RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 February 2008
	DOCKET NUMBER:  AR20070015615 


	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:


Ms. Linda D. Simmons

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. John G. Heck

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 that he be advanced on the Retired List from staff sergeant (SSG)/E-6 to sergeant first class (SFC)/E-7.

2.  The applicant states that he performed duties as a SFC/E-7 and was selected for promotion to SFC/E-7 prior to his retirement.  He cites 10 USC 3964 in support of his request.

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

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 August 1997.

	b.  DA Form 2166-7 [Noncommissioned Officer (NCO) Evaluation Report] for the periods 8910 to 9001, 9201 to 9211, 9402 to 9410, 9411 to 9504, and 9505 to 9510.

	c.  DA Form 2166-6 (Enlisted Evaluation Report) for the periods 8411 through 8507, 8508 through 8601, and 8602 through 8610.

	d.  DA Form 2-1 (Personnel Qualification Record).

	e. Headquarters, Department of the Army Promotion Recommended List-SFC, dated 28 June 1996.

	f.  DA Form 1059 (Service School Academic Evaluation Report), dated 6 December 1993, completion of the Advanced NCO Course (ANCOC). 

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.  The applicant's records show that he enlisted in the Regular Army on 17 August 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 62G (Quarrying Specialist).  He subsequently had a series of extensions and/or reenlistments and attained the rank of sergeant (SGT)/E-5 on 26 May 1980 and SSG/E-6 on 1 July 1989.  He was honorably retired from the Regular Army on 31 August 1997 in the grade of SSG/E-6 and was placed on the Retired List effective 1 September 1997.

3.  The applicant's records show that his last reenlistment in the Regular Army, dated 18 November 1992, was for a period of 4 years which yielded an expiration date of service (ETS) date of 17 November 1996.  This ETS date was some 9 months short of completing 20 years of active federal service, which was the maximum number of years he could have served as a SSG/E-6.  Accordingly, on 2 April 1996, he requested a 9-month extension of his reenlistment to meet the retention control point (RCP) for SSG/E-6.  The request was approved contingent on his submission of a request for retirement.

4.  The applicant's records show that he was selected for promotion to SFC/E-7 by the 1996 Department of the Army Centralized Promotion Board.  He was assigned Sequence Number 14 on the E-7 Promotion List dated 28 June 1996.

5.  The applicant's records show that he requested voluntary retirement on 4 September 1996 and that his retirement orders were published on 17 October 1996.

6.  The applicant's records do not contain permanent orders that show he was promoted from SSG/E-6 to SFC/E-7.

7.  There is no indication in the applicant's records that he withdrew his retirement application.

8.  The applicant submitted several NCO Evaluation Reports that show he successfully performed duties of a platoon sergeant (SFC/E-7). 


9.  An advisory opinion was obtained in the processing of this case.  On 21 November 2007, a staff officer at the U.S. Army Human Resources Command, St. Louis, Missouri, stated that the applicant was in fact considered and selected for promotion to SFC/E-7 in 1996.  However, there is no documentary evidence in the records that reflects the applicant actually realized the promotion before he voluntarily retired from the Army on 31 August 1997.  The U.S Code does allow for certain retired members to be advanced on the retired list to the highest grade held in which served on active duty satisfactorily; however, there is no proof available that would indicate the applicant served on active duty at the SFC/E-7 level.

10.  The applicant was provided a copy of this advisory opinion on 10 January 2008.  On 4 February 2008, he responded to the advisory opinion with a rebuttal letter.  He restated the fact that he was selected by the 1996 promotion board and that his sequence number was 14.  He further adds that a comrade-in-arms was promoted to SFC/E-7 in similar circumstances.  He further adds that he (the applicant) served in the SFC/E-7 position and that his DA Form 2-1 and NCOERs reflect that fact.

11.  Army Regulation 601-280 (Army Retention Program), in effect at the time, prescribed criteria for the Army Retention Program and sets forth policies, command responsibilities, and processes for immediate reenlistment or extension of enlistment of Soldiers in the Army and enlistment/transfer and assignment of Soldiers processing from the Active Army to the Reserve Components of the U.S. Army.  Table 3-1 of that regulation provided that the retention control point (RCP) for a sergeant (promotable) and a staff sergeant was 20 years.  Additionally, paragraph 4-9 of stated, in pertinent part that. Soldiers not otherwise qualified for reenlistment could be extended.  Extensions could be executed in months and days without regard to the reenlistment eligibility window, but could not be accomplished until the written retirement application had been submitted and not earlier than six months before desired retirement date for Soldiers choosing retirement instead of a permanent change of station (PCS) and twelve months before retirement date for all other Soldiers.  

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 12-7(d) of the regulation in effect at the time stated that members who hade an approved retirement were in a nonpromotable status and could not be promoted unless a request for withdrawal of their retirement application had been submitted and 

approved.  Paragraph 12-15 provided that an approved application for retirement may not be withdrawn by the Soldier unless it is established that retention on active duty will prevent an extreme hardship to the Soldier or his/her immediate family. 

13.  Title 10 of the United States Code, section 3964 provides the legal authority for advancement of warrant officers and enlisted members on the Retired List.  It states, in pertinent part, that warrant officer and enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.

14.  Paragraph 12-6 of Army Regulation 635-200 contains guidance on the advancement of enlisted Soldiers on the Retired List.  It indicates that advancement on the Retired List is limited to retired Soldiers who held a higher grade and successfully served in that higher grade while on active duty.  Retired Soldiers who have less than 30 years of active service, whose active service plus service on the retired list total 30 years, are entitled to be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.  This provision applies to enlisted Soldiers who, at the time of retirement, were on active duty (or full-time National Guard duty).  When these Soldiers complete 30 years of satisfactory service, their military personnel records are reviewed to determine whether service in the higher grade was satisfactory.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be advanced on the Retired List to SFC/E-7.

2.  Evidence of record shows that the only reason the applicant was allowed to extend his enlistment contract dated 18 November 1992 was to earn sufficient time to complete 20 years of active service that would have qualified him for retirement.  His approved request for extension on 2 April 1996 was contingent upon his submission of his retirement request.  Once his retirement request was approved, he was no longer in a promotable status.

3.  The 1996 SFC Promotion Recommended List was published on 28 June 1996.  Nevertheless, the applicant, realizing he was promotable, voluntarily submitted his request for retirement on 4 September 1996 and was issued his retirement order on 17 October 1996.  It appears that after his retirement was approved, personnel officials administratively removed his name from the promotion list and he retired in the grade he held at the time.
4.  Although his NCO Evaluation Reports may show that he performed duties of platoon sergeant, a position that is normally held by a SFC/E-7, there is no evidence in the applicant's records that he was promoted to SFC/E-7 or held the grade of SFC/E-7.

5.  In view of the foregoing, there is no basis for granting the applicant's request and therefore the applicant is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __lmd___  __jgh___  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.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.