BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150013640 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ __x______ ___x__ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150013640 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by submitting his corrected record to show he is authorized a Standby Advisory Board for promotion consideration to master sergeant/E-8 for calendar years 2000 through 2007. 2. If he is selected for promotion to master sergeant by a Standby Advisory Board, his record should be corrected by establishing his master sergeant/E-8 promotion effective date and a date of rank as if he had been originally selected under the earlier criteria identified by the Standby Advisory Board. In addition, he should be awarded all back pay and allowances due as a result. 3. If he is not selected for promotion by the Standby Advisory Board, he should be so notified. 4. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to showing he was promoted to sergeant major/E-9 or that he is entitled to “constructive service credit” from 6 November 1997 through 29 July 2007. ___________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. BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150013640 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 the following: a. a backdated promotion to sergeant first class (SFC)/E-7 while in the Massachusetts Army National Guard (MAARNG) Active Guard Reserve (AGR) Program with a date of rank (DOR) of 29 March 1997; b. a Standby Advisory Board (STAB) for promotion to master sergeant (MSG)/E-8 and to sergeant major (SGM)/E-9 while in the MAARNG AGR Program based upon his promotion to SFC/E-7; and c. “constructive service credit (CSC)” for SFC/E-7 from 6 November 1997 through 29 July 2007, and all back pay and allowances he may be entitled to as a result. d. For the Army Board for Corrections of Military Records (ABCMR) to ensure all corrections to his records resulting from favorable findings by the ABCMR are properly entered into his official military personnel file (OMPF). e. For expedient and special consideration in the promotion process for MSG/E-8 and SGM/E-9. 2. The applicant also requests a personal appearance hearing. 3. The applicant states: * he should be given “CSC” consideration for SFC/E-7 from 6 November 1997 through 29 July 2007 * all back pay and allowances, to include special duty pay, should be completely restored under his duty military occupational specialty (MOS) 79T40 with a corrected DOR to SFC/E-7 effective 29 March 1997 * promotion to SFC/E-7 based on his DOR for staff sergeant (SSG)/E-6 of 12 July 1996, which resulted in this promotion on 29 March 1997 * his Standby Advisory Board (STAB) for MSG/E-8 be based upon his SFC/E-7 DOR of 29 March 1997 while in an AGR status * he should have a STAB for SGM/E-9 based upon his selection to MSG/E-8, if promoted * that the ABCMR should follow up on all corrections to ensure all instructions are carried out and that his STAB for MSG/E-8 and SGM/E-9 be expedited 4. The applicant provides a self-authored letter. 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 AR20060017164 dated 19 September 2007, Docket Number AR20090007193 dated 1 April 2010, and Docket Number AR20140016684 dated 21 May 2015. 2. The applicant provides a self-authored letter as a new argument that was not previously considered. 3. Orders 066-098, issued by the Joint Force Headquarters, Massachusetts National Guard, Office of the Adjutant General, on 7 March 2011, promoted the applicant to SFC/E-7 with an effective date and a DOR of 29 March 1997. Because his promotion to SFC/E-7 has been executed with the DOR he requests, this issue will not be further discussed in these proceedings. 4. The applicant enlisted in the Regular Army (RA) on 4 May 1983 and held military occupational specialties (MOS) 71L (Administrative Specialist) and 18B (Special Forces Weapons Sergeant). He served through multiple reenlistments in a variety of assignments and was promoted to SSG/E-6 on 1 May 1987. 5. He was honorably discharged on 30 April 1995 under the Early Transition Program - Voluntary Separation Incentive (VSI). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 11 years, 11 months, and 27 days of active service. 6. His record contains the following enlistments/transfers: a. On 28 April 1995, in conjunction with participating in the VSI, the applicant enlisted in the U.S. Army Reserve (USAR). b. On 13 March 1996, he enlisted in the New York Army National Guard. c. On 30 September 1996, he was transferred to the MAARNG and entered the AGR Program on 30 September 1996. d. On 6 November 1997, the applicant was released from active duty. His DD Form 214 for the period ending 6 November 1997 shows he was issued a general discharge for misconduct (drug abuse). He was discharged from the MAARNG on 25 November 1997 with a general characterization of service due to misconduct. 