IN THE CASE OF:	  

		BOARD DATE:	  30 April 2009

		DOCKET NUMBER:  AR20080013158 


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 retroactively promoted to the rank/grade of Staff Sergeant (SSG)/E-6, effective and with a date of rank (DOR) of 10 November 1994, and that he receive all back pay and allowances due based on his promotion.

2.  The applicant states, in effect, that he was retired from the Army National Guard (ARNG), in the rank/grade of sergeant (SGT)/E-5, on 1 June 1998, with a total of 5521 retirement points, which included 4851 active duty points.  He claims that he was promoted to SGT in the U.S. Army Reserve (USAR) on 1 May 1984.  He further states that from September 1988 through 1994, he was assigned to Headquarters, 80th Division Training, Richmond, VA, working for Headquarters, State Area Command (STARC) of the VAARNG, and that in 1991, he was added to the SSG promotion list and remained on the top of that list and met all the requirements for promotion through 1996.  He also states that in 1994, when he was transferred to the Headquarters, 229th Engineer Battalion, Fredericksburg, VA, he was told he was being assigned to a position authorized an E-5/E-6 in his military occupational specialty (MOS).  However, despite having been assigned to and working in an E-6 position, he was never promoted prior to his 1998 retirement from the ARNG.

3.  The applicant provides the following documents in support of his application:  ARNG Current Annual Statement, dated 2 November 2005; National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective
1 June 1998; Office of the Adjutant General of Virginia (OTAG) Orders 132-043, 


dated 12 May 1998; 1995 SSG Promotion List, dated 11 February 1996; Headquarters, 80th Division (Institutional Training) Orders 135-18, dated
30 November 1994; 229th Engineer Battalion, 29th Infantry Division (Light) Orders 14-2, dated 21 July 1995; and DA Form 2 (Personnel Qualification Record [PQR]), as of 3 March 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.  The applicant's record shows that after serving on active duty in the Regular Army (RA) for 12 years, 10 months, and 5 days, he was honorably discharged and entered the USAR on 19 April 1985 in the rank of SGT.

3.  The applicant continued to serve in various Reserve Component (RC) statuses in the USAR and ARNG through 1 June 1998, at which time he was discharged from the ARNG and transferred to the Retired Reserve, in the rank of SGT.  

4.  U.S. Army Human Resources Command (USAHRC), Orders P06-787414, dated 9 June 2007, placed the applicant on the Retired List effective 1 July 2007, in the rank of SGT.

5.  In connection with the processing of this case, an advisory opinion was obtained from the NGB, Chief, Personnel Division.  This official stated that the documentation provided indicates the applicant was promotable as of
11 February 1996, as evidenced by the VAARNG 1995 Staff Sergeant Promotion List, dated 11 February 1996.

6.  The NGB official also states that the applicant's PQR, dated 3 March 1996, indicates by the entry in Section C (Organization Data), Item 3 (Dy [Duty] POSN [Position] 75E3O, that the applicant occupied an E-6 position at the time.  This 
official further states that the custodian of the VAARNG records could not provide any documents indicating the applicant was ever removed from the promotion list and there was no denial of promotion consideration memorandum on file, which results in an assumption that the applicant was promotable at the time.  This official recommends partial relief be granted to the applicant by correcting the record to show he was promoted to SSG, effective and with a DOR of
11 February 1996, which is the earliest date his promotion list status and assignment to an E-6 position can be confirmed by the record, and that the applicant receive all back pay and allowances due as a result.

7.  On 12 November 2008, the applicant responded to the NGB advisory opinion. In his response, he stated that the NGB recommends he be promoted retroactively with a promotion effective and with a DOR of 11 February 1996, apparently based on this being the date of the promotion list he provided.  However, he claims that it would serve the interest of justice to promote him to SSG effective and with a DOR of 10 November 1994, which is the date he believes he was first eligible for promotion.

8.  The applicant provides a copy of his PQR, dated 3 March 1996, which shows in Section C, Item 3, that he held an E-6 position.  He also provides a 1995 SSG Promotion List, dated 11 February 1996, which shows he was promotable and was first on the order of merit list for promotion to SSG/E-6 in MOS 75E on that date.

9.  National Guard Regulation 600-200 sets forth the basic authority for personnel actions, including separations and promotions, pertaining to Soldiers in the ARNG.  It states, in pertinent part, that SSG promotions are within the purview of the State and are based on the promotion list status and position vacancy (assignment to a position authorized the promotable rank).  

10.  Paragraph 11-33b of National Guard Regulation 600-200 provides guidance on promotion standing lists and states, in pertinent part, that the promotion list is neither a permanent standing list nor an order of merit list.  Each list published by the State AG is a new list and intended to remain valid until exhausted.  Soldiers who have not been selected for assignment and promotion who remain on the list near its expiration, including those with hardships, will be considered in the next board process with a new ranking relative to all other Soldiers being considered.  If not assigned and promoted from the old list before it expires, their sequence on the new list will be determined solely by their ranking with contemporaries; they will not be placed at the top of the list.



11.  Paragraph 11-44b of National Guard Regulation 600-200 contains guidance on position assignment eligibility based on promotion list status.  It states, in pertinent part, that Soldiers upon gaining promotion list status are eligible for immediate assignment to positions and, if qualified, for promotion concurrent with the assignment.  Assignment to a position from the promotion list as the first Soldier in sequence eligible and available for the position assures the promotion. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that he be retroactively promoted to SSG, effective and with a DOR of 10 November 1994, was carefully considered and found to have partial merit.

2.  By regulation, ARNG promotions are within the purview of the State and are based on promotion list status and position vacancies.  The evidence of record confirms the applicant was on a valid promotion list and assigned to a valid SSG/E-6 position on 11 February 1996, which is the promotion effective date recommended in the NGB advisory opinion.  There is no evidence of record or independent evidence provided by the applicant that confirms he was both on a valid promotion list and assigned to a valid SSG/E-6 position prior to 11 February 1996.  

3.  In view of the facts of this case, it would be appropriate to correct the applicant's record to show he was promoted to SSG, effective and with a DOR of 11 February 1996, as recommended in the NGB advisory opinion, and to provide him all back pay and allowances due as a result.  However, absent any documentary evidence confirming the applicant was on a promotion list and assigned to a valid SSG/E-6 position prior to 11 February 1996, there is an insufficient evidentiary basis to support any additional backdating of his SSG/E-6 promotion effective date.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  __x_____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by:

   a.  promoting the applicant to SSG/E-6, effective and with a DOR of
11 February 1996; 

     b.  showing he was placed on the Retired List effective 1 July 2007 in the rank and grade of SSG/E-6; and 

   c.  providing him all back pay and allowances and retired pay due as a result of this correction.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an earlier effective date and DOR of his promotion to SSG/E-6.



      _________x______________
               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)                                         AR20080013158



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ABCMR Record of Proceedings (cont)                                         AR20080013158


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