RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            11 MARCH 2004                  
	DOCKET NUMBER:   AR2003093947

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Mae M. Bullock		Member	
	Mr. Patrick H. McGann, Jr.		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that he be reinstated to the rank and pay grade of sergeant major E-9 with the restoration of all rights, privileges, and property.

2.  The applicant states that during the period from 1 October 1993 to 16 January 1998 Soldiers could be promoted to the rank of sergeant major, pay grade E-9, and not be graduates of the sergeants major academy.  The Office of The Judge Advocate General has stated that promotions to sergeant major during that period were unconditional, and not conditional; and that a Soldier could not be reduced for failure to complete the sergeants major academy.  He states that his transfer to the Retired Reserve was due to unit inactivation/reorganization, and was involuntary and not voluntary. 

3.  The applicant provides the documents depicted herein.

CONSIDERATION OF EVIDENCE: 

1.  The applicant was a Reserve Soldier assigned to a troop program unit (TPU) of the 99th Regional Support Command.  On 6 January 1998 orders were published by that command promoting him to sergeant major effective and with a date of rank of 15 January 1998.    
  
2.  On 12 May 1998 the 99th published orders reassigning the applicant to the Retired Reserve because of unit inactivation/reorganization effective 16 June 1998.  The order indicated that the reassignment was involuntary.

3.  A 26 July 2000 academic evaluation report indicates that the applicant voluntarily disenrolled from the sergeants major course due to his retirement.     

4.  On 23 August 2000 the Army Reserve Command requested that the          99th revoke the applicant's promotion order because of his disenrollment from the sergeants major course, indicating that the applicant had been conditionally promoted to sergeant major – contingent upon his completion of that course.

5.  On 28 August 2000 the 99th revoked the order promoting the applicant to sergeant major and amended the order reassigning him to the Retired Reserve to show his rank as master sergeant vice sergeant major.

6.  On 30 August 2000 the 99th informed the Army Reserve Personnel Command at St. Louis of the actions relative to the applicant's promotion and reassignment, and indicated that the applicant was voluntarily reassigned to the Retired Reserve, electing to do so rather than be involuntarily transferred to the Army Reserve Control Group (Reinforcement). 

7.  A 26 June 2002 Office of the Deputy Chief of Staff, G-1 memorandum, indicated that The Judge Advocate General had rendered a legal opinion that the DCSPER (Deputy Chief of Staff for Personnel) had no authority to authorize conditional promotions of Army Reserve enlisted soldiers to sergeant major during the period 1 October 1993 and 16 January 1998, and consequently, promotions to sergeant major during that period were unconditional in nature.  Soldiers who were not graduates of the sergeants major course could be promoted to sergeant major, but could not be subsequently reduced for failure to complete the sergeants major course.  Soldiers affected by the action who had no current military status must make application to this Board for corrective action.    

8.  The above-mentioned memorandum was forwarded to the applicant by the Army Reserve Personnel Command at St. Louis, instructing him to submit an application to this Board to redress this matter.

DISCUSSION AND CONCLUSIONS:

1.  The applicant should be restored to the rank and pay grade of sergeant major, E-9, effective and with a date of rank of 15 January 1998.

2.  The order revoking his promotion to sergeant major is null and void and of no force or effect.  Furthermore, the applicant's record should be corrected to show that he was reassigned to the Retired Reserve on 16 June 1998 in the rank of sergeant major.    

BOARD VOTE:

__JNS __  __MMB__  __PHM__  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by restoring the applicant to the rank and pay grade of sergeant major E-9 effective and with a date of rank of 15 January 1998, and reassigning him to the Retired Reserve in the rank of sergeant major.  The 28 August 2000 order published by the 99th Regional Support Command revoking his promotion to sergeant major is null and void and of no force or effect.  

		_____John N. Slone_______
		        CHAIRPERSON

INDEX

CASE ID	AR2003093947	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040311	
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.	110.03	
2.		
3.		
4.		
5.		
6.