IN THE CASE OF:    

		BOARD DATE:  15 October 2015	  

		DOCKET NUMBER:  AR20140020620 


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 promotion to the rank of sergeant major (SGM).

2.  The applicant states:

     a.  He was denied promotion to SGM at the National Guard Bureau's (NGB) Army National Guard (ARNG) Strength Maintenance Division, due to deceit, deception, and manipulation on the part of NGB leadership.

     b.  A number of vouchers [allocations] to promote master sergeants (MSG) to SGM in military occupational specialty (MOS) 79T (Recruiting and Retention Noncommissioned Officer (NCO) – Army National Guard (ARNG)) were present and available when the Fiscal Year 2012 (FY12) promotion board results were released.

     c.  He was informed by the Division SGM that he was being reassigned to the NGB in order to be promoted to SGM in the Recruiting Operations Branch of the ARNG Strength Maintenance Division. 

3.  The applicant provides an outline of his enclosures (1 – 28), identified below:

* Enclosure 1 – a memorandum issued by NGB on 17 January 2012, subject:  Release of the FY12 Title 10 Active Guard/Reserve (AGR) SGM Promotion Board Order of Merit List
* Enclosures 2 and 3 – four pages of emails
* Enclosure 4 – a DA Form 4187 (Personnel Action), undated and unsigned
* Enclosure 5 – a memorandum issued by NGB on 15 May 2012, subject:  Release of the FY12 Title 10 AGR SGM Promotion List
* Enclosure 6 – a one-page email
* Enclosure 7 – a DA Form 1559 (Inspector General Action Request), dated 
8 August 2012
* Enclosure 8 – a memorandum issued by the NGB on 14 February 2013, subject:  FY13 Title 10 AGR SGM Promotion Board Results
* Enclosure 9 – a two-page letter from the applicant to the IG, dated           20 February 2013
* Enclosure 10 – a DA Form 1559, dated 26 March 2013
* Enclosure 11 – a four-page letter from the applicant's spouse to the applicant's Member of Congress, dated 27 March 2013
* Enclosure 12 – a response letter from the applicant's Member of Congress to the applicant's wife
* Enclosure 13 – a Request for Congressional Assistance form addressed to the applicant's Member of Congress, dated 2 April 2013  
* Enclosure 14 – a letter from the applicant's Member of Congress to the applicant's wife, with an attached letter from NGB to the Congressman, dated 9 May 2013, explaining the applicant's situation 
* Enclosure 15 – a memorandum issued by NGB, dated 4 June 2013, subject:  Second Round of the FY13 Title 10 AGR SGM Promotion Board Results 
* Enclosure 16 – a memorandum issued by NGB, dated 18 September 2013, subject:  Third Round of the FY13 Title 10 AGR SGM Promotion Board Results 
* Enclosures 17 and 18 – letters to the applicant's Member of Congress from the applicant's wife, each dated 10 October 2013
* Enclosure 19 – a memorandum from the applicant addressed to his Member of Congress, dated 22 October 2013, subject: Denial of Promotion
* Enclosure 20 – a letter from the applicant's Member of Congress, dated
6 November 2013
* Enclosure 21 – a document entitled "Timeline," dated 18 March 2014
* Enclosure 22 – a two-page letter from the applicant's wife to the applicant's Member of Congress, dated 10 April 2014
* Enclosure 23 – a letter from the applicant's Member of Congress to the applicant with an attachment, which is a letter from the Office of the IG, dated 26 March 2014, explaining the outcome of IG's investigation into the applicant's complaint
* Enclosure 24 – a one-page email
* Enclosures 25 and 26 – two Tables of Distribution and Allowances (TDA) for UIC: W39LAA, dated October 2012 and October 2013
* Enclosure 27 – documents with a list of personnel in MOS 79T
* Enclosure 28 – a 140-page document sent to the applicant in response to his Freedom of Information Act (FOIA) request, dated 12 November 2014, consisting of testimony from two previous IG cases 
 
CONSIDERATION OF EVIDENCE:

1.  Following prior service in the Regular Army and U.S. Army Reserve, the applicant enlisted in the New Jersey Army National Guard (NJARNG) on           11 March 1981.  

