BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150017607 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150017607 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________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: 20 April 2017 DOCKET NUMBER: AR20150017607 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 correction of his records to show he was placed on the Retired List in the rank/grade of sergeant major (SGM)/E-9 instead of master sergeant (MSG)/E-8. 2. The applicant states: a. In April 1994, while serving in the U.S. Army Reserve (USAR) in the rank/grade of first sergeant/E-8, he was boarded for the G-2 SGM position at the 35th Infantry Division Headquarters, Kansas Army National Guard (KSARNG). At the time, he was qualified in both military occupational specialties (MOS) 96B (Intelligence Analyst) and 98C (Signals Intelligence Analyst). The board consisted of the Division G-2, Deputy G-2, the Division Chief of Staff, the Division SGM, and the full time G-2 Intelligence Sergeant. He was selected as the most qualified for that position. It should be explained that the need for the Reserve battalion under a National Guard division was required due to the equipment assets they operated. They needed to be National assets not State assets due to their collection and jamming capabilities. b. He was offered and accepted the position, and on 25 April 1994, he transferred into the KSARNG as an Intelligence Senior Sergeant (MOS 96Z50). Shortly thereafter, he met with the State SGM and he indicated he felt he should have been able to select the incumbent for the G-2 SGM position and felt that it should have been a long-term KSARNG Guardsman. So he held the position as an E-8 for over two years until he was promoted to SGM/E9 on 24 June 1996. He was told it was impossible for the KSARNG to get orders [school quota] to the full-time [resident] U.S. Army SGM Course (USASMC) so he was not enrolled in the SGM Academy correspondence course until about a year later, at which time his civilian job was in Las Vegas, NV, as a project manager for EDS. Even though his home of record was Henderson, NV, he would still fly to his drills in Kansas on his own dime. Since the test control officer for the USASMC was at Fort Leavenworth, KS, he was not always available while he was there and his progress on the USASMC was delayed. In early 1999, he got behind on the course and when he requested an extension due to his circumstances, it was not approved and he was dropped from the course in May 1999. He was reduced in rank back to MSG/E-8 on 2 July 1999. c. It was explained to him at that time that since he had held the rank for over two years, he would still retire as a SGM since that was the highest rank held. In fact, every retirement review he went through that is what he was told. It was also the practice that this was how it was always conducted with others in this same situation. d. When he applied for retirement, the paperwork came back that he would retire as an E-9 since that was the highest grade held satisfactorily. The division agreed and said that they were putting him in for the Legion of Merit (LOM) but when the State headquarters was informed, they said no because LOMs were only given to SGMs and officers, and since he had not completed the USASMC, he would not receive an LOM and he would retire as a MSG/E-8. The State then submitted paperwork to the U.S. Army Human Resources Command (HRC) in St. Louis to have him retired as an E-8 and all the paperwork was reissued to him to showing his retirement as an E-8. e. He inquired about what his course of action was and was told all he could do was file an Inspector General (IG) complaint. He filed an IG complaint and the State sent over an IG officer but they said he had not completed the USASMC so he would be retired as an E-8. It was always explained to him that not completing the USASMC would cause him to lose the SGM position (which it did) but if he held the position for two years he would still retire as an E-9 and that was always the way it had been done in the past. The IG officer seemed more intent on finding out the names of those who had retired this way. After the IG's decision, he was told he had no recourse and could not challenge the IG's outcome so he went ahead and retired. It was not until just recently while talking to a retired Judge Advocate General's Corps officer in his American Legion Post about the situation that he was informed he could file with the Army Board for Correction of Military Records (ABCMR). f. He realizes that merely serving in, "acting as," or holding a position or job title authorized a higher grade is not sufficient, as he did from 25 April 1994 to 24 June 1996. But he was actually promoted to E-9, paid in that grade, and served in that grade for the required statutory or regulatory period of time (24 June 1996 to 2 July 1999.) g. He also understands that Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) states, "Generally, service in a grade will not be considered to have been satisfactory when reversion to a lower grade was expressly for prejudice or cause, due to misconduct, caused by nonjudicial punishment pursuant to Article 15, Uniform Code of Military Justice (UCMJ), or the result of the sentence of a court-martial." He believes that his time as an E-9 was above satisfactory and [his reduction] was not due to misconduct, caused by nonjudicial punishment pursuant to Article 15, UCMJ, or the result of the sentence of a court-martial. His Noncommissioned Officer Evaluation Reports (NCOER) for that period were above satisfactory and he even received a Meritorious Service Medal (MSM) for that period. Please note that the MSM was awarded for the time period while acting Senior Intelligence Sergeant but also for the time when he was actually promoted to E-9, paid in that grade, and served in that grade for the required statutory or regulatory period of time (24June 1996 to 2 July 1999). 