RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 November 2007
	DOCKET NUMBER:  AR20070007821 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Eric N. Anderson

Chairperson

Mr. Donald L. Lewy

Member

Ms. Rea M. Nuppenau

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 correction of his date of rank (DOR) and effective date of promotion to sergeant (SGT)/pay grade E-5 from 5 March 1996 to 1 December 1995.

2.  The applicant states that his promotion to SGT/E-5 was delayed due to no fault of his.  He further states that the Centralized Permanent Recommended Promotion List for SGT/E-5 and staff sergeant (SSG)/pay grade E-6 was required to be published and revised quarterly in accordance with Army Regulation
140-158 (Enlisted Personnel Classification, Promotion, and Reduction) to provide for integration of additional personnel on that list.  He also adds that a delay in publishing the 77th Reserve Support Command (RSC)-now known as Regional Readiness Command (RRC)-Centralized Permanent Recommended Promotion List prevented him from meeting the suspense for any packet or document update prior to the Active Reserve Guard (AGR) Enlisted Entrance Board convening.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Extract of Army Regulation 140-158, dated 1 September 1994.

	b.  The 343rd Combat Support Hospital, Brooklyn, New York, Report of Promotion Board Proceedings for Promotion to SGT/E-5 and SSG/E-6, dated 5 October 1995.

	c.  Department of the Army, Headquarters, 77th RSC, Fort Totten, New York, Promotion Orders Number 72-2, to SGT/E5, dated 5 March 1996.

	d.  DA Form 4187 (Personnel Action), dated 11 June 1996, request for correction of DOR, together with the commander's endorsement, dated 18 July 1996, and the 77th RSC response, dated 13 September 1996. 

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.  With prior service in the U.S. Marine Corps from February 1985 to February 1989; the Regular Army from April 1989 to February 1992; and the New Jersey Army National Guard (NJARNG) from February 1992 to February 1994; the applicant enlisted in the U.S. Army Reserve (USAR) on 3 February 1994 for a period of 6 years.  He entered into the AGR program on or about September 1996 and reenlisted in the USAR on 10 December 1999.  He reverted back to the NJARNG on 10 August 2000.  Today, the applicant is a master sergeant (MSG)/E-8 assigned to the National Guard Bureau, Military District of Washington.

3.  The applicant's records show that, while a specialist four/pay grade E-4 member of the 343rd Combat Support Hospital, Brooklyn, New York, he appeared before his battalion's SGT/SSG Enlisted Promotion Board on 22 September 1995.  He was recommended for promotion to the grade of SGT/E-5 by the Board.  The convening authority approved the Proceedings on 5 October 1995.  There is no record when the convening authority forwarded the Promotion Board Proceedings to the promotion authority for integration of those recommended personnel into the Centralized Permanent Promotion Recommended List (PPRL).

4.  On 5 March 1996, Headquarters, 77th RSC, Fort Totten, New York, published Orders Number 72-2 announcing the applicant's promotion to SGT/E-5 effective 5 March 1996 and with a date of rank as 5 March 1996.  These Orders are not in the applicant’s official records.  The applicant provided a copy of these Orders.  

5.  The applicant's official records contain Orders Number 302-01, published on 28 October 1996, announcing his promotion from specialist four to SGT/E-5 effective 28 October 1996 and with a date of rank of 4 September 1996.  Additionally, Item 18 (Appointments and Reductions) of the applicant’s DA Form 2-1 (Personnel Qualification Record) confirms his DOR as 4 September 1996 and effective date as 28 October 1996.  The applicant’s DA Form 2166-8 (Noncommissioned Officer Evaluation Report) during the period September 1996 through August 1997 also shows his DOR as 4 September 1996. 


6.  On 11 June 1996, the applicant submitted a DA Form 4187, through his chain of command, to the 77th RSC, requesting correction of his DOR and effective date of promotion to SGT/E-5 from 5 March 1996 to 1 December 1995.  His justification was as follows:

	a.  The 77th RSC's previously published PPRL for SGT/SSG was dated June 1995.

	b.  He was recommended for promotion on 22 September 1995.  The Report of Promotion Board Proceedings was forwarded to the Major United States Army Reserve Command (MUSARC) for consolidation.

	c.  He was occupying a valid SGT/E-5 position when recommended for promotion.

