IN THE CASE OF:	  

		BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20140021347 


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, in effect, correction of his records to show he was promoted to sergeant major (SGM)/E-9 and appointed as a command sergeant major (CSM)/E-9 in the U.S. Army Reserve (USAR). 

2.  The applicant states that:

   a.  He was denied promotion to the grade of E-9 due to his age of 55 during the period of the promotion boards for January and July 2009.  He was 54 years old when the promotion packet was submitted, and he would have turned 55 by the date of the announcement of the promotion list.

	b.  The promotion packet was resubmitted with a waiver request for the age requirement.  This packet was denied because the age waiver was not submitted through the chain of command.

	c.  During this time, he was assigned to duty as the Battalion CSM and he received a noncommissioned officer evaluation report (NCOER) for that duty.  Based on that assignment and the waiver request along with a recommendation from the Brigade CSM, he should have a date of rank as an E-9 of March 2010. 

	d.  The age restriction is unconstitutional by every standard of an American Soldier, as stated in the Age Discrimination in Employment Act of 1967.  This regulation is also outdated based on the fact that a Reserve Soldier is deployable up to age 60 for any tour of duty, but is not qualified to attend the Sergeant Major Course.  A Soldier is expected to be able to perform up to the age of 60 and, with a waiver, the age of 62. 

	e.  He graduated from Special Forces Selection and Assessment in 1990 at the age of 35 and he graduated from Drill Sergeant School on 2002 at the age of 47.  Age has never affected his ability to perform as expected in any of his duty positions. 

	f.  He offers three options for correction of his records:

		(1)  Issue orders promoting him to CSM based on his assignment as the Battalion CSM with a DOR of 1 March 2010.  Reflect his retirement as a 
CSM/E-9 effective 31 July 2014.  He does not request back pay for the period 2010 through 2014.

		(2)  Issue orders promoting him to SGM based on his assignment as the Battalion CSM with a DOR of 1 March 2010 and reassign him to the Individual Ready Reserve (IRR) for the purpose of completing the SGM Correspondence Course.  He will then have the time to complete the course before turning age 60, and in turn, amend his retirement to reflect CSM/E-9 effective 31 July 2014.

		(3)  Issue orders promoting him to SGM with a DOR of 1 March 2010, with no request for back-pay for the period 2010 through 2014.  Reflect his retired rank as SGM/E-9 effective 31 July 2014. 

3.  The applicant provides:

* His letter to CSM C_____, Office of the Chief, Army Reserve (OCAR)
* Email notes on his age waiver for promotion consideration
* Senior Promotion Packet documents
* 1st Brigade, 98th Division, memorandum, subject:  Request for Exception to Policy for Age for Promotion Consideration, dated 11 January 2010
* Copies of documents from his military personnel record including Noncommissioned Officer Evaluation Reports (NCOER) and awards 

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 31 July 1954. He enlisted in the USAR in 15 May 1972.  He served multiple reenlistments and multiple periods of active duty.  He was promoted to master sergeant (MSG)/E-8 effective 22 March 2006.  

2.  Orders show he was placed on the retired list as a first sergeant (1SG)/E-8 effective 31 July 2014.
3.  In support of his request he provides:

	a.  Correspondence he sent to CSM C_____, OCAR, in which he expressed his concern that he is being held back from attendance at the Sergeant Major Course and promotion due to age discrimination.  He also indicates he had submitted his packets for attendance at the Sergeant Major Course (SMC) in 2006, 2007 and 2008.  He was not selected.  He submitted his packet for promotion to SGM in 2009 and had not heard any news on it.    

	b.  Email relating to the processing of his request for waiver of the age requirement for promotion. The email shows the applicant had exceeded the maximum age requirements for consideration for promotion as he was over 55 and he had not completed the appropriate level of the Noncommissioned Officer Education System (NCOES) (the SMC).  Additionally, the request for age waiver had not been submitted through the chain of command.

	c. A 14 January 2010 memorandum, with enclosures, in which his Brigade Commander requested the applicant be granted an exception to policy for age to allow him to be considered for promotion to SGM.   The memorandum was addressed through the Commander, USAR Command (USARC), to the Director of Military Personnel Management, Deputy Chief of Staff, G-1, Washington, DC. 

	d. Military personnel records including DA Form 705 (Army Physical Fitness Test Scorecard), MSG promotion orders, statement of Height/Weight/Security, Cambridge International University Official Academic Transcript, NCOERs for 1 April 2006 through 1 November 2009,  Service School Academic Report, and award certificates. 

4.  In the processing of this case, an advisory opinion was received from the Chief, Personnel Management Division, USARC, on 1 April 2015.  The opining official recommended disapproval of the applicant's request and stated:

	a. In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), dated 30 April 2010, rapid action revision, dated 2 December 2011, Soldiers must meet all eligibility criteria as of the convening date of the promotions board.  Paragraph 5-32 contains all eligibility criteria.  This paragraph indicates all Soldiers must obtain a passing score of the APFT within 12 months of the date of the board.  Additional requirements indicate Soldiers who reach age 55 without NCOES Course completion for the next higher grade or age 57 with NCOES completed for the next higher grade prior to the convening date of the board are ineligible for consideration.  The required NCOES for SGM is the SMC.
	b.  Records indicate the applicant passed a record APFT on 1 May 2006 and there is no record of a subsequent record APFT until July 2009.  On 31 July 2009 he turned 55 and had not completed the SMC.  As a result of the APFT and age requirements, he was only eligible for promotion consideration from 1 July to 
30 July 2009.  During that time the USAR did not conduct a Senior Enlisted Promotion Board; therefore no promotion is authorized.

