BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150003858 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: 14 July 2016 DOCKET NUMBER: AR20150003858 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: 14 July 2016 DOCKET NUMBER: AR20150003858 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, in effect, correction of his records to show an earlier date of rank and effective date of rank (DOR) to sergeant major (SGM)/E-9. 2. He states he was placed on the Sergeant Major (SGM/E-9) promotion list in February 2013, while he was mobilized to active duty (AD). At the time he inquired about promotion and was initially advised that he would be eligible upon completion of his active duty tour. He later inquired with the 63rd Regional Support Command (RSC) Human Resources Noncommissioned Officer in July of 2014 about vacancies and was told that he was eligible to be promoted while mobilized, provided he reported to the unit, which promoted him, within 90-days after completion of his active duty tour. He was eventually promoted on 1 August 2014 after he moved to the 91st Training Division, Fort Hunter Ligget, CA. He contends that he was given inaccurate information when he had previously inquired over a year earlier about moving into the 75th Training Division, Houston, TX and was advised that the was not eligible due to his mobilization, when in fact he was eligible to be promoted 1 March 2013. 3. He provides: * United States Postal Service (USPS) printout * Orders 13-030-00035, dated 30 January 2013 * Orders 14-030-00009, dated 30 January 2014 * Orders 14-213-00012, dated 1 August 2014 * Office of the Soldiers Counsel, Memorandum, dated 21 November 2014 * Orders A-01-500801, dated 30 January 2015 CONSIDERATION OF EVIDENCE: 1. The applicant served in the U.S. Army Reserve (USAR) (Troop Program Unit (TPU)) in military occupational specialty (MOS) 27D (Paralegal Specialist). He completed over 11 years of active service and 18 years of inactive service before his retirement on 21 December 2015, due to physical disability. 2. His OMPF contains the following relevant documents: a. DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was ordered to active duty in support of Operation Enduring Freedom for the period 4 February 2012 to 3 February 2013; b. Orders 14-213-00012, issued by Headquarters, USAR Command (USARC), Fort Bragg, NC, promoting him to SGM/E-9, effective 1 August 2014; and c. DD Form 214 showing he completed an active duty period from 4 February 2013 to 21 December 2015. 3. He provides a memorandum, Subject: Appeal Requesting Change in DOR Promotion of [applicant’s name], addressed to Headquarters, 63rd RSC, Mountview, CA, dated 21 November 2014. He requested an adjustment of his DOR to 1 March 2013 and provided the following information: a. On 29 January 2013, he submitted his promotion board packet containing his agreement to accept an assignment “anywhere in the Continental United States (CONUS). b. He was subsequently selected for promotion and placed on the SGM promotion list in February 2013. c. On 4 February 2013, he was mobilized and ordered to Fort Hood, Texas. d. On 13 February 2013, he enrolled in the U.S. Army Sergeants Major Academy in 2013, Command Sergeant Major (CSM) J--S departed the 75th Training Division and was appointed as the CSM for the USAR Legal Command. e. On 4 February 2014, he was extended for another year. f. He contacted CSM J--S to express his interest in filling the vacancy with the 75th Training Division, with the understanding that he would not be available until after he completed his mobilization period in February 2015. g. CSM J--S was advised by the 75th Training Division that the applicant could not fill the SGM vacancy due to his mobilization. h. He later found out from the 63rd RSC Senior Human Resource NCO that mobilized reservists are authorized to be promoted while on mobilization provided the unit has an open vacancy and the Soldier reports to the unit and begins drilling within a 90-day period following their release from active duty i. There have been multiple vacancies for SGM-27D slots in the USAR which have been continuously available and advertised since he made the promotion list that he would have otherwise qualified for since his recommendation for SGM and coinciding with his mobilization date beginning on 4 February 2013 4. The USARC provided an advisory opinion on 1 May 2015 wherein they recommended disapproval of the applicant’s request to adjust his DOR. This official stated: a. In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), dated 30 April 2010, Rapid Action Revision, Soldiers recommended for promotion to Sergeant First Class through Sergeant Major are integrated onto an order of merit list called a Permanent Promotion recommended List (PPRL). Then, as vacant positions are reported, the RSC will identify the first Soldier on the list who meets the reported requirements of these positions within their MOS and elected travel distance. Any deviation from this process jeopardizes the intent of the promotion system. b. The applicant indicated that his travel preference was “Anywhere CONUS.” The Army Reserve policy and procedures encompassing the time frame of the applicant’s inquiry specifies that failure to list mileage, initial statement and sign the promotion preference agreement results in the default mileage of 50 miles from home of residence (HOR). There were no announced vacancies within 50 miles of the applicant’s HOR. In June 2014, the applicant increased his mileage preference to 2000 miles and subsequently identified to fill a vacancy within his mileage radius. He was promoted on 1 August 2014. 