BOARD DATE:	  14 July 2015

		DOCKET NUMBER:  AR20150001572 


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 consideration for promotion to the rank of sergeant major (SGM).

2.  The applicant states:

   a.  She was denied an extension of her retention control point (RCP) from 30 June 2015 to 30 June 2018.  The "unsolicited" RCP change provided her the ability to attain 32 years of active Federal service (AFS) as a U.S. Army Sergeants Major Academy (USASMA) non-resident Sergeants Major Course (SMC) graduate with immediate eligibility for the next higher grade, if selected, in accordance with Military Personnel (MILPER) Message Number 11-096.  She was grandfathered for promotion consideration purposes.  She was advised that this would apply to all SMC graduates prior to the U.S. Army Human Resources Command's (HRC) completion of the RCP change.

	b.  She was denied promotion consideration for SGM and a Standby Advisory Board (STAB) for the Fiscal Year (FY) 2011 and FY12 selection boards based on the basic active service date (BASD) eligibility criteria for consideration for SMC attendance and no BASD eligibility criteria for SMC graduates who would not require the nearly 2 years to acquire a promotion sequence number upon satisfactory progression/completion of the SMC.

	c.  She requests approval for extension of her RCP from 30 June 2015 to 30 June 2018 and promotion consideration to SGM by virtue of STABs under the FY11, FY12, and FY13 criteria based on regulatory guidance and the substantiated information noted.  She met the promotion eligibility criteria for SGM as an SMC graduate.  The criteria for graduates who could be assigned a promotion sequence number upon selection and non-graduates who obtained a promotion sequence number nearly 2 years later are not the same.

	d.  She should have been granted a STAB and a change in her RCP from 30 June 2015 to 30 June 2018.  If her request for promotion consideration to SGM by a STAB is approved and she is selected for promotion, she requests an adjustment of her date of rank (DOR) and RCP with retroactive pay and allowances.

	e.  She believes enlisted personnel policy integrators failed to address all the issues that could arise for remaining SMC graduates as force stabilizers based on changes initiated in support of the current select-train-promote methodology.  The inconsistency in eligibility criteria for promotion to SGM under the new enlisted promotion policies has not only affected her, but it has also affected other eligible SMC graduates.

	f.  She requests a review of the denials for her promotion consideration and an exception to the RCP change as an SMC graduate with remaining time to complete the current service obligation of 3 years and 32 years of AFS prior to reaching age 62 without a request for extension.  She was omitted from the FY11 and FY12 SGM promotion consideration lists and denied promotion consideration by the FY13 U.S. Army Reserve (USAR) Active Guard Reserve (AGR) SGM Selection and Training Board due to BASD eligibility.  The required military education for promotion to SGM was completed and she was not 57 years of age prior to the FY13 board.

	g.  While deployed to Iraq from January to December 2011, she received an RCP change notification from HRC which states, "This message has been sent to you because you have been identified as being within 12 months of 20 years [of] Active Federal Service (AFS)."  She believes the incorrect RCP had a huge effect on her eligibility to be considered by the FY11 SGM promotion board based on incorrect data of her pending separation.  She made attempts to rectify data errors while she was deployed, but she was unsuccessful.  HRC later discovered her RCP had not been changed as per the new regulatory guidance announced while she was deployed, but her promotion board file was reviewed.

	h.  When the FY12 USAR AGR SGM Selection and Training Board results were released in July 2012, her name was omitted from the original consideration/selection list.  The omission identified her for a STAB.  She contacted HRC about the omission and was told the new list was pending.  She continued to prepare a STAB memorandum.  A corrected list was released to the field reflecting her name as if she had been considered for promotion.  Other adjustments were made, including the addition of a military occupational specialty 42A sequence number.  The statistical data did not match the original list; however, once the adjustment was made and the second list was released the statistical data did match.  Due to complete opposite occurrences in FY11 and FY12, both FYs do not appear to have been considered.

	i.  After a review of the eligibility criteria for promotion to SGM, it appears those who completed the SMC prior to RCP and eligibility criteria changes were not addressed in Military Personnel (MILPER) Message Number 13-037 (FY13 USAR AGR SGM Training and Selection Board Announcement Message) for the FY13 USAR AGR SGM Selection and Training Board.

	j.  She made telephonic contacts in May 2013 to the HRC Enlisted Promotion Branch and an official agreed that there was an issue regarding the MILPER message pertaining to SMC graduates.  She was referred to a supervisor, but he was indifferent.  He disagreed and stated there was no issue with the MILPER message and she was not eligible for STAB consideration.  He abruptly stated that was the end of the conversation and hung up.

