IN THE CASE OF: BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20160000712 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 IN THE CASE OF: BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20160000712 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140016818, dated 8 December 2015. _____________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. IN THE CASE OF: . BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20160000712 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 reconsideration of his previous request for the correction of his records to show he was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 12 September 2012 with entitlement to all back pay and allowances based on the correction. 2. As a new request, he requests correction of his records to show promotion to the rank/grade of master sergeant (MSG)/E-8 on 10 June 2015 with entitlement to all back pay and allowances based on the correction. 3. The applicant states, in effect, he is providing a new argument and new evidence that the Board did not previously consider. 4. The applicant provides: * nine DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating periods August 2005 through 31 August 2009 and 20 November 2009 through 30 August 2015 * two DA Forms 4187 (Personnel Action), dated 29 June 2011 and 9 September 2014 * a 15 page printout titled “EPP Log Archive” for 2011 to 2015 * seven memoranda, dated between 1 September 2010 and 9 December 2015 * six pages of email, dated between 24 July and 14 August 2014, with an attachment * two pages titled E-6 Promotion Report - 92Y, undated and printed on 2 October 2014 * AR20140016818 Record of Proceedings (ROP), dated 8 December 2015 * a page titled slot availability, undated * three pages of titled Extracted from AR 600-8-19 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records, which the Board summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140016818, on 8 December 2015. 2. As a new argument, the applicant states: a. On 20 November 2009, upon enlisting in the Pennsylvania Army National Guard (PAARNG), his date of rank (DOR) to sergeant (SGT)/E-5 should have been 1 September 1992 and upon promotion to SSG, his DOR should have been 21 May 2002, as stated in the Board determination. b. According to Army Regulation (AR) 600 8-19 (Enlisted Promotions and Reductions), Pennsylvania (PA) Military Regulation (PMR) 600-8-19 (Enlisted Promotions Under the Enlisted Promotion System), and board memorandum of instruction (MOI) for each year. (1) If he had a DOR to SGT of 1 September 1992, he would have been eligible to compete for promotion to staff sergeant (SSG)/E-6 during the total year 2010 (TY10) board cycle. On 10 April 2010, the board published the results and he would have been selected for the vacancy that SSG C was promoted into on 10 August 2010. (2) If he had been promoted to SSG on 10 August 2010 with an adjusted DOR (ADOR) to SSG of 21 May 2002, he would have been eligible to compete for promotion to SFC during the TY11 board cycle. On 10 February 2011, the board published the results. From 10 February 2011 forward, he should have been considered for promotion to SFC. c. After 10 February 2011, there were three SFC positions that he would have stood a realistic chance of being selected for. He is reasonably certain that had he been afforded the opportunity to compete, he would have placed above SFC BD on the Promotion Eligibility List (PEL) and would have been selected. (1) The first available positon was the position SFC BD was promoted into on 12 September 2012. SFC D was promoted outside the brigade (BDE) and was number three on the 92Y (Unit Supply Specialist) PEL. (2) The second available positon was the position SFC SB was promoted into on 4 January 2013. SFC SB was promoted inside the BDE; however, she was number 18 on the 42A (Human Resources Specialist) PEL in the BDE and was not on the 92Y PEL. (3) The third available position was the position SFC MS was promoted into on 30 August 2013. SFC MS was promoted outside the BDE and was number three on the 92Y PEL. However, no one in his BDE was on the PEL. d. He did become eligible in the TY14 board cycle and the results were released on 10 February 2014. Although he was number one on the PEL and because of the way the PMR was written, the Soldiers that were number 12, 14, and 15 on the PEL were promoted before he was. He was promoted 7 months later into the first available position. e. The MOI for the TY15 MSG board stated the DOR [to SFC] was 30 November 2012. With a DOR to SFC of 12 September 2012, he would have