IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20080002659 


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 that his records be corrected to show he was promoted to Master Sergeant, E-8.  

2.  The applicant states that he is not concerned about retroactive pay, he only wants justice.  He was erroneously carried in a non-promotable status for five years.  When he received the Headquarters, Department of the Army (HQDA) bar to reenlistment in April 1977 he had already spent years in a non-promotable status due to prejudice, injustice, bias, and erroneous data.  When the facts were proved, the Army did not take action to compensate him.  Nevertheless, he continued to serve with dedication.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 March 1987; E-6 promotion orders, dated 17 December 1966; a Certificate of Retirement; a Certificate of Appreciation, dated 11 March 2002, with a related memorandum of appreciation, for volunteering for active duty; a letter, dated 6 May 1983, subject:  Correction of Records (Non-promotable Status) with 7 indorsements and the following documents, tabbed A through N, as part of that letter:

	A.  an Honorable Discharge Certificate, dated 17 August 1970;

	B.  a U. S. Army Enlisted Evaluation Center (USAEEC) Form 10 (Enlisted Evaluation Data Report), for evaluation period May 1975;

	C.  a Request for Adjusted Date of Rank, dated 16 August 1978; 
	D.  his HQDA Qualitative Management Program (QMP) letter, dated         8 April 1977; 

	E.  a request, dated 14 November 1977, for reconsideration of his Enlisted Efficiency Report (EER) appeal;

	F.  a reply, dated 18 July 1977, to the applicant’s first EER appeal; 

	G.  a reply, dated 30 January 1978, to the applicant’s request for reconsideration of his EER appeal; 

	H.  a corrected USAEEC Form 10 for evaluation period May 1975;

	I.  a recommendation for removal of a DA Imposed Bar to Reenlistment packet; 

	J.  a letter, dated 28 December 1978, subject:  Bar to Reenlistment;

	K.  a letter of commendation, dated 12 December 1975;

	L.  a letter of commendation, dated 29 December 1975;

	M.  EERs for the periods ending May 1980, ending January 1989, ending June 1981, ending December 1981, and ending November 1982; and

	N.  two school diplomas.

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 was inducted into the Army on 27 July 1961, enlisted in the Regular Army on 27 July 1963, and was released from active duty in August 1970.  He enlisted in the Army National Guard on 19 May 1972.  On 6 March 1974, he enlisted in the Regular Army in the rank of Private First Class, E-3.  He was promoted to Specialist Five, E-5 on 15 July 1974 and was laterally appointed to Sergeant, E-5 on an unknown date.

3.  The applicant’s USAEEC Form 10, dated 9 August 1976, for evaluation period May 1975, showed he had an EER weighted average of 51; a written military occupational specialty (MOS) test score (in MOS 63B4P) of 56; and an MOS evaluation score of 67.  

4.  The applicant provided a letter, dated 16 August 1978, from a former supervisor, Captain P___.  Captain P___ stated that the applicant worked for him from November 1975 to January 1976 and during that time he recommended the applicant for promotion to E-6.  The applicant’s promotion papers were held until his MOS score was found.  

5.  The applicant’s EER for the period November 1974 through November 1975, on his microfiche, is of poor quality.  It shows he received a total rating of 70 (out of a maximum possible rating of 125) and contained mostly negative comments.  The applicant appealed the EER on an unknown date.  

6.  By letter dated 8 April 1977, USAEREC informed the applicant that an Army Standby Enlisted Advisory Board reviewed his records and determined he should be barred from reenlistment under the QMP.  The documents which contributed most to the board’s decision were a USAEEC Form 10, for evaluation period May 1975; the EER for the period November 1974 through November 1975; and an Article 15, dated 27 May 1967.

7.  On 18 July 1977, the U. S. Army Enlisted Records and Evaluation Center (USAEREC) denied his appeal.

8.  The applicant submitted a request for reconsideration of his EER appeal on 14 November 1977.  His reconsideration was based primarily on a rating scheme that showed he should have received a change of rater EER for the period November 1974 through March 1975 and therefore requested the EER for the period November 1974 through November 1975 be removed from his records.  He also appealed the USAEEC Form 10, for evaluation period May 1975, stating he believed the weighted average to be incorrect.

9.  On 30 January 1978, USAEREC notified the applicant that his EER appeal would result in the EER for the period November 1974 through November 1975 being amended to show 6 nonrated months.  USAEREC stated that was the period of time he was not under the rater’s supervision; however, the rater was qualified to rate him for the remaining 7 months and therefore the EER would remain in his records.  USAEREC also notified him that action would be taken to correct his MOS evaluation score for evaluation period May 1975.  

