MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 28 October 1998
DOCKET NUMBER: AC97-11643
I certify that hereinafter is recorded the record of consideration of the Army
Board for Correction of Military Records in the case of the above-named individual.
Mr. Loren G. Harrell Director
Mr. Kenneth Aucock Analyst
The following members, a quorum, were present:
Ms. Joann H. Langston Chairperson
Mr. Curtis W. Barbee, Jr. Member
Mr. Raymond V. O’Connor, Jr. Member
The Board, established pursuant to authority contained in 10 U.S.C. 1552,
convened at the call of the Chairperson on the above date. In accordance with Army
Regulation 15-185, the application and the available military records pertinent to the
corrective action requested were reviewed to determine whether to authorize a formal
hearing, recommend that the records be corrected without a formal hearing, or to deny
the application without a formal hearing if it is determined that insufficient relevant
evidence has been presented to demonstrate the existence of probable material error
The applicant requests correction of military records as stated in the application
to the Board and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military
Exhibit B - Military Personnel Records (including advisory opinion,
ABCMR Memorandum of
APPLICANT REQUESTS: In effect, reinstatement in the rank of Sergeant Major with
the restoration of all rights, privileges, and property.
APPLICANT STATES: That he was promoted to Sergeant Major (SGM) [and
subsequently appointed as a Command Sergeant Major (CSM)] by the 1992 Army
Reserve CSM Selection Board, and was forced to withdraw from the CSM program
because of nonalignment of his rank and his military technician position. He was
reduced without cause. He states that the 122 nd Army Reserve Command (ARCOM)
revoked his original promotion order [to SGM] without cause, and at no time did he
request a reduction in rank.
The applicant raises four issues in which he argues, in effect:
Command must make a good faith effort to achieve alignment of his civilian position
with his military rank and position, when an Army Reserve Technician (ART) is
promoted to a rank higher than authorized for his assigned unit, and the technician
accepts the promotion.
He should be placed on a standing list for promotion when [as a military technician]
promoted to a rank higher than authorized for his present unit.
He should not have been reduced [other than for cause] after being promoted to
SGM and appointed CSM, accepting the promotion and appointment, performing
the duties of a CSM, and then obtaining an approved voluntary withdrawal from the
The formal agreement as contained in Army Regulation 140-315 (Employment and
Utilization of U.S. Army Reserve Military Technicians) was violated when he was
forced, under duress of losing his job, to withdraw from the CSM program and his
position as a CSM at the 810th Station Hospital. An attempt by DA to correct this
injustice was circumvented.
EVIDENCE OF RECORD: The applicant's military records show:
On 18 October 1992 the applicant, a Master Sergeant in the Army Reserve, was
assigned from the 122 ARCOM in North Little Rock, Arkansas to the 271
Maintenance Company in Barling, Arkansas in a warrant officer position [as indicated
on the unit manning report]. This assignment was concurrent with his employment as
a civilian ART as a unit administrative technician. The applicant previously had over
16 years of civil service and over 2 years of military service. As a condition of his
employment he was required to maintain [military] membership in the Reserve unit in
which he was employed. The notification of personnel action (SF Form 50-B) indicates
that his employment was an approved exception to a total civilian hiring freeze.
In September 1992 a USAR Command Sergeant Major Selection Board convened to
consider qualified SGM and First Sergeants (1SG)/Master Sergeants (MSG) for
appointment as CSM. The Memorandum of Instruction for this board stated that CSM
ABCMR Memorandum of
selectees in the rank of 1SG/MSG would automatically be selected for promotion to
In November 1992 the results of the selection board were announced. The applicant
was selected from appointment as a CSM with the 810 th Medical Hospital.
On 9 March 1993 the 122nd ARCOM published an order promoting the applicant to
Sergeant Major effective 1 April 1993. On 10 March 1993 the Army Reserve
Command (USARCOM) in Atlanta appointed the applicant a CSM and on that same
day assigned him the 810th Station Hospital, both actions effective
1 April 1993. The assignment order stipulated that CSM stabilization expired
31 March 1997.
The applicant attended unit training, staff meetings, and briefings with his new unit in
March, April, and May 1993.