7. In response to the applicant’s previous applications to this Board, numerous corrections to his record have been made. The following is a summation of the corrections and related actions: a. On 8 September 2004, the applicant was advised that the Army Discharge Review Board (ADRB) (Docket Number AR2003097705) had reviewed his release from active duty on 6 November 1997 and discharge from the MAARNG on 25 November 1997 and determined they were proper but the characterization of service was inequitable. The ADRB voted to: * change his characterization of service on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service) from general to honorable * issue a new DD Form 214 and new NGB Form 22 releasing him from active duty and from the MAARNG with an honorable discharge * void his original discharge orders and issue new orders discharging him from the USAR and the MAARNG with an honorable discharge b. After his DD Form 214 and NGB Form 22 were corrected to show an honorable characterization of service, the applicant enlisted in the USAR in the rank/grade of sergeant (SGT)/E-5 on 29 July 2005. c. On 5 April 2007, the findings and recommendations of an Army Regulation 15-6 (Procedures for investigating Officers and Board of Officers) investigation were approved by the MAARNG Chief of Staff. An NGB Form 22A (Correction to NGB Form 22) was issued showing he received an honorable discharge. d. On 24 September 2007, the applicant was advised by the ABCMR (Docket Number AR20060017164) that his application was denied in his request for: * revoking his DD Form 214 dated 6 November 1997 to change his narrative reason for separation to something other than misconduct * removing references to misconduct from his OMPF * providing him CSC from the date of his discharge (6 November 1997) through the date of his current enlistment (29 July 2006) * promoting him to SGM/E-9 with a DOR commensurate with normal progression in the USAR/AGR Program e. On 10 October 2007 by memorandum, the Massachusetts Office of the Adjutant General requested favorable reconsideration of the applicant's petition for correction of his OMPF that was affected by his discharge from the MAARNG in November 1997 after being accused of substance abuse. The Adjutant General stated the MAARNG conducted a thorough examination of the circumstances surrounding the applicant's testing and subsequent discharge. As a result, the urinalysis conducted on 17 October 1996 was determined to be invalid and all results of this subject urinalysis were inadmissible in disciplinary action against any service member. In the interest of justice, the MAARNG dismissed all disciplinary matters regarding this issue, corrected the applicant's records to the fullest extent within their purview, and requested the ABCMR to provide total relief in his case. f. The applicant submitted a reconsideration request to the ABCMR (Docket Number AR20090007193) requesting reconsideration of his previously denied requests. On 5 April 2010, the applicant was notified that the ABCMR recommended a partial approval of his request, denying so much of the application that pertains to promoting him to the rank/grade of SGM/E-9; however, the Board recommended all State ARNG records and Department of the Army records of the applicant be corrected by, in pertinent part: * deleting all references to the urinalysis conducted on 17 October 1996, his relief from active duty due to misconduct on 6 November 1997, and his discharge from the MAARNG on 25 November 1997; and * amending his discharge orders and associated DD Form 214 to show he completed his active duty AGR tour during the period 30 September 1996 through 29 September 1999 in the rank/grade of SSG/E-6, and paying him all pay and allowances due as a result of the aforementioned corrections * showing he retained the rank grade of SSG/E-6 while serving in the USAR until he was promoted to SFC/E-7 on 1 June 2009 * having a STAB consider him for promotion to SFC/E-7 based upon an SSG/E-6 DOR of 12 July 1996 g. The MAARNG corrected a portion of the applicant's record by: * rescinding his release from active duty due to misconduct on 6 November 1997, rescinding his discharge from the MAARNG on 25 November 1997, and issuing new discharge orders transferring him to the USAR effective 25 November 1997 * providing him CSC for SFC/E-7 from the date of his discharge from the MAARNG through the date of his current enlistment in the USAR 9. Evidence of record shows the applicant completed the Advanced Noncommissioned Officer Course (ANCOC) on 27 January 2007. 