	k.  She requested a STAB under the FY13 criteria only to be denied because she was not considered/not selected by the FY13 or FY14 USAR AGR SGM Selection and Training Boards.  Soldiers must meet the announced BASD eligibility criteria.  She completed the required education for promotion to SGM and was not age 57 prior to the convening date of the board.

	l.  The reason given for disapproval of her request for a STAB by HRC is not justified because the MILPER message only addressed those master sergeants (MSGs) for SMC attendance consideration and failed to address those MSGs who had already attended and graduated from the SMC.  She is an SMC graduate which is why this paragraph of the MILPER message does not apply to her.  The message failed to outline eligibility for MSGs who were SMC graduates.

	m.  She received a response from HRC stating there were no differences in the eligibility criteria for graduates and non-graduates.  However, training for MSGs selected for the SMC starts nearly a year after being selected.  They are frocked a year later upon successful completion of the SMC, assigned a promotion sequence number, and promoted within 12 months following SMC graduation as per HRC guidance.  SMC graduates are assigned promotion sequence numbers upon selection for promotion to SGM.  This criterion alone categorizes the difference between SMC graduates and SMC non-graduates; there is historical data noted in the FY09 USAR AGR SGM Selection and Training Board which breaks out these two criteria.  This demonstrates a significant difference in the eligibility criteria for SMC graduates and non-graduates.

	n.  The FY12 promotion list indicates the opposite of the FY11 with the release of the original consideration list posted as having not been considered and after an inquiry and release of a corrected list, posted with her name noted as having been considered.  In addition, the original list was missing assignment of a second sequence number with the corrected list release with a sequence number assigned to a Soldier with MOS 42A as a secondary MOS when supposedly 115 Soldiers with primary MOS 42A were considered.

	o.  She was denied the opportunity to request consideration by a STAB due to the fact that her board file had been reviewed.  She was provided this response for both FY11 and FY12 and no board file for FY13 due to her BASD, even though the announced BASD was noted for those "for consideration" to attend the SMC for the purpose of promotion to SGM, but this was an issue no one wanted to address.  Even the Inspector General indicated she was getting the runaround while inquiring into this issue, but finally returned with a response stating there was no difference in the BASD criteria even though non-graduates of the SMC have to wait almost 2 years to receive a promotion sequence number whereas a graduate receives a promotion sequence number upon selection for promotion to SGM.

3.  The applicant provides:

* documentation pertaining to her RCP
* FY12 USAR AGR SGM Training and Selection List
* MILPER Message Number 13-037
* request for STAB
* Enlisted Record Brief
* STAB denial letter
* email
* MILPER Message Number 09-046 (FY09 USAR AGR SGM Training and Selection Board and Troop Program Unit/Individual Mobilization Augmentee CSM Selection)
* official photograph

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 9 September 1956.  She enlisted in the USAR on 1 October 1982.  She was ordered to active duty in an AGR status on 6 October 1986.  She was promoted to MSG effective 1 June 2004.  She deployed to Iraq in 2011.

2.  The FY11 USAR AGR SGM Selection and Training Board list shows she was considered but not selected for promotion to SGM.

3.  On 30 April 2014, she requested consideration for selection for promotion to SGM by a STAB during the FY14 USAR AGR SGM Selection and Training Board.  She stated:

	a.  She believed a material error occurred when her promotion board file was omitted for review and consideration for selection by the FY13 USAR AGR SGM Training and Selection Board.

	b.  She believed this inaccuracy and omission did not provide her the due diligence of consideration and selection by the FY13 promotion board panel.

	c.  She further believed the omission failed to allow the promotion board panel members the opportunity to make an adequate assessment of her qualifications for selection and promotion to SGM.

	d.  In her view, the promotion board consideration file was not properly constituted based on the omission of appropriate eligibility criteria guidance for Soldiers who were graduates of the SMC as stated in the FY13 promotion board MILPER Message Number 13-037.  As a graduate of USASMA, she will have sufficient time in service remaining to complete the required service obligation by her 32nd year of AFS and will not have reached the maximum age of 62 for continued AFS.  Her BASD is 30 June 2004 and her age at the time the FY13 USAR AGR SGM Selection and Training Board convened was 56.

	e.  She requested establishment of a board file based on the error in excluding guidance criteria for SMC graduates, but the request was denied.  However, the recent FY14 MILPER Message Number 14-056 does provide guidance criteria for Soldiers who are graduates of the SMC.  This message states SMC graduates who are selected as best qualified will be grandfathered and will be awarded promotion sequence numbers.

4.  She provided a memorandum from her commanding officer, dated 14 May 2014, supporting her request for a STAB during the FY14 USAR AGR SGM Selection and Training Board.  She states a promotion board consideration file was not available for her review and eligibility criteria for SMC graduates was omitted from the FY13 USAR AGR SGM Selection and Training Board guidance due to no fault of the applicant.

