IN THE CASE OF:	   

		BOARD DATE:	  20 March 2015

		DOCKET NUMBER:  AR20150004140 


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 reconsideration of his earlier request for promotion to staff sergeant (SSG)/E-6 effective July 1985.

2.  The applicant states this matter has been previously adjudicated by the Board on multiple occasions.  He still believes due to multiple administrative errors, he was denied a promotion to SSG/E-6.  He previously argued that he was recommended and selected for promotion to SSG/E-6 by a promotion board, but orders were never published after the drill weekend because his unit, the 550th Military Intelligence (MI) Battalion (Combat Electronic Warfare (EW) Intelligence), as a new organization, was not fully staffed with administrative personnel and the battalion's highest priority was correcting deficiencies from a previous organizational readiness evaluation and preparation for follow-up inspection.  His chain of command remembered and recognized their administrative error due to lack of manpower and failure to follow through to ensure promotion orders were published.

3.  The applicant provides:

* Correspondence with the Chief of Staff, Army
* Letter from a retired command sergeant major (CSM)
* a memorandum, dated 15 July 2009, from the Deputy Inspector General (IG)
* Previous Records of Proceedings (ROP)


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in:

* Docket Number AR2001056777, on 11 September 2001
* Docket Number AR2002020780, on 23 July 2002
* Docket Number AR2003093256, on 24 February 2004
* Docket Number AR20100020860, on 16 September 2010

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his current request was neither received within one year of the previous Board's decision and although he provides a letter from a retired CSM which he believes should rebut all the previous decisions to deny him relief, this letter is similar to a previous letter considered by the Board.  However, as a one-time exception to policy, his request will be considered by the Board to satisfy his contention that the new letter, combined with the previous letters, should rebut all the previous decisions to deny him relief. 

3.  The applicant's records show he was born in April 1939.  He turned 60 years of age in April 1999 and he was placed on the Retired List in the rank of sergeant (SGT)/E-5.

4.  After having prior service in the U.S. Air Force, he enlisted in the U.S. Army Reserve (USAR) on 23 August 1975 and held military occupational specialty (MOS) 36C (Wire Systems Installer).  He served through multiple extensions or reenlistments in the USAR and he was advanced to the rank/grade of SGT/E-5 on 13 August 1978.

5.  In August 1978, he was assigned to Detachment 1, 453rd Division Support Company (DSC) (EW), 78th Division (Training), Red Bank, NJ, as a cook in MOS 94B (Food Service Specialist).  His DA Form 2166-6 (Enlisted Evaluation Report) for the period September 1984 through August 1985 shows he served as a cook in duty MOS 94B3O (an SSG/E-6 position).

6.  On 1 August 1985, he completed a formal Reserve Component (RC) 2-week Food Service MOS Enhancement Training course (22 July 1985-1 August 1985). Additionally, on 5 July 1986, he completed the RC Noncommissioned Officers (NCO) Primary Leadership Development Course.


7.  On 15 July 1986, his immediate commander (453rd DSC (EW), Pedrickton, NJ) recommended him for promotion to SSG/E-6 by memorandum addressed to the Commander, 550th MI Battalion.  The immediate commander stated the applicant was qualified, experienced, and had met all the requirements for the grade authorized for his position.

8.  There is no indication in the applicant's available records that shows what the outcome of that recommendation was or:

	a.  if the 550th MI Battalion had the authorization to promote him to SSG/E-6; 

	b.  if the applicant appeared before the 550th MI Battalion promotion board; or 

	c.  if he appeared before a promotion board, he was recommended for promotion by the battalion promotion board, the battalion commander approved the promotion board proceedings, or the applicant's name was incorporated onto the promotion standing list.

9.  In or around July 1986, the 453rd DSC (EW) was inactivated and the 550th MI Battalion was activated.  Several members of the 453rd DSC (EW), including the applicant, were transferred to the newly-activated 550th MI Battalion.

10.  On 30 December 1986, he was reassigned from the 550th MI Battalion to the 198th Army Security Agency Detachment, Armed Forces Reserve Center, Fort Wadsworth, NY, as a SGT/E-5.  In connection with this transfer, his battalion CSM stated the following on 21 July 2008:

When the 550th MI Battalion was activated, the 453rd in Pedricktown was the nucleus and the detachment was effectively deactivated.  Members of the detachment, including [Applicant], were required to drill in Pedricktown.  There were no provisions for overnight accommodations in Pedricktown and the approximate 2-hour, one-way travel time from the Fort Hancock area to Pedricktown was a significant deterrent to regular drill attendance.  I agree that [Applicant] was fully qualified for promotion to 94B3O (E-6), and that he was occupying the unit vacancy.  His commander recommended him for promotion and a promotion package was prepared.  Unfortunately, [Applicant] was unable to drill with the battalion in Pedricktown due to the distance from his residence in North Jersey.  He transferred to a unit closer to his home prior to his consideration by the promoting authority (1175th USATTU).  Also, there may well have been administrative irregularities that I am not unaware of [sic].
11.  On 30 July 1990, he enlisted in the NJ Army National Guard for a period of 3 years in the rank/grade of SGT/E-5.  He was discharged from the NJARNG on 24 February 1992 for the purpose of enlistment in another component of the Armed Forces.

