IN THE CASE OF:	  

		BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140014553 


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 promoted to the rank/grade of master sergeant (MSG)/E-8 in July 2006.

2.  The applicant states:

* he was selected for promotion to MSG/E-8 in the Puerto Rico Army National Guard (PRARNG), but the PRARNG did not process his promotion
* he was denied the rank and pay grade commensurate with his position
* he was occupying a sergeant major (SGM)/E-9 position which made him eligible to advance to pay grade E-8
* he was not advanced in rank after accepting his promotion
* he made several attempts to correct the situation, but his efforts were in vain, he was not promoted, and no one was able to explain why he was not advanced in rank
* the error has affected his retirement, prevented him from achieving a higher rank, and caused him to finish his service in the rank/grade of sergeant first class (SFC)/E-7
* he did not cause the promotion error 
* the PRARNG G-1 was misinformed about the unit manning report (UMR) which was not received until 23 January 2007

3.  The applicant provides two self-authored statements with an email listing of 14 exhibits, including active duty orders for SGM C____ O. S____-Y____, the PRARNG Soldier encumbering the SGM position on the PRARNG UMR.
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having prior honorable enlisted service in the Army of the United States, the applicant enlisted in the PRARNG on 5 March 1984.

3.  On 20 March 2003, he was promoted to the rank/pay grade of SFC/E-7.

4.  PRARNG Element, Joint Forces Headquarters (JFHQ), Orders 171-162, dated 10 September 2004, awarded him primary military occupational specialty (MOS) 15P (Aviation Operations Specialist) and secondary MOS 31W (Telecommunications Operations Chief).

5.  On 5 January 2005, he was selected for promotion to MSG by the PRARNG Fiscal Year 2005 Enlisted Promotion Board.

6.  U.S. Army Human Resources Command Orders A-01-501069, dated 13 January 2005, ordered SGM C____ O. S____-Y____ (replaced Soldier) to active duty effective 1 February 2005 for a period of 3 years and 11 days to fulfill active duty requirements under the extended active duty (EAD) program as part of the Military-to-Military Program with duty in Mexico City, Mexico, as Assistant Traditional Activities Coordinator for U.S. Northern Command (USNORTHCOM).  The additional instructions state:

SOLDIER MUST BE SEPARATED FROM THE GUARD AND TRANSFERRED TO THE IRR [U.S. ARMY RESERVE (USAR) INDIVIDUAL READY RESERVE] EFFECTIVE THE DAY BEFORE THE REPORT DATE ON THIS ORDER.  THE RESPECTIVE TAG [STATE ADJUTANT GENERAL] SHOULD PUBLISH THE TRANSFER ORDER.



7.  PRARNG Element, JFHQ, Orders 178-516, dated 27 June 2006, assigned the applicant as the Aircraft Maintenance Senior Sergeant as indicated:

* effective date – 1 June 2006
* paragraph/line number – 230C/06
* MOS – 15Z5O
* position number excess code – None (YYYY)
* duty position qualification – Qualified
* date of assignment/loss reason – 1 June 2006

8.  On 3 July 2006, the PRARNG Human Resources Officer signed a Certificate of Compatibility indicating the applicant met National Guard Bureau (NGB) compatibility criteria.

9.  On 11 July 2006, he signed for acceptance of promotion to MSG and assignment as an Aircraft Maintenance Senior Sergeant in position code MOS 15Z5O.

10.  On 1 November 2006, he received an approved waiver for a 2-year extension of enlistment for technician retirement.

11.  His ARNG Annual Statement, dated 21 April 2008, shows he attained 20 years of qualifying service on or after 5 October 1994, but before 26 April 2005.

12.  His NGB Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the PRARNG on 6 June 2008 in the rank/grade of SFC/E-7 based on attainment of maximum allowable age.

13.  U.S. Army Human Resources Command Orders P08-813220, dated 28 August 2008, placed him on the Retired List effective 6 June 2006 (should read 6 June 2008).