5.  On 29 August 2014, her request for a STAB was disapproved by HRC.  The HRC memorandum states:

	a.  Records available to this office indicate the applicant was not considered/
not selected by the FY13 and FY14 USAR AGR SGM Selection and Training Boards.

	b.  In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 4-2a(1), Soldiers must meet the announced BASD eligibility criteria prescribed by HRC.

6.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Department of the Army Promotions Branch, HRC.  HRC recommends disapproval of the applicant's request.  The opinion noted:

	a.  The applicant's request for due process review and promotion consideration to the rank of SGM is unsubstantiated.

	b.  The applicant claims she was denied promotion consideration and STAB to SGM for the FY11, FY12, and FY13 USAR AGR SGM Selection and Training Boards.  Upon review of the FY11 USAR AGR SGM Selection and Training Board list, it indicates the applicant, an SMC graduate, was considered but not selected for promotion.  Soldiers who are recommended for promotion have a sequence number next to their names on the promotion list.

	c.  The applicant also contends she was denied STAB consideration for the FY12 and FY13 USAR AGR SGM Selection and Training Boards.  Her request for a STAB was disapproved due to not meeting the eligibility criteria in the appropriate MILPER messages.  For the FY12 USAR AGR SGM Selection and Training Board, she did not meet the date of birth (DOB) criteria listed in MILPER Message 12-059.  For the FY13 USAR AGR SGM Selection and Training Board, she did not meet the DOB or the BASD requirements listed in MILPER Message 13-037.

	d.  Soldiers who request STAB consideration must meet the eligibility criteria for the applicable board; there are no exceptions for DOB and BASD.  There is no provision in either MILPER message which separates SMC graduates from non-graduates in regard to eligibility criteria.

	e.  The applicant's RCP was updated on 20 May 2014 in accordance with Department of the Army policy in effect at the time.  That policy did not provide guidance for SMC graduates as written in previous messages.  That said, according to current policy, the applicant is authorized to remain on active duty for 32 years from her BASD which calculates to a new release from active duty date of 30 June 2018.  This date has been updated in all of the HRC personnel management systems.

7.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 7 April 2015, she responded and stated:

	a.  She disagrees with the advisory opinion and reiterates her contentions explained in her application.

	b.  In FY11, there were two FY11 USAR AGR SGM Selection and Training Board result lists – an original list and a corrected list.  Her name did not appear on the corrected list.  She did not realize an update to her Enlisted Record Brief was based on new RCP guidance for MSGs and not based on the fact that she was an SMC graduate.  She inquired with HRC as to consideration by a STAB due to the elimination of her name from the corrected FY11 USAR AGR SGM Selection and Training Board list as a result of the RCP error and notification.  She was informed that her promotion board file was reviewed and a STAB request would be disapproved since her name was on the original board list and her board file had been seen whether she agreed or not.

	c.  She was also advised of a similar fate when the opposite occurred in FY12.  She believes her incorrect RCP (30 June 2012) would have had a tremendous effect on the determination of her eligibility criteria for the FY11 USAR AGR SGM Selection and Training Board.  She also believes her board file was not reviewed for possible selection to SGM.  An RCP within 12 months of the FY11 USAR AGR SGM Selection and Training Board may have caused her file to be bypassed for review or created a biased opinion by board members who would have understood she would not have had the required obligated 3 years of time in service if selected to SGM.  Moreover, the policy noted in MILPER Message 11-031 would not allow promotion board officials to view her board file.  It is her belief that her board file was disregarded and put aside based on the selection guidance in MILPER Message 11-031.

	d.  In FY12, there were two selection lists for FY12 USAR AGR SGM Selection and Training Board results.  Her name was omitted from the FY12 list.  She immediately contacted HRC and was informed that MILPER Message 
12-229 had been posted to the HRC website notifying the field that the FY12 USAR AGR SGM Selection and Training Board list was being pulled from the HRC site due to errors and no requests for a STAB would be approved due to the notification.  A corrected FY12 USAR AGR SGM Selection and Training Board list was later released.  The second sequence number for the two Soldiers selected for promotion in MOS 42A was not annotated.  She hoped she was the only Soldier in MOS 42A who was omitted from the list and the missing sequence number was hers.  Unfortunately, the missing sequence number was annotated next to a Soldier with MOS 42A as a secondary MOS.

	e.  Based on HRC officials indicating she did not have a board file considered by the FY12 USAR AGR SGM Selection and Training Board, she is attaching a screenshot of her HRC records indicating a history of two previous board files – one in FY08 in which she was selected for the non-resident SMC and one in FY12 where she perceived she may have been selected for SGM and her name and sequence number were erroneously missing from the selection list.

