BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20140017151 


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/pay grade of sergeant first class (SFC)/E-7, effective 1 November 2012, by the Fiscal Year 2012 (FY12) Staff Sergeant (SSG) – Sergeant Major (SGM) Reserve Component (RC) Individual Ready Reserve (IRR) – Drilling Individual Mobilization Augmentee (DIMA) Promotion Selection Board (PSB).

2.  The applicant states:

	a.  He was selected for promotion to SFC by the FY12 IRR SFC Board but he was later removed from the promotion selection list.  He was told he was removed because he had not been in the IRR for 12 months prior to the board's convening date.

	b.  He contends he fits the exception to the 12-month IRR rule because he was mobilized on a 365-day Active Duty for Operational Support (ADOS) order.  Being mobilized fits the exception specified in paragraph 3c of Military Personnel (MILPER) Message Number 12-128 (FY12 SSG – SGM RC IRR – DIMA PSB Announcement Message).

	c.  After he found out he had been selected for promotion, he called the U.S. Army Human Resources Command (HRC) and inquired about when HRC would begin promoting from the promotion selection list.  He was told that 1 November 2012 would be the effective dated of the SFC promotion order.  He found out on 5 November 2012 that he had been removed from the promotion selection list.  

3.  The applicant provides:

* FY12 SSG – SGM RC IRR – DIMA PSB Results
* MILPER Message Number 12-128, issued on 3 May 2012
* Orders Number A-11-031884, issued by HRC on 16 November 2010
* Orders Number A-01-101412, issued by HRC on 21 January 2011
* Orders Number A-01-201861, issued by HRC on 31 January 2012
* Orders Number 12-052-00033, issued by Headquarters, 99th Regional Support Command (RSC), Fort Dix, NJ on 21 February 2012
* Department of the Army Mobilization Processing System – Army    (DAMPS – A) Mobilization Request print-out
* email, dated 5 November 2012, 26 February 2013, 16 and 22 July 2013, and 24 October 2013, and 9 June 2014
* letter from the Office of the Inspector General (IG), U.S. Army Civil Affairs and Psychological Operations Command (USACAPOC), Fort Bragg, NC, dated 6 June 2014
* email, 
* third-party statement 

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty in the Regular Army on 1 May 2002.  On 
30 April 2005, he was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement), an element of the IRR.

2.  He was promoted to the rank/pay grade of SSG/E-6 on 14 August 2007.

3.  He was transferred from the IRR to the 448th Civil Affairs Battalion on 5 April 2010, a USAR troop program unit (TPU) at Joint Base Lewis-McChord, WA.  

4.  Orders Number A-11-031884, issued by HRC on 16 November 2010, ordered him to ADOS for a period 77 days with a report date of 22 November 2010 and an end date of 6 February 2011.  These orders show he was ordered to active duty for operational support under the provisions of section 12301(d) of Title 10, U.S. Code (10 USC), section 12301(d).  The purpose stated on these orders states "Contingency Operation for Active Duty Operational Support (CO-ADOS) in Support of CSB."

5.  Orders Number A-01-101412, issued by HRC on 21 January 2011, ordered him to active duty for operational support under the provisions of 10 USC, section 12301(d), for a period of 365 days with a report dated of 7 February 2011 and an end date of 6 February 2012.  The purpose stated on these orders reads "Contingency Operation for Active Duty Operational Support (CO-ADOS) in Support of CSB."

6.  Orders Number A-01-201861, issued by HRC on 31 January 2012, ordered him to active duty for operational support under the provisions of 10 USC, section 12301(d), for a period of 365 days with a report dated of 7 February 2012 and an end date of 5 February 2013.  The purpose stated on these orders reads "Contingency Operation for Active Duty Operational Support (CO-ADOS) in Support of OEF (Operation Enduring Freedom) – CSB."

7.  Orders Number 12-052-00033, issued by Headquarters, 99th RSC, Fort Dix, NJ on 21 February 2012, reassigned him to the IRR effective 7 March 2012.  The orders show the reason for the reassignment was "unresolvable employment conflict."

