PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:            18 January 2001   
	DOCKET NUMBER:   AR2000037760

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Melvin H. Meyer		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his date of rank as a Sergeant Major be adjusted to reflect that he was promoted effective 20 February 1998 with appropriate back pay and allowances.  

3.  There were no records available to the Board.  Information contained herein was based solely on information provided by the applicant in his petition to the Board.  The applicant states he is a member of the Active Guard/Reserve (AGR) Program within the Kansas Army National Guard and in 1996 his name was placedon a Sergeant Major promotion list “of the best-qualified enlisted soldiers who have demonstrated the potential to serve at the next higher grade” within the Kansas Army National Guard.  He notes that the list was the result of the State of Kansas implementing the new enlisted promotion policies included in Chapter 11, National Guard Regulation 600-200.  He states that the new system was designed to “help fill authorized enlisted vacancies with the best-qualified enlisted soldiers” and was intended to replace the former “good old boy” promotion system.

4.  The applicant states that he was number three on that 1996 promotion list.  He indicates that in March 1996 the individual who was number one on the list was promoted thereby “setting a precedence whereby AGR Control Grade positions would be filled by selecting the number one soldier from the promotion list.”  He states the number two soldier on the list took an administrative reduction to pay grade E-7 in order to be transferred to a unit in Nevada, thereby making him next in line for promotion to Sergeant Major.

5.  He states in March 1997, after being selected for a Sergeant Major position he was “frocked” in accordance with “paragraph 11-13, National Guard Regulation 600-200 while awaiting an AGR Control Grade.”  He notes a control grade became available in December 1997 but the then Adjutant General of the State of Kansas elected to utilize that control grade authorization to promote an individual who was not on the Sergeant Major position list.  That individual was promoted effective 20 February 1998.   The applicant notes that he continued to raise the issue regarding the promotion procedures within the Kansas Army National Guard but never received satisfaction.  He states that he was finally promoted to Sergeant Major effective 1 February 2000.

6.  The applicant’s provides documents to support each of the points he raised in his petition to this Board.

7.  In the processing of this case an advisory opinion was provided by the Army National Guard Readiness Center in Arlington, Virginia.  Officials from the Human Resources Policy and Programs Division noted that the National Guard Bureau became involved with the situation in Kansas in the spring of 1999.  At that time it was determined that the State of Kansas was not in compliance with the provisions of chapter 11, National Guard Bureau Regulation 600-200.  The National Guard Bureau “directed that soldiers erroneously promoted or moved into positions and then promoted be reduced and that the correct soldier be promoted with all back pay and allowances.”  They noted that the applicant should have been promoted on 20 February 1998 and not 1 February 2000.  Those officials noted that the “state was directed to rescind the illegal promotion of [the other soldier] and further instructed to promote the correct soldier [the applicant].  They [the Kansas Army National Guard] did not comply with this instruction….”  Ultimately the National Guard Bureau recommended that the applicant have his records corrected to reflect “the correct date of rank as 
20 February 1998” with entitlement to “all back pay and allowances due him.”  The applicant was given an opportunity to comment on the advisory opinion and did so on 26 December 2000.  In his concurrence he did note a minor mistake in the spelling of his name and the name of the soldier who was promoted erroneously.

8.  Army National Guard Regulation 600-200, chapter 11 states that the Army National Guard selection process establishes the means to consider all eligible soldier, select the best qualified soldier for promotion, and to prepare them with the training for assignments at the next higher grade.  It notes that states will conduct one board and publish a promotion list for each rank approximately once each year.  Each list published by the State AG is a new list and is intended to remain valid until exhausted or…a subsequent list supersedes it, approximately one year later.  Soldiers with the lowest numbers (ranked highest on the list) will be notified first of available vacancies for which they are eligible.  Soldiers on promotion lists who are assigned to Sergeant Major positions before they can be promoted (generally due to lack of controlled grade allocations for AGR soldiers) may be frocked.

CONCLUSIONS:

1.  The evidence confirms that the applicant was selected for promotion and placed on the “recommended” list for promotion to Sergeant Major in 1996.  He was subsequently assigned to a Sergeant Major position and “frocked” pending a controlled grade allocation, which became available in February 1998 but was used incorrectly to promote another soldier not on the promotion list.  The Board concludes, in the interest of justice the applicant should have been promoted effective 20 February 1998 when the controlled grade allocation became available.

2.  The preceding conclusion is consistent with information contained in the advisory opinion.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was promoted to Sergeant Major effective, and with a date of rank of 20 February 1998, with entitlement to allow appropriate back pay allowances consistent with the promotion date.

BOARD VOTE:  

___jns__  ___jtm__  ____mhm_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000037760	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010118	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Grant	
REVIEW AUTHORITY		
ISSUES         1.	131.04	
2.		
3.		
4.		
5.		
6.