	f.  The enclosed extract of the policy and eligibility criteria guidance found in FY12 USAR AGR SGM MILPER Message 12-059 does not indicate she was not eligible for selection.  The criterion noted in MILPER Message 12-059 regarding the DOB is noted for SMC consideration for the purpose of promotion to SGM for those who are non-graduates.

	g.  Army Regulation  600-8-19, paragraph 4-2a, states Soldiers must meet announced DOR, not DOB and BASD.  Paragraph 4-2d does address age in regard to individuals with and without the appropriate level of military education for the next higher grade, graduates versus non-graduates.  As an SMC graduate, she possesses the appropriate level of military education for selection and had not reached age 57 for the next higher grade of SGM prior to the convening date of the FY11 USAR AGR SGM Selection and Training Board.  Moreover, she could have met the 3-year service obligation prior to reaching age 62.

	h.  In FY12, she was denied an opportunity for promotion consideration before the FY13 USAR AGR SGM Selection and Training Board.  She was informed she did not meet the eligibility criteria for consideration for selection to SGM, another issue for the third consecutive year.  The policy and selection criteria found in MILPER Message 13-037 are nearly identical to MILPER Message 12-059 and without regard to requirements for SMC graduates.

	i.  An SMC non-graduate does not receive a sequence number for promotion upon selection.  That is significant justification to categorize the difference in eligibility criteria between SMC graduates and non-graduates.

	j  There is no need for a waiver for BASD or DOB for something that was never provided for SMC graduates and there should not be a need for a waiver for requirements which could be met.

	k.  She provided evidence that substantiates she should be granted approval for consideration by an enlisted promotion board and selection for SGM.  She has demonstrated the existence of a probable error and injustice and provided sufficient evidence that denial of a review of her promotion board file, unjust omission of a promotion board file, and denial of a STAB were in error and unjust.

8.  Army Regulation 600-8-19, chapter 4 (Centralized Promotions (Sergeant First Class, MSG, and SGM)), paragraph 4-2a(1), states Soldiers must meet announced DOR and BASD requirements and other eligibility criteria prescribed within the board announcement message.

9.  MILPER Message Number 12-059 (FY12 USAR AGR SGM Training and Selection Board Announcement Message) states the eligibility criteria for SMC consideration for the purpose of promotion to SGM included:

* all USAR AGR MSGs/first sergeants with a DOR of 31 May 2010 and earlier
* PEBD of 31 May 2002 or earlier
* BASD of 31 May 1986 or later
* DOB of 31 May 1956 or later

10.  This message states the primary zone DOR is 8 June 2009 and earlier.  The secondary zone DOR is 9 June 2009 through 31 May 2010.

11.  MILPER Message Number 13-037 states the eligibility criteria for SMC consideration for the purpose of promotion to SGM included:

* all USAR AGR MSGs/first sergeants with a DOR of 4 June 2011 and earlier
* PEBD of 4 June 2003 and earlier
* BASD of 4 June 1987 or later
* DOB of 4 June 1957 or later

12.  This message states the primary zone DOR is 31 May 2010 and earlier.  The secondary zone DOR is 1 June 2010 through 4 June 2011.  There are no exceptions for BASD, DOR, and DOB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she met the promotion eligibility criteria for SGM as an SMC graduate.

2.  She claims she was denied promotion consideration and a STAB to SGM for the FY11, FY12, and FY13 USAR AGR SGM Selection and Training Boards.  However, records show she was considered but not selected for promotion by the FY11 USAR AGR SGM Selection and Training Board.

3.  Her contention the MILPER messages addressed MSGs for SMC consideration only and failed to address those MSGs who had already attended and graduated from the SMC was noted.  However, there is no provision in either MILPER messages which separates SMC graduates from non-graduates in regard to eligibility criteria.

4.  She also contends she was denied STAB consideration for the FY12 and FY13 USAR AGR SGM Selection and Training Boards.  Records show her request for a STAB was disapproved due to not meeting the eligibility criteria in the appropriate MILPER messages.  For the FY12 USAR AGR SGM Selection and Training Board, she did not meet the DOB criterion listed in MILPER Message 12-059.  For the FY13 USAR AGR SGM Selection and Training Board, she did not meet the DOB or BASD criteria listed in MILPER Message 13-037.  Soldiers who request STAB consideration must meet the eligibility criteria and there are no exceptions for DOB and BASD.

5.  Records show her RCP was updated on 20 May 2014 in accordance with Department of the Army policy in effect at the time.  That policy did not provide guidance for SMC graduates as written in previous messages.  According to current policy, the applicant is eligible to remain on active duty for a total of 32 years from her BASD which calculates her new release from active duty date as 30 June 2018.  This date has been updated in all of the HRC personnel systems.

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 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)                                         AR20150001572



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ABCMR Record of Proceedings (cont)                                         AR20150001572



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