RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20070016965 


	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 following members, a quorum, were present:













	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, correction to his records to show he retired in the rank and pay grade of sergeant first class (SFC), E-7, instead of the rank and pay grade of staff sergeant (SSG), E-6, with entitlement to back pay and allowances.  

2.  The applicant states, in effect, he believes he should have been retired in pay grade E-7, the last pay grade he held.  He also states that when he retired in 1999, he was retired in pay grade E-6.  He was also charged to pay back the money he received as an E-7.  He was promoted to pay grade E-7 on 1 April 1997.  He was told he had to remove his rank and retire as an E-6 due to too many years in the military.  He was not demoted and he was told by the Judge Advocate General officer to remove his rank and retire because he had not gone back to the Advanced Noncommissioned Officer Course (ANCOC).  The injustice has caused a burden to his family.  He should have the recognition that he earned and worked for. 

3.  The applicant provides copies of his SFC promotion orders and his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

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 military records show he enlisted in the Regular Army, as a private, in pay grade E-1, on 30 June 1975 and reenlisted on 13 March 1979.  He was promoted to SSG on 17 October 1985.


3.  The applicant's records contain a DA Form 1059 (Service School Academic Evaluation Report), dated 27 January 1997, that shows he was released from the ANCOC due to failure to achieve a passing score on Common Leader, after being tested twice.  His records do not show he completed the ANCOC.

4.  U.S. Total Army Personnel Command Orders No. 71-25, dated 12 March 1997, were published promoting the applicant to SFC effective 1 April 1997, with the same date of rank.  The orders also state that the promotion was not valid and would be revoked if the Soldier concerned was not in a promotable status on the effective date of promotion.  SSGs promoted to SFC who did not have ANCOC credit were promoted conditionally.  Those Soldiers who received a conditional promotion would have their orders revoked and their names removed from the centralized list if they failed to meet the ANCOC requirement.

5.  Headquarters, U.S. Army Armor Center, For Knox Orders 243-0155, dated
31 August 1999, were published releasing the applicant from active duty, in pay grade E-6, effective 30 November 1999, and placing him on the retired list effective 1 December 1999.

6.  The applicant was honorably separated from active duty, in pay grade E-6, effective 30 November 1999, under the provisions of Army Regulation 635-200, Chapter 12, for sufficient service for retirement.  He was transferred to the Retired Reserve.  He was credited with 21 years, 1 month, and 27 days total active service.

7.  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 number was reached for promotion to pay grade E-7 and who had not completed or attended ANCOC.  It further provided that Soldiers who were defined as failing to attend, having failed to complete for cause or academic reasons, or being denied enrollment to the required NCO Education System (NCOES) course for cause would have their names administratively removed from the centralized promotion list.  If the Soldier had been conditionally promoted they would also be administratively reduced in grade.  

8.  The Army's ANCOC general attendance policy, outlined by the 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 earned 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. 

9.  Further, the NCOES policy provides that Soldiers who fail to attend a course or who are denied enrollment, who feels there was an error, injustice or some other type of wrongdoing that contributed to this status, may request reinstatement through the Army’s NCOES Reinstatement Panel.  If the voting panel finds irregularities, it can reinstate the Soldier's name on the promotion selection list and reschedule attendance at the ANCOC.

10.  Army Regulation 635-200, Chapter 12, sets forth the basic authority for the separation of enlisted personnel because of length of service.  It states, in pertinent part, that retirement normally will be in the regular grade the Soldier holds on the date of retirement, as prescribed in Title 10 of the United States Code, section 3961, which provides the legal authority for retirement grades.  

11.  Title 10, United States Code, Section 3961 provides that each retired member of the Army, unless entitled to a higher grade under some other provision of law, retires in the regular grade that he/she hold on the date of his/her retirement.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a correction to his records to show he retired in the pay grade of E-7.  He has not shown error, injustice, or inequity for the relief he now seeks.  He has provided no evidence showing he satisfactorily held the grade of E-7 while he served on active duty prior to his transfer to the retired list.

2.  The applicant was promoted to pay grade E-6 on 17 October 1985.  He was issued a conditional promotion for promotion to pay grade E-7, with an effective date of 1 April 1997.  The applicant was advised that he would not be promoted if he failed to meet the ANCOC requirement.  The applicant was released from the ANCOC course on 27 January 1997, for failing to achieve a passing score on Common Leader, after being tested twice.  Based on the fact that the applicant had not completed the required ANCOC prior to 1 April 1997, he was not qualified for promotion at the time; and there is no evidence he was actually promoted to that pay grade.  


3.  There is an insufficient evidentiary basis to support granting the requested relief.  The applicant's promotion to pay grade E-7 was conditional, but he failed to meet the stipulated condition of successfully completing an ANCOC.  Therefore, there is no error in the applicant's records and he properly retired in the appropriate rank and pay grade of SSG, E-6.

4.  This is also noted that the Soldiers are entitled De facto status for pay earned from the effective date of promotion to the date the Soldier was disenrolled, denied enrollment, or failed to show on the report date for an ANCOC class.  The applicant's promotion effective date was 1 April 1997 and he was released from ANCOC prior to that date.  Therefore, if he received any monies he would not have been entitled to, the pay and reimbursement would be appropriate.  There is also no evidence that he was actually paid as an E-7 and was required to reimburse the Government for the difference in pay between an E-6 and an E-7.  

5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x__  ___x__  x        _____  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.



      ______x.____________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070016965


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508