IN THE CASE OF: BOARD DATE: 24 September 2021 DOCKET NUMBER: AR20200009881 APPLICANT REQUESTS: through counsel: * retroactive promotion to the rank/grade of Sergeant Major (SGM)/E-9 with an effective dated commensurate with the date she would have been promoted had these injustices never occurred * retroactive payment of all pay and entitlements from the effective date of promotion to SGM * retroactive payment of all retirement benefits at the rank of SGM APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Legal Counsel letter * Power of Attorney * Army Board for Correction of Military Records (ABCMR) Docket Number AR20140015388, dated 9 December 2014 * ABCMR Docket Number AR20150009364 dated 15 November 2016 * DA Form 1059 (Service School Academic Evaluation Report), dated 21 December 2002 * DA Form 4856 (General Counseling Form), dated 11 January 2004 * New York Army National Guard (NYARNG) 2005 Promotion Roster E8 to E9 dated 2 February 2005 * Email communication * Sworn Declaration of Master Sergeant (MSG) S_ D_ * Memorandum – Subject: Noncommissioned Officer Position Vacancy Announcement Number 06-53-155, dated 11 December 2006 * Email Communication * Memorandum – Subject: Request for Retroactive Promotion to Sergeant Major, dated 16 April 2020 FACTS: 1. On behalf of the applicant counsel provides in part that the applicant's listing as the top candidate on the SGM promotion list at the time of the previously confirmed error and injustice rendered her eligible for promotion. The applicant was 1 of 3 candidates who interviewed for the SGM vacancy position at a time when there were four vacancies. Counsel contends that per the applicable federal statute and corresponding Army Regulation, the applicant should have been promoted to SGM immediately prior to being medically retired from service. The regulation is explicitly clear that this promotion was to take place so long as the applicant was on the promotion list prior to being retired. The failure to retire the applicant at the rank of SGM is contrary to law, and constitutes a clear error and injustice. Counsel further contends that the applicant was unethically and unlawfully reduced to the rank of Sergeant First Class (SFC)/E-7 after she was selected for SGM. In a previous case, the ABCMR confirmed that the actions of the NYARNG were in error. Following that decision, the applicant petitioned the New York Adjutant General seeking retroactive promotion to the rank of SGM, along with retroactive payment of all pay and retirement benefits commensurate with the date of her promotion. On 16 April 2020, the National Guard Bureau (NBG) issued a decision denying the applicant's request for relief and recommended that she petition this Board. a. Counsel contends in pertinent part that the failure to retire the applicant at the rank of SGM was contrary to law, and constitutes a clear error and injustice. The controlling statute and regulation make it abundantly clear that this action should have occurred irrespective of any vacancy. Despite the clear language of the statute and regulation, the applicant was medically retired from service at a lower grade. The failure to promote the applicant to SGM was arbitrary, capricious, contrary to federal statute and corresponding regulation, and was the result of unlawful gender discrimination on the part of the applicant's chain of command. But for these clear errors and injustice, the applicant would have been promoted to SGM immediately prior to her retirement, as that is what the law mandates. b. The applicant was unjustly, and impermissibly reduced in rank in order to prevent her from being promoted to SGM. The ABCMR previously issued a directive mandating that the applicant be restored to the pay grade of MSG and made an inference that the applicant should have been promoted to SGM prior to separation. Once her pay grade was corrected to MSG, the applicant sought to have her rank upon retirement corrected in order to reflect the promotion she would have received but for the gender discrimination of the NYARNG. Counsel argues that the applicant's application to the Adjutant General (TAG) was unjustly denied, in violation of applicable regulations. It was both an error and injustice for the TAG to deny the relief requested. c. The applicant enlisted in the NYARNG on 10 July 1975 and has three separate Military Occupational Specialties (MOS) throughout her career. She was promoted to SFC on 15 August 1993 and MSG on 16 November 2001. She served in an outstanding manner as a MSG as well as a First Sergeant (1SG)/E-8 until 16 January 2008, when she was improperly administratively reduced to SFC to stop her from being promoted to SGM. d. On 1 December 2002, the applicant was laterally appointed to the rank of 1SG. She was assigned to the 204th Engineer Battalion, thus becoming the first female 1SG ever assigned to that battalion. e. On 11 January 2004, the applicant was reassigned as a MSG, but not for punitive or disciplinary reasons. Rather, the reason for her reassignment, as reflected in her counseling form, dated 11 January 2004, was her Battalion Commander's decision to move her into the Battalion Supply Sergeant position in order to allow a fellow Soldier, to "be reassigned" because he had previously served as a 1SG for over 3 years and was being groomed to serve as the next Command Sergeant Major (CSM)/E-9. f. The applicant accepted this reassignment with professionalism and was commended for