recommendation was coordinated and reviewed with NGB Retirement Services and NGB Enlisted Policy officials.  In addition, the ARARNG concurs with the recommendation.

9.  On 5 November 2014, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal.

10.  On 12 December 2014, the ABCMR received the applicant's response to the advisory opinion.

   a.  He stated that prior to his retirement date he spoke with an enlisted Soldier at NGB.  He was informed that since the SSD4 requirement was so new, Soldiers were placed on the E-8 promotion list even though they had not completed the required online training.  In these cases, the training was completed after the offer and acceptance of a promotion.  He adds, according to legal counsel at HRC, this was also true for the RA Soldiers and a copy of this correspondence (email) was included in his original application.

   b.  He restated the fact that he was transferred to many units during the PDES process and also his assertion that this resulted in him not being informed of unit drills, new requirements for promotion packets, the SSD4 requirements, and other important information.

   c.  He also restated that he attributes the drop in his promotion sequence number to his injury and the PDES process.  He added that he would have been promoted to MSG (E-8) and also selected and placed on the list for promotion to SGM (E-9).

   d.  He concludes by stating that he attempted to resolve this matter before his retirement date.

11.  10 USC 1372 provides that unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:  

   a.  The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired.

   b.  The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.

   c.  The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.

   d.  The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was advanced on the retired list to the rank of SGM (E-9) or MSG (E-8) because after having back surgery and being referred for MEB/PEB processing he was selected for promotion to MSG (E-8) in both 2010 and 2011; however, his physical profile precluded him from maintaining a current APFT and weapons qualification, and completing SSD4; it resulted in him being reassigned to many different units so others could be promoted; he was provided limited information; and he is being held to higher standard for promotion than RA and AGR Soldiers.

2.  Records show that the applicant was a traditional "M-Day" Soldier in the ARARNG during the period of service under review.  As such, a comparison of the criteria and requirements for promotion to E-8 with those that apply to RA and AGR Soldiers is not an issue for this Board to consider.

   a.  In addition, regardless of the fact that the applicant was assigned/attached to several different units during the period of service under review, based on his years of service and senior grade it is reasonable to conclude that he had the capacity to obtain current information with respect to the promotion requirements.

   b.  Moreover, regarding his contention that he was transferred to several units so that others could be promoted, he provides no evidence (e.g., unit staffing documents, sworn statements, IG inquiry/investigation, etc.) in support of his contention.

3.  The evidence of record shows the applicant had a physical profile when he passed the APFT in October 2009 and in October 2010.  It also shows he was selected for promotion to MSG by the 2011 and 2012 promotion selection boards.  However, the evidence of record further shows the promotion lists were valid for a one year period or until superseded by the next MSG promotion list.  There is no evidence of record that shows the applicant was promoted to MSG from the 2012 promotion selection list and more than one year has passed since that promotion list was released.

4.  The evidence of record shows that, effective 1 January 2014, SSD4 is a requirement that must be completed by an SFC to attain eligibility for promotion board consideration to MSG.

   a.  There is no evidence of record that shows he was selected for promotion to MSG subsequent to the 2012 promotion selection board.

   b.  Thus, the available evidence of record fails to show the applicant was on a MSG promotion list when he was retired from the ARNGUS/ARARNG on 29 April 2014.

   c.  Therefore, he is not eligible for promotion to MSG under 10 USC 1372.

5.  In view of all of the foregoing, he is not entitled to the requested relief.

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 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)                                         AR20140011646



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ABCMR Record of Proceedings (cont)                                         AR20140011646



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