BOARD DATE: 22 December 2009 DOCKET NUMBER: AR20090009198 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, promotion to sergeant major (SGM)/E-9. 2. The applicant states that due to multiple permanent changes of station moves in a truncated period of time he was denied a thorough and thoughtful analysis of his record of performance and contributions characterized as “Best Qualified” promotion criteria to the rank of SGM during Fiscal Year (FY) 1993 and FY1994. He also states that the Board declined to fully review his initial request for consideration because he had an approved retirement date effective six months prior to his actual retirement for 20 years active federal service. 3. The applicant provides an undated self-authored statement; copies of his DA Forms 2166-7 (NCO (Noncommissioned Officer) Evaluation Reports); copies of his DA Forms 1059 (Academic Evaluation Report); and various awards and certificates in support of this application. CONSIDERATION OF EVIDENCE: 1. The applicant’s military records show that he had previous service in the U.S. Navy (USN), Regular Army (RA), Army National Guard (ARNG), and the U.S. Navy Reserve (USNR) prior to entering into the U.S. Army Reserve (USAR) Active Guard Reserve (AGR) program on 9 May 1983. 2. Orders 196-8, dated 15 November 1989, issued by the U.S. Total Army Personnel Command, St. Louis, MO, promoted the applicant to the rank/grade of master sergeant (MSG)/E-8, effective 16 November 1989. 3. He continuously served in the AGR program until 30 June 1994, when he retired by reason of sufficient service for retirement in the rank/grade of MSG/E-8 and he was transferred to the control of the USAR Control Group (Retired). The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 20 years and 16 days of creditable active military service. 4. The applicant’s record contains a copy of his DA Form 2-1 (Personnel Qualification Record) which shows that he reviewed his records on 7 October 1993. Item 27 (Remarks) shows the entry "DA FORMS 2-1 and 2A [SIDPERS Personnel Qualification Record – Enlisted] FWD [Forward] FOR E8/E9 AGR PROM [Promotion]/QMP BD [Qualitative Management Program Board] 1994." 5. The applicant submitted copies of his DA Forms 2166-7 and assignments for the following periods: a. 8911 - 9011, USAR Recruiter Training NCO, USA 6th RCTG [Recruiting] Brigade, Fort Baker, CA; b. 9108 - 9207, USAR Operations NCO, Recruiting Battalion New York City, Fort Hamilton, NY; c. 9208 - 9304, USAR Operations NCO, Recruiting Battalion New York City, Fort Hamilton, NY; and d. 9305 - 9309, Chief Wardmaster, 77th U.S. Army Reserve Command, 365th Medical Evacuation Hospital, Niagara Falls, NY. His appointed duties included Acting Command Sergeant Major. 6. The applicant’s records contain a copy of a memorandum from this Board, dated 12 October 2000, which states, in pertinent part, the following: a. on 26 February 1993, the 1993 AGR MSG/SGM Promotion board convened and considered, but did not select, the applicant for promotion; b. on 9 November 1993, the applicant submitted his request for voluntary retirement for length of service and the AGR Management Division of the Army Reserve Personnel Command approved the applicant’s request on 14 January 1994; and c. on 29 February 1994, the 1994 AGR MSG/SGM Promotion Board convened. However, since the applicant’s retirement was approved prior to the convening of the board, he was not considered for promotion to SGM. 7. Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, state in pertinent part that to be eligible for appearance before an HQDA board the Soldier must not be ineligible to reenlist because of Declination of Continued Service Statement, retirement, or court-martial. 8. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. DISCUSSION AND CONCLUSIONS: 1. In accordance with pertinent regulations, in order for the applicant to have been promoted to SGM, he would have had to have been selected for promotion to SGM prior to the date of his approved retirement. 2. Notwithstanding the documentation submitted by the applicant, while he was considered but not selected by the FY 93 Promotion Board his contention that he should have been promoted is speculative at best; therefore he is not eligible for promotion to SGM. 3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit any new evidence or argument that would satisfy this requirement. 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 that 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) AR20090009198 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1