IN THE CASE OF:  	  

		BOARD DATE:  20 August 2015	  

		DOCKET NUMBER:  AR20140019413 


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 reinstatement to sergeant major (SGM)/pay grade E-9 effective 1 May 2012 in the U.S. Army Reserve (USAR).

2.  The applicant states he was given the choice of declining his promotion to SGM or accepting a Contingency Operation for Active Duty Operational Support (COADOS) tour at Headquarters, Department of the Army (HQDA) Office of the Provost Marshal General (OPMG) based on the Shaping the Force policy memorandum, dated 27 March 2011.  Other actions could have been taken rather than rescinding his promotion.

3.  He states:

	a.  He was notified on 19 April 2012 of his promotion selection to SGM effective 1 May 2012 and assignment to the 607th Military Police (MP) Battalion, USAR, Grand Prairie, TX.  On 4 May 2012 he was approved for COADOS with HQDA-OPMG-National Detainee Reporting Center (NDRC), Washington, DC.

	b.  He contacted the S-3 for the 607th MP Battalion and started the process of reporting for duty.  At this time a senior commissioned officer starting working with the 11th MP Brigade to ensure he would be able to take his COADOS assignment and return during drill weekends to perform battalion operations duties as a SGM.  This proposal was approved through the 11th MP Brigade with final approval between the 200th MP Command, Fort Meade, MD, and the OPMG.  An agreement was reached by the 200th MP Command and the OPMG that he would be allowed to keep his promotion and take the assignment for 1 year.
	
   c.  On finalizing his packet through the Department of the Army Mobilization System – Army (DAMP-A), U.S. Army Human Resources Command (HRC) and, the U.S. Army Reserve Command (USARC); a command sergeant major (CSM) was notified by the USARC board of directors (BOD) (E9 committee) that they would not support an E9 going to fill a COADOS E8 position.  They reviewed his request and offered him two choices: decline his promotion to E9 or decline the COADOS assignment.

	d.  Under the Shaping the Force policy memorandum, taking an over grade position for 1 year was acceptable.  His case was never reviewed by the USARC commander and he feels the circumstances warranted his review.

	e.  Both the USARC Inspector General (IG) and HRC IG offices have reviewed the information and both cited that a waiver should have been submitted to waive his 1 year duty requirement.

4.  The applicant provides:

* a memorandum, dated 8 July 2010, from HRC, subject: Notification of Eligibility for Retired Pay at Age 60 (20-year Letter)
* emails, dated 5-20 May 2011, concerning his assignment to the 224th MP Company, Phoenix, AZ
* a memorandum for record (MFR), dated 15 October 2011, from Division West, Building, McGregor Range, Fort Bliss, TX
* two DA Forms 4856 (Developmental Counseling Form), dated 10 November 2011
* a DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 12 November 2011
* an unsigned MFR, dated 17 November 2011, from the applicant to Commander, 224th MP Company
* numerous emails with the 200th MP Command, dated 30 November 2011 through 19 March 2012
* his orders for promotion to SGM, dated 24 April 2012 
* his orders for transfer to the 607th MP Battalion, dated 24 April 2012
* an email, dated 3 May 2012, subject: Tour of Duty: Soldier Approved (264655) 
* a memorandum, dated 17 May 2012 from OPMG
* three DA Forms 1380 (Record of Individual Performance of Reserve Duty Training)
* an unsigned MFR, dated 20 June 2012, from the applicant 
* a memorandum, dated 20 June 2012 from OPMG to Commander, 607th MP Battalion
* a tasker entitled "[Applicant] MOB (mobilization) Packet
* his Enlisted Promotion/Consideration Declination Statement, dated 26 June 2012
* orders, dated 28 June 2012, revoking his promotion to SGM
* three DA Forms 1380 (Record of Individual Performance of Reserve Duty Training
* USARC Memorandum for Commanders, USAR Major Subordinate Commands, dated 6 May 2010, subject: Shaping the Force – Eliminating Senior Grade Overstrength
* USARC Memorandum for Commanders, USAR Major Subordinate Commands, dated 27 March 2011, subject: Shaping the Force – Managing TPU (troop program unit) Senior Grade (E8-E9 and O5-O6) Soldiers
* additional documents concerning his request for orders 
* a request, dated 10 October 2012, for exception to policy to cease collection of incorrect pay grade
* emails, dated from 22 April to 13 May 2013, concerning a request for a Standby Advisory Board
* emails, dated from 9 through 14 August 2013, between CSMs of 200th MP Battalion, U.S. Army Corrections Command, and USARC HQ
* excerpts from Army Regulation 600-8-19 (Enlisted Promotions and Reductions)

CONSIDERATION OF EVIDENCE:

1.  He is currently a master sergeant (MSG)/pay grade E-8) serving in a USAR TPU.  He is assigned to Headquarters and Headquarters Detachment (HHD), 607th MP Battalion in Grand Prairie, TX.

