MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            6 March 2001                  
	DOCKET NUMBER:   AR2000040397

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

	Mr. Carl W. S. Chun		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley 		Chairperson	
	Mr. Ernest W. Lutz 		Member	
	Mr. Harry B. Oberg 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:   In effect, retroactive adjustment of her date of rank (DOR) for promotion to the rank of staff sergeant (SSG), pay grade E-6, in the Army National Guard from 15 July 1999 to 1 June 1997.

APPLICANT STATES:  In essence, that she completed Phase I of a Basic Noncommissioned Officer Course (BNCOC) in March 1994, in military occupational specialty (MOS) 71L (Administrative Specialist).  She held the rank of sergeant (SGT), pay grade E-5, at that time and was a member of the Delaware Army National Guard (DEARNG).  She was unable to attend the next two scheduled Phase II courses of the BNCOC due to a personal medical problem, the first year and the graduation of her son from high school, the second year.  She was denied attendance at a later class in 1996 in 
MOS 71L because she was pending reassignment.  

On 1 September 1996 (sic 15 October 1996)  she was reassigned within the DEARNG to a new unit, for duty in her secondary MOS of MOS 31R (Multichannel Transmission Systems Operator/Maintainer).  She needed a compatibility waiver from the Adjutant General of the State of Delaware for this assignment due to the requirements of her civilian position as an "excepted technician" which dictated that she be assigned to a military position with a duty MOS of 71L or in the MOS 73 series (Financial Accounting).  This waiver was granted for a period of 2 years.  However, she could not get BNCOC class quotas in MOS 31R (only in another 31 series MOS).  Later in 1996, she was number one on her unit's promotion list to pay grade E-6 in MOS 31R, but she was also told that there were no position vacancies in her battalion (the 
280th Signal Battalion) for a SSG in MOS 31R.  She was then reclassified into MOS 31R as her primary MOS in January 1997.  

She claims that she was offered a duty position in the 259th Signal Company of the DEARNG in MOS 31R, but she was never reassigned because of compatibility problems between the MOS compatibility problem between her technician position and MOS 31R.  She was told that a waiver from the National Guard Bureau (NGB) would be required, but a request for a waiver was never processed.  In the meantime, another soldier who was on another MOS standing promotion list (MOS 75H, Personnel Specialist) was selected for assignment to an MOS 31R, SSG, pay grade E-6 position in the 280th Signal Battalion, the same battalion to which the applicant was still assigned.  This individual was subsequently promoted to the rank of SSG on 1 June 1997, even though the applicant was number one on the 280th's MOS 31R promotion list.  She contends that the recommendation for this promotion was improperly processed by a major in the 280th Signal Battalion.  In fact, in May 1997, she submitted an Inspector General's complaint (copy enclosed with her application), but the results are unknown.   

On 2 February 1998, she accepted a 3-year appointment to a "Title 10," Active Guard/Reserve (AGR) assignment at Headquarters, National Guard Bureau (NGB) for duty in MOS 71L, as an administrative sergeant.  This term of service was extended for 3 additional years on 6 December 1999.

She tried to go to BNCOC in April 1998, but was told to wait until the next promotion list came out.  In September 1998, she was number two on the standing promotion list for promotion to SSG in MOS 71L.  However, since she had not completed the BNCOC, she was not in a promotable status.  The NGB attempted to help her to obtain a waiver of the 2-year requirement to attend Phase II of the BNCOC from the DEARNG in October 1998, but supposedly this request for waiver was denied.  She has never been provided a copy of the denial.  A copy of the request for waiver, dated 8 October 1998 is with her application.   

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant's military records show that she enlisted in the DEARNG on 
7 September 1985, for 8 years, in pay grade E-3 and her service thereafter has been continuous.  She completed the Primary Leadership Development Class on 4 July 1987.  She was serving in pay grade E-4, MOS 31R at that time.  She was promoted to the rank of sergeant, pay grade E-5 in the DEARNG on 1 April 1988. 

In December 1988, she began duties in MOS 71L, as a secretary with the Headquarters, DEARNG.  She attended a Phase 1 (Nonresident) BNCOC course of the DEARNG in MOS 71L from 23 October 1993 to 9 January 1994, and completed the course. 

The exact date of employment is unknown, but at some time on or before 1996, the applicant became an "excepted technician" (civilian position) with the DEARNG as a Voucher Examiner with the Resource Management Directorate.  As one of the requirements for the position, she had to be serving as a military member of the DEARNG with a compatible MOS.  Besides the MOS 71L position, she could hold a position in the Career Management Field (CMF) 
73 (Finance and Accounting) or CMF 92 (Supply).  