14.  On 24 December 2014, the Chief, Personnel Policy Division, NGB, provided an advisory opinion recommending denial of the applicant's request and stated:

	a.  The applicant was number 1 on the PRARNG Fiscal Year 2005 Enlisted Promotion Board selection list.  He was placed on the PRARNG UMR as excess (overstrength) from 1 February 2005 through 1 June 2008 (over 3 years) in paragraph/line 230C/06, SGM, position code MOS 15Z5O, as the Acting Aircraft Maintenance Senior Sergeant.  This position would allow his advancement to the rank of MSG.  The Soldier previously assigned to this position was an SGM who was "deployed."  On 11 July 2006, he signed an acceptance of promotion to MSG and assignment selection for the Aircraft Maintenance Senior Sergeant position.

	b.  The applicant never received a promotion to the rank of MSG and has since retired.

	c.  Although he served in the higher-graded position for over a year, he was excess (overstrength) against a position held by a "deployed" Soldier.  Additionally, his MOS 15P was not qualified to occupy the MOS 15Z position.

	d.  On 4 December 2014, the PRARNG G-1 provided a memorandum that stated the applicant was given an erroneous offer for the promotion; therefore, this promotion did not occur.  The PRARNG G-1 further stated:

		(1)  MOS 15P career progression does not merge into MOS 15Z or any other MOS at any grade level.

		(2)  A DA Form 4187 (Personnel Action) to reassign the Soldier (incumbent) replaced by the applicant was submitted on 6 December 2005 and his records show he was assigned to USNORTHCOM during the period 1 February 2005 through 31 January 2008.  "There is a possibility that the position offered was later declared a not valid vacancy and [held] for SGM S____."

		(3)  "[Applicant] wasn't lawfully or administratively eligible for the promotion."

	e.  On 1 and 15 December 2014, the NGB Enlisted Policy Section reviewed this case and concurred with the PRARNG's findings.

	f.  The PRARNG concurs with the recommendation.

15.  On 30 December 2014, a copy of the advisory opinion was provided to the applicant for review and response.

16.  On 2 February 2015, the applicant provided a response and stated:

	a.  Analysis of the progression chart reveals that with the exception of MOS 15S (Helicopter Repairer) and MOS 15Y (Armament/Electrical/Avionics Repairer), all other MOSs in the career management field (CMF) 15 series provide for career progression to MOS 00Z5O for command sergeant major (CSM).

	b.  The UMR he provided shows he qualified against the paragraph/
line 230C/06 position.

	c.  The Soldier he replaced was serving on EAD, assigned to USNORTHCOM from 1 February 2005 through 31 January 2008.  The replaced Soldier was transferred to a table of distribution and allowances (TDA) position within the PRARNG Element, JFHQ.  The former duty position he occupied, paragraph/line 230C/06, became vacant on that date.

	d.  His promotion would not have impacted the replaced Soldier's return to military technician status.

	e.  He could have been transferred to a temporary TDA within 6 months of retirement (June 2006).

17.  The applicant additionally provided:

	a.  page 637, unit page number 29, of the PRARNG Element, JFHQ, UMR, dated 1 July 2006, that shows he was assigned as excess (overstrength) in his primary MOS 15P4O to paragraph/line 230C/06, position code MOS 15Z5O, duty position MOS 15Z5O;

	b.  page 648, unit page number 40, of the PRARNG Element, JFHQ, UMR, dated 1 July 2006, that shows SGM C____ O. S____-Y____ was assigned in his primary MOS 15Z5O to paragraph/line 230C/06, position code MOS 15Z5O, duty position MOS 15Z5O;

	c.  two letters of recommendation for retention in the PRARNG;

	d.  a copy of his Honorable Discharge Certificate and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 21 June 1966 through 2 April 1968 that shows his component as the Army of the United States, he served in Vietnam, and he was honorably released from active duty; and

	e.  a chart of CMF 15 (Aircraft Maintenance Career Progression) that shows MOS 15Z5O with the authorized rank of MSG through SGM and MOS 15P5O with the authorized rank of MSG through SGM.  Both positions show career progression to MOS 00Z5O in the rank of CSM.

