IN THE CASE OF: BOARD DATE: 8 December 2015 DOCKET NUMBER: AR20140016818 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 to his Pennsylvania Army National Guard (PAARNG) record to show his date of rank (DOR) for sergeant (SGT)/E-5 was 1 September 1992, for staff sergeant (SSG)/E-6 was 21 May 2002, and for sergeant first class (SFC)/E-7 was on or about 12 September 2012. He also requests back pay and allowances due him based on these corrections. 2. The applicant states: a. After prior enlisted service as a SSG/E-6, he enlisted in the PAARNG as a (SGT)/E-5 in 2009. (He agreed to a demotion from SSG/E-6 to accept a military technician position.) His DOR for SGT/E-5 should have been his initial date of promotion to SGT/E-5 effective 1 September 1992. If his SGT/E-5 DOR had been corrected earlier, he would have been immediately eligible for promotion to SSG/E-6. b. Upon getting hired for the Active Guard Reserve (AGR) program, an E-6 vacancy existed, but since he had a SGT/E-5 DOR error, he was erroneously passed over for promotion to E-6. When his DOR was corrected, his promotion file was boarded and he was promoted to SSG/E-6 on 10 February 2011. c. Once selected for SSG/E-6, his DOR should have been adjusted to 21 May 2002. If his SSG/E-6 DOR was properly recorded in his record, he would have been promotion eligible for SFC/E-7 and thus promoted to SFC/E-7 on 12 September 2012. 3. The applicant provides the following evidence: * letter, Office of Inspector General, National Guard Bureau (NGB), with enclosures * letter, PAARNG Office of Inspector General with enclosures dated 14 November 2012 CONSIDERATION OF EVIDENCE: 1. The applicant is currently a member of the PAARNG on a 3-year AGR tour of duty. He is serving in the rank and pay grade of SFC/E-7. 2. On 29 January 1987, the applicant enlisted in the Regular Army. He was honorably released on 28 January 1990 in the pay grade of E-4 and immediately transferred to the ARNG. He served as a member of a CAARNG troop program unit and was promoted to SGT/E-5 on 1 September 1992. (This promotion order is not available in his record.) 3. He entered active duty on 17 October 1996 and served in the PAARNG under the Title 32 AGR program until his honorable separation from the AGR program on 30 July 1998. He was issued a DD Form 214 that shows: * item 4a (Grade, Rate or Rank) "SSG" * item 4b (Pay Grade) "E6" * item 12 h (Effective Date of Pay Grade) 19 May 1995 * item 28 (Narrative Reason for Separation) "Voluntary separation from Title 32 AGR Active Duty" 4. He again entered active duty in the AGR program on 20 November 1998 in the NVARNG and served until the completion of his required active service on 31 July 2002. He was issued a DD Form 214 that shows: * item 4a (Grade, Rate or Rank) "SSG" * item 4b (Pay Grade) "E6" * item 12 h (Effective Date of Pay Grade) 21 May 2002 5. Orders 038-029 issued by the NVARNG, Office of the Adjutant General on 7 February 2002 promoted the applicant to SFC/pay grade E7 with a DOR of 7 February 2002. The additional instructions within the order state that this promotion was not valid and would not be effective if the Soldier was not in a promotable status on the effective date of promotion. (There are no reduction orders in his record.) 6. He was honorably discharged from the NVARNG on 1 March 2003 and issued an NGB Form 22 (Report of Separation and Record of Service) that shows he completed 13 years, 1 month and 2 days of net ARNG service. This form shows the following entries: * item 5a (Rank) "SSG" * item 5b (Pay Grade) "E-6" * item 6 (Date of Rank) "YR 95  M  17  D 01" * item 18 (Remarks) "Service Member interstate transferred to CAARNG effective 980707. Service Member interstate transferred to NVARNG effective 981102. Service Member was Title 32 AGR for periods: 961017-980706 & 981120-030301" * item 23 (Authority and Reason) Paragraph 8-27; NGR 600-200, failure to obtain unit vacancy 7. After a period in the USAR Control Group and then a complete break in service, he enlisted the U.S. Army Reserve (USAR) on 18 August 2005 for a period of 6 years in the pay grade of E-6. He had mobilization periods in support of Operation Iraqi Freedom. He served on active duty from 1 May 2006 to 6 September 2007 and during this period he served in Iraq from 23 August 2006 to 2 August 2007. He served a second period of active federal service from 1 September 2008 to 6 November 2009 and during this period he served in Iraq from 9 October 2008 to 6 September 2009. He was issued a DD Form 214 for each period of active federal service. Each DD Form 214 shows the following: * item 4a (Grade, Rate or Rank) "SSG" * item 4b (Pay Grade) "E06" * item 12 h (Effective Date of Pay Grade) 21 May 2002 8. On 19 November 2009 the applicant requested a conditional release from his USAR unit located in Kittanning, PA to enlist in the PAARNG. 