On 19 March 1993 the 122nd ARCOM requested that the 271st Maintenance Company
initiate action to remove the applicant from his ART position based on his reassignment
from that unit [loss of dual status with the 271st]. On
7 April 1993 the 271st requested that the applicant be removed from his ART position
for failure to maintain membership with that unit, thereby violating his terms of
In a 5 May 1993 memorandum to the USARCOM the applicant voluntarily withdrew
from the CSM program, stating that he would lose his civilian job if he was assigned to
a unit other than the 271st Maintenance Company. He further requested immediate
reassignment to the 271st and stated that the 122nd ARCOM had agreed to hold the
position [his old position] pending reassignment. He stated that he understood that his
voluntary withdrawal from the CSM program would prohibit him from future
considerations for CSM positions.
On 7 May 1993 USARCOM terminated his rank as CSM and appointed him a SGM
effective 1 April 1993. On 13 May 1993 the 807 Medical Brigade released him from
his assignment at the 810th Station Hospital and reassigned him to the 271 st
Maintenance Company, effective 7 May 1993.
On 6 July 1993 the 122nd ARCOM revoked the order of 9 March 1993 which promoted
the applicant to SGM.
On 11 November 1993 the applicant requested reinstatement in the rank of SGM,
stating that all soldiers when released from the CSM program retain their rank of SGM.
He further stated that the only way a SGM could be reduced is by reason of
court-martial or submission by the soldier of a request for administrative reduction.
ABCMR Memorandum of
On 12 January 1994 the applicant’s request was disapproved by the
122nd ARCOM. That command stated that the CSM program was not part of the Army
Reserve promotion system, and that the applicant’s promotion to SGM occurred solely
to allow his appointment to CSM. His voluntary withdrawal from the CSM program at
the start of his tenure immediately terminated any eligibility for retaining the rank of
SGM. The 122nd official went on to say that the applicant was not administratively
reduced, and that his voluntary withdrawal from the CSM program at the start of his
tenure disqualified him from the provisions of Army Regulation 135-205, paragraph
6-26. He stated that the order promoting the applicant was revoked because it was
initially published solely to facilitate his appointment as a CSM.
That official continued by saying that the applicant accepted his appointment as CSM of
the 810th against advice of the ARCOM civilian personnel officer and CSM manager,
cautioning him that his military transfer would result in him losing his civilian job. That
official stated that the applicant accepted the CSM appointment, planning to challenge
the law requiring post-1983 technicians to serve with their unit.
He said that after action was initiated to terminate the applicant’s civilian job, members
of the chain of command took action to assist him in retaining his civilian job with the
271st Maintenance Company, although the USARCOM CSM manager could well have
demanded that the applicant meet the conditions of his acceptance of appointment as a
CSM with the 810th Station Hospital (serving a full term with the hospital). Instead he
allowed the applicant to voluntarily withdraw from the program and be reassigned back
to the 271st as if nothing had happened, i.e., he had never accepted the CSM job. He
also stated that the 807th Medical Brigade agreed to release the applicant, although that
command could have insisted he serve the full 4-year CSM tenure, which he voluntarily
incurred. The 122nd ARCOM agreed to accept the applicant back into a warrant officer
position with the 271st although they could have refused because there were no valid
MSG vacancies in the unit. The 122nd official stated that the applicant was never a
SGM except for the purpose of assuming the duties as CSM of the 810 th, and because
he could not fulfill his part of the agreement, he was allowed to withdraw from the
program, with the loss of the SGM rank.
On 16 February 1994 a Judge Advocate General officer opined that there was no
authority for his command to authorize the applicant’s reduction in the manner in which
it was done. That officer stated that Army Regulation 135-205, paragraph 6-26, allows
for voluntary withdrawal from the CSM, requires the command to reclassify the soldier
to SGM and reassign him to a SGM position if available. If none is available, the
soldier may voluntarily accept reduction. He went on to say that he could discover no
authority that would allow the 122nd ARCOM to unilaterally reduce him for voluntarily
withdrawing from the CSM program.
On 7 March 1994 the applicant requested assistance from the USARCOM Inspector
General, requesting reinstatement as a SGM and reappointment as a CSM and
ABCMR Memorandum of
assignment to a military technician position where he could retain his CSM rank. On
24 February 1995 the IG notified the applicant that the Army Reserve CSM program did
not authorize promotion to Sergeant Major and reappointment to the CSM program as
he had requested. The IG stated that on withdrawal from the CSM program, a soldier
would be reclassified and reassigned as a Sergeant Major, and that if a SGM position
was not available, a soldier could voluntarily accept reduction and reassignment to an
existing vacancy in a lower grade, or transfer to the Control Group (Reinforcement) as a
SGM. The IG then implied that the applicant’s voluntary request for removal from the
CSM program and reassignment to the 271 , where there was no authorization for a
Sergeant Major, effectively settled the matter.
