BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150003952 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 reinstatement of his promotion to the rank/grade of sergeant first class (SFC)/E-7. 2. The applicant states: a.  He was selected for promotion to SFC/E-7 in May 2013. He extended his enlistment contract for the Bonus Extension and Retraining (BEAR) Program for the Special Forces Qualification Course (informally, the Q course). b.  He started the Q course in September 2013 and in April or May 2014, the U.S. Army Human Resources Command (HRC) sent an email to his Army Knowledge Online (AKO) account stating he was dropped from the SFC/E-7 promotion list because he needed an additional 8 months of retainability. c.  He was in the field when the email was sent and he was without any access to a telephone or email. He did not see the email correspondence and he blames his sergeant major for not checking his AKO account. He never saw the email telling him he needed to reenlist to meet the time-in-service requirement and he was in the field when the final notification was sent. He was 100-percent committed to passing the Q course and he would have reenlisted had he been aware of the email correspondence. He made it through the end of the Q course, but he did not pass the Robin Sage training exercise. d.  The regulation states, "ensure Soldiers to be promoted are counseled concerning the service remaining requirements." His BEAR paperwork brought his expiration term of service (ETS) date to 2 August 2016, only 9 months shy of the 36-month SFC/E-7 requirement needed to be promoted. He received congratulatory email, but no email explaining the 36 months of retainability needed for promotion. His career counselor for his BEAR Program was aware he had made the SFC/E-7 promotion list and he was not tracking the 36-month rule. e.  He never wanted to leave the 56M (Chaplain Assistant) military occupational specialty (MOS), but his son's medical condition and trusted doctors made him want to try and have stability near Seattle Children's Hospital. His son has had 15 brain surgeries and he has been near death 3 times. f.  He completed the Small Unit Tactics and Survival, Evasion, Resistance, and Escape courses without access to electronics. He completed the MOS 18E (Special Forces Communications Sergeant) course during the period January through May 2014. He did not pass the final phase during the Robin Sage training exercise which was the third week in the field with no electronic access. In August 2014, he did not pass the last chance re-cycle phase of the Robin Sage training exercise. g.  He was depressed and he realized something was wrong after finding the three email messages. He was never called or emailed at his personal email. His Special Forces S-1 had no idea about anything. He almost had to get out of the Army just to get back to his family. h.  In February 2015, the command sergeant major for all special forces training tried to help him. 3. The applicant provides: * DA Form 1695 (Oath of Extension of Enlistment) * DA Form 3340 (Request for Reenlistment or Extension in the Regular Army) * memorandum of understanding, dated 26 July 2013 * email * HRC memorandum, dated 9 May 2014, subject: Administrative Removal (Applicant) * DA Form 4187 (Personnel Action) * Army Regulation 600-8-19 (Enlisted Promotions and Reductions) extract * six letters of recommendation * HRC memorandum, dated 13 January 2015, subject: Request for Appeal for Promotion to SFC for (Applicant) * Enlisted Record Brief CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 2 March 2004 in the rank/grade of specialist (SPC)/E-4 in MOS 56M for a period of 4 years. 2. He was promoted to sergeant/E-5 on 1 November 2006 and he was promoted to staff sergeant/E-6 on 1 April 2009. 3. On 27 July 2010, he extended his enlistment for 51 months to meet retainability for the BEAR Program service obligation. His ETS date was changed to 2 February 2015. 4. On 26 July 2013, he extended his enlistment for 18 months to meet retainability for the BEAR Program service obligation. His ETS date was changed to 2 August 2016. 5. On 6 October 2013, he was reassigned from Joint Base Lewis-McChord, WA, to the 1st Special Warfare Center, Fort Bragg, NC, to attend the Special Forces Q course during the period 7 October 2013 through 19 July 2014. 6. Records show he was selected for promotion to SFC/E-7 by the Fiscal Year (FY) 2014 SFC Promotion Selection Board held during the period 3 through 20 December 2013. 7. He provided email from HRC, dated 24 March 2014 and 24 April 2014, advising him that acceptance of his promotion required a 3-year service obligation and that he needed to provide proof of his reenlistment or extension to meet the service obligation no later than 30 April 2014. 8. On 1 May 2014, HRC advised him that his name had been removed from the SFC/E-7 promotion list due to his failure to reenlist or extend to meet the 3-year service obligation within 30 days of the effective date of his promotion. 9. On 24 November 2014 and with the support of his command, he submitted an appeal to HRC on the removal of his name from the SFC/E-7 promotion list. He indicated he was unaware and he was never counseled on the requirement to reenlist or extend his current enlistment for acceptance of his promotion. 10. The applicant provided six letters of recommendation for his promotion to SFC/E-7 from individuals who personally worked with him or observed him and his work. 11. On 13 January 2015, HRC returned his promotion appeal request without action and indicated that service remaining requirements could not be appealed and all removals were final in accordance with Army Regulation 600-8-19, paragraph 4-15, and Military Personnel (MILPER) Message 12-124, which stated that Soldiers who are administratively removed will not be eligible for reinstatement. 