5.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 15 April 2015, the applicant provided the following rebuttal:

	a.  The advisory official indicated the referenced regulation was 
AR 600-8-19, dated 30 April 2010, with rapid action revision, dated 2 December 2011.  The regulation version that should have been referenced is AR 600-08-19, dated 20 March 2008.  Furthermore, a waiver was submitted to address the requirement of being 55 years of age and was included in the promotion packet.  In the 2007 to 2010 timeframe approval from a board had to be given in order to attend the SMC, but once again because he was close to the age of 55, his promotion packet was not forwarded for review by the SMC board or the promotion board.  He indicates he has submitted copies of memoranda from division personnel stating that his packet was not forwarded to the board for review.

	b. From 1 May 2006 through February 2009, he was assigned with the U.S. Army Corps of Engineers (USACE) in New Orleans after Hurricane Katrina.  No APFTs were given for any Soldiers during that time period.  It was stated in the advisory opinion that his APFT score was only good for the period 1 July to 30 July 2009.  The 20 March 2008 version of AR 635-200 does not reference any age restrictions, only that the APFT score is only good for one year.  The USAR boards convened August 2009 and January 2010.  

	c. The advisory official's statement implies that the applicant's promotion packet, along with the APFT, was not boarded because he had not attended the SMC before turning age 55.  Neither should have been a factor since the waiver was submitted, and the regulation does not state there is an age requirement for the APFT.

	d. The applicant feels he has submitted information that reflects his packet was not properly reviewed.  The packet included a request for a waiver submitted by the Brigade Commander and the NCOER reflecting his duties as a Battalion CSM. The standard course of action has been that Soldiers who have not attended SMC were allowed to attend once selected for SGM or CSM.  To imply that a Soldier cannot attend or complete the SMC because of being age 55 should be a concern for the U.S. Army especially when there is a regulation which states that a Soldier may continue his duties to the military until age 60, or with a waiver to age 62. 

	e. He was assigned to the Battalion CSM position for a total of more than 
17 months, 9 months of which he served before turning the 55, and the remaining 8 months after turning 55.  He could have attended the SMC as long as he graduated before turning 57 and being in good standing for promotion to SGM.  Again, if his promotion packet had been allowed to go before the board, it would have been given the chance to have been reviewed and approved in order to for him to complete the SMC before age 57. 

   f. He provided pages 81-83, AR 600-8-19, dated 16 September 2009. 

   	(1)  Paragraph 5-32g (Position Vacancy) states, in part, "Assignment to a position authorized for the next higher grade is not a requirement for selection board consideration.  Further, position incumbency is not a factor that identifies the Soldier as best qualified among his or her peers.  Only promotion off the recommended list requires the existence of a position vacancy."

   (2)  Paragraph 5-32m (Age), states, "Soldiers who reach age 55 without
NCOES completion for the next higher grade or age 57 with NCOES for the next higher grade prior to the convening date of the board are ineligible for consideration.

          (3)   Paragraph 5-32p (APFT) states, "A passing score on the APFT within 12 months of the date of the board is mandatory for promotion consideration (nonwaivable)."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was promoted to SGM and appointed as a CSM in the USAR.   He was denied promotion to SGM due to his age of 55 during the period of the promotion boards for January and July 2009.  He was 54 years old when the promotion packet was submitted, and he would have turned 55 by the date of the announcement of the promotion list.  The promotion packet was resubmitted with a waiver request for the age requirement.  This packet was denied because the age waiver was not submitted through the chain of command. 

2.  The applicant was not eligible for promotion consideration as he asserts.  While it would have been more appropriate to use the version of the governing regulation provided by the applicant, the results are the same.  The governing regulation states, "Soldiers who reach age 55 without NCOES completion for the next higher grade or age 57 with NCOES for the next higher grade prior to the convening date of the board are ineligible for consideration."  Additionally, "A passing score on the APFT within 12 months of the date of the board is mandatory for promotion consideration (nonwaivable)."

3.  The applicant reached age 55 on 31 July 2009 and had not completed the SMC, which was the NCOES requirement for promotion consideration to SGM.
He also did not have an APFT record score within 12 months of the board date.

4.  The available evidence shows a request for an exception to the age waiver requirement for promotion consideration was submitted and signed in January 2012, but it was not processed because it had not been submitted through the chain of command.  The governing regulation states that the APFT record score requirement is not waivable. 

5.  Notwithstanding any argument the applicant makes about age requirements, the APFT requirement was not waivable.

6.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20150001605



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ABCMR Record of Proceedings (cont)                                         AR20140021347



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