10.  On 2 April 1978, a corrected USAEEC Form 10 for evaluation period May 1975 was prepared to show the applicant had an EER weighted average of 111; a written MOS test score (in MOS 63B4P) of 56; and an MOS evaluation score of 90.

11.  In December 1978/January 1979, the applicant’s chain of command recommended that his HQDA bar to reenlistment be removed.  On 12 January 1979, his HQDA imposed bar to reenlistment was removed, and the applicant was authorized to reenlist/extend for three years.  

12.  On 2 March 1979, the applicant was promoted to Staff Sergeant, E-6.  On  28 March 1983, he was promoted to Sergeant First Class, E-7.

13.  On 31 March 1987, the applicant retired in the rank and grade of Sergeant First Class, E-7.

14.  Around November 1979, the applicant applied to the ABCMR to change the effective date of his promotion to Staff Sergeant, E-6, to June 1976.  He contended that he was eligible to appear before the promotion board in June 1976 but, in effect, because of an erroneous EER weighted average he was not allowed to do so.  In the processing of the case, an advisory opinion was obtained from the U. S. Army Military Personnel Center.  That agency stated that during June 1976 an individual had to have a qualifying MOS evaluation score of 100 or higher to compete for promotion.

15.  In the processing of the applicant’s current case, an advisory opinion was obtained from the Chief, Enlisted Promotions, Promotions Division, U. S. Army Human Resources Command – St. Louis.  That office noted that the applicant’s appeal of his HQDA bar to reenlistment, made while he was still on active duty, was found (by competent authority) to be without merit even though an error was found on his MOS test score.  That office noted that the HQDA bar to reenlistment was imposed for failing an MOS test score, for having a below average EER, and for having an Article 15.  That office found no evidence of any alleged errors or injustice in his personnel records.

16.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He stated that errors were found on his MOS test score and on his EER and that corrected copies were mailed to the ABCMR.  He questions why (the advisory opinion) overlooked the EER (error) and commented only on the MOS test score.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant currently requests that his records be corrected to show he was promoted to Master Sergeant, E-8, contending he was erroneously carried in a non-promotable status for five years.  The foundation of his current request lies in his original application – if he were found to have been erroneously or unjustly denied promotion consideration to Staff Sergeant, E-6, he would never have been given a HQDA bar to reenlistment; he would have been promoted to Sergeant First Class, E-7, sooner; and he would have been promoted to Master Sergeant, E-8, prior to his retirement.

2.  It is true that the erroneous EER weighted average of 56 made the applicant ineligible for appearance before an E-6 promotion board in 1976, and that error was not corrected until April 1978.  However, the EER weighted average was corrected to 90, a score that also made him ineligible to appear before a promotion board.

3.  In the meantime, in April 1977, USAEREC had informed the applicant that he would be barred from reenlistment under the QMP.  The (erroneous) USAEEC Form 10, for evaluation period May 1975; the EER for the period November 1974 through November 1975; and an Article 15, dated 27 May 1967, were cited as the documents most contributing to the decision to bar him.

4.  Although the USAEEC Form 10 was later corrected, the applicant’s appeal of the EER did not result in it being removed from his records.  The decision was made that since the rater on that EER was his proper rater for the last 7 months of the rating period, the EER would be corrected only to show he had 6 nonrated months.  The EER was still valid, and it was still an adverse EER.

5.  It is recognized that the Article 15 mentioned in the HQDA QMP notification letter was 10 years old.  However, in 1977 the Army was still downsizing after Vietnam.  It appears that a 10-year old Article 15 would have been a valid consideration in determining who would be recommended for a HQDA bar to reenlistment.  

6.  It is also recognized that the applicant’s chain of command recommended that his HQDA bar to reenlistment be removed, and on 12 January 1979 the bar to reenlistment was removed.  It appears that both his chain of command and HQDA recognized that the applicant did indeed continue to serve with dedication, indicating that he would be an asset to the Army if he were allowed to continue to serve.  That, however, does not make the imposition of the bar to reenlistment invalid.  

7.  Since it appears that the applicant was not erroneously or unjustly denied promotion consideration to Staff Sergeant, E-6, and there is insufficient evidence to show the HQDA bar to reenlistment was erroneously or unjustly imposed, there is insufficient evidence to show that he would have been promoted to Sergeant First Class, E-7, sooner or that he would have been promoted to Master Sergeant, E-8, prior to his retirement.

8.  Therefore, there is insufficient evidence to warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ____xx__  _____xx_   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.




 _   _____xxxx _____________
       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)                                         AR20080002659





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ABCMR Record of Proceedings (cont)                                         AR20080002659



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