12. On 10 February 2015, he was reassigned to Joint Base Lewis-McChord, WA. 13. On 7 May 2015, the Chief, Department of the Army Promotions Branch, provided a response to a Congressional inquiry. The correspondence stated: a.  The applicant was selected for promotion to SFC/E-7 on 1 April 2015 (should read 2014), but he was not promoted due to not reenlisting to meet the 3-year service remaining requirement for promotion as directed by MILPER Message 13-277. This service remaining requirement is initially waived for Soldiers who are enrolled in the BEAR Program until successful completion of the course for which the Soldier reenlisted. b.  The applicant enrolled in the BEAR Program on 26 July 2013 to reclassify to MOS 18E with a projected completion date of 19 July 2014. He did not successfully complete this course due to being dismissed for academic reasons and he was prohibited from any future reenrollment in the course, thereby nullifying the initial waiver which was offered for the promotion service remaining requirement. c.  The course dismissal and his failure to reenlist within the 30-day window led to removal of his name from the FY13 (should read FY14) SFC Promotion List. 14. On 14 September 2015, a copy of the Congressional response was referred to the applicant as an advisory opinion. He was given an opportunity to respond and/or provide further corroborating documentation. 15. On 1 October 2015, he responded and stated he disagreed with the HRC reply to the Congressional inquiry. He further stated: * his concern was the injustice of lack of knowledge * he could have been more responsible checking his AKO email account at the library * he never saw the two warning email messages and he would have reenlisted immediately if he had * he was recently selected again for promotion by the FY15 SFC Promotion Selection Board * he would appreciate any back pay resulting from earning his FY13 (should read FY14) SFC/E-7 promotion selection since he has been working in an SFC/E-7 position since January 2015 * his promotion should be backdated for his family and so he can stay as competitive as possible with his peers 15. The applicant provided email in which he requested and received assistance in clarification of the appeal of his removal from the SFC/E-7 promotion selection list. An email from his command sergeant major shows he was advised: "…it seems that you have no recourse. Based on what my G-1 showed me, you should have been aware of the need to reenlist a number of times. First, when the MILPER message came out for the board, it states that if selected, you would have to reenlist. There was the first opportunity to get it right. You had a year to reenlist. Second, when the list did come out, it actually is written by your name that you have to reenlist. You should have done it then. And finally, there are two emails saying you need to reenlist. I tried to argue that you never got the emails since you were in the field, but the MILPER message and the orders worked against you since both told you that you need to reenlist." 16. MILPER Message 13-263, dated 19 September 2013, effective 1 October 2013 through 31 December 2015, announced the phase-out plan for the Regular Army Active Component BEAR Program. It further stated Soldiers serving in the BEAR Program may have up to 24 months of previously-obligated extended service forgiven, provided they reenlist for the Regular Army reenlistment option within 90 days after graduation. Questions regarding the message would be directed to the servicing career counselors, and career counselors were directed to contact their appropriate command retention officers for clarification. 17. MILPER Message 13-277, dated 30 September 2013, expired 1 November 2014. This message announced, in part, that 4 February 2014 was the convening date of the Army selection board for consideration of eligible Soldiers for promotion to SFC/E-7 and that Soldiers selected for promotion by this board would incur a 36-month service obligation upon accepting promotion to SFC/E-7. 18. Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel. a. Table 4-2 (Processing List Results and Orders), step 12, states the battalion human resources office is responsible to ensure Soldiers to be promoted are counseled concerning the service remaining requirements and the procedures for declining promotion. b.  Paragraph 4-18 states a Soldier who is removed from a selection list may appeal that action only in limited circumstances. c.  Paragraph 7-8 states a 36-month service obligation is required from the effective date of promotion to SFC. The Soldier must extend or reenlist in order to accept the promotion. d.  Paragraph 7-12 states a promotion in not valid and is not effective if the Soldier is not in a promotable status on the effective date of promotion. e.  Paragraph 7-44 states Soldiers will be removed from promotion lists if they fail to reenlist or extend to meet a service remaining requirement. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for reinstatement of his earlier promotion selection to SFC/E-7 was carefully considered. 2. Although he argues he was never counseled on the requirement to extend or reenlist to meet the 36-month service obligation associated with his promotion, basic promotion eligibility requirements are clearly outlined in Army Regulation 600-8-19. Additionally, MILPER Message 13-277 announced that Soldiers selected for promotion by the FY14 SFC board would incur a 36-month service obligation upon accepting promotion. 3. In view of the foregoing evidence, there is an insufficient basis to grant the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __X______ __X______ __X__ DENY APPLICATION 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. ABCMR Record of Proceedings (cont) AR20150003952 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003952 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1