10. On 1 June 2009, the applicant was promoted to SFC/E-7 in the USAR with an effective date of 1 June 2006. 10. On 22 April 2010, the U.S. Army Human Resources Command (HRC) issued the applicant a Notification of Eligibility for Retired Pay at Age 60. 10. On 7 July 2010, the MAARNG, Office of the Adjutant General, stated, in part, that the state conducted a STAB on 24 June 2010; however, the applicant’s promotion packet was not submitted for the STAB. 12. On 28 September 2010, by memorandum, HRC notified the applicant that his records had been identified to appear before an enlisted STAB for promotion to SFC/E-7. His record, through no fault of his own, was not considered by the CY 2003 U.S. Army Reserve Individual Ready Reserve (IRR) and Drilling Individual Mobilization Augmentee (DIMA) SSG through SGM Board. 13. The applicant’s record was considered on or about 13 October 2010 under the criteria established for the 2003 IRR/DIMA SSG through SGM Board which convened on 28 July 2003. He was selected for promotion to SFC/E-7. 14. On 7 December 2010, HRC published Orders B-05-903111A01 amending his effective date of promotion and DOR to SFC/E-7 from 1 June 2009 to 1 November 2003 with entitlement to back pay and allowances. 11. Orders 066-098, issued the Departments of the Army and the Air Force, Joint Force Headquarters, MAARNG, Office of the Adjutant General, dated 7 March 2011 show the applicant was retroactively promoted to SFC/E-7 with an effective DOR of 29 March 1997. 12. On 1 July 2011, the applicant submitted a request for voluntary retirement effective 1 July 2011 based on sufficient active service. His chain of command recommended approval. 13. He retired on 30 June 2011 by reason of sufficient active service for retirement and was placed on the Retired List in his retired rank/grade of SFC/ E-7 effective 1 July 2011. He was credited with 20 years, 7 months, and 28 days of active duty service. 14. The applicant submitted another reconsideration request to ABMCR (Docket Number AR20140016684), which was reviewed on 21 May 2015, requesting CSC for active duty from 6 November 1997 (the dated he was erroneously discharged) to 29 July 2007 (the date he was properly discharged) and promotion consideration to SGM/E-9. The Board recommended partial approval of his request. They recommended approving, in part: a. ensuring that applicant’s OMPF is complete and accurate and that his record included all recommended corrections by the ADRB, ABCMR, and the MAARNG. b. submitting his record for a duly-constituted STAB for promotion consideration to MSG/E-8 under the appropriate year criteria based on his adjusted DOR to SFC/E-7 of 1 November 2003. If selected for promotion, that his record be corrected to show he met all the eligibility criteria for promotion effective the date of his release of the applicable promotion selection board with the appropriate DOR, and paying him any associated back pay and allowances; however, the Board denied his requested relief related to promotion to SGM/E-9. 15. A STAB was convened on 18 September 2015, and the applicant was considered for promotion to MSG/E-8 under the Calendar Year (CY) 2008 criteria. He was not selected. REFERENCES: 1. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Chapter 5 prescribes policy for the promotion of USAR Soldiers assigned to Troop Program Units, Army Reserve Elements, and multi-component units. The selection and promotion process for senior enlisted grades SFC/E-7 through SGM/E-9 is centralized at promotion authority headquarters. All SSGs through MSGs/first sergeants (1SGs) who meet the basic eligibility requirements will be considered for promotion. The promotion selection board will select the best qualified Soldiers for placement on the permanent recommended promotion list. Soldiers will be promoted sequentially from the list to fill vacancies in accordance with certain criteria. Promotions off the permanent recommended promotion list will not exceed the cumulative vacancies for that pay grade as computed. All Soldiers within the announced zone and assigned to a unit will be considered by the promotion selection board. a. Paragraph 1–27 (Noncommissioned Officer Education System (NCOES) requirement for promotion and conditional promotion) states the NCOES requirements for promotion. Soldier must be— (1) A Warrior Leader Course (WLC) graduate or equivalent