3. The applicant provides: * ARNG Retirement Points History * letter from the HRC, St. Louis, MO, Transition and Separations Branch, dated 13 June 2008 * retirement orders, dated 13 June 2008 * promotion to SGM/E-9 orders, dated 24 June 1996 * reduction to MSG/E-8 orders, dated 2 July 1999 * MSM Certificate * DA Form 638 (Recommendation for Award) * Leave and Earnings Statement (LES), dated 2 October 1998 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 28 April 2006 to 1 June 2007 * two Certificate of Retirement * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Following service in the U.S. Marine Corps, ARNG, and USAR, the applicant reenlisted in the ARNG on 9 April 1994. 3. Orders 13-1, issued by the KSARNG on 24 June 1996, promoted him to the rank and grade of SGM/E-9 effective 24 June 1996. The orders include the following statement: "The Soldier must complete the U.S. Army Sergeants Major Course as a condition of this promotion. Failure to meet the condition will cause reduction per NGR [National Guard Regulation] 600-200 [Enlisted Personnel Management], paragraph 11-56e." 4. There is no evidence in the applicant's record that indicates he completed the USASMC. His records is also void of evidence that indicates his failure to complete the required military education was due to hardship or injury. 5. Orders 115-40, issued by the KSARNG on 2 July 1999, directed his reduction in grade from SGM/E-9 to MSG/E-8 effective 2 July 1999. The orders show the reason for the reduction was the applicant's failure to complete the senior level Noncommissioned Officer Education System (NCOES) course. 6. Orders 262-711, issued by the KSARNG on 18 September 2008, directed his discharge from the ARNG and transfer to the Retired Reserve effective 31 July 2008. The orders show his rank as MSG. 7. Orders P06-808289, issued by HRC on 13 June 2008, directed his retirement and placement on the Retired List effective 1 August 2008. The orders show he was place on the list in the rank of SGM. These orders were amended on 16 July 2008 to show he was placed on the Retired List in the rank of MSG. 8. The applicant provides the following documents for the purpose of demonstrating his satisfactory service in the rank/grade of SGM/E-9. * ARNG Retirement Points History * promotion orders, dated 24 June 1996 * LES, dated 2 October 1998 * letter from HRC, St. Louis, MO, Transition and Separations Branch, dated 13 June 2008 * retirement orders, dated 13 June 2008 * Certificate of Retirement 9. He also provides: a. A DA Form 638 (Recommendation for Award) and an MSM Certificate that shows he was awarded the MSM for service during the period 23 July 1985 to 1 October 2000. b. A DD Form 214 for the period 28 April 2006 to 1 June 2007, which shows his rank as MSG/E-8. c. An NGB Form 22, which shows he was discharged from the ARNG in the rank of MSG. 10. An advisory opinion was obtained from the NGB, Personnel Policy Division. The opinion states: a. The applicant was promoted to the rank of SGM/E-9 on 24 June 1996 as reflected KSARNG Order 13-1. He enrolled in the SGM Academy but his progress in the course began to lag. He requested an extension to complete the course but it was denied and he was subsequently dropped from the course. Due to non-completion of the USASMC he was reduced to the rank of MSG. He states that at the time of retirement he was informed since he held the rank for over two years he would still be retired as a SGM. Upon retirement, all documents he received reflected a retired rank of SGM but that was later changed to reflect the rank of MSG. He contends he should be retired at the rank of SGM as he held the grade satisfactorily and his reduction was not due to misconduct. b. The applicant was promoted conditionally to SGM pending completion of the U.S. Army USASMC. Additional instructions posted in his promotion order states that failure to meet the condition will cause reduction per NGR 600-200, paragraph 11-56e. c. Per NGR 600-200, paragraph 11-56(e), "Failure to successfully complete the course resulted in reduction of rank. Additionally time in grade in the higher grade is not credible towards retired pay in the higher grade or any other determination dependent on the higher grade." d. It is the recommendation of their office to deny the applicant's request to retire at the rank of SGM. Although he held the rank of SGM satisfactorily for 3 years, he failed to complete the required NCOES school mandatory to retain the rank of SGM. Per the conditions of his promotion, he was retired at the appropriate grade of MSG. e. This advisory opinion was coordinated with the ARNG Enlisted Policy Branch. f. The KSARNG concurs with this recommendation. 11. The advisory opinion was provided to the applicant to give him the opportunity to submit additional comments or a rebuttal. No response was received from the applicant. REFERENCES: Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 7-20 provides that, "For consideration for promotion to SGM, including concurrent appointment to command sergeant major individuals who are not graduates of the USASMC must be eligible to attend and complete the course. This includes the time in service requirements before maximum age or maximum years of service. Soldiers who were selected to attend but did not complete the course for any reason other than hardship are not eligible to attend the course again and, therefore, are not eligible for consideration or promotion to SGM. This criterion is not waivable, and exceptions to policy will not be considered." DISCUSSION: 1. The evidence of record shows the applicant was promoted to the rank/grade of SGM/E-9. As a condition of his promotion, he was required to complete the USASMC. It appears he fail to do so. As a result, he was administratively reduced to MSG/E-8 in accordance with the governing regulation. 2. His contention that he served in the rank of SGM for over 2 years is not in doubt; however, the fact remains that he did not fulfill his conditional promotion obligation in order to retain the rank of SGM. Therefore, his promotion was revoked and he was properly reduced to MSG and correctly placed on the Retired List in the rank and grade of MSG/E-8. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017607 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017607 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2