8.  He was considered by the FY12 SSG – SGM RC IRR – DIMA PSB.  The results were released on 27 September 2012, which show he was selected for promotion to SFC.  

9.  He was released from active duty on 24 September 2013.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 22 November 2010 and served continuously for 2 years, 10 months, and 3 days prior to his release from active duty.  Item 18 (Remarks) of his DD Form 214 shows he was ordered to CO-ADOS in support of CSB in accordance with 10 USC, section 12301(d).

10.  In the processing of this case, an advisory opinion was obtained from the Chief of the Department of the Army Promotions Branch at HRC.  The advising official recommended denial of the applicant's request and stated the applicant was administratively removed from the promotion list due to not meeting the eligibility criteria for consideration, per the requirements listed in MILPER Message 12-128, paragraph 2a(3) and in accordance with Army Regulation  600-8-19 (Enlisted Promotions and Reductions), paragraph 6-12a(1).

11.  The advisory opinion was provided to the applicant to afford him the opportunity to submit comments or a rebuttal.  He responded and stated:

   a.  The advisory opinion states he was administratively removed from the FY12 SSG – SGM RC IRR – DIMA PSB list due to not meeting the eligibility criteria for consideration per the requirements listed in MILPER Message 12-128, paragraph 2a (3) and in accordance with 600-8-19, chapter 6, paragraph 6-12a (1).  The stated reasons do not apply to him; the sections of the MILPER Message and Army Regulation cited by the advisory opinion do not exclude him from consideration for promotion.

	b.  MILPER Message 12-128, paragraph 2a (3), reads, in part:

ADOS Soldiers to the ranks of SSG-SGM that entered ADOS from the IRR/IMA.  TPU Soldiers who were voluntarily reassigned to the IRR for purposes of entering on ADOS will not be considered on this board.

12.  He did not enter ADOS from the IRR; he was in a TPU status when his ADOS order took effect on 6 February 2012, and he had been on continuous ADOS orders, without a break in service, since November 2010.  He also did not get reassigned to the IRR for the purposes of entering on ADOS; so this part does not exclude him from consideration.

13.  The last part of the MILPER Message, paragraph 2a(3) reads:  

These Soldiers will be considered for promotion under the provisions of AR 600-8-19, chapter 5 (Promotion of USAR Soldiers Assigned to TPU Units, Army Reserve Elements, or Multicomponent Commands or Units).  HRC will remain as the orders issuing authority for TPU Soldiers while on ADOS until they are returned to USAR command and control automated systems. Requests for promotion orders for ADOS Soldiers recommended for promotion by a TPU promotion selection board must be submitted to the appropriate RSC."  

14.  At the time he was transferred into the IRR, he was on the TPU promotion list to SFC.  When he was transferred into the IRR, he was dropped off the TPU promotion list because his promotion authority became the IRR.  The RSC no longer had control of personnel actions for him.

15.  Upon receiving his IRR transfer order in March 2012, he had his battalion 
S-1, SFC C, contact the RSC to see if he could still get promoted even though he had been transferred into the IRR.  SFC C was told the RSC could no longer do anything for the applicant because he was not a TPU Soldier.  He belonged to the IRR.  The only way to transfer back into a TPU status was to be relieved from his ADOS orders or wait until the expiration of the order, almost a year later.  He could not get back into TPU status while on an ADOS order.  If the RSC was not his promotion authority, it had to be the IRR.

16.  He was removed from the list by HRC but he does not feel that he was erroneously considered for promotion.  The section of the MILPER message the advisory opinion cites does not apply to him as he did not go into the IRR in order to go on ADOS.  It does not exclude him or address his situation since he went into the IRR after he was already on ADOS.  Because of this transfer to the IRR, the RSC no longer had promotion authority because he was not in a TPU status. The regulation cited by the advisory opinion simply does not apply to his case; therefore, he should not have been removed.