9. On 20 November 2009, he enlisted in the PAARNG for a period of 3 years, accepting a reduction in rank from SSG/E-6 to SGT/E-5 so as to be eligible for a military technician position while concurrently serving in a troop program unit. Membership in the PAARNG was required for his civilian employment with the PAARNG. 10. On 19 April 2010, he returned to an AGR status with the PAARNG. In the PAARNG AGR program he was promoted to SSG/E-6 on 10 February 2011 by Orders 041-1076. 11. On an unknown date, the applicant requested an adjustment to his DOR to the PAARNG. On 18 September 2011, the PAARNG Enlisted Personnel Manager denied the applicant’s request to adjust his DOR. 12. On 12 November 2012, after an inquiry to the PAARNG Inspector General, the applicant was informed by letter that his inquiry to adjust his SSG DOR from 10 February 2011 to 21 May 2002 was not supported by regulatory guidance. 13. The applicant’s inquiry was then referred to the National Guard Bureau (NGB) Office of Inspector General. The applicant sought an adjustment to his SSG DOR to 21 May 2002. The NGB official stated that the PAARNG Inspector General’s decision was correct and cited Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-13i, which states that "ARNG Soldiers reduced voluntarily per Chapter 10 will receive an adjusted DOR when promoted again to their former grade." The letter further stated that paragraph 10-19(a), Army Regulation 600-8-19, would not apply to the applicant because he was not a member of the USAR. The letter concluded by stating the applicant’s inquiry was unfounded and that paragraph 10-14e(2)(d) of Army Regulation 600-8-19 did not apply. 14. Effective 15 September 2014, the applicant was promoted to SFC/E-7 by Orders 260-1017 issued by the PAARNG. Concurrent with his promotion, he was assigned in an AGR status to a Senior Supply Sergeant position with Headquarters Support Company, Headquarters and Headquarters Battalion, 28th Infantry Division by PAARNG Order 231-084 issued on 19 August 2014. He was ordered to active duty for approximately 4 years. 15. An advisory opinion was obtained from the National Guard Bureau (NGB) on 31 December 2014. The advisory official recommended a partial grant of the applicant's request as follows: * DOR for SGT/E-5 be adjusted from 20 November 2009 (date of enlistment in the PAARNG) to 1 September 1992 (his initial DOR) * DOR for SSG/E-6 be adjusted from 10 February 2011 (date promoted by PAARNG) to 21 May 2002 (an earlier DOR while a member of the USAR) * DOR adjustment for SFC/E-7 be denied 16. The advisory official stated that both the PAARNG and NGB IG used incorrect regulatory guidance to deny the applicant relief. Each official opined that the applicant was already a member of the PAARNG when he voluntarily accepted the SGT/E-5 TPU position to accept the military technician position. The facts show the applicant was a member of the USAR and then enlisted in the PAARNG as a prior service enlistee. Regulatory policy states that a prior service enlisted Soldier who enlists in the ARNG within 24 months of his last discharge, will have his DOR adjusted to reflect his original DOR plus elapsed time since discharge. 17. On 5 January 2015, the applicant was provided a copy of the advisory opinion for response. On 14 January 2015, he responded with the following statement: a. Due to the SGT/E-5 DOR error, he was not considered SSG/E-6 eligible from February 2011 through February 2013 and was passed over for at least three different positions for SSG/E-6. b. Had the PAARNG adjusted his DOR for SSG/E-6, as the opinion supports, he would have been boarded at the next available board for SFC/E-7 and placed on the list in 2011. Worst case scenario, he would have had to wait for the regular board cycle and not been eligible until the list came out on 10 February 2012. c. Had the SGT/E-5 and SSG/E-6 DOR adjustments been made when originally requested, he would have been eligible in 2011 for promotion to SFC/E-7. Considering he was the number one E-5 to E-6 in 2010 and the number one E-6 to E-7 in 2013, it is reasonable to conclude that he would have been at the top of the list in 2011 and in 2012, resulting in a selection into any one of the three slots for SFC/E-7. He was selected for the first 92Y40 SFC/E-7 vacancy in his battalion after becoming eligible on 15 September 2014. If the aforementioned errors had not occurred, he is convinced he would have been promoted at the earliest possible date to SFC/E-7. 