18.  The applicant's records are void of and he failed to provide orders promoting him to MSG.

19.  Department of the Army Pamphlet 611-21 (Military Occupational Classification and Structure) contains information on the classification of individuals by identifiers and classification of positions (duty position title, identifier(s) and grade in requirements and authorization documents).  Procedural guidance for classification of enlisted personnel and positions is available at:  https://www.milsuite.mil/book/groups/smartbookdapam611-21.  The CMF 15 series career progression chart shows MOS 15P progresses through SGM/CSM and MOS 15Z progresses through SGM/CSM.  Both MOSs convert to MOS 00Z5O at general-officer level CSM positions.  No substitutability is authorized.

20.  Army Regulation 614-200 (Enlisted Assignments and Utilization Management), paragraph 7-12, provides that award of primary MOS 00Z is restricted to Soldiers selected and assigned against valid general-officer level CSM positions.  All battalion and brigade-level CSMs retain their core-competency primary MOS.  The Army established professional development proficiency codes to identify Soldiers serving as either battalion or brigade CSM.

21.  ARNG Regulation 600-200 (Enlisted Personnel Management), in effect at the time, established standards, policies and procedures for the management of ARNG enlisted Soldiers in areas including personnel management and promotion, appointment, and reduction.

22.  Implementation Policy for ARNG Promotion and Policy Reduction, in effect at the time, dated 1 February 2005, governed ARNG enlisted promotions.  Chapter 7 (Enlisted Promotion and Reduction of ARNG Personnel) stated:

* promotion to sergeant through SGM was announced on orders
* Soldiers had to be in a promotable status and orders required the statement, "Promotion is not valid and is not effective if the Soldier is not in a promotable status of the effective date of promotion"
* Soldiers must be qualified in the career progression MOS
* Soldiers may be promoted into vacant positions based upon selection by a promotion board and placement in the selection objective of a promotion list

23.  USNORTHCOM was established 1 October 2002 to provide command and control of Department of Defense homeland defense efforts and to coordinate defense support of civil authorities.  USNORTHCOM plans, organizes, and executes homeland defense and civil support missions.  USNORTHCOM's area of responsibility includes air, land, and sea approaches and encompasses the continental United States, Alaska, Canada, Mexico, and the surrounding water out to approximately 500 nautical miles.  It also includes the Gulf of Mexico, the Straits of Florida, and portions of the Caribbean region, to include the Bahamas, Puerto Rico, and the U.S. Virgin Islands.

24.  Title 10, U.S. Code, section 168, provides that the Secretary of Defense may conduct military-to-military contacts and comparable activities that are designed to encourage a democratic orientation of defense establishments and military forces of other countries.  The term "military-to-military contacts" means contacts between members of the U.S. Armed Forces and members of foreign armed forces through:  the activities of traveling contact teams, the activities of military liaison teams, exchanges of civilian or military personnel between the Department of Defense and defense ministries of foreign governments, exchanges of military personnel between units of the U.S. Armed Forces and units of foreign armed forces, and seminars and conferences held primarily in a theater of operations.

25.  Army Regulation 135-210 (ARNG and USAR – Order to Active Duty as Individuals for Other Than a Presidential Selected Reserve Call-up, Partial or Full Mobilization) defines EAD as active duty performed by a member of the ARNG or USAR when strength accountability passes from the ARNG or USAR to the Active Army.  Headquarters, Department of the Army, will announce programs to procure personnel to fill actual and anticipated active duty vacancies.  Qualified and interested personnel should apply as soon as possible after a program is announced.  Applicants who are ARNG Soldiers must have the approval of their State Adjutant General.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for promotion to the rank/grade of MSG/E-8 with an effective date of July 2006 was carefully considered.

2.  His contentions that the UMR he provided shows he qualified against the paragraph/line 230C/06 position and MOS 15Z and MOS 15P show career progression to MOS 00Z5O in the rank of CSM were carefully considered.  However, the UMR shows the position and duty MOS for paragraph/line 230C/06 as 15Z5O.  He was assigned as excess (overstrength) in his primary MOS 15P4O.  Further, MOS 15P progresses through SGM/CSM and MOS 15Z progresses through SGM/CSM.  Both MOSs convert to MOS 00Z5O at general-officer level CSM positions.  No substitutability is authorized.