for recommendation to SSG (see para d, below). (2) An Advanced Leaders Course (ALC) graduate for consideration eligibility to SFC (see para c, below). (3) A Senior Leaders Course (SLC) graduate for consideration eligibility to MSG (see para c, below). (4) A U.S. Army Sergeants Major Course (USASMC) graduate for promotion to SGM (see para b, below). b. Conditional promotion to SGM- (1) Soldiers selected for promotion to SGM who are non-graduates of the USASMC will be conditionally promoted. (2) Soldiers who fail to successfully complete, fail to remain eligible to be scheduled for or attend, who are denied enrollment in, or who do not attend their scheduled NCOES class (through fault of the Soldier) will be administratively reduced or removed from the promotion list. The effective date of administrative reduction is the date of the action that caused the Soldier to be ineligible to retain the promotion. The DOR will be the previous DOR held at the reduced grade. (3) Conditionally promoted SGMs who have been reduced or removed from the promotion list as a result of failure to meet the NCOES requirement are ineligible for future promotion consideration. (4) For conditionally promoted SGMs the following statement will be entered on the promotion instrument: “Soldier has not met the NCOES requirement and is promoted conditionally. If the Soldier fails to successfully complete, fails to remain eligible for, is denied enrollment in, or does not attend his/her scheduled NCOES class (through fault of the Soldier), then the Soldier will be administratively reduced.” c. ALC and SLC Active Army, ARNG, and USAR AGR Soldiers otherwise eligible for consideration but lacking the prerequisite level of NCOES as a direct result of operational deployment conflicts, or inability of the Army to schedule the course, will be granted a waiver of the NCOES requirement by the DCS, G–1. The authority to grant waivers to USAR Soldiers is delegated to the USAR Command (USARC), 7th Civil Support Command, 9th MSC for TPU Soldiers, and HRC for all Individual Ready Reserve and drilling IMA Soldiers. (1) Soldiers selected for promotion to SFC and MSG, whose eligibility resulted from a waiver of the requisite NCOES, will have their promotion held in abeyance until the requisite course is completed. (2) Deployed Soldiers assigned or attached to a unit participating in Operations Enduring Freedom or Iraqi Freedom will be conditionally promoted, provided otherwise eligible, to SFC or MSG— * for Active Army (AA) Soldiers, when they have reached/attained their respective sequence number * for Reserve Component Soldiers, upon identification of a valid position vacancy in the grade of SFC or MSG * the condition of promotion to MSG and SFC requires Soldiers to complete the appropriate level of NCOES * ALC for promotion to SFC and SLC for promotion to MSG as follows: o for AA Soldiers, within 270 days upon redeployment from the area of operations o for RC Soldiers, within 2 years upon redeployment from the area of operations (a) In all cases, for all components, requests for exceptions to the established time frames must be submitted, in writing, to the Deputy Chief of Staff (DCS), G–1 for approval. Soldiers who fail to complete the required level of NCOES within the prescribed time frame will be reduced according to the provisions of paragraph 10–17 to their former rank. d. Paragraph 5-5 states the senior enlisted selection and promotion system outlined in this section prescribes the policy governing the promotion of unit Soldiers to SFC/E-7, MSG/E-8, and SGM/E-9. The selection and promotion process for senior enlisted ranks is centralized at promotion authority headquarters. To standardize promotions throughout Army Reserve units, and to ensure promotion of the best qualified Soldiers, recommendation by promotion selection board and placement on a promotion list are required. All SSGs through MSGs and/or 1SGs who meet the basic eligibility requirements will be considered for promotion. The promotion selection board will select the best qualified Soldiers for placement on the permanent recommended promotion list. Soldiers will be promoted sequentially from the list to fill vacancies for which they qualify. All Soldiers within the announced zone will be considered by the promotion selection board unless a declination statement has been provided by the Soldier. e. Paragraph 5-7 states commanders will ensure that Soldiers who meet eligibility criteria are considered by the board. Soldiers must meet the eligibility criteria as of the convening date of the board. This includes membership, being in a promotable