2.  On 1 July 2004 he was promoted to MSG.

3.  On 8 July 2010, he received his 20-Year Letter notifying him he had completed the required years of qualifying reserve service and was eligible for retired pay on application at age 60. 

4.  On 16 July 2011, he was reassigned from the 1st Battalion, 363rd Regiment, Camp Parks, CA to the 224th MP Company, Phoenix, AZ.

5.  On 12 November 2011, he submitted a DA Form 4651 requesting transfer to the Individual Ready Reserve (IRR) Control Group (Reinforcement) (Annual Training).  His request was forwarded to Battalion on 18, 21, and 30 November 2011.  It was returned to the unit on 21 and 30 November 2011.  It was resubmitted to Battalion on 30 November 2011.  The applicant provided numerous emails concerning the status of his request, but there is no final disposition shown.

6.  Headquarters (HQ), 63rd Regional Support Command (RSC) Orders 
12-115-00039, dated 24 April 2012 promoted him to SGM effective 1 May 2012.  His promotion orders contained the statement:

By accepting this promotion, I understand I must report for duty in the position to which promoted, comply with a reassignment order, if issued, and serve at least 12 months in the duty position (UIC WTEVAA, POSN 1270, PARA 106, LN 06) before voluntary reassignment to another TPU.  Failure to initiate and facilitate reassignment to the position to which promoted may result in the promotion order being revoked.

7.  An email, dated 3 May 2012, subject: Tour of Duty: Soldier Approved (264655) notified the applicant he had been selected to serve on COADOS in support of OPMG at the Pentagon, Washington, DC.

8.  On 1 June 2012, he was reassigned from the 224th MP Company to the HHD, 607th MP Battalion, Grand Prairie, TX.

9.  An unsigned MFR, dated 20 June 2012, from the applicant stated that he realized that to fulfill his obligation as the 607th MP Battalion Operations SGM he must attend required battle assemblies and annual training (AT).  He intended to simultaneously accept a COADOS assignment with HQDA OPMG in Washington DC.  He realized that by accepting both assignments he would be personally responsible for all travel expenses.

10.  A memorandum, dated 20 June 2012 from OPMG to Commander, 607th MP Battalion stated that in conjunction with the applicant's assignment to the National Detainee Reporting Center (NDRC) Noncommissioned Officer in Charge (NCOIC), OPMG in Washington DC they understood that in order for him to fulfill his obligation for promotion he must attend required training with his (USAR) unit.  They committed to providing the applicant sufficient time to travel to Grand Prairie, TX to attend battle assemblies and AT in conjunction with performing the duties of the NDRC NCOIC.  They stated the current NCOIC was also promoted to SGM during his tenor and they likewise supported the Soldier in attending required unit training.

11.  He provided a tasker entitled "[Applicant] MOB Packet."  The tasker was to coordinate with the applicant's chain of command to either authorize him to simultaneously attend USAR unit training to fulfill his promotion obligation and accept COADOS assignment with OPMG or process his promotion declination statement and accept the OPMG position as an E8.  The status update section contains entries dated:

* 20 June 2012 - created OPMG acceptance letter and applicant's affirmation letter; spoke with CSM, 11th Brigade, he will take both memorandums to USARC to get approval, also 200th MP Command CSM support
* 25 June 2012 - USARC G1 declined applicant's request; need to submit promotion declination memorandum

12.  On 26 June 2012 he declined promotion to SGM to accept a COADOS E8 position with the HQDA OPMG in Washington DC.

13.  HQ 63rd RSC Orders 12-180-00005 dated 28 June 2012, revoked HQ, 63rd RSC Orders 12-115-0039, dated 24 April 2012, promoting him to SGM.  

14.  HRC Orders A-08-213526 dated 1 August 2012, ordered him to active duty with a report date of 10 September 2012 to the U.S. Army Office of the Provost Marshall for duty at the Pentagon, Washington, DC.  The period of active duty was 365 days with an end date of 9 September 2013.

15.  HRC Orders A-08-213526A01 dated 4 June 2013, amended HRC Orders
A-08-213526, dated 1 August 2012, to change the tour length to 395 days with an end date of 9 October 2013.

16.  U.S. Army Garrison, Fort Belvoir, Fort Belvoir, VA Orders 259-002, dated 
16 September 2013, released him from active duty effective 9 October 2013 and assigned him to the HHD, 607th MP Battalion in Grand Prairie, TX.