7.  The applicant's battalion commander recommended approval and forwarded the personnel action through the 800th Military Police Brigade, Uniondale, New York, to the 77th RSC, Fort Totten, New York.

8.  On 13 September 1996, the 77th RSC's Executive Officer disapproved the request and returned it to the applicant through his chain of command.  There was no reason indicated on the disapproval endorsement. 

9.  In the processing of this case, an advisory opinion, dated 21 June 2007, was obtained from the Acting Sergeant Major of the U.S. Army Human Resources Command, St. Louis, Missouri, who stated that without knowing the reason or reasons why the promotion authority denied the applicant's request, he felt hesitant to opine on this case.  He further added that it is conceivable that the applicant was flagged at the time or had some ongoing issues, such as a physical fitness test failure or being on the overweight program, which prevented his promotion from being effective.  He further stated that it is also conceivable that the PPRL was in fact delayed through no fault of the applicant.  The Acting Sergeant Major recommended the promotion authority be contacted and given an opportunity to present the facts that could explain denying the applicant's request.

10.  In a rebuttal to the advisory opinion, dated 22 October 2007, the applicant stated that he has never been flagged throughout his military and that he always met the height and weight standards and that upon applying to the AGR program in 1996, his orders were conditional upon not being flagged.  He restated the fact that there was an administrative error on behalf of the 77th RSC and that there were several Soldiers who were in the same situation.
11.  Army Regulation 140-158 prescribes policy and procedures governing the classification, advancement, promotion, reduction, and grade restoration of applicable USAR Soldiers.  Paragraph 3-14(i) of the version applicable at the time stated that the promotion convening authority will send a copy of the approved report of board proceedings less the DA Form 3356-1-R and less the DA Form 3357-1-R to the appropriate MUSARC within 15 days after approving the board report. 

12.  Paragraph 3-16 of Army Regulation 140-158 states that a centralized permanent promotion recommended list will be established, maintained, and published by Headquarters, MUSARC.  The reports will be consolidated into one permanent promotion recommended list.  The names of recommended Soldiers will be extracted from the reports and placed on the list and that this list will be revised every 3 months to provide for integration of new names resulting from transfers, gains, losses, reevaluations, recomputations, removals, suspensions, and board appearances.  

13.  Chapter 1 of Army Regulation 140-158 prescribes policy regarding promotion orders, effective date, and date of rank.  Paragraph 1-9 states that the effective date of an advancement or promotion on an order is the date of the order or a future date.  Correction of a date of rank or effective date for sergeants is initiated by the Soldier on a DA Form 4187 explaining the specific reasons for the delay. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to correction of his DOR and effective date of promotion to SGT/E-5 from 5 March 1996 to 1 December 1995.

2.  The applicant’s record shows that he appeared before the September 1995 Enlisted Promotion Board and that he was recommended for promotion to SGT/E-5 by that board.  Evidence of record further shows that the convening authority approved the recommendation for promotion to SGT/SSG on 5 October 1995.  Evidence of record further shows that the applicant was promoted to SGT/E5 effective 28 October 1996 and with a DOR of 5 September 1996 as evidenced by official Orders Number 302-01, dated 28 October 1996.

3.  The exact reason the promotion authority denied the applicant’s request for an earlier DOR and/or effective date is unclear in this case.  Additionally, there is no evidence that the applicant has made any effort in the past 11 years to correct 


his DOR and effective date since his original request was denied.  In view of the foregoing and to maintain the presumption of regularity, it appears that the applicant is not entitled to relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ena___  __dll___  __rmn___  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.



							Eric N. Anderson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070007821
SUFFIX

RECON

DATE BOARDED
20071120
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
131.0500
2.

3.

4.

5.

6.