2.  Upon entry in the NJARNG, he held MOS 11B (Infantryman), and on or about November 1997, he was awarded MOS 79T as his primary MOS.  He was promoted to the rank/grade of MSG/E-8 on 1 April 2006.

3.  His record contains a DA Form 1059 (Service School Academic Evaluation Report), dated 24 May 2011, which shows he successfully completed the Sergeants Major Course on 24 May 2011.

4.  Orders 88-23, issued by the NGB on 29 March 2013, ordered his continuation on active duty in an AGR status, and with the consent of the Governor of the State of New Jersey, ordered him to report to the Human Capital Management Division at the NGB Headquarters in Arlington, Virginia.  He was assigned for the purpose of serving as the "Request OPS NCO" in UIC W39LAA/Para 596/Ln08.  This position, as listed on the TDA he provided, is authorized a MSG/E-8, 79T.  The stated period of service was for 2 years, 2 months, and 16 days, establishing this period as 1 April 2013 to 16 June 2015.  

5.  Memoranda issued by NGB on 17 January 2012 and 15 May 2012, subject:  Release of the FY12 Title 10 AGR SGM Promotion Board Order of Merit List, shows the applicant had an overall sequence number of 11 on the board ranking order, and number 3 within his career field.  

6.  The applicant submitted an IG request on 8 August 2012, requesting their assistance in addressing the following two specific actions:

* investigate why there have been no promotions (E-8 to E-9) for the 79T career field, when justified vacant billets exist
* explain how the Chief of Staff, ARNG can justify personnel reductions based off of a projected TDA (FY14) 2 years in the future

7.  A memorandum issued by NGB on 14 February 2013, subject:  FY13 Title   10 AGR SGM Promotion Board Results, shows the applicant had an overall sequence number of 66 on the board ranking order, and number 29 within his career field.  

8.  Orders 336-30, issued by NGB on 2 December 2013, released him from active duty in the rank/grade of MSG/E-8 effective 31 August 2014, at the conclusion of 38 years, 7 months, and 26 days of total service for pay.  He was transferred to the U.S. Army Reserve Control Group (Retired) and placed on the Retired List on 1 September 2014, in the rank/grade of MSG/E-8.  

9.  A review of his record does not show any promotion orders to SGM.

10.  He provides a self-authored letter to the IG, dated 20 February 2013, in which he filed a complaint based on the results of the SGM promotion board for FY12 and FY13.  In this letter, the applicant stated the following:

     a.  He was listed as number 3 in his career field list and was notified that he had been selected for promotion to SGM and was being placed in the position of recruiting Operations Branch SGM in the ARNG Strength Maintenance Division. 

     b.  He received orders showing he was being assigned to a MSG position.  He was told that the SGM position was on hold pending an Army Manpower Study.

     c.  The Chief of Staff, ARNG and Chief, Human Capital Management (HCM) decided to freeze the board results, after three Soldiers had already been promoted.  The decision was made that no more promotions were going to be made off the FY12 SGM promotion list, and that he and others would have to re-compete for selection by the FY13 promotion board.  

     d.  He submitted an IG complaint on 8 August 2012, asking for an explanation as to why the boards results were frozen.  He asked how they could announce a new board for FY13 while an investigation into FY12 was on-going.  Despite this IG complaint, he complied and submitted a new packet for the FY13 promotion board. 

     e.  The FY13 SGM Promotion Selection Board results were released and he fell from number 3 to number 29 within his career field.  He has concerns that his IG complaint reflected negatively on him during this board.  

     f.  He requested a formal investigation to look into how the ARNG Title 10 boards are managed and conducted.  He stated it is not the first time results have been skewed and Soldiers go from the top to the bottom of a list.  He has lots of experience, is loyal and wants to get the proper respect he deserves.
11.  The applicant submitted another IG request on 26 March 2013, requesting their assistance in addressing the following specific actions:

* investigate why there was such a large discrepancy in criteria for promotion lists FY12 vs FY13 
* explain how the Chief of Staff, ARNG could justify personnel reductions based off of a projected TDA (FY14) 2 years in the future
* investigate the lack of consistency from the former NGB-HCM Division Chief and the former ARNG Chief of Staff
* investigate the absence of transparency on promotion lists or available vacancies
* investigate the deliberate attempt by the former ARNG Chief of Staff and HCM Division Chief to disable or disband the enlisted corps at NGB
* explain how the leadership is trying to justify personnel reduction now, by using a projected TDA for FY14
* investigate discrimination against him because of age (56 years old)
* investigate discrimination against him due to his permanent profile
* investigate internal corruption at NGB when charging and conducting promotion boards at all levels

12.  The applicant provides a letter, dated 27 March 2013, authored by his wife to his Member of Congress, which requested his assistance for the same reasons he addressed in his IG complaints.  