12.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed 1 year, 6 months, and 25 days of service in the ARNG.  It also shows his rank/grade as SGT/E-5 effective 13 August 1978. 

13.  On 15 March 1995, he was voluntarily transferred to the USAR Control Group (Individual Ready Reserve) and on 17 April 1999, on his 60th birthday, he was placed on the Retired List.

14.  The applicant provides a letter, dated 11 July 2014, from a retired CSM who states he was asked by the applicant to review his paperwork regarding a promotion he was denied due to numerous circumstances beyond his control.  He (the CSM) realizes the applicant's case had been reviewed by a number of experts over an extended period of time but believes the applicant should be given the benefit of the doubt and advanced to E-6.  He did not see anything punitive in his packet that would have disqualified from being promoted.  He recommends the Board give him one more look and grant him the promotion. 

15.  He previously submitted the following documents:

	a.  Several unit manning reports, dated 3 August 1985 and 15 March 1985, showing him assigned to the SSG/E-6 position.  These forms also show his unit had an administrative clerk assigned to the "Clerk Typist" position.  He also submitted various unit manning charts, dated 24 September 1984 and 15 March 1985, showing him assigned to an SSG/E-6 position.  These forms also show the 453rd DSC [shown as Army Security Agency (ASA) (Division Support)] had an administrative clerk assigned to the "Clerk Typist" position.

	b.  Unit manning report, dated 1 August 1986, showing he was assigned to a SSG/E-6 position within the Food Service Section of the 550th MI Battalion, Pedricktown.  The battalion S-1 (Personnel) section is not shown; therefore, it is unclear if this battalion had appropriate support personnel assigned.

	c.  A DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period December 1988 through November 1989.  This document shows he was assigned to Company A, 1st Battalion, 309th Infantry, 1st Brigade, 78th Division, Red Bank, NJ, in the rank/grade of SGT/E-5 as a first cook.  This NCOER shows he needed improvement in physical fitness and that he was rated as a marginal Soldier with fair overall potential.
	d.  A letter from his former company commander, who is now a retired major, states that this was the third letter of support for the applicant's promotion that he has submitted.  He further states, in effect, that he is puzzled as to why the Board cannot ascertain that an error or injustice has occurred because the applicant was recommended for promotion twice and was never formally selected for promotion, which he attributes to the considerable disruption of personnel administration at the time.

	e.  A memorandum from a former company commander, who is now a lieutenant colonel, supports the applicant's request because the applicant's former first sergeant (1SG) supports it.

	f.  A memorandum from the former 1SG contends the applicant was qualified for promotion to the pay grade of E-6 during the 1988-1989 time frame.

	g.  A letter from his former supervisor during the 1988-1990 time frame.  He asserts that he submitted recommendations for promotion of the applicant in 1988 and 1989 to the senior NCO in charge, only to find out that nothing had been done.  He adds that prior to his retirement in 1990, he inquired to the CSM as to the status of the applicant's promotion and was informed that the applicant would not be promoted and that the CSM did not want to discuss the matter.  He further states that he informed the applicant, who in turn went to the CSM and was told that he could not be promoted.  Shortly thereafter, the applicant transferred to the NJARNG.

	h.  A reconstructed DA Form 3355 (Promotion Point Worksheet) shows he reconstructed a request for re-computation of his promotion points.  The reconstructed request is signed by an unknown individual in one block and contains no signature in the approval authority block.

	i.  A memorandum from the U.S. Army Reserve Command Deputy IG who opines that after reviewing the applicant's various documents and the previous ABCMR decisions, he found new and compelling evidence provided by the applicant's former company and battalion-level chain of command concluding the applicant would have been promoted to SSG/E-6 had it not been for a series of errors as follows:

* the former company commander indicated the applicant was qualified for promotion:  he held the appropriate MOS, was assigned to the higher grade, had completed the appropriate education, and possessed the proper time in grade
* his battalion commander stated his policy was to promote Soldiers who were fully qualified for promotion and recommended by their company commanders
* the CSM agreed the applicant was qualified for promotion
* the former operations and training officer attributed the errors to lack of required support from higher headquarters during a complex transition time
* the 1SG stated the applicant was qualified for promotion and that an appropriate promotion packet was forwarded to his reporting command promotion board
* the USAR Command Deputy IG concluded that the preponderance of evidence shows that at the time the applicant was submitted for promotion, his unit was experiencing extreme turbulence as a result of restructuring/transformation and a failed inspection