been boarded and eligible to compete. Based on his last 10 years of NCOERs and performance, he would have been very competitive and may have been selected for promotion to this position as well. 3. As new evidence, the applicant provides: a. An NCOER he received for the rated period 20 November 2009 through 19 November 2011 while serving as the supply sergeant in an Active Guard Reserve (AGR) status with Special Troops BN, 28th ID. This report shows his rank as SGT and DOR as 1 September 1992. It stated he was hired as the unit AGR supply sergeant in April 2010. His rater rated his overall performance and potential as “among the best” and his senior rater rated his overall performance and potential as “successful-1” and “superior-1.” b. Three NCOERs he received for the rated periods 20 November 2010 through 31 August 2013 while serving as the supply sergeant in an AGR status with HHBN, 28th ID. These reports show his rank as SSG and DOR as 10 February 2011. His raters rated his overall performance and potential as “among the best” and his senior raters rated his overall performance and potential as “successful-1” and “superior-1.” c. A memorandum, dated 10 February 2013, subject: 2013 PEL for SSG to SFC, from the Office of the Adjutant General (AG), PAARNG, with an attached list of names. The applicant’s name is not on the attached list. d. Page one of a memorandum, dated 1 July 2014, subject: MOI for FY15 MSG Promotion Board, from the Office of the AG, PAARNG, wherein it stated the FY15 MSG would convene on 3 to 6 November 2014 at Fort Indiantown GA, PA, for all Soldiers being considered for promotion to MSG. e. An NCOER he received for the rated period 31 August 2014 through 30 August 2015 while serving as the senior supply sergeant in an AGR status with HHBN, 28th ID. This report shows his rank as SFC and DOR as 15 September 2014. His rater rated his overall performance and potential as “among the best” and his senior rater rated his overall performance and potential as “successful-2” and “superior-2.” f. An attachment to an email, undated, wherein it stated that upon the applicant's enlistment on 20 November 2009 in the PAARNG, the recruiter used his enlistment date for his DOR to SGT instead of 1 September 1992. In early 2010, he was not given a National Guard Bureau (NGB) Form 4100 (ARNG Enlisted Promotion Point Worksheet - SGT/SSG Boards) for the TY10 promotion board cycle. He submitted the correct documents but when the 2010 PEL was published his name was not on it. A few months later, his rank was correct. As he had already missed the 2010 promotion board cycle, his packet went to a Standby Advisory Board (STAB) and he was then put at the top of the PEL. Unfortunately, before the STAB results were posted another Soldier was put in the first available SSG slot. 4. The applicant enlisted in the Regular Army (RA) on 29 January 1987. On 1 March 1989, he was promoted to the rank/grade of specialist (SPC)/E-4. On 28 January 1990, the Army honorably released him from active duty in the rank of SPC and transferred him to the 1st Battalion, 112th Infantry Regiment, Troop Program Unit (TPU), PAARNG, Butler, PA. 5. On 1 September 1992, the PAARNG promoted him to SGT and on 17 June 1995, promoted him to SSG. In 1997, the PAARNG awarded him MOS 92Y. 6. He served on active duty as a member of the PAARNG in an AGR status from 17 October 1996 to 30 July 1998. 7. On 2 November 1998, he received an interstate transfer to the Nevada ARNG (NVARNG). His NGB interstate approval form shows he was transferring from the PAARNG to the NVARNG. On 20 November 1998, he entered active duty as a member of the NVARNG in an AGR status. On 7 February 2002, the NVARNG promoted him to SFC/E-7. 8. On 21 May 2002, he received nonjudicial punishment (NJP) under the provisions of the Nevada Code of Military Justice (NCMJ) relating to the loss, damage, destruction, or wrongful disposition of military property, and for dereliction in the performance of his military duties. Part of the punishment imposed was reduction from SFC/E-7 to SSG/E-6. On 21 May 2002, he was reduced to SSG. The restricted folder of his official military personnel file (OMPF) currently contains this NJP. 9. On 31 July 2002, the Army honorably released him from active duty and the AGR program and transferred him to his NVARNG M-Day. His DD Form 214 for this period of service shows his rank as SSG and effective date of pay grade as 21 May 2002. 10. On 1 March 2003, the NVARNG honorably discharged him from the ARNG in the rank of SSG and assigned him to the U.S. Army Reserve (USAR) Control Group. 