13.  On 14 May 2013, his Member of Congress enclosed a response he received from the NGB to the inquiry made by the applicant's wife.  In a letter dated 3 May 2013, the NGB responded to the congressional inquiry by stating the following:

     a.  The ARNG-HCM advises an assignment, in itself, neither constitutes a promotion in the ARNG nor entitles a Soldier to such.  The assignment process and the promotion process are two very different activities.  

     b.  Assignments are a routine function of personnel management with the goal of apportioning the right personnel to the right duty positon at the right time in order to meet the needs of the organization.  Promotions are the result of the enlisted promotion system, which is governed by Army Regulation 600-8-19 (Enlisted Promotions and Reductions), Chapter 7.  Per this regulation, a Soldier must meet the following conditions in order to be promoted: 

         (1)  The Soldier must be eligible.

         (2)  There must be a valid, vacant position to assign the Soldier against.

         (3)  For AGR Soldiers, there must be an available AGR controlled grade authorization.
          
         (4)  The Soldier must place high enough on the Enlisted Promotion List (EPL).
          
         (5)  The Soldier must be administratively available. 

     c.  The ARNG is limited by law in the number of Soldiers in the grade of SGM/E-9 that it may have in the AGR program.  Unfortunately, the ARNG is not resourced to fill all validated AGR requirements.  The NGB's share of the ARNG's overall E-9 controlled grade allocation is 100 authorizations, against a total of 119 positions coded for ARNG E-9 Soldiers on TDA for commands worldwide – a shortfall of 19 authorizations.  As a result, at any given time there are SGM positions filled under grade by MSGs.

     d.  In this particular case, the applicant competed for promotion.  He was administratively available for the assignment and he was assigned to a valid and vacant position of the higher grade.  However, there were insufficient AGR authorizations in the grade of E-9 to support promoting him.  The finite number of E-9 AGR authorizations available was allocated to support promotion of Soldiers serving in higher priority positions and specialties.  In fact, even if additional E-9 AGR authorizations had been available or had the applicant's position and specialty been high enough in priority to warrant allocation of additional E-9 AGR controlled grades, there is still no guarantee he would have been promoted, because he ranked third on the EPL for his specialty.  Thus, in order for him to be promoted, his career field would have had to receive at least three E-9 control grade authorizations.  

     e.  In summary, for AGR Soldiers, assignment to a higher-graded position does not, in and of itself, entitle a Soldier to a promotion.  Rather, promotion is a function of a Soldier's ranking on the EPL and the availability of AGR controlled grade authorizations, as well as his or her assignment to a position of the higher grade.  

14.  Memoranda issued by the NGB, dated 4 June 2013, subject: Second Round of the FY13 Title 10 AGR SGM Promotion Board Results, and 18 September 2013, subject: Third Round of the FY13 Title 10 AGR SGM Promotion Board Results, list the applicant with an overall sequence number of 68 on the board ranking order and number 29 in his career field. 

15.  The applicant provides two letters dated 10 October 2013 and 22 October 2013, wherein he and his wife requested assistance in being denied a promotion and alleged the promotion boards were mismanaged and improperly conducted. 

16.  On 15 April 2014, his Member of Congress enclosed a response he received from the Department of the Army, Office of the IG, to the applicant's request for assistance.  In a letter dated 26 March 2014, the IG's response to the applicant's Member of Congress stated the following:  

     a.  After conducting an investigation into the NGB enlisted promotion and slating process, the NGB IG identified several process issues and has made recommendations to correct those.  The NGB has implemented changes to personnel and policy that have improved the promotion process; however, there is not a means in the NGB system to appeal board results.  

     b.  The applicant's available means of redress is to submit an application to the Army Board of Correction of Military Records (ABCMR), requesting reconsideration of his promotion.  If the ABCMR determines that an error on the part of the ARNG prevented his promotion, he can request the Army Grade Determination Review Board review his case upon retirement and adjust his rank accordingly.  