5. The applicant responded to the advisory opinion on 22 May 2015. He stated he did not list a specific mileage radius, however, that by indicating he would travel anywhere in CONUS the mileage should have defaulted to the maximum radius allowed from his home of residence. Further, the advisory did not address his claim that there was a valid vacancy with the 75th Training Division for which he was qualified to fill. 6. In a second advisory opinion, emailed on 13 April 2016, a USARC representative: a. provided Section B (Promotion Preferences Agreements and Understandings) is attached to the advisory opinion. The applicant initialed the statement: I agree to travel 1,000 (50, 75, 100,125, 150, etc.) miles from my residence to serve in the duty position to which I am promoted. I understand that I may be promoted and reassigned into any duty position for which I am qualified within the distance of miles selected based on the needs of the Army. Failure to list mileage, initial statement, and sign this document means I will only be promoted if a position for which I qualify is available within 50 miles (limited to 90 minutes total one way commuting time) from my home of residence.” He made did not annotate a specific mileage but made the entry “anywhere conus.” b. stated mileage is not arbitrarily determined as the system needs a number to determine travel distance. Prior to the applicant updated his mileage requirement there were no vacancies in the 63rd RSC for a SGM 27D. Vacancies for October 2013 were not available. After the applicant updated his mileage to 2000 miles on 23 June 2014 he was matched in July 2014 to a vacancy. c. contacted CSM J--S, who confirmed he did discuss the vacancy in the 75th Training Division with the applicant, however, the division CSM did not want to fill the position with a mobilized Soldier, which was not a violation of policy or regulation. A command is not required to accept a Soldier that will not physically fill their position when asked. The unit would only have to accept the applicant if he had been slated to the position due to promotion which was not the case at the time the applicant was recommended. d. stated the results of the 2013 SGM board were approved on 28 March 2013 and released to the RSCs form them to add Soldier to the PPRL on 1 April 2013. The guidance from Headquarters to the RSCs at that time was to ensure that results received in April were added to the PPRL Soldier to be slotted the following month. The earliest date he would have been placed on the PPRL would have been May 2013 which would make him eligible to be slotted the first time in July 2013. e. provided a memorandum, dated 30 November 2012, Subject: Mandatory Enlisted Promotion Board Consideration Requirements and Procedural Promotion Guidance, and a TPU Eligibility for Promotion Board Consideration to the Ranks of SFC and SGM information sheet. 7. The applicant responded on 20 May 2016. He reiterates that his mileage election although not specific clearly indicates he was willing to commute anywhere in CONUS. He further states: a. in October 2013 there was a vacancy at the 75th Training Division, Houston, TX, for a SGM 27D which is one of the states managed by the 63rd RSC. b. he was not aware his mileage radius had defaulted to 50 miles until June 2014. Although the form clearly states a default of 50 miles will be used if no mileage is entered, his statement that he would travel anywhere in CONUS shows he would travel the maximum distance and, at the very least he should have been contacted for clarification. c. he strongly disagrees that a command can refuse to accept a fully qualified candidate solely based on the fact the candidate is mobilized/deployed at the time of consideration. This is tantamount to discrimination against mobilized/deployed Soldiers. Had this been a candidate for a civilian or government service agency, this would have been a clear violation of Uniformed Services Employment and Reemployment Rights Act (USERRA). Military leaders must adhere to the same standards and treatment of our own Soldiers. d. his promotion eligibility date should be 1 July 2013. REFERENCES: 1. Army Regulation 600-8-19 provides for promotions based on the PPRL. Based on cumulative vacancy computations, the unit will report a current or projected vacancy requirement to the authority responsible for maintaining the PPRL. The regional promotion list manager will identify the Soldier on the PPRL who will be promoted into the vacancy and notify the promotion and/or orders publishing authority. The promotion and/or orders publishing authority will publish the promotion and reassignment orders and provide a copy to the regional promotion list manager. The effective date of the promotion will be the date of the reassignment to the vacancy. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends, in effect, that his military records should be corrected to show the effective date and date of rank for his SGM promotion as earlier than 1 August 2014. 2. In essence, the applicant contends he should have been considered for promotion anywhere in CONUS and that he was denied promotion to a vacant SGM 27D position with the 75th Training Division because he was mobilized. 3. His promotion packet specifically states that the distance an individual is willing to commute in order to fill a vacancy must be entered numerically. If not, the mileage will default to 50 miles, and because he entered “Anywhere CONUS” he was only considered for vacancy within a 50 mile radius for his home of residence because he failed to follow instructions. The applicant later corrected his mileage entry to show 2000 miles and he was promoted shortly thereafter. Lacking evidence to the contrary there is no error or injustice regards to his consideration for a promotion vacancy based on his commuting preference. 4. The applicant’s argument that he was eligible for a vacancy with the 75th Training Division in March 2013 and the decision not to fill the vacancy with a mobilized Soldier amounts to discrimination is not valid. Although a vacancy existed for a SGM 27D at this unit, commanders must also consider mission requirements when deciding when vacancies are filled and by whom. His lack of availability, not the fact that he was mobilized, was the reason for his non-selection. The lack of availability due to location, attendance at school, or any other reasons, would have just as likely prevented the applicant, as well as, any other candidate from being selected for this vacancy. 5. In summary, the applicant did not complete the mileage requirement correctly and he cannot expect that a random amount would be entered, especially because the instructions are very specific as to how to complete this item. Further, the ev idence shows the applicant was eligible but not selected for the vacancy within the 75th Training Division due to his unavailability and there is no evidence to show that another vacancy existed. 6. Given the facts of the case, it must be presumed that all applicable policy and regulatory procedures were properly followed. He has not shown by a preponderance of the evidence that his DOR to SGM is in error or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003858 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003858 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2