11. On 18 August 2005, after a break in service, he enlisted in the USAR in the rank of SSG and MOS 92Y. He served on active duty as a member of his USAR unit from 1 May 2006 to 6 September 2007 and from 1 September 2008 to 6 November 2009. His DD Forms 214 (Certificate of Release or Discharge from Active Duty) for each period of active service shows his rank as SSG and DOR as 21 May 2002. 12. On 19 November 2009, he was discharged from his USAR TPU to enlist in the PAARNG; and on 20 November 2009, he enlisted in the PAARNG for a period of 3 years, accepting a reduction in rank from SSG to SGT to be eligible for a military technician position while concurrently serving in a TPU. Membership in the PAARNG was required for his civilian employment with the PAARNG. He was assigned to the Special Troops Battalion (BN), 28th ID, Hersey, PA. 13. Orders 090-013, dated 31 March 2010, issued by the PAARNG, Department of Military and Veterans Affairs, ordered him to full-time National Guard duty in an AGR status with a report date of 19 April 2010 in MOS 92Y. The PAARNG assigned him to Headquarters and Headquarters BN (HHBN), 28th ID, Hersey, PA. 14. His DA Form 2-1 (Personnel Qualification Record), dated 27 August 2010, shows his rank as SGT and DOR as 20 November 2009. 15. The NCOER he received for the period 20 November 2009 to 19 November 2010 shows his rank as SGT, DOR as 1 September 1992, and status as AGR (emphasis added). 16. Orders 041-1076, dated 10 February 2011, issued by the PAARNG, Department of Military and Veterans Affairs, promoted him to the rank of SSG with a DOR of 10 February 2011 and effective date of 10 February 2011. 17. On 18 September 2011, the applicant's request for an adjusted (ADOR) to SSG of 21 May 2002 was denied by the PAARNG. 18. On 12 November 2012, the PAARNG Inspector General (IG) informed the applicant that his request for an ADOR to SSG of 21 May 2002 was not supported by regulatory guidance. In December 2012, the NGB IG determined the PAARNG IG was correct. AR 600-8-19, paragraph 1-13i, stated that Reserve Component (RC) Soldiers reduced voluntarily per chapter 10 would receive an ADOR when promoted again to their former grade; however, it did not apply to the applicant because he was not a member of the USAR. 19. Orders 260-1017, dated 17 September 2014, issued by the PAARNG, Department of Military and Veterans Affairs, promoted him to the rank of SFC with a DOR and effective date of 15 September 2014. 20. He is currently serving on active duty as a member of the PAARNG in an AGR status in the rank of SFC. 21. The Board previously requested, and the NGB rendered an advisory opinion on 31 December 2014 in the processing of his initial request. The advisory official recommended the applicant be granted partial relief and opined, in part: a. 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 TPU position to accept the military technician position. b. 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. Therefore, the applicant’s SGT DOR should be his original SGT DOR from the USAR. c. AR 600-8-19, 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.” Therefore, his SSG DOR should be adjusted accordingly. d. The applicant’s DOR to SFC should not be adjusted because promotion to SFC is contingent upon being assigned to a SFC duty position and boarded by the state in accordance with AR 600-8-19, paragraph 7-20. It is reasonable to conclude that either an SFC position was not available or another Soldier was selected for the position, because even with his unadjusted DOR he could not have been eligible for promotion until after 24 months of time in grade (TIG) as an SSG; his TIG was reached on 10 February 2013. 22. The Board granted him partial relief and determined his DOR to SGT would be adjusted to 1 September 1992 and his DOR to SSG to 21 May 2002; he was also granted all back pay and allowances as a result from these corrections. The Board denied his request for an ADOR to SFC as the promotion to SFC was contingent upon assignment to an SFC position. REFERENCES: 1. AR 600-8-19 (Enlisted Promotions and Reductions), paragraph 7-20, states that to be eligible for consideration, selection, and promotion to SGT through SGM, 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. b. Be participating satisfactorily in the active ARNG in the next lower grade. c. Meet the criteria in table 7–1, by the date of the promotion board announcement. Waivers and exceptions to policy are not authorized for TIG. Table 7-1 states TIG for promotion to SSG is 18 months, SFC is 24 months, and MSG is 24 months. 