17.  In the processing of this case, the Army IG records pertaining to the applicant's inquiry were obtained on 16 January 2015.  The records contain two parts:  the first part addressed his complaint to his Member of Congress requesting a formal investigation into the FY12 and FY13 SGM promotion boards being mismanaged and not conducted properly, and the second part addressed his complaint that there were no promotions for the 79T career field, despite vacancies, and the personnel reductions were based on a FY14 projected TDA.

     a.  The first part was addressed by the Department of the Army, Office of the IG letter that was previously discussed in paragraph 15 above.  

     b.  The IG investigation determined that the applicant's complaint regarding the lack of promotions in the 79T career field, because of personnel reductions based on an FY14 projected TDA, was unfounded. The basis of the outcome was:

          (1)  NCO promotions are governed by Army Regulation 600-8-19, 
Chapter 7, which is very prescriptive on how NCO promotions are executed.   The NGB's only flexibility is where to allocate their controlled grades; whether to fill vacancies by promotion, lateral appointment, or new hire; and whether to execute promotions at all. 
          (2)  In such a restrictive scheme, minimizing the number of NCO promotions executed pending a TDA change is a reasonable course of action, and is not barred by law, policy, or regulation.     

18.  In addition to the documents already listed and discussed, the applicant provided these additional documents with his application:

     a.   A printout of 79T Soldiers with the hand-written title of "FY12 Losses."  The significance of this document in unclear.

     b.  Two TDA printouts for UIC W39LAA, effective 5 October 2012 and            2 October 2013, which list the authorized positions for the unit he was assigned to. 

     c.  A 140-page document comprising of testimony of two IG cases, provided to the applicant in response to his FOIA request of 12 November 2014.  It is assumed that this is the evidence and testimony conducted by the NGB IG's office in response to the applicant's inquiries.

19.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.  

	a.  Chapter 7 contains enlisted promotion and reduction policy for ARNG personnel.  It states, in pertinent part, that the enlisted promotion system is designed to help fill authorized enlisted vacancies in the NCO grades with the best qualified Soldiers who have demonstrated the potential to serve at the next higher grade.  It further stipulates that the State Adjutant General is the convening and promotion authority for all promotion boards from SGT through SGM.

b.  Paragraph 7-20 contains the criteria for promotion of ARNG Soldiers to the 
grades of SGT through SGM.  It states, in pertinent part, all Soldiers must go through the board process before they may be selected and promoted.  

   c.  Paragraph 7-22 of the same regulation contains guidance on promotion actions and states, in pertinent part, that Soldiers may be promoted into vacant positions on the basis of selection by a promotion board and placement in the selection objective of a promotion list.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been promoted to SGM was carefully considered.  
2.  He contends he was in a vacant SGM position and was selected for promotion to SGM; as such, he should have been promoted.  However, his last set of assignment orders, Orders 88-23, issued by the NGB on 29 March 2013, assigned him to the "Request OPS NCO" in UIC W39LAA/Para 596/Ln08.  This position, as listed in the TDA he provided, is authorized for a MSG/E-8, 79T.  

3.  By regulation, promotion to SGM in the ARNG Title10 Program is within the purview of the Director, ARNG.  Promotions are designed to help fill authorized enlisted vacancies in the NCO grades with the best qualified Soldiers and Soldiers may be promoted into vacant positions on the basis of selection by a promotion board and placement in the selection objective of a promotion list (emphasis added).

4.  After inquiries and investigations by the IG's office into the NGB's promotion process and the applicants contentions, it was determined that because of his ranking on the selection list and the availability of AGR controlled grade authorizations, his career field was not allocated enough controlled grade authorizations to warrant his promotion to SGM.  

5.  The ARNG decision to allocate authorizations based on a future TDA document was a management decision to shape its force and not prohibited by law, policy, and or regulation.  

6.  Barring any additional evidence, there seems to be no error on the part of the ARNG.    

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)                                         AR20100021660



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ABCMR Record of Proceedings (cont)                                         AR20140020620



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