In a 23 February 1995 memorandum to DA, USARCOM requested an exception to
policy to allow the applicant to reapply to the CSM program. That command indicated
that the applicant, then a temporary DA civilian with the 122nd ARCOM, from 9 March
1992, had applied for and was ultimately accepted for a permanent position as an ART
with the 271st. In the meantime, however, on 10 July 1992, while still working as a
temporary employee with the 122nd ARCOM, he requested consideration for the
position of CSM of the 810th Hospital.
The official from USARCOM repeated the information concerning the applicant’s
assignment to the 271 , acceptance and appointment as a CSM, assignment to the
810 , imminent loss of his civilian position at the 271st, withdrawal from the CSM
program, and reassignment back to the 271st. He went on to state that regulations did
not support the applicant’s appeal to the IG, in that soldiers who withdraw from the CSM
program were not eligible for CSM reappointment.
The official stated that the applicant’s situation was caused by the timing of the two
separate actions that affected both his military and civilian status. Since he was a
temporary employee with the 122nd ARCOM when he submitted his packet for the CSM
position there was no conflict with this selection and ultimate appointment at the 810 th;
however, the conflict arose after his assignment to the permanent position at the 271 st.
That official went on say that because the applicant was new to the military technician
program, he did not understand the impact his acceptance of the CSM position would
have on his civilian employment.
On 31 March 1995 DA approved the request for exception to policy, stating that the
applicant could reapply for a CSM position, but only if he could maintain the dual status
requirement and retain his position as a military technician.
On 26 June 1998 a member of congress (MC) requested information concerning the
applicant’s promotion. The MC stated that the applicant obtained an exception to
policy to reapply for a CSM position, and that after receiving this waiver he applied for
approximately 30 positions and was refused on the grounds that he was not eligible to
apply. In the latest instance, the applicant applied for a CSM position with the 90 th
ABCMR Memorandum of
Regional Support Command, and the MC attached an order assigning him to an
engineer unit within the 90th, and an order 8 days later revoking that assignment order.
The MC requested that the applicant be reinstated to the slot that the applicant
indicated was vacant in his unit.
On 22 July 1998 the MC was informed of the applicant’s circumstances. He was also
informed that the applicant’s allegation that he applied for over 30 CSM positions and
was denied was unsubstantiated; that the CSM position in his unit became vacant and
the applicant applied and was considered, but another soldier was selected for the
position. The MC was further informed that the applicant could apply for any CSM
position he desired; however, selection and assignment to a CSM position in a unit
other than his current assignment would again violate the terms of his employment and
a repeat of the 1993 incident.
The MC was informed that the applicant’s reassignment orders to the engineer unit was
not approved by his chain of command, but personally initiated by the applicant who
hand carried the request for orders to a clerk who published these orders. Since the
reassignment order was never approved, it was subsequently revoked shortly after its
In the processing of this case and advisory opinion (COPY ATTACHED) was obtained
from the Chief of the Army Reserve. That agency opined that the applicant’s
command properly followed procedures, and that his promotion order to SGM was
revoked in accordance with Army Regulation 140-158. The applicant was not
promoted to SGM under the same criteria as other soldiers, but promoted concurrently
with his appointment to CSM for the sole purpose of filling a CSM position. The
applicant may still apply and be considered for a CSM position as a result of the
exception to policy granted by DA.
Army Regulation 135-205 prescribes policies, responsibilities, and procedures for the
USAR enlisted personnel management program. Chapter 6 concerns the USAR
Command Sergeant Major Program. Paragraph 6-14 states, in pertinent part, that
soldiers who meet the selection qualification, but do not desire to serve as a CSM, may
decline consideration. A CSM acceptance or declination statement must be completed
each year before the scheduled date the selection board convenes. The acceptance
statement to be executed reads, in pertinent part, “I accept consideration for CSM for
the following announced position (TDA/TOE Line & Item Number, Geographical
Location). I certify that I am within reasonable travel distance of the above position, or
that I am willing to travel, or be reassigned, if selected and appointed. I understand
that if selected I may not decline or voluntarily withdraw from the program before
appointment unless extreme hardship or compassionate reasons are cited.”