On 1 October 1996, her former unit in the DEARNG, the 259th Signal Company, requested permission to reassign her to the Company B, 280th Signal Battalion, for duty in MOS 92A (Equipment Records Parts Specialist).  Her primary MOS was shown as MOS 71L, her secondary MOS was shown as MOS 31R.  She had held the same MOS 92A duty title in the previous unit.  An MOS compatibility check showed that this was compatible with her technician position (required duties in CMF 71/92).  Accordingly, on 15 October 1996, Orders 289-005 were issued by the DEARNG reassigning her from the 259th Signal Company to Company B, 280th Signal Battalion.  
On 18 October 1996, the Director of Resource Management, DEARNG requested, as an exception to policy, that the applicant be reassigned to a MOS 31R position in the 280th Signal Battalion, DEARNG.  Her 71L position in her previous unit was being eliminated due to unit reorganization.  The 31R position was not compatible with her excepted technician position, but she was also qualified in MOS 31R and her assignment would improve the readiness of the 280th Signal Battalion.  This exception would be for a period of 2 years.  Although not documented, it appears that the Adjutant General of the State of Delaware approved this request. 

A promotion standing list for her new unit showed her as number 1 on the list in Career Program MOS 31R as of 1 December 1996.  

On 29 January 1997, the applicant's primary MOS was redesignated from MOS 71L to MOS 31R, and her secondary MOS became MOS 71L.  

In the spring of 1997, the applicant was pending reassignment from the 280th Signal Battalion to the 259th Signal Company (her former unit) for duty in MOS 31R.  This reassignment appears to have been denied for MOS compatibility reasons, between her duty MOS (31R in the new unit ) and her technician position.  The compatibility work sheet indicated that a waiver from the NGB would be required, but there is no indication that this waiver was ever requested. Further, she claims that her sergeant major told her that there were no SSG, pay grade E-6 vacancies in the 280th Signal Battalion.  

However, she also provides evidence that another soldier was brought into the 280th Signal Battalion for promotion and assignment to a SSG, pay grade E-6, MOS 31R position in the spring of 1997.  This soldier was a member of the Army Guard/Reserve (AGR) program and her primary MOS/promotion list status was in MOS 75H (Personnel Specialist), not MOS 31R.  The applicant submitted an Inspector General complaint to the Department of the Army on 7 May 1997, but she did not provide a copy of any response she might have received concerning this complaint.  That soldier was promoted to the rank of SSG, MOS 31R sometime in May or June 1997.  

On 13 January 1998, Orders 013-007 were issued by the DEARNG announcing her voluntary assignment to a 3-year AGR position at the NGB, Arlington, Virginia for duty in MOS 71L, pay grade E-5 as an administrative sergeant in the office of the Secretary of the General Staff.  She reported for this duty on 
2 February 1998 and was authorized the movement of her dependents to the Washington, DC area.  

The applicant claims to have tried to attend BNCOC in April 1998, but she was required to attain promotion list status.  She claims she attained such status in September 1998.  She attended a 5-week, active components MOS 71L BNCOC, from 7 June through 14 July 1999.  On 15 July 1999, she was promoted to the rank of staff sergeant, pay grade E-6, in MOS 71L, the date following her graduation from the BNCOC.  Her DOR was from that date. 

On 22 February 2000, NGB Orders 53-12 were issued which voluntarily reassigned the applicant within the National Guard Bureau, effective 
6 December 1999, from the Secretary of the General Staff to the Office of the Deputy Chief of Staff, Headquarters, Management Budget Office, Headquarters Resource Management Branch, for duty in pay grade E-6, MOS 71L.  The assignment would be for 3 years from 6 December 1999 through 5 December 2002.  She was to ensure that her enlistment contract in the DEARNG is appropriately extended to cover this period of service.  

National Guard Regulation 600-200, at paragraph 11-6, provides that the effective date of promotion and the DOR are normally the same.  The effective date of an order or DA Form 4187 (Personnel Active Form) cannot be earlier that the first day the soldier becomes fully qualified.  Earlier effective dates are permitted in certain specified situations such as when confirming verbal orders and in certain situations wherein higher promotion authorities or the State Adjutant General has withheld promotion authority.  Dates of ranks may be adjusted under certain conditions to include restoration to former grades when reduced erroneously or when voluntarily reduced to enter active duty for contingency operations.  When the effective date or DOR is in error, not the fault of the individual concerned, an adjustment may be made.   

