RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 April 2007
      DOCKET NUMBER:  AR20060010867


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Ms. Ernestine I. Fields           |     |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 records be corrected to
show he was promoted to Sergeant Major (SGM), E-9.

2.  The applicant states he was in the U. S. Army Reserve (USAR) for 22
years, serving as the Division Medical Noncommissioned Officer (NCO) with
the108th Division in Charlotte, NC.  He attended the Army Medical
Department (AMEDD) NCO School in 1971.  He was told that this school was
the Sergeant Major school for the AMEDD.  He believes he more than deserves
a promotion to SGM.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 January 1999, the date he was transferred to the Retired
Reserve.  The application submitted in this case is dated 20 July 2006.

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.  After having had prior service in the Regular Army and the USAR, the
applicant enlisted in the USAR on 5 August 1986.  He was promoted to Master
Sergeant, E-8 on 20 July 1987 in military occupational specialty (MOS) 91C
(Practical Nurse).

4.  On 17 January 1999, the applicant transferred to the Retired Reserve.

5.  In the processing of this case, an advisory opinion was obtained from
the     U. S. Army Human Resources Command – St. Louis, MO (USAHRC – STL).
USAHRC – STL stated the applicant was a member of a troop program unit
(TPU) for the last 13 years of his career.  Not being the promotion
authority for TPU Soldiers, USAHRC – STL has no historical records
available that could
substantiate that the applicant was given consideration for and/or promoted
to SGM.  USAHRC – STL did note that completion of a career course does not
guarantee a Soldier a promotion to the next higher grade.  Promotions are
not mandatory and keen competition and varying Army needs often preclude
the selection of many capable NCOs.

6.  A copy of the advisory opinion was provided to the applicant.  He did
not respond within the given time frame.

7.  Army Regulation 140-158, in effect at the time, prescribed policies and
procedures pertaining to the classification, promotion, reduction, and
grade restoration of enlisted Soldiers of the USAR.  Chapter 3 pertained to
the promotion of Soldiers assigned to TPUs.  Paragraph 3-28 prescribed the
policy and procedures governing the promotion of TPU Soldiers to grades, E-
7, E-8, and E-9.  Paragraph 3-28b stated that senior enlisted promotions
resulted when:

      (1) data was provided to the promotion authority that reflected
requirements based on current and projected position vacancies;


      (2) the promotion authority announced:


           (a) the convening date of the selection board;


           (b) the location and description of current and projected
           position vacancies;


           (c) zones of consideration for promotion selection; and


           (d) administrative instructions;

      (3) personnel records of Soldiers within the zone of consideration
were reviewed by the board;

      (4) the board selected the best qualified Soldiers to fill required
positions and the names were placed on a selection list; and

      (5) as position vacancies occurred, Soldiers were promoted off the
list in sequence by MOS and geographical location.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant spent 22 years in the USAR and
served as a Division Medical NCO.  However, as the advisory opinion noted,
promotions to SGM would have been contingent upon a number of conditions
and not just the fact the applicant completed a particular school.

2.  Even if the applicant had been recommended for promotion, he could not
have been promoted until a position vacancy occurred in his MOS and
geographical location and as his promotion sequence number.  It is also
recognized that the years beginning around 1991 were a time when the Army
was drawing down its strength.  Promotions would have been fiercely
competitive during that time.

3.  There is no evidence of record and the applicant provides none to show
that he was recommended for promotion to SGM and only through
administrative error was not promoted.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 January 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         16 January 2002.  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

___klw__  __lmd___  __eif___  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.




                                  __Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010867                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070410                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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