17.  On 3 March 2013, an advisory opinion was received from HQ, USARC, at Fort Bragg, NC.  USARC recommended disapproval of his request for reinstatement to SGM.

	a.  Soldiers recommended for promotion to sergeant first class (SFC) through SGM are integrated onto an order of merit list called a Permanent Promotion Recommended List (PPRL).  As vacant positions are reported, the RSC identifies the first Soldier on the list that meets the reported requirements of the positions within their military occupational specialty and elected travel distance.  Any deviation from this process jeopardizes the intent of the promotion system.

	b.  A Soldier may submit a memorandum of declination any time after being recommended for promotion.  If he has been promoted, the declination memorandum will be sent through command channels to the RSC not later than 60 days after the effective date of promotion.  Once the declination of promotion is received by the promotion authority, the declination is irrevocable.  Solders who decline promotion or request removal from the list will be removed from the recommended list they are on and will not be eligible for reinstatement.  Soldiers on a list who decline promotion will be considered by the next appropriate selection board, if otherwise qualified.  

	c.  The applicant was recommended for promotion to SGM in May 2012 and integrated onto the PPRL managed by the 63rd RSC.  He was identified for promotion toward a valid vacancy in the 607th MP Battalion.  He chose to enter into a voluntary Active Duty for Operational Support (ADOS) tour rather than report to the unit identified for promotion to E9 and fulfill his 1 year service obligation.  He declined the promotion in writing, which allowed him to attend his ADOS tour, but resulted in the revocation of his promotion orders and recoupment of all pay and allowances accrued at the higher pay grade.  Since that time, he has been considered, but not recommended for promotion to E9.

18.  On 15 March 2015, the applicant provided a rebuttal to the advisory opinion.

	a.  He provided these additional documents:

* Department of Defense Directive 1200.17, dated 29 October 2008
* Enclosures to USARC Memorandum for Commanders, dated  6 May 2010
* USARC Memorandum for Commanders, USAR Major Subordinate Commands, dated 27 March 2011
* a memorandum, dated 6 April 2011, from the Office of the Chief, Army Reserve, subject:  Standardized Army Reserve Senior Enlisted TPU Promotion Selection Process for Promotions to SFC through SGM
* a memorandum, dated 17 June 2013, from the Office of the Chief, Army Reserve, subject: Reassignment of Army Reserve Soldiers on ADOS in the IRR

	b.  He cited Army Regulation 600-8-19 and pointed out that the regulation provided for "Transfers of TPU Soldiers serving under a promotion service remaining requirement must be approved by the first general officer in the chain of command to preclude reduction or revocation of the promotion."

	c.  OPMG originally agreed to allow for travel time to meet his battle assemblies’ requirements.  Instead it was agreed that he would continue on the COADOS assignment and a temporary fill would be conducted by an eligible E8 for the 607th MP Battalion.

	d.  He did report to the 607th MP Battalion and served 57 days prior to signing his declination of promotion.
	
	e.  His efforts to keep his promotion and complete the COADOS tour was supported by the 706th MP Battalion, the 11th MP Brigade, and the 200th MP Command.  

	f.  The USARC IG suggested that a waiver for the 12-month assignment obligation should have initially accompanied his packet requesting the COADOS.

	g.  If the decision was based upon shaping the Force, and the question was over grade versus over strength, he believes that upon further inquiries that in fact the over grade would have been waiverable.  The OPMG had already filled the COADOS position (E8) with a SGM for over 2 years.

19.  USARC Memorandum for Commanders, dated 27 March 2011, subject: Shaping the Force – Managing TPU Senior Grade (E8-E9, O5-O6) Soldiers, thanked commanders and staff for the hard work to eliminate senior grade overstrength.  The memorandum also stated, in pertinent part:

To maintain readiness, our force must be ready and relevant.  Therefore, assignments at the senior grade level will be one-for-one, that is, assign only one senior grade Soldier to a position for which they are qualified.  Additionally, a Soldier's rank should only be equal to or no more than one grade below that of the positon (for example a master sergeant (MSG) may be assigned to either a MSG or sergeant major (SGM) position)…As previously stated, we cannot afford to carry senior grade Soldiers overstrength in our ranks.  They prevent promotion and career progression opportunities and inhibit our ability to fill lower-grade vacancies.

20.  Army Regulation 600-8-19, then in effect, prescribed the enlisted promotions and reduction function of the military personnel system.

   a.  Paragraph 1-24 that a Soldier may submit a memorandum of declination of promotion any time after being recommended for promotion.  If the Soldier had been promoted, the declination memorandum was sent through command channels not later than 30 days (60 days for TPU) after the effective date of promotion.  Once the declination of promotion was received by the promotion authority, the declination is irrevocable. The effective date will be the date the Soldier signed the declination of promotion.  
	b.  Paragraph 5-26 stated a Soldier who accepted a promotion voluntarily agreed to serve in the duty position to which promoted, even if the promotion required reassignment to another unit.

