RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 APRIL 2007
	DOCKET NUMBER:  AR20060012838 


	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.




	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, reinstatement to the pay grade of E-7 with the appropriate date of rank and all back pay and allowances.  

2.  The applicant states that his last unit pulled him out of his Advanced Noncommissioned Officer Course (ANCOC) and would not allow him to return.  His inability to return to ANCOC led to his reduction in grade and discontinuance of his military career.

3.  The applicant does not provide any documentation in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 30 October 2001.  The application submitted in this case is dated    30 August 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.  The applicant’s military records show that he enlisted in the Regular Army on 28 September 1981 and remained in the Army until his retirement on 30 October 2001. 

4.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was separated in the rank/pay grade of staff sergeant/E6.  His effective date of pay grade was listed as 1 September 2000.

5.  Order Number 104-21 dated 13 April 2000 show that the applicant was promoted to sergeant first class with an effective date and a date of rank of         1 May 2000.  The order stated that staff sergeants promoted to sergeant first


class who do not have ANCOC credit are promoted conditionally.  Those Soldiers who receive a conditional promotion will have their orders revoked and their names removed from the centralized list if they fail to meet the NCOES requirement.  

6.  On 14 September 2000, the applicant received a memorandum of reprimand from the Commanding General, 3rd Infantry Division, Fort Stewart, Georgia.  The memorandum stated that on 26 August 2000, in Savanna Georgia, the applicant was stopped by a police officer for failing to keep his vehicle in his lane and striking a fixed object.  The applicant was administered a breathalyzer test which resulted in a blood alcohol content of .2 grams of alcohol per 210 liters of breath. The Savannah police department cited the applicant for driving under the influence (DUI), striking a fixed object, and failing to stay in his lane.  The commanding general stated that the applicant was being reprimanded for this misconduct.

7.  On 3 October 2000, the applicant acknowledged receipt of the memorandum of reprimand and submitted a statement on his behalf.  The applicant said that he was sorry for the embarrassment that he bought to his unit and his family.  He stated that he never imagined that a DUI would bring so much shame.  He said that he had not been charged by the civilian court and felt that his command was too quick to prejudge him on the situation.  He concluded by stating that he had never done anything like the DUI before and never would again. 

8.  On 18 October 2000, the Commander, Fort Stewart, Georgia, elected to file the memorandum of reprimand in the applicant’s Official Military Personnel File (OMPF).

9.  A memorandum dated 16 October 2000 from the US Total Army Personnel Command stated that the applicant was considered and selected for promotion.  However, based on his disenrollment from ANCOC due to misconduct, his name was administratively removed from the list.

10.  Order Number 290-10 dated 16 October 2000, revoked the applicant’s promotion to sergeant first class and removed him from the promotion list.  The applicant was granted de facto status for his service as a sergeant first class for the period 1 May 2000 through 31 August 2000.




11. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the policy for enlisted promotions.  The regulation provided, at the time, for the conditional promotion of Soldiers whose sequence numbers are reached for promotion to pay grade E-7 and who have not completed or attended ANCOC.  It further provides that Soldiers who are defined as failing to attend, having failed to complete for cause or academic reasons or being denied enrollment to the required NCOES course for cause will have their names administratively removed from the centralized promotion list.  If the Soldier has been conditionally promoted they will also be administratively reduced in grade.  

12.  The Army's ANCOC general attendance policy, outlined by the NCO Education System (NCOES) branch at the Army’s personnel center, states that Soldiers who, on or after 1 October 1993, accept a conditional promotion, and who are subsequently denied enrollment, declared a no-show, become academic failures, or otherwise do not meet graduation requirements, will have their promotions revoked and will be administratively removed from the centralized promotion list.  De facto status will be granted and they will retain the pay incurred from the effective date of promotion to the date the Soldier was disenrolled, denied enrollment, or failed to show on the report date for that class. 

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant received a letter of reprimand for misconduct because of his arrest for DUI.  It appears that at the time of his DUI, he was enrolled in ANCOC and subsequently dismissed for misconduct.  The applicant did not provide any evidence to show otherwise.  Therefore, there is no error in the applicant's records.  He went to ANCOC and was released for misconduct.  As such, the revocation of the order promoting him, and his removal from the promotion selection list, was correct. 

2.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 October 2001; therefore, the time for the applicant to file a request for correction of any error or injustice expired on            29 October 2004.  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

__CG ___  __MF ___  __EM ___  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.




_____Curtis Greenway_______
          CHAIRPERSON




INDEX

CASE ID
AR20060012838
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070412
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.00
2.

3.

4.

5.

6.