17.  The applicant provided a statement from SFC C that states:  

   a.  He is writing to provide some clarification on the circumstances related to the applicant's entry into the IRR and how it relates to the timing of his mobilization orders and possible promotion.  He was mobilized with the applicant from late 2010 through February 2013.  They were both coming to the end of      1 year ADOS orders, while stationed at Fort Dix, NJ at the beginning of 2012.

	b.  The orders end date was 5 February 2012.  Most of the Soldiers mobilized with them were expecting to receive an additional 1 year order that was to begin on 5 February 2012.  The brigade informed the mobilized Soldiers there was a good chance that the expected orders would not get funded and that everyone should begin to make plans for such a contingency.  The applicant, after considering his options, asked him (SFC C) for assistance with a transfer to the IRR, since he (SFC C) was handling all of the administrative and personnel actions for the mobilized Soldiers.

	c.  The completed IRR packet was submitted to the brigade on 27 January 2012.  Shortly after that, on 31 January, the ADOS orders for the following year were cut for the applicant.  Once all of the issues related to nearly dropping off of orders were taken care of, a request was made to the brigade to withdraw the IRR transfer request for the applicant.  The brigade S-1 acknowledged the request, but the packet continued to make its way through administrative channels and the applicant was transferred to the IRR in April, much to their combined surprise.

	d.  He read the advisory opinion issued by HRC and he would like to address some of the concerns referenced in the letter and the cited regulations.  The reference cited does not exclude the applicant from consideration by the promotion board.  First, his request for transfer to the IRR was in no way related to an attempt to get into an ADOS order.  He was already on such an order and the IRR request was a response to the advice from his higher headquarters to put a contingency plan into motion.  An attempt was made to withdraw the request once it was certain that the orders would continue.  Second, after the IRR transfer did go though, they attempted to get him transferred back into a TPU but they were informed by HRC that he would have to either be relieved of the ADOS order or wait until the conclusion of the order before he could affect such a transfer (almost 1 year away). 

	e.  The applicant was in a promotable status to SFC when the IRR transfer went through but he was immediately dropped from the Permanent Promotion Recommended List once the transfer was effective.  The TPU promotion authority no longer had oversight of the applicant he fell under the IRR for promotion and other actions.  None of the regulations cited in the advisory opinion directly address his unique circumstances.  He believes that if the spirit and intent of the regulation is taken into account, the applicant should be eligible for the promotion as a member of the IRR.

18.  The applicant provided:

	a.  email dated 5 November 2012, addressed to Master Sergeant (MSG) H, in which the applicant inquires about an exception to policy based on his mobilized status and his removal from the promotion list;

	b.  email from SGM P, dated 26 February 2013, addressed to several individuals, in which the SGM is expressing his support for the applicant's promotion to SFC;

	c.  email from the applicant, dated 22 July 2013, addressed to MSG H, pertaining to his removal from the promotion list;
	
   d.  letter from the Office of the IG, USACAPOC, dated 6 June 2014, which shows he submitted an IG Action Request regarding his removal from the promotion list and his request was returned as untimely (over 1 year since the discovery of the alleged wrongdoing.)  He was advised by the IG to submit a request for correction of records to this Board.  

	e.  email from the applicant, dated 24 October 2013, addressed to Ms. P and SSG R, in which he explained the sequence of events that led to his removal from the promotion list.

19.  MILPER Message 12-128 provided instructions regarding the selection of IRR, IMA, and Standby Reserve (Active List) Noncommissioned Officers (NCOs), for promotion to the ranks of SSG through SGM, by the FY12 SSG – SGM RC IRR – DIMA PSB.  

   a.  The selection board convened on or about 7 August 2012 and considered Soldiers for promotion as shown below:

* non-mobilized IRR, IMA, and Standby Reserve (Active List) Soldiers
* mobilized IRR, IMA, and Standby Reserve (Active List) Soldiers to the ranks of SFC through SGM
* ADOS Soldiers to the ranks of SSG through SGM that entered ADOS from the IRR/IMA

   b.  Paragraph 2a(3) provided that TPU Soldiers who were voluntarily reassigned to the IRR for purposes of entering on ADOS would not be considered by this board.  Those Soldiers would be considered for promotion under the provisions of Army Regulation 600-8-19, chapter 5 (Centralized Promotions (SFC, MSG, SGM) for USAR Soldiers Assigned to TPU, Army Reserve Elements, or Multi-Component Commands or Units.

   c.  Paragraph 3c provided that IRR and Standby Reserve (Active List) NCOs must be assigned for a minimum of 12 months as of 8 August 2012, unless currently mobilized or meeting the provisions of 600-8-19, paragraphs 1-19 (pertains to terminally ill Soldiers) or 1-20 (pertaining to Soldiers undergoing medical evaluation/retention boards). 