Paragraph 6-17 states, in effect, that on assignment to a CSM position a CSM designee
(1SG or MSG) will be promoted to SGM in his current career management field (CMF),
and then laterally appointed to the rank of CSM and reclassified in PMOS 00Z5. The
effective date of promotion to SGM, lateral appointment to CSM, and reclassification
ABCMR Memorandum of
will be the date the soldier vacates the former position enroute to the assigned CSM
Paragraph 6-22 states that on assignment to a CSM position, a CSM will be stabilized
in a TPU (troop program unit) for 4 years. During stabilization, the removal or
reassignment of a CSM will be voluntary unless removed for cause, the CSM position is
abolished, or removal is based on maximum age or years of service.
Paragraph 6-26 states in effect, that a CSM may withdraw from the CSM Program for
other than retirement by furnishing written notice to his commander. On approval, the
CSM will be reclassified to SGM. The appointment authority will reclassify and
reassign the soldier to a SGM position, if available. If not available, the soldier may
voluntarily accept reduction and reassignment to an existing vacancy in a lower grade,
or transfer to Control Group (Reinforcement) as a SGM. The losing commander must
initiate reclassification action when a CSM voluntarily withdraws from the program.
The following are considered voluntary withdrawals: (1) A CSM who, at his own
request, is transferred to other than a CSM vacancy, and (2) A CSM who voluntarily
enters on active duty as a SGM, or has taken a grade reduction to MSG.
Army Regulation 140-315 provides for employment and utilization of Army Reserve
technicians. Paragraph 1-4 states, in pertinent part that military technicians will carry
out duties prescribed by their position descriptions and additional duties as assigned,
and If appointed after 8 December 1983, maintain USAR membership in the troop
program unit (TPU). Paragraph 1-6 states, in pertinent part, that technicians initially
employed after 8 December 1983 in a troop program unit (TPU) must be a member of
that TPU. Paragraph 1-7 states, in pertinent part, that local merit placement plans
governing MT positions are governed by Federal Personnel Manual (FPM) 335 and AR
690-300, chapter 335. Personnel actions (SR-50) on the appointment of individuals
selected subject to PL 98-212 will show the remark: " As a condition of employment,
you are required to maintain membership in the unit in which employed. Paragraph
1-8 states that military technicians will serve in their assigned or supported units as
technicians and provide support for additional attached units as directed by the unit
commander or higher authority. Military technicians who voluntarily relinquish dual
status or are separated from the USAR selected reserve due to unacceptable military
performance or misconduct will be removed from their technician position. The
employing commander will initiate removal action immediately upon notification that
dual status has been lost. Military technicians appointed after 8 December 1983 are
required as a condition of employment to maintain continuing membership in the USAR
unit in which employed. Failure to meet this military obligation constitutes failure to
meet this condition of employment.
The following guidance will be used in determining whether loss of membership is
within or outside of the technician’s control. Loss of USAR selected reserve/unit
membership resulting from actions initiated by the technician to cancel, discontinue, or
ABCMR Memorandum of
otherwise terminate such membership, when not required to do so by the DA, is within
the technician’s control. Actions which may result in loss of USAR selected reserve
membership within the technician’s control include, but are not limited to: voluntary
transfer to the individual ready reserve (IRR) or standby reserve.
Paragraph 1-8f states that military and civilian assignments will be as closely paralleled
as possible. Attainment of military rank higher than authorized for the unit justifies
lateral reassignment to a compatible civilian/military technician position. Commanders
at all levels will make reassignments to achieve this objective to the maximum extent
Army Regulation 140-158 prescribes policies and procedures pertaining to the
promotion and grade reduction of enlisted soldiers in the USAR. Paragraph 6-22
states in pertinent part, that an ART must serve in a dual status as a technician and as
a member of the USAR, and if employed after 8 December 1983, the ART must be a
USAR soldier assigned to the unit he serves as a technician. An ART will be consider
for promotion under the same criteria as other enlisted soldiers; however, if acceptance
of the promotion would affect his status as an ART, to include job relocation, the ART
may decline the promotion without penalty. In declining, the ART’s name will not be
removed from the recommended list or the selection list. The ART will be retained on
this list until promoted or removed for cause.
Paragraph 3-39 states that a soldier who accepts a promotion, voluntarily agrees to
serve in the duty position to which promoted, even if the promotion requires
reassignment to another TPU. An exception to this policy is where the soldier has a
change of residence or civilian employment, or incurs an extreme hardship requiring
such reassignment. This policy does not preclude reassignment for the convenience
of the government or the good of the command, nor does it preclude reassignment from
a TPU to the Ready, Standby, or Retired Reserve. Promotion and reassignment
orders will be revoked for a soldier who fails to decline a promotion based on a
concurrent reassignment and who refuses to comply with the reassignment order.