        (1)  The Soldier must report for duty in the position to which promoted, comply with a reassignment order, if issued, and serve at least 12 months in the duty position before voluntary reassignment, discharge or retirement. 
   
        (2)  An exception to this policy is where the Soldier has a change of residence or civilian employment, or incurs an extreme hardship requiring such reassignment. This policy does not preclude reassignment for the convenience of the Government or the good of the command, to the Ready, Standby, or Retired Reserve, including IMA or AGR status.

   c.  Paragraph 5-42 (Accepting promotion to SFC and above) stated in:

        (1)  Paragraph 5-42a that a Soldier who accepted a promotion will incur a 2-year TPU service remaining requirement from the effective date of promotion.  The Soldier must report for duty in the position to which promoted, comply with a reassignment order, if issued, and serve at least 12 months in the duty position before voluntary reassignment.  An exception to this policy occurs when the Soldier has a change of residence or civilian employment, or incurs an extreme hardship requiring such reassignment. This policy does not preclude reassignment for the convenience of the government or the good of the command, to the Ready, Standby, or Retired Reserve, including IMA or AGR status.

        (2)  Paragraph 5-42b that promotion and reassignment orders will be revoked for a Soldier who fails to decline a promotion based on a concurrent reassignment and who refuses to comply with the reassignment order or fails to meet the service remaining requirement or fail to initiate reassignment to the gaining position within 90 days of release from active duty from mobilization.  Soldiers must reenlist or extend prior to issuance of promotion orders.

21.  Army Regulation 600-8-19, effective 2 March 2015, states in paragraph 
5-17b (Accepting promotion to SFC and above)  promotion and reassignment will be revoked for a Soldier who fails to decline a promotion based on a concurrent reassignment and who refuses to comply with the reassignment order or fails to meet the service remaining requirement.  Transfers of TPU Soldiers serving under a promotion service remaining requirement must be approved by the first general officer in the chain of command to preclude reduction or revocation of the promotion.

DISCUSSION AND CONCLUSIONS:

1.  He was a MSG at the time he applied for COADOS orders to the E8 position at OPMG.  However, he was subsequently promoted to SGM and transferred to an E9 position at the 607th MP Battalion prior to the orders being issued.  

2.  In his rebuttal to the advisory opinion he cites paragraph 5-17 of Army Regulation 600-8-19 that was not in effect until almost 3 years after his request for COADOS orders.  He contends he had approval from OPMG, the 607th MP Battalion, and the 200th MP Command to retain his promotion, perform his BAs and AT with the 607th MP Battalion, and accept a COADOS assignment with HQDA OPMG.  Within the available evidence he provided, there is no approval from his commander, 607th MP Battalion, approving his COADOS assignment.  

3.  He contends in his rebuttal that the OPMG COADOS position (E8) had already been filled with a SGM for over 2 years.  However, in their memorandum, dated 20 June 2012, OPMG stated the current NCOIC was also promoted to SGM during his tenure in the position.  He was not assigned to the E8 position as SGM, he was assigned as a MSG and promoted during his assignment.  Therefore, applicant's contention is not supported by the evidence of record.

4.  The USARC Memorandum for Commanders, dated 27 March 2011, stated assignments at the senior grade level will be one-for-one, that is assign only one senior grade Soldier to a position for which they are qualified.  Additionally, a Soldier's rank should only be equal to or no more than one grade below that of the positon (for example a MSG may be assigned to either a MSG or SGM position). 

5.  The decision of the USARC BOD (E9 committee) to not support an E9 going to fill a COADOS E8 position was in keeping within the latest USAR Shaping of the Force policy set forth in the USARC Memorandum for Commanders, dated 27 March 2011.  His choices were to keep his promotion to SGM and remain at the 607th MP Battalion or decline his promotion and accept orders to HQDA OPMG as a MSG.  

6.  The evidence of record clearly shows the applicant declined his promotion to SGM/pay grade E9 and accepted a COADOS as a MSG to the pay grade E8 position at HQDA OPMG.  His promotion orders were revoked by the promotion authority.  Army Regulation 600-8-19 states that once the declination of promotion was received by the promotion authority, the declination is irrevocable.


7.  In view of the above, there is no error or injustice in this case for the applicant made an irrevocable decision when he declined promotion.  Subsequent to his decision, the record shows though eligible for promotion consideration by USAR SGM promotion boards, he was not selected for promotion to E9 again.  Therefore, there is no basis on which to reinstate his promotion to SGM.

 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.



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