20.  Army Regulation 600-8-19 prescribes policies and procedures governing the promotion and reduction of Army enlisted personnel, including Soldiers assigned to USAR TPUs and the IRR.

   a.  Paragraph 1-30 (ADOS in excess of 12 months) provides that Soldiers who enter on ADOS from USAR TPU units will be considered for promotion under the provisions of chapter 5 of this regulation.  This also applies to Soldiers who were voluntarily reassigned to the IRR for the purpose of entering on ADOS.

	b.  Paragraph 6-3 (Eligibility), sub-paragraph d., provides that in order to be eligible for consideration by an IRR PSB, a Soldier must have earned a minimum of 50 retirement points as a member of the IRR, IMA, or Standby Reserve (Active Status List) on the retirement year ending date immediately preceding 12 months prior to the board's convening date.

   c.  Paragraph 6-12 (Removal from Recommended List), sub-paragraph a.(1), provides that the Commander, HRC will administratively remove a Soldier from a recommended list [specifically, an IRR selection list since chapter 6 pertains to IRR promotions] who is erroneously considered and selected for promotion.  


21.  10 USC, section 12301 (Reserve components generally), sub-paragraph (d), provides in pertinent part, that at any time, an authority designated by the Secretary concerned may order a member of a Reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member (emphasis added).  

22.  10 USC, section 12302 (Ready Reserve) provides, in pertinent part, that in times of national emergency declared by the President after 1 January 1953, or when otherwise authorized by law, an authority designated by the Secretary concerned may, without the consent of the persons concerned (emphasis added), order any unit, and any member not assigned to a unit organized to serve as a unit, in the Ready Reserve under the jurisdiction of that Secretary to active duty for not more than 24 consecutive months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was promoted to the rank/pay grade of SFC/E-7 effective 1 November 2012, based on his selection for promotion by the FY12 SSG – SGM RC IRR – DIMA PSB.

2.  The available evidence shows the applicant was reassigned to a TPU on 
5 April 2010 and he entered CO-ADOS in November 2010 while he was in a TPU status.  He was transferred to the IRR on 7 March 2012 and he remained in a
CO-ADOS status until he was released from active duty on 24 September 2013.

3.  The applicant contends he was rightly considered by the FY12 SSG – SGM RC IRR – DIMA PSB, since he was assigned to the IRR and he was no longer under the authority of his past RSC for promotion purposes.  He further contends the 12-month IRR membership as an eligibility criteria does not apply to him, since he was mobilized and the announcement message made provisions for mobilized Soldiers to waive that requirement.

4.  CO-ADOS tours are not synonymous with mobilization.  In fact, each period of active duty is ordered under a specific and different section of 10 USC.  
CO-ADOS Soldiers are voluntarily ordered to active duty under the provisions of 10 USC, section 12301(d).  Mobilized Soldiers are involuntarily ordered to active duty for a 24-month period under the provisions of 10 USC, section 12302.  This is an important distinction; the applicant was not a mobilized Soldier when he was considered for promotion by the FY12 SSG – SGM RC IRR – DIMA PSB.

5.  In accordance with MILPER Message 12-128 and the governing Army regulation, IRR Soldiers must have been assigned to the IRR for a minimum of 12 months as of the convening date of the PSB.  The applicant did not meet that stated criteria; therefore, he was ineligible for consideration and was erroneously selected by the subject PSB.  Accordingly, he was properly removed from the recommended list.

6.  Based on the foregoing, there is no basis to grant the applicant's 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)                                         AR20140017151



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017151



9


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1