Paragraph 7-12b states that a solider who submitted a late declination of promotion that
was not approved by the promotion authority will be reduced to previous grade without
prejudice upon his request for voluntary reduction. A soldier may volunteer for
reduction to one or more lower grades. The reduction requested by the soldier will be
accomplished by the promotion authority without prejudice. Such reductions will
normally be limited to soldiers desiring reduction for assignment in a lower grade to an
existing vacancy in a TPU.
DISCUSSION: Considering all the evidence, allegations, and information presented by
the applicant, together with the evidence of record, applicable law and regulations, and
advisory opinion(s), it is concluded:
ABCMR Memorandum of
1. The applicant was considered and selected for appointment as a CSM in
September of 1992, while assigned as a temporary employee with the 122 nd ARCOM.
Prior to the November 1992 release date of the results of the selection board, the
applicant applied for and was accepted as a permanent civilian employee, in a dual
status role, with the 271st Maintenance Company, ostensibly in a warrant officer
position, but in actuality in an overstrength position, as there was no position vacancy in
his rank of Master Sergeant available in that unit.
2. The applicant then accepted an appointment as a CSM and reassignment to the
810th Hospital, concurrent with his promotion to SGM, effective on
1 April 1993. The acceptance of the appointment required him to service 4 years with
his new unit as a CSM. Those actions terminated his dual status role with the 27lst.
3. The applicant had a change of heart when he discovered that he would lose his
civilian employment with the 271st, and requested termination of the CSM appointment.
Both the 810th and the 271st accommodated him. The 271st agreed to take him back,
even though again a position did not exist.
4. He clearly understood the particulars of his employment with the 271st when he
accepted the job in October 1992. He was apparently warned that his acceptance as a
CSM and assignment to a CSM position with the 810 would cause him to lose his job,
and he chose to ignore this advice. The applicant’s request for removal from the CSM
program was voluntary, and was not made under duress despite the applicant’s claim to
the contrary. He was given a choice, stay with the 810 th and lose his civilian job, or
withdraw from the CSM program, return to his former unit, and retain his civilian job.
The Board notes that the applicant is required by law to maintain military membership in
the unit in which he was employed. The Board also notes that neither the 810 th nor the
271st had to accommodate the applicant. The 810th could have insisted that he
remain in that unit and serve the full 4 year term as a CSM, as required by regulation.
The 271st could have refused to accept his return to that unit for no reason other than
the lack of a position vacancy.
5. The Board notes the 16 February 1994 opinion voiced by a JAGC officer and
agrees that AR 135-205 allows for voluntary withdrawal from the CSM program, and
requires the command to reclassify the soldier as SGM and reassign him to a SGM
position if available. The Board agrees that the removal or reassignment of a CSM will
be voluntary unless removed for cause, the CSM position is abolished, or removal is
based on maximum age or years of service as indicated in the regulation. He
voluntarily withdrew from the CSM program. There was no SGM position available.
He did not voluntarily accept reduction to a lower grade. His option, then, again
voluntary, was assignment to the Reinforcement Control Group as a SGM, with the
resultant loss of his civilian job with the 271st. There are no provisions for an
involuntary removal from the CSM program, except as indicated above, i.e., removal for
ABCMR Memorandum of
cause; and there are no provisions for placing a SGM in a TPU, in this particular
circumstance, if no SGM position is available.
6. The Board also notes that the applicant did not decline consideration to serve as a
CSM, and when he was selected, he accepted the appointment, concurrently with
promotion to SGM and reassignment. Because he did not decline, there is no reason
to place him on a recommended list or selection list. His acceptance of the
appointment, albeit followed by his voluntary withdrawal, does not mandate that he be
placed on a standing list for promotion.
7. The actions taken by the applicant’s command in approving his voluntary withdrawal
from the CSM program, without a concurrent voluntary reduction in rank by the
applicant, were somewhat unorthodox. Nonetheless, these actions, and subsequent
actions by members of the applicant’s chain of command, benefited the applicant. He
could have lost his job. This Board is satisfied that that there is no injustice done him,
and in fact believes that people in his chain of command have gone overboard to assist
8. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to
demonstrate the existence of probable error or injustice.
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__JHL___ ___CWB_ __RVO__ DENY APPLICATION
Loren G. Harrell