18. Army Regulation 600-8-19, chapter 7 (Enlisted promotion and reduction of ARNG personnel) prescribes the policies, procedures, and systems to advance, promote, laterally appoint, and administratively reduce all ARNG and ARNGUS enlisted Soldiers, except for those included in the end strength of the Regular Army and who are covered by the RA promotion system. Chapter 10 provides guidance on reduction for cause and restoration of grade. Soldiers who are advanced, latterly appointed, or reduced in the ARNGUS are concurrently advanced, promoted, laterally appointed, or reduced as a Reserve of the Army. Paragraph 7-20 states that to be eligible for consideration, selection, and promotion to SGT through sergeant major, Soldiers must: a. Be considered and placed in the selection objective of the current promotion list. All Soldiers must go through the board process before they may be selected and promoted. The only exceptions are listed in section III of this chapter. b. Be participating satisfactorily in the active ARNG in the next lower grade. c. Meet the criteria in table 7–1, by the date in the promotion board announcement. Waivers and exceptions to policy are not authorized for time in grade, time in service, and cumulative enlisted service. 19. Army Regulation 600-8-19 (30 April 2010), in effect at the time, prescribed policies and procedures governing promotion and reduction of Army enlisted personnel applicable to the Active Army, the Army National Guard/Army National Guard of the United States, and the USAR. Chapter 3 governs the SGT and SSG promotion system for Active Army and USAR AGR Soldiers. a. Paragraph 1-13i states, "ARNG Soldiers reduced per chapter 10 will not receive an adjusted DOR when promoted again to their former grade." b. Paragraph 10-14e(1) states that when a Soldier is reduced voluntarily and is later promoted, "the DOR of the grade to which restored will be adjusted to reflect the previous period served in the grade to which restored." c. Paragraph 10-19b states, "If approved by the unit commander, a Soldier may volunteer in writing on DA Form 4187 [Personnel Action] for reduction to any lower grade for reassignment to another position, to another program, or to continue in service. The promotion authority may then administratively reduce the Soldier without board action. DOR will be established per paragraph 1–13. DOR for Soldiers who take a reduction to enter the AGR Program will remain the same as previously held in the grade to which reduced." 20. Army Regulation 600-8-19 (20 March 2008), in effect at the time, in paragraph 10-19a(3)(a) states, for USAR Soldiers, "Enlistment at a lower grade in the Regular Army, the Delayed Entry Program, the Army National Guard, or other U.S. Armed Forces is a contractual agreement and reduction orders are not issued. Since the Soldier is discharged from USAR, without a reduction action and voluntarily contracts to enlist at a lower grade, it is not considered a grade reduction within the meaning of this regulation." 21. Army Regulation 600-20 (Army Command Policy – March 2008), paragraph 2-20b(1)(b)2, states that when a prior enlisted Soldier enlists in the ARNG within 24 months of the last discharge (from components including the USAR), "the DOR of the enlistment grade will be adjusted to reflect the original DOR plus elapsed time since discharge." DISCUSSION AND CONCLUSIONS: 1. The evidence of record supports the applicant's request for a correction to his PAARNG DOR/pay grade to SGT/E-5 with an effective date of 1 September 1992 and to his DOR/pay grade to SSG/E-6 with an effective date of 21 May 2002. 2. The applicant's DOR to SFC/E-7 should not be adjusted because the promotion to SFC/E-7 is contingent upon being assigned to a valid SFC/E-7 position. The record shows the applicant was assigned to an SFC/E-7 position on 15 September 2014 which is his SFC/E-7 DOR. Therefore, there is insufficient evidence to support adjusting his SFC/E-7 DOR to an earlier date as he suggests. 3. In view of the foregoing, his records should be corrected as recommended below. BOARD VOTE: ________ ________ ______ _ GRANT FULL RELIEF ____X____ ____X____ ____X____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 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 and State Army National Guard records of the individual concerned be corrected to show: a. an adjustment to his DOR for SGT/E-5 while in the PAARNG from 20 November 2009 to 1 September 1992; b. an adjustment to his DOR for SSG/E-6 while in the PAARNG from 10 February 2011 to 21 May 2002; and c. payment of all back pay and allowances that flow from this correction. 2. 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 his request to adjust his DOR for SFC/E7. _______ _ _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. ABCMR Record of Proceedings (cont) AR20120010274 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140016818 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1