PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 March 2003
	DOCKET NUMBER:   AR2002080571

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 rank and pay grade of 
sergeant major/E-9 (SGM/E-9) be reinstated.  

3.  The applicant states, in effect, that his conditional promotion to SGM/E-9 was not conditional as is stipulated in a Department of the Army (DA), Deputy Chief of Staff, G-1, policy memorandum, dated 26 June 2002, subject:  Conditional Promotion to USAR Sergeant Major (SGM) - Policy Guidance). 

4.  The applicant’s military records show that on 7 April 1997, Orders Number 
97-9, issued by Headquarters, 95th Division, Oklahoma City, Oklahoma, authorized his promotion to SGM, effective 7 April 1997.  The additional instructions of these orders included a statement that indicated that the promotion was contingent on the completion of the Sergeants Major Course (SMC) within two years after enrollment.  

5.  On 1 June 2001, Orders Number 01-152-003, issued by Headquarters, 
95th Division, Oklahoma City, Oklahoma, directed the applicant’s reduction from SGM/E-9 to master sergeant/E-8 (MSG/E-8), effective 1 June 2001.  The authority cited for this reduction was paragraph 7-12(d-g), Army Regulation 
140-158.  

6.  On 12 February 2002, Orders Number 02-043-016, issued by Headquarters, 95th Division, Oklahoma City, Oklahoma, authorized the applicant’s transfer to the Retired Reserve, effective 1 March 2002.  These orders indicated that he was being transferred in the rank and pay grade of MSG/E-8.

7.  On 26 June 2002, the Director of Military Personnel Policy, DA, Deputy Chief of Staff, G-1, published a memorandum containing the policy on conditional promotions to USAR SGM.  This policy memorandum stated that the Office of The Judge Advocate General (OTJAG) rendered a legal opinion that indicated that the Deputy Chief of Staff, G-1, had no authority to authorize conditional promotions of USAR enlisted soldiers to SGM/E-9 during the period 1 October 1993 through 16 January 1998.  Consequently, promotions to SGM/E-9 during that period were unconditional in nature.  It further specified that this meant that soldiers who were not graduates of the SMC could be promoted to SGM/E-9, but could not be subsequently reduced for failure to complete this course.  The authority for conditional promotions to SGM/E-9 took effect on 17 January 1998.  

CONCLUSIONS:

1.  The Board notes the applicant’s contention that his promotion to SGM/E-9 was not conditional and that his rank and pay grade should be reinstated, and it finds this claim has merit.  

2.  The evidence of record confirms that the applicant was promoted to SGM/E-9 on 7 April 1997.  As indicated in the 26 June 2002 Director of Military Personnel Policy, DA, Deputy Chief of Staff, G-1, memorandum, the OTJAG rendered a legal opinion that confirmed that DA lacked the authority to authorize conditional promotions to USAR enlisted soldiers during the period 1 October 1993 through 16 January 1998.  Consequently, promotions to SGM/E-9 during that period were unconditional in nature.  

3.  In view of the facts of this case, the Board finds that the applicant’s promotion to SGM/E-9 was unconditional and his subsequent reduction to MSG/E-8 was improper.  As a result, the Board concludes that it would be appropriate to revoke Orders Number 01-152-003, dated 1 June 2001, issued by Headquarters, 
95th Division, Oklahoma City, Oklahoma, which directed his reduction from 
SGM/E-9 to MSG/E-8.  Further, the Board concludes that the applicant should be provided any back pay and allowances due as a result of this reinstatement of his rank and pay grade to SGM/E-9.  

4.  In addition, the Board finds that it would also be appropriate to amend Orders Number 02-043-016, dated 12 February 2002, issued by Headquarters, 
95th Division, Oklahoma City, Oklahoma, to show that the applicant was transferred to the Retired Reserve in the rank and pay grade of SGM/E-9 vice MSG/E-8 as is currently indicated in these orders. 

5.  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 revoking Orders Number 01-152-003, dated 1 June 2001, issued by Headquarters, 95th Division, Oklahoma City, Oklahoma, and restoring the rank and pay grade of the individual concerned to SGM/E-9 as originally effected on 
7 April 1997; by providing him any back pay and allowances due as a result of this reinstatement of his rank and pay grade; by amending Orders Number 
02-043-016, dated 12 February 2002, issued by Headquarters, 95th Division, Oklahoma City, Oklahoma, to show that he was transferred to the Retired Reserve in the rank and pay grade of SGM/E-9 vice MSG/E-8 as is currently shown.  

BOARD VOTE:  

__JNS__  __MHM _  __ JTM  __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_ John N. Slone  _
		 CHAIRPERSON

INDEX

CASE ID	AR2002080571	
SUFFIX		
RECON		
DATE BOARDED	2003/03/25	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  322	133.0000	
2.		
3.		
4.		
5.		
6.