IN THE CASE OF: BOARD DATE: 31 July 2008 DOCKET NUMBER: AR20080007397 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, that he be advanced on the retired list to the highest grade he held, E-7. 2. The applicant states that he was promoted to Sergeant First Class (SFC)/E-7, on 9 January 1992 while serving with the Fifth Recruiting Brigade as an Army recruiter. During that time, he was due to be reassigned to the 419th Transportation Company but had to attend the Quartermaster School before reporting to his new unit. He attended the school from 3 March through 27 April 1992 as an SFC. After reporting to his new unit he found out that the position was for a Staff Sergeant (SSG)/E-6. Also after reporting to his new unit he received a memorandum, dated 21 January 1992, informing him he had been removed from the SFC promotion list. 3. The applicant states that he was led to believe a Soldier would retire with the highest rank held after a certain time. He has been retired now for a little over ten years. He is not sure this is an error because of the things he was told and he did not have access to any regulations to find out more about this. 4. The applicant provides SFC promotion orders; his SFC certificate of promotion; and a memorandum, dated 21 January 1992. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. After having had prior service, the applicant enlisted in the U. S. Army Reserve on 23 September 1983. He entered active duty in an Active Guard Reserve (AGR) status on 6 February 1984 for recruiting duty. 3. After receiving several good noncommissioned officer evaluation reports (NCOERs), the applicant received a derogatory annual NCOER for the period April 1990 through March 1991. Comments on this NCOER included, “Failed last SQT (skill qualification test),” “Often fails to comply with regulatory guidance,” and “substandard mission accomplishment, missed 4 out of last 6 months.” 4. The applicant received a derogatory change of rater NCOER for the period April 1991 through July 1991. One of the comments on this NCOER was, “Relieved as a field recruiter.” 5. U. S. Total Army Personnel Command, Office of Promotions, Reserve Components, Orders 02-1, dated 9 January 1992, promoted the applicant to SFC in military occupational specialty (MOS) 00E4O (Recruiter) effective 9 January 1992. 6. U. S. Total Army Personnel Command, Office of Promotions, Reserve Components, memorandum, dated 21 January 1992, informed the applicant that he had been removed from the 1991 SFC Promotion List in MOS 00E4O in accordance with Army Regulation 140-158, paragraph 4-19f(4) and 4-19g. 7. The applicant was released from active duty on 31 January 1998 in the rank and grade of SSG/E-6, by reason of completing sufficient service for an active duty retirement under the provisions of Title 10, U. S. Code, section 3914. He was placed on the retired list in the rank and grade of SSG/E-6. 8. Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, chapter 4, provided guidance regarding the promotion of Soldiers serving in an AGR status. Paragraph 4-9 stated promotion to E-6 and above would be made through the centralized process against existing or projected vacancies in the AGR program. 9. Army Regulation 140-158, paragraph 1-8e, stated that, when orders are published revoking an advancement or promotion, the Soldier's service in the higher grade could be determined to have been de facto so as to allow the Soldier to retain pay and allowances received in that status. A de facto status could have existed and the Soldier could have been authorized to retain pay and allowances received when: (a) an instrument of advancement or promotion order had been issued; (b) the Soldier occupied the higher grade in good faith; (c) the Soldier actually discharged the functions of the higher grade; and (d) there was no absolute statutory bar to his or her receipt of the funds. 10. Army Regulation 140-158, paragraph 4-19f(4), stated commanders would promptly advise the U. S. Total Army Personnel Command, Office of Promotions, Reserve Components, of any Soldier whose name appeared on the recommended list and who was discharged from an enlisted status to accept appointment as a commissioned or warrant officer. Paragraph 4-19g stated that the U. S. Total Army Personnel Command, Office of Promotions, Reserve Components, would administratively remove any Soldier in the categories defined in paragraph 4-19f(1) through (11) from the recommended list. 11. Army Regulation 140-158, paragraph 4-19f(9), concerned Soldiers reclassified out of the MOS in which they had been recommended for promotion. 12. Title 10, U. S. Code, section 3963(a), states a Reserve enlisted member of the Army described in subsection (b) who is retired under section 3914 of this Title shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily, as determined by the Secretary of the Army. Subsection 3963(b) states this section applies to a Reserve enlisted member who (1) at the time of retirement is serving on active duty in a grade lower than the highest enlisted grade held by the member while on active duty; and (b) was previously administratively reduced in grade not as a result of the member’s own misconduct, as determined by the Secretary of the Army. DISCUSSION AND CONCLUSIONS: 1. It is acknowledged that the applicant may have actually pinned on the rank of SFC and been paid as an E-7 during the time he was attending the Quartermaster School from 3 March through 27 April 1992. However, that would not have meant that his promotion was valid or that he would have kept the promotion. It appears he was relieved from recruiting duties around July 1991 and would have been reclassified shortly thereafter. It appears that as soon as it was discovered that he had been reclassified out of the MOS (00E) in which he had been recommended for promotion his E-7 promotion orders were revoked. 2. A determination might have been made that the applicant served as an E-7 in a de facto status, which would have allowed him to retain the E-7 pay he had received. However, that fact again did not make his promotion to E-7 valid. 3. The fact that an error was made on the U. S. Total Army Personnel Command, Office of Promotions, Reserve Components, memorandum, dated 21 January 1992, citing the authority for his removal from the 1991 SFC Promotion List as Army Regulation 140-158, paragraph 4-19f(4), instead of paragraph 4-19f(9), is insufficient to invalidate the removal action. 4. Since the evidence of record indicates the applicant had not received a valid promotion to SFC/E-7, there is insufficient evidence that would warrant advancing him to SFC/E-7, on the retired list. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __xx____ ____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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _xxxx______ ___ 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) AR20080007397 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080007397 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1