status, civilian education, MOS, military education, physical requirements, proper grade, time in service requirements, time in grade (TIG) requirements, age, retention, height/weight, security clearance, and Army Physical Fitness Test standards. f. The time in grade requirements (non-waivable) for selection are: SFC/E-7, 36 months as SSG/E-6; MSG/E-7, 36 months as SFC/E7; and SGM/E-9, 36 months as MSG/E-8 and/or 1SG/E-8. The time in service requirements are: SFC/E-7, 6 years; MSG/E-8, 12 years; and SGM/E-9, 17 years. g. Cumulative enlisted service. Soldiers must have the specified number of years of cumulative enlisted service (non-waivable): for selection to MSG/E-8, 8 years, and to SGM/E-9, 10 years. h. Paragraph 5-18 states the composition of an enlisted STAB is under identical criteria as that of enlisted selection boards. A STAB will consider records not reviewed by a regular board, which were not properly constituted because of a material error when reviewed by a regular board, and/or of Soldiers on whom derogatory information has been properly substantiated, which may warrant removal from a selection list. i. The names of Soldiers selected by this board will be integrated into the Permanent Promotion Recommended List (PPRL). They will be promoted along with their peers when their sequence number is reached and a vacancy occurs. The convening authority will determine if a material error existed in a Soldier’s records when the file was reviewed by the selection board. It must be presumed that a material error in the file may have contributed to non-selection. j. An error is material when, in the judgment of a mature individual familiar with selection board proceedings, a reasonable chance exists that had the error not existed the Soldier may have been selected. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of records. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant desires to appear before the Board; however, there are sufficient records available for a fair and impartial review in this case without such an appearance. 2. The ADRB reviewed his discharge and, although they found his discharge proper, they determined the character of service was harsh and upgraded it to an honorable discharge. 3. A subsequent investigation by the MAARNG determined there were some improprieties in the discharge process. As a result, the MAARNG recommended his discharge action be voided and his DD Form 214 was corrected to reflect an honorable discharge. All rights and privileges were restored. 4. The ABCMR is not a promotion board. Enlisted Soldiers are selected for senior promotions (E-7 through E-9) via a centralized promotion system by a promotion/selection board. If there is an error with the date of promotion for a Soldier who has already been selected by a promotion board, the ABCMR corrects the error. Otherwise, the appropriate remedy for promotion issues is a STAB. The Board may recommend a STAB if there was been a material error. 5. Based on the previous corrections to the applicant's record, the Board's decision in Docket Number AR20140016684, which recommended a DOR to SFC/E-7 of 1 November 2003, appears to be in error. Order Number 066-098 changed the applicant’s DOR to 29 March 1997, but the order was not released until 7 March 2011, after the STAB had been conducted and established his new DOR as 1 November 2003. It is reasonable to presume, had he not been erroneously discharged, he would have stayed in service and competed for promotion to MSG/E-8 as early as 2000 based on his corrected DOR of 29 March 1997. 6. Although the applicant did not complete his required ANCOC course for promotion consideration to MSG/E-8 until 27 January 2007, it is also reasonable to presume that had he not been erroneously separated, he would have completed the course in a timely manner. 6. The applicant appears to be eligible for a STAB for MSG/E-8 for the years 2000 to 2009 (based on 36 months of time in grade as an SFC/E-7 on 29 March 1997). With that being said, HRC has already conducted a STAB for MSG/E-8 for CY 2008, and he was not selected. 7. As for promoting the applicant to SGM/E-9, to date, the applicant has never held the rank/grade of MSG/E-8. Even if he were selected for promotion to MSG/E-8 via a STAB, he has never held the position of MSG/E-8, received evaluations as a MSG/E-8, or completed the required course requirements to be eligible for consideration for promotion to SGM/E-9. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013640 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013640 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2