doing so by her Battalion Commander. Her Battalion Commander remarked that the applicant was a "role model" on how she transitioned from a leadership position to a staff position. Her replacement was never actually groomed as the next CSM. Counsel contends that the improper administrative reduction in rank (position) turned out to be an intentional act to keep the applicant from being promoted to SGM after she was selected. g. On 20 January 2004, the applicant submitted a request through her chain of command seeking consideration from the CSM position in the NYARNG. With regard to her promotion potential, the nominating official stated that "it had been determined that the applicant possessed the skills, knowledge, and abilities to perform the duties of CSM." The applicant was subsequently nominated for CSM. She was listed on the NYARNG 2005 promotion roster (MSG to SGM) dated 2 February 2005. The applicant was also listed on the NYARNG 2007 promotion roster (MSG to SGM) dated 12 February 2007. h. The applicant was listed as number 1 on the promotion list, and would have retired at the rank of SGM, but for her being administrative reduced in rank and subsequently medically retired. e. In March 2007, the NYARNG distributed a vacancy announcement for a SGM position. On 19 April 2007, the applicant received email correspondence regarding a "SGM Potential Selection Interview." The email provided in pertinent part that the applicant had been selected to participate in the interview process regarding the potential selection of a vacancy announcement and that the interview was to be conducted on 6 May 2007. f. On 2 December 2013, a Physical Evaluation Board (PEB) found the applicant physically unfit to perform the duties of her rank and grade, and recommended that she be placed on the permanent retirement list. g. The applicant has already successfully challenged her previous command's erroneous and unjust administrative reduction as previously reviewed by this Board. That challenge, which was based on the applicant's command's impermissible gender discrimination, resulted in the applicant being restored to her previously held rank (MSG). However, this Board has not considered that the applicant was listed as the top MSG on the SGM promotion list, and was discriminatorily denied promotion to SGM prior to being medically retired. h. Counsel argues that the applicant should have been promoted to SGM effective the day prior to her retirement. The failure to promote her to SGM was contrary to Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) which explicitly states that "any Soldier who is on a promotion list prior to their disability retirement will be promoted irrespective of position availability." As such, it is clear that the applicant should have been promoted prior to her retirement from service. i. In the present matter, the applicant was listed as the number one candidate on the SGM promotion list. Irrespective of whether the applicant would have been promoted, the above cited reference makes it abundantly clear that the applicant was to be retired at the rank of SGM because she was on the promotion list at the time of her retirement. Further, it is clear that she would have been promoted to SGM had she not been unlawfully discriminated against on the basis of her gender, and then medically retired. The contention of the NGB that the applicant would not have been promoted because she failed to complete her Professional Military Education requirements is without merit, as the regulation explicitly waives those requirements for Soldiers in a similar situation as the applicant. j. Assuming the above mentioned regulation and federal statute (Title 10, United States Code (USC), Section 1372) is not controlling in this matter, counsel argues that the applicant met all the requirements for promotion and the reason she was not selected was due to unlawful gender discrimination. The applicant applied for the SGM position which was open to all M-Day Soldiers who otherwise met the promotion requirements. The applicant was selected to participate in the interview process, and was interviewed by the board on 6 May. In an email from the 369th Logistics SGM, the applicant was informed that there were 4 vacancies. The applicant was 1 of 3 qualified individuals to apply for the 4 vacant positions. All 3 applicants were selected. The 369th Logistics SGM appropriately requested the necessary waiver to allow the transfer, however, the applicant's command prevented this action again. Instead of considering her request and acting on it, the applicant was subjected to hostility because she characterized her request utilizing a different word other than that in which her command would have used. The responses did not acknowledge the request nor answer her questions about how to proceed. It is abundantly clear that members of her chain of command had no interest in assisting a female 1SG become a SGM or CSM. While some members of her command endorsed and supported her, others sought to sabotage her and improperly kept her from being promoted. But for these egregious and unlawfully motivated actions by her chain of command, counsel argues that the applicant would have been promoted to SGM prior to being medically retired. k. In conclusion counsel provides that prior to the applicant being medically retired from the Army, she was the number 1 candidate on the SGM promotion list and had interviewed for the promotion. Per federal statute and the corresponding regulatory guidance, the applicant was entitled to be promoted immediately prior to her separation from service. AR 600-8-19 makes it abundantly clear that a Soldier, whose name appears on a promotion list prior to that Soldier being medically retired, shall be promoted to said rank immediately prior to their separation and irrespective of any vacancies. As such, counsel respectfully requests that the applicant be retroactively promoted to SGM, the grade she would have achieved had she not been the victim of unlawful gender discrimination and subsequently medically retired from service. 