RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2005
      DOCKET NUMBER:  AR20050000135


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ronald Blakely                |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne Douglas               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his rank of sergeant major
(SGM)/E-9 be restored and that he be retired as a SGM.

2.  The applicant states he was administratively reduced to E-8 at
retirement and he had satisfactorily served as an E-9.  He contends that he
should have been retired in the grade of E-9.  He states that his promotion
orders were not conditional and he was retired in the grade of E-8
erroneously.  He also states that he was promoted to the grade of E-9 on 1
February 1995 and reduced to E-8 on 21 October 1996 with an effective date
of 1 October 1996.  He states that he had over 19 months time in grade and
he retired on 31 March 1997.

3.  The applicant provides his orders releasing him from active duty and
placing him on the retired list; his orders reducing him from SGM/E-9 to
MSG/E-8; and his orders promoting him to SGM/E-9.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 1 April 1997.  The application submitted in this case is dated 30
November 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Army National Guard on 18 November 1974.
He was ordered to active duty in the Active Guard Reserve (AGR) on 30
September 1982.

4.  The applicant was promoted to MSG/E-8 on 1 July 1990.

5.  He was released from an AGR status on 20 November 1990.  He was ordered
to duty in the AGR again on 21 April 1991 and continued to serve in an AGR
status.

6.  Office of The Adjutant General, State of New York Orders Number 021-133
dated 1 February 1995 promoted the applicant to SGM/E-9 with an effective
date and date of rank of 1 February 1995.

7.  Office of The Adjutant General, State of New York, Orders Number 206-
007 dated 21 October 1996 reduced the applicant from SGM/E-9 to MSG/E-8
with an effective date of 1 October 1996 and a date of rank of 1 July 1990.
 The orders cited the reason for reduction as "Withdrawal from USASMA"
under the provisions of National Guard Reserve (NGR) 600-200, paragraph 6-
44e.  A handwritten note on the orders made by the AGR Branch
Noncommissioned Officer-In- Charge (NCOIC) indicated that the orders would
be revoked and the applicant would be reduced a day before retirement.

8.  Office of The Adjutant General, State of New York, Orders Number 217-
004 dated 5 November 1996 revoked the orders reducing the applicant to
MSG/E-8.

9.  Orders were published by the Office of The Adjutant General, State of
New York which released the applicant from active duty on 31 March 1997 and
transferred him to the retirement list in retired grade of MSG/E-8
effective 1 April 1997.  He had served 22 years, 4 months and 14 days of
total service.

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty)
for the period ending 31 March 1997 shows his rank and pay grade as SGM/E-
9.  Item 14 (Military Education) on his DD Form 214 does not show he
completed the U.S. Army Sergeants Major Course.

11.  Table 6-3 of National Guard Regulation 600-200 covers promotion
criteria for promotion of enlisted personnel of the Army National Guard.
The table lists the completion of the Sergeants Major Course as the
military education criteria for promotion to SGM.  It states that
conditional promotion to SGM was automatically revoked if a Soldier failed
to enroll in the course when a training seat was offered, or after
enrollment, failed to graduate in accordance with U.S. Army Sergeants Major
Course standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SGM/E-9 on 1 February 1995.  It appears
he was enrolled in the U.S. Army Sergeants Major Course in order to meet
the military education criteria for promotion to SGM.  However, there is no
evidence available which shows he completed the course.

2.  The applicant's promotion orders may not have indicated his promotion
to SGM was conditional; however, the governing regulation was clear --
conditional promotion to SGM was automatically revoked if a Soldier failed
to enroll in the course when a training seat was offered, or after
enrollment, failed to graduate in accordance with U.S. Army Sergeants Major
Course standards.

3.  The applicant failed to meet the regulatory requirement for promotion
to SGM, his promotion was revoked and he was properly placed on the retired
list in the rank and pay grade MSG/E-8.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 April 1997; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 31 March 2000.  The applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

RB______  LF______  LD______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                  Ronald Blakely________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050000135                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050927                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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