3.  The MOS classification and structure system plays a key role in the Army's management of Soldiers and jobs, as manning requirements in units are coded for specific grades and skills.  Personnel managers then use branch, area of concentration, MOS, skill identifier, special qualification identifier, additional skill identifier, language indicator, and professional development proficiency codes to identify and then assign qualified Soldiers to vacancies.

4.  The evidence of record shows the applicant was selected for promotion to MSG and assigned to an SGM position in his CMF in an excess (overstrength) status.  The NGB stated in its advisory opinion that the applicant was placed on the PRARNG UMR as excess (overstrength) from 1 February 2005 through 1 June 2008 (over 3 years) in paragraph/line 230C/06, position code MOS 15Z5O, as the Acting Aircraft Maintenance Senior Sergeant to allow his advancement in the rank to MSG.  The PRARNG G-1 surmises that there is a possibility that the position offered was later declared not to be a valid vacancy and was held for SGM S____.

5.  Contrary to the statements provided by the NGB and PRARNG, the evidence shows SGM C____ O. S____-Y____ (replaced Soldier) applied for and was voluntarily ordered to active duty effective 1 February 2005 for a period of 3 years and 11 days to fulfill active duty requirements under the EAD program for USNORTHCOM.  SGM C____ O. S____-Y____'s active duty orders specifically stated he must be separated from the ARNG and transferred to the USAR IRR effective the day before the reporting date on the orders.  The PRARNG Adjutant General was responsible for publishing his transfer orders.

6.  Although the applicant contends – and the evidence confirms – the position was vacant based on the incumbent Soldier's EAD status, the evidence of record indicates the position was never a documented UMR vacancy prior to his retirement.

7.  Nevertheless, he was offered the position for the purpose of promotion, the PRARNG certified he met NGB compatibility criteria, he accepted the position, and he served satisfactorily in the position for over 3 years.  There is no evidence he knew his assignment to the SGM MOS 15Z5O position would be in an extended excess (overstrength) status prior to his acceptance.  Had he known his assignment to the position would not result in his promotion to MSG, it is more likely than not that he would have sought a valid vacant MSG MOS 15P5O position in lieu of accepting the responsibility of the SGM position as an SFC.

8.  There is no evidence the PRARNG made any attempt to transfer SGM C____ O. S____-Y____ (replaced Soldier) to the USAR IRR, or – in the alternative – to align the applicant to a valid vacant MSG MOS 15P5O position for the purpose of promotion, or state for the record that no valid vacant MSG MOS 15P5O positions existed within the PRARNG between the date of the applicant's selection for promotion to MSG by the PRARNG Fiscal Year 2005 Enlisted Promotion Board on 5 January 2005 and his retirement on 6 June 2008.  The PRARNG benefitted from his assignment to the SGM MOS 15Z5O position for over 3 years and it appears that he performed the duties of Aircraft Maintenance Senior Sergeant satisfactorily.

9.  Based on the totality of the evidence, it would be appropriate to correct the applicant's records to show he was promoted to MSG effective 1 February 2005, the date he was assigned to the PRARNG UMR in paragraph/line 230C/06, and pay him all pay and allowances due as a result of this correction.  His records should also be corrected to show he was honorably discharged from the PRARNG in the rank/grade of MSG/E-8 and placed on the Retired List in the rank/grade of MSG/E-8 effective 6 June 2008.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  promoting him to the rank/pay grade of MSG/E-8 with an effective date of 1 February 2005;

	b.  amending his NGB Form 22 to show he was honorably discharged from the PRARNG on 6 June 2008, in the rank/pay grade of MSG/E-8;

	c.  showing he was placed on the Retired List in the rank/grade of MSG/E-8 effective 6 June 2008; and

	d.  providing him all pay and allowances due as a result of these corrections.



2.  The Board further determined the evidence presented is 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 correcting his records to show his effective date of promotion to MSG as July 2006.



      _______ _   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)                                         AR20140014553



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ABCMR Record of Proceedings (cont)                                         AR20140014553



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