2. A review of the applicant's available service records reflects the following: a. 10 July 1975, the applicant enlisted in the Army National Guard (ARNG). b. On 25 August 1993, the 221st Engineer Group, NYARNG issued Orders Number 12-1 promoting the applicant to SFC effective 15 August 1993 with a Primary Military Occupational Specialty (PMOS) of 75Z (Personnel Sergeant) and Secondary Military Occupational Specialty (SMOS) of 51H (Army Construction Foreman). c. On 28 November 2001, Headquarters, 53rd Troop Command issued Orders Number 332-002 promoting the applicant to MSG effective 16 November 2001 d. On 24 February 2003, Headquarters, 53rd Troop Command issued Orders Number 055-101 laterally appointing the applicant to the rank of 1SG effective 22 December 2002 with a PMOS of 51Z and SMOS of 75H. e. On 16 January 2004, Headquarters, 53rd Troop Command issued Orders Number 016-002 laterally appointing the applicant back to the rank of MSG effective 1 December 2003 with a PMOS of 92Y (Unit Supply Specialist) and SMOS of 75H. f. On 16 January 2008, the Joint Force Headquarters issued Orders Number 016-1057 administratively reducing the applicant from MSG to SFC effective 16 January 2008. g. On 3 November 2009, the Joint Force Headquarters issued Orders Number 307-1037 reducing the applicant due to misconduct from SFC to the rank/grade of Staff Sergeant (SSG)/E-6 effective 3 November 2009. h. On 20 January 2012, the Joint Force Headquarters issued Orders Number 020- 1012 promoting the applicant to SFC effective 20 January 2012. i. On 23 December 2013, a PEB was convened finding the applicant physically unfit for continued military service and recommended that the applicant be permanently retired due to a physical disability. The applicant was a SFC at the time of this board action. j. On 21 February 2014, the U.S. Army Physical Disability Agency issued Orders Number 052-03 releasing the applicant from assignment and duty and permanently retiring her due to physical disability at the rank of SFC effective 28 March 2014 under Title 10 USC, section 1204. k. On 26 February 2014, the Joint Force Headquarters issued Orders Number 057- 1009 discharging the applicant at the rank of SFC from the ARNG and reassigning her to the Retired Reserve effective 27 March 2014. l. On 23 March 2017, the Joint Force Headquarters issued Orders Number 082- 1002 amending Orders Number 057-1009 to reflect the retired rank of MSG in accordance with Title 10, USC, section 1552. 3. The applicant (Counsel) provides the following: a. ABCMR Docket Number AR20140015388, dated 9 December 2014, reflective of the Boards decision to deny the applicant's request to be placed on the retired list at the rank of MSG. The Board determined that the applicant was reduced from SFC to SSG on 3 November 2009 due to misconduct. The reinstatement of her rank to SFC was a result of a settlement agreement. At the time of her retirement, she held the rank of SFC. Therefore, the Board determined that it appeared that the Army Grade Determination Review Board (AGDRB) correctly determined that the applicant did not serve satisfactorily in the rank of MSG. b. ABCMR Docket Number AR20150009364, dated 15 November 2016, reflective of the applicant, through counsel, requesting reconsideration of the findings of ABCMR Docket Number AR20140015388. Upon review, the Board determined that the applicant's argument did have merit and therefore directed that rank upon retirement be changed from SFC to MSG, with all pay and allowances due as a result of this change. c. DA Form 1059, dated 21 December 2002, reflective of the applicant's completion of the 1SG Course. d. DA Form 4856, dated 11 January 2004, reflective of the applicant receiving formal counseling concerning her reassignment from the 1SG position to a Supply Sergeant position in order to permit another Soldier, with 3 years of 1SG experience, to serve as the 1SG and be groomed to serve as the next CSM. e. NYARNG 2005 Promotion Roster E8 to E9, dated 2 February 2005, reflective of 2 Soldiers being selected for promotion to SGM. The applicant's name was "written" in also. f. Email communication reflective of the applicant being reminded of an upcoming appointment concerning being interviewed regarding the potential selection of Vacancy Announcement Number 06-53-155. The subject line of the email indicates "SGM Potential Selection Interview." g. Sworn Declaration of MSG D_ (the applicant), reflective of her statement regarding her separation from the NYARNG. In addition to counsel's opening remarks, the applicant adds that she accepted a reduction in grade due to her position as a Military Technician. Her reassignment from her position as a 1SG was not due to punitive or disciplinary action. The applicant further states that in January 2004, she requested promotion