2. AR 600-8-19, dated 30 April 2010, then in effect prescribed policies and procedures governing promotion and reduction of Army enlisted personnel applicable to the Active Army, the ARNG/ARNGUS, and the USAR. a. Paragraph 1-13i states, “ARNG Soldiers reduced voluntarily per chapter 10 will not receive an adjusted DOR when promoted again to their former grade. USAR Soldiers voluntarily reduced will receive an adjusted DOR.” b. Paragraph 1-13k states, “Soldiers reduced voluntarily per chapter 10 will not receive an adjusted DOR when promoted again to their former grade (applies to ARNG).” 3. AR 600-8-19, chapter 10, dated 30 April 2010, then in effect provided guidance on voluntary and involuntary reduction in grade and restoration of grade. a. Paragraph 10-14 states, in part, grade restoration may result from - (a) Setting aside, mitigation, or suspension of NJP. (b) Action under UCMJ, Article 58a(b) or 75. (c) Reversal of conviction by a court-martial. b. Paragraph 10-14e (Voluntary reduction) states, “A Soldier who was reduced voluntary may be restored to his or her former grade under the conditions cited below provided the Soldier is in a promotable status per paragraph 1-10 of this regulation.” c. Paragraph 10-14e(1) states the DOR of the grade to which restored will be adjusted to reflect the previous period served in the grade to which restored. The effective date of the restoration will be the date of the promotion order restoring the grade. d. Paragraph 10-14e(2) states grade restoration is authorized only when the Soldier is assigned to an Army Reserve Control Group other than AGR or individual mobilization augmentee (IMA), or the Standby Reserve (active status list), the Retired Reserve, or the Selected Reserve (TPU, AGR, or IMA) or the individual ready reserve (IRR) or Standby Reserve (active status only) and has been promoted to his or her former grade as a result of promotion board selection. e. Paragraph 10-19b (ARNG) states if approved by the unit commander, a Soldier may volunteer in writing on DA Form 4187 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. The DOR will remain the same as previously held in the grade to which reduced. 4. AR 600-8-19, dated 20 March 2008 stated for USAR Soldiers, “Enlistment at a lower grade in the RA, ARNG, 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.” DISCUSSION: 1. Having had prior service as a SSG in the USAR, the applicant voluntarily contracted to enlist in the PAARNG in the rank of SGT and, upon his enlistment on 20 November 2009, his DOR to SGT should have been 1 September 1992. However, an error occurred and the ARNG entered his DOR as 20 November 2009. He provided evidence that shows a few months after his entry on active duty in an AGR status in April 2010 his DOR to SGT was adjusted to 1 September 1992. As he had missed the SSG promotion, selection board in 2010 because of the error, his records went before a STAB and he was subsequently added to the PEL. 2. Notwithstanding his contention that he would have been selected for promotion in 2010 if his DOR to SGT was correctly established upon his enlistment, this error was corrected when his name was added to the 2010 PEL as the results of the STAB. As his DOR to SGT had been corrected by the PAANG in 2010, no further correction is warranted. 3. Notwithstanding the NGB advisory opinion that at the time of his promotion to SSG, AR 600-8-19, paragraph 10-14e(1) applied to the applicant. This paragraph did not apply to the applicant at the time of his promotion to SSG. His SSG rank was not being restored from NJP, a court-martial, or because he volunteered for a reduction to SGT from SSG that had been administratively accomplished by the promotion authority while serving as an SSG in the PAARNG. In this case, he held the rank of SGT because he voluntarily accepted an SGT positon when he enlisted in the PAARNG and was subsequently selected for promotion to SSG by a promotion board. As such, his DOR to SSG was correctly established as 10 February 2011. 4. With respect to adjusting his DOR to SFC and promotion to MSG, he became eligible for promotion to SFC after serving 24 months as a SSG, or on 9 February 2013. He was promoted to SFC on 9 September 2014, this was just 12 months after the date he became eligible for consideration. There is insufficient evidence to support that he was unfairly denied an earlier promotion to SFC or for adjusting his DOR to SFC to an earlier date. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000712 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000712 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2