IN THE CASE OF:	  

	BOARD DATE:	  05 June 2008

	DOCKET NUMBER:  AR20080001278 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be advanced on the Retired List to the rank of Sergeant Major (SGM), E-9. 

2.  The applicant states, in effect, that his records should be corrected to reflect that he retired in the rank of SGM E-9 because he was legally promoted and even if there are no financial awards granted, he deserves the title.  He goes on to state that he has over 30 years of active service and service on the Retired List.   

3.  The applicant provides a copy of his promotion orders, a copy of his retirement order, and a copy of his DD Form 214. 

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 enlisted in the Puerto Rico Army National Guard (PRARNG) on 3 April 1947 and served in the PRARNG until he was honorably discharged on 24 July 1948.  He was inducted on 18 April 1951 and he remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-8 on 28 July 1965.

3.  On 22 September 1972, while stationed at Fort Lewis, Washington, the applicant submitted an Application for Voluntary Retirement (DA Form 2339) in which he requested to be placed on the Retired List effective 1 May 1973.   

4.  On 26 February 1973, orders were published which directed that the applicant be relieved from active duty on 30 April 1973 and placed on the Retired List in the rank of first sergeant (1SG) E-8 effective 1 May 1973.  

5.  Accordingly, the applicant was relieved from active duty effective 30 April 1973 and was placed on the Retired List in the rank of 1SG, effective 1 May 1973.  He had served 22 years and 28 days of total active service.

6.  On 1 May 1973, Extracts of Special Orders 84 were published by Headquarters, Department of the Army which announced the applicant’s promotion to the rank of SGM, with a date of rank (DOR) of 23 April 1973.  The orders contained special instructions indicating that promoted individuals automatically incurred a service obligation prior to voluntary non-disability retirement, computed in accordance with paragraph 7-52, Army Regulation    600-200 and Department of the Army message 042040Z.

7.  On 7 August 1985, the applicant applied to the Reserve Component Personnel Administration Center (RCPAC) for advancement on the Retired List to the rank of SGM E-9.  Officials at the RCPAC advised the applicant on
19 November 1985 that in order to be advanced on the Retired List to the pay grade of E-9, he had to have served satisfactorily on active duty in that grade for at least 185 days (for commissioned and enlisted grades).    

8.  A review of the applicant’s official records failed to reveal a copy of the promotion orders or any indication that the promotion to the pay grade of E-9 was ever effected.  There is no evidence to show that he ever wore the rank of SGM, E-9 or served in that capacity.  

9.  Army Regulation 600-200, Enlisted Personnel Management System provided the policies and procedures pertaining to the career management of enlisted personnel.  Chapter 7 of that regulation provided the policies and procedures relating to the promotion and reduction of enlisted personnel.  Paragraph 7-52 of the regulation in effect at the time provided that individuals promoted to the pay grades of E-7, E-8, and E-9 will incur a 2-year service obligation prior to non-disability retirement.  That regulation also provided that the effective date of promotion is the date the order is published by the Department of the Army.  Paragraph 7-6 of that regulation also provided that individuals with an approved voluntary retirement application were in a non-promotable status.  Commanders were required to notify the Department when individuals had approved retirements in order to prevent their names being published on promotion orders. 

10.  Army Regulation 600-200, chapter 7, in effect at the time also provided, in pertinent part, that the Army selects for the higher grades Soldiers who have the skills and abilities to do the job properly.  Promotions are not made to reward for jobs well done, but rather to recognize the outstanding individual with great potential for leadership or increased ability in his or her chosen field.  It also follows that if a Soldier does an outstanding job in their present grade, he or she probably has the competence to work equally well in the next higher grade.  The underlying concept of the Army promotion system is really quite simple – promote the best qualified individual.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be advanced to the pay grade of   E-9 on the Retired List because he earned the promotion and because he was legally promoted has been noted and found to lack merit.   

2.  Although orders were published which announced the applicant’s promotion effective 1 May 1973, the applicant had an approved retirement at the time and was in a non-promotable status.  

3.  Additionally, the applicant was never officially promoted and was relieved from active duty the day prior to the effective date of promotion.  The promotion also incurred an active duty service obligation of 2 years, prior to voluntary non-disability retirement, which the applicant did not meet.  

4.  Accordingly, the promotion was not a valid promotion and the applicant was not then, nor is he now entitled to be advanced to the pay grade of E-9.

5.  It is also noted that promotions are not made to reward individuals for a job well done, but rather to recognize individuals who demonstrate the potential to serve at the next higher level.  Unfortunately, the applicant chose to retire before attaining the next higher level of promotion and thus was ineligible to accept the promotion.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080001278



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ABCMR Record of Proceedings (cont)                                         AR20080001278



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