consideration for CSM/SGM in the NYARNG. The vacancy was open Statewide to M-Day Soldiers and Technicians. Active Guard Reserve (AGR) Soldiers were not eligible in accordance with the advertisement. Her Battalion Command indicated that she possessed the skills, knowledge and ability to perform the duties of a SGM/CSM. As a result of her command's recognition, she contests that she was recommended for promotion and her name was placed on the NYARNG 2005 promotion list for SGM on 2 February 2005. She then was also listed on the 2007 promotion list and she met all requirements for promotion to SGM. Due to her position as a Military Technician, she required a waiver to perform duty with another unit. She was advised that this would not be an issue. Shortly after her selection for SGM, she was administratively reduced from MSG to SFC for which she believes was done to prevent her promotion to SGM. She was later informed that the Battalion Commander directed that she not be selected for a SGM position. As a result of these actions and injustices, she became very sick physically and emotionally and subsequently retired due to medical disability. h. Memorandum – Subject: Noncommissioned Officer Position Vacancy Announcement Number 06-53-155, dated 11 December 2006, reflective of the announced Senior Logistical Operations Noncommissioned Officer position, a SGM position. The subsequent email communications pertain to obtaining a waiver for grade inversion due to her being a full-time Military Technician. i. Email Communication reflective of information pertaining to 4 SGM positions within the Brigade as Senior Logistical Operations Noncommissioned Officers (92Z). j. Memorandum – Subject: Request for Retroactive Promotion to Sergeant Major, dated 16 April 2020, reflective of the NGB conducting a thorough and comprehensive review of the applicant's submitted documents. After review, it was determined that there was no evidence to support the applicant's request for retroactive promotion to SGM. Their review failed to discover any evidence that the NYARNG ever offered the applicant a promotion to serve at the level of SGM. Since the ARNG is a Unit Vacancy Based organization this is noteworthy and the mere fact a Soldier's name may appear on a Standing List does not constitute promotion. Additionally, the applicant failed to comply with Professional Military Education (PME) requirements to be promoted to SGM since she had not completed Phase I of the Sergeants Major Academy. 4. The applicant did not provide nor does review of her available personnel records reflect evidence (Army Promotion List, Orders etc.) of her selection for promotion beyond the rank of MSG. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, the applicant's statement, and the applicant's record of service. Board members noted that on 3 November 2009, the Joint Force Headquarters issued Orders reducing the applicant due to misconduct from SFC/E-7 to SSG/E-6. However, she was promoted back to SFC/E-7 on 20 January 2012. In December 2013, a PEB permanently retired her due to a physical disability. On 28 March 2014, she was retired due to physical disability at the rank of SFC. Board members noted that the applicant did not provide nor does review of her available personnel records reflect evidence (Army Promotion List, Orders etc.) of her selection for promotion beyond the rank of MSG. In order be promoted to SGM/_E-9, the applicant must first be promoted to MSG/E-8, something the evidence of record doe sot show she accomplished. There is also no evidence she was selected to attend, attend, or completed the Sergeant's Major Course. For that reason, Board members voted to deny relief BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX: XX: XX: 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. 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. REFERENCES: 1. Title 10 USC, section 1372 (Grade on Retirement for Physical Disability: Members of the Armed Forces) provides that unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a. The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired. b. The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired. c. The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination. d. The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination. 2. Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) provides in Section IV (Promotion to Sergeant through Sergeant Major) that Soldiers undergoing medical evaluation processing will be considered for promotion board action or, if already promotable, will not be denied promotion based on medical disqualification if they are otherwise qualified for promotion. Paragraph 1-20 (Promotion of Soldiers in the Disability Evaluation System) provides that Soldiers on a promotion list who are retired for physical disability (Title 10 USC, sections 1201 or 1204) or who are placed on the Temporary Disability Retired List (TDRL) (Title 10, USC, sections 1202 or 1205) at the time of retirement for disability will be retired for disability at the promotion list grade. The Soldier will be promoted effective the day before placement on the retired list or TDRL regardless of cutoff scores, sequence numbers, or position availability. In all cases, the Soldier must otherwise be fully eligible for promotion. 3. AR 15-185 (ABCMR) paragraph 2-9 states 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009881 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1