16.  Army Regulation 140-158 (Army Reserve Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, provided the policies and procedures pertaining to promotion of USAR enlisted Soldiers.  It provided that in order to standardize promotion qualifications throughout the USAR and to ensure promotion of the best qualified individual, enlisted promotion selection board action would be required for all individuals promoted to the pay grades of E-5 through E-9.  The promotion of Soldiers to pay grades E-5 through E-9 would be based solely on Soldiers' qualifications and appropriate position vacancies.  Promotions would not exceed the cumulative vacancies for each pay grade.

17.  Chapter 3 (Promotion of Soldiers Assigned to Troop Program Units) of Army Regulation 140-158 stated that field commanders of any unit authorized a commander in the grade of lieutenant colonel or higher could promote Soldiers to the grades of SGT and SSG who were assigned to units that were assigned or attached to their command.  Soldiers in units attached to their command would be promoted only after coordination with the parent unit for determining a valid vacancy.  Commanders used a formula in the computation of unit and command vacancies by grade and position.  The maximum number of promotions that would be made in each pay grade above E-4 in a unit was referred to as "cumulative vacancies" and was determined by adding or subtracting several categories of Soldiers, including overstrength personnel, Active Guard Reserve personnel, Army Reserve Technicians, Simultaneous Membership Program personnel, and other categories.  These numbers are compared against the required, permitted, and assigned strength to reach a cumulative vacancy.  Promotions would not exceed the cumulative vacancies.



DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks correction of his military record to show he was promoted to SSG/E-6.  The evidence of record shows the applicant was recommended for promotion to SSG by his company commander.  However, there is no evidence which shows that a vacancy existed in his grade (within the cumulative ceilings for each grade) and that he was unjustly denied a promotion.  Absent approval by the promotion authority and the issuance of a promotion order, the company commander's recommendation was just that – a recommendation.

2.  Nevertheless, the applicant has submitted sufficient evidence to show that he was at least qualified for promotion in terms of time in service, time in grade, military education, position, and other requirements.  Only a perfect storm of circumstances prevented his promotion. 

3.  In July 1986, his company commander recommended him for promotion.  He had completed the requisite NCO education and he had sufficient points for promotion.  Additionally, he was then serving in a vacant E-6 slot on the unit manning roster.  These facts are not only attested to by him but also by his commander and are supported by the evidence. 

4.  Unfortunately for the applicant, about the time his promotion packet was being processed, his organization underwent a significant reorganization.  Both his unit and his higher headquarters became focused on the restructuring to the admitted detriment of some of the commonplace personnel actions that are vital to individual Soldiers.  In the applicant's case, his battalion commander, who was the promotion authority and who has repeatedly stated that he would have, without question, promoted the applicant or any similarly situated Soldier, never saw the promotion packet and thus never took action to promote the applicant.

5.  Then, before the problem was discovered and any attempts to rectify the oversight could be made, the applicant was moved to a different unit because reorganization had made his commute to drill untenable.

6.  It would have made no sense for the company commander to recommend a promotion for a vacancy that did not exist.  Furthermore, a unit vacancy promotion would most likely have resulted in his promotion based on his qualifications and record.  Additionally, his battalion commander stated that it was his policy to promote Soldiers who were fully qualified and recommended for promotion by their company commanders.  The same commander states he would have promoted the applicant under this policy had his promotion packet reached his desk. 

7.  Therefore, under the facts and circumstances of this case, despite the absence of a legal or regulatory error, as a matter of equity only, the applicant's records should be corrected to show he was promoted to SSG/E-6 effective 5 July 1986, the date he completed the NCO education requirements.

BOARD VOTE:

___x____  ____x___  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR2001056777, dated 11 September 2001; Docket Number AR2002020780, dated 23 July 2002; Docket Number AR2003093256, dated 24 February 2004; and Docket Number AR20100020860, dated 16 September 2010.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* promoting the applicant to SSG/E-6 with a date of rank and effective date of 5 July 1986
* paying him the difference in pay between E-5 and E-6 from 5 July 1986 (the date of promotion) to 15 July 1995 (the date he was transferred to the Individual Ready Reserve)
* transferring him to the Individual Ready Reserve, effective 15 July 1995, in the rank/grade of SSG/E-6
* placing him on the Retired List in the rank/grade of SSG/E-6 effective 17 April 1999 (the date he turned 60) with entitlement to back retired pay



      ___________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)                                         AR20150004140



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ABCMR Record of Proceedings (cont)                                         AR20150004140



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