National Guard Regulation 600-200, in effect in 1997, at paragraph 
11-28a(2) provided that sergeants with Primary Leadership Development Course credit are promotable to SSG after they complete BNCOC Phase I.  They must start Phase II within 2 years after they complete Phase I.  They must successfully complete all phases prior to being eligible for consideration for promotion to the rank of SFC, pay grade E-7.  However, AGR soldiers must complete the entire course before promotion.

Paragraph 11-28d (1) provides that traditional soldiers (non-AGR soldiers) may be promoted to SSG upon completion of RC-BNCOC (Reserve Component BNCOC) Phase I.  Upon completion of all phases of BNCOC, they may be promoted to SFC upon completion of Phase I of the ANCOC.  This paragraph goes on to state that Phase II of these courses must be completed within 2 years of completion of Phase I.  The first general officer in the chain of command may grant an additional year waiver of attendance based on extenuating circumstances.  

On 23 May 2000, an "All States Letter" was issued by the National Guard Bureau, SUBJECT;  (All States Log Number P00-0037) Conditional Promotions for AGR Soldiers.  The letter was effective immediately.  Essentially, this letter permitted the promotion of AGR sergeants to SSG after Phase l of their BNCOC, and SSG to SFC after Phase l of their Advanced Noncommissioned Officer Course (ANCOC), both promotion being conditional upon successful completion of the entire course.  The state is responsible to publish the order with a date of rank and effective date as of the date of completion of the Phase l portion of the respective courses.  Soldier's must remain in a promotable status during the duration of the conditional appointment. If they do not remain so eligible, or do not complete the course, the orders will be revoked and they will be immediately reduced without board action or appeal, and will be removed from any standing promotion lists.  

The Chief, Personnel Policy, Programs and Manpower, NGB has provided an advisory opinion to the Board which fully supports the applicant's request.  The opinion relates the various problems the applicant encountered in the DEARNG.  Essentially, the opinion stated that "Inconsistent application of personnel procedures and processes cost SGT (applicant's name) her promotion to SSG in a reasonably expected timeframe."  Further, the opinion stated that "The action on the part of the state caused considerable difficulty for the Army National Guard Tours program when the promotion boards were convened to consider all eligible soldiers for promotion to their next higher grade.  The confusion surrounding her promotion status while under state control delayed her subsequent promotion to Staff Sergeant while in a Title 10 Active Guard Reserve Status."

This advisory opinion was provided to the applicant who concurred with the
NGB  position.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and the advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant, in this case, has failed to submit evidence that would satisfy this requirement.

2.  The Board notes the many problems the applicant appears to have experienced while a member of the DEARNG.  However, the Board is not inclined to insert itself into internal DEARNG personnel management matters.  For example, there is no indication that a waiver was ever requested or granted by a general officer to give her a 1-year extension of the requirement to graduate from a Phase II BNCOC course within 2 years of graduation from the Phase I course.  Additionally, there is no evidence provided that she was ever scheduled to complete a Phase II course in MOS 71L, rather it appears her unit was attempting to send her to an entirely different BNCOC in MOS 31R.  Further, the Board cannot adequately judge the propriety or fairness of the promotion of another soldier to a pay grade E-6 position in the 280th Signal Battalion in the spring of 1997.  Therefore, the problems she encountered in the DEARNG is a matter which must be resolved between the NGB and the Adjutant General of the State of Delaware. 

3.  The Board also notes that the applicant was specifically activated into a Title 10, United States Code, AGR position for duty in pay grade E-5, MOS 71L.  If the Board took action to adjust her date of rank to an earlier date than 2 February 1998, it would, in effect, nullify the activation action.

4.  Further, once she entered AGR status, she was under a completely different set of promotion criteria.  She had to be an active component BNCOC graduate.  Until this occurred, she was not eligible for promotion to SSG.  She did not graduate until 14 July 1999.  Therefore, her correct promotion date (effective date) was 15 July 1999 and that date was also her proper DOR.

5.  Notwithstanding the NGB advisory opinion, the Board finds that there is insufficient evidence provided to show error or injustice in her situation once she entered AGR status.  The conditional promotion criteria did not go into effect until May 2000, and to retroactively apply this criteria in this case would not be fair or equitable to other AGR soldiers in similar situations.  
 
6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sk____  __ewl____  __hbo __  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000040397	
SUFFIX		
RECON		
DATE BOARDED	20010306	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	131.04	
2.	131.05	
3.		
4.		
5.		
6.