IN THE CASE OF:	 

		BOARD DATE:	       16 April 2009

		DOCKET NUMBER:  AR20080015242 


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:

The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be retroactively promoted to master sergeant (MSG)/E-8; that adjustments be made to his retired pay to reflect the promotion; that his military records be corrected to show he was not absent without leave (AWOL) or otherwise disqualified from receiving pay and allowances for the 85 days for which he did not receive such pay and allowances; and that he be paid for the 85 days of service.

2.  Counsel states, in effect, that from November 1999 to October 2002 the applicant served in an MSG/E-8 billet as Battery First Sergeant with the expectation that he was selected for promotion to MSG/E-8 and would be promoted.  He contends the applicant was number one on the SFC/E-7 to MSG/E-8 promotion list, that he was nominated for promotion, that his name appeared on 2001-2002 promotion selection list.  Yet, his promotion was never made effective.  Counsel points out that the applicant received two noncommissioned officer evaluation reports (NCOER) listing his primary position as First Sergeant and he was evaluated according to those duties and responsibilities.  He also points out that the applicant's record contains two eyewitness statements attesting to the applicant's assignment to the position of First Sergeant, their clear understanding that the applicant would be officially promoted to MSG/E-8, and their personal knowledge of his nearly 3 years of service as First Sergeant.
3.  Counsel states that while the applicant was undergoing treatment and evaluation for his medical conditions he was erroneously listed as AWOL for 23 days and that he was docked 85 days of pay, benefits, and allowances.  He indicates that the record shows the applicant was not AWOL, that official notification of his unfitness for duty had been provided to his command, and that the applicant was under orders to report for medical treatment during part of the period for which he was said to be AWOL.  Counsel also states that the applicant was heavily medicated, that he was an outstanding Soldier, and that his NCOERs consistently note his integrity, effectiveness, honesty, and commitment.

4.  Counsel provides two NCOERs; page 9 of an SFC/E-7 to MSG/E-8 promotion list as of 28 March 2001; physical disability processing documentation; a memorandum for record, dated 13 December 2004; discharge orders; revocation orders; memoranda, dated 28 October 2004, 6 January 2005, 10 February 2004, 18 December 2003, 18 December 2003, 8 December 2003, 16 November 2004, 14 March 2005, 31 January 2005, 8 November 2004, and 20 August 2004; a DA Form 4187 (Personnel Action);  a sworn statement, dated 16 March 2004; an undated declaration; a nomination for First Sergeant; portions of promotion lists as of 4 January 2002 and 23 March 2002; email messages, dated 10 January 2005 and 6 June 2005; a travel voucher; orders, dated 11 July 2005, 3 July 2003, 24 July 2003, 21 August 2003, 24 October 2003, 15 January 2004, 13 January 2004, 4 May 2004, 13 May 2004, and 19 August 2004; discharge orders; a National Guard Bureau Form 22 (Report of Separation and Record of Service); and a 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, and 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.  Having prior service in the Army National Guard, the applicant again enlisted in the Army National Guard on 14 June 1982.  On 30 September 1983, he entered active duty in an Active Guard Reserve status.  He was promoted to SFC/E-7 on 1 February 1990.

3.  The applicant provided NCOERs for the period October 2001 through September 2002 and October 2002 through September 2003 which show his principal duty title was Battery First Sergeant.

4.  The applicant provided a memorandum, dated 28 October 2004, which states, in pertinent part, that he was directed to report for duty to the Jamaica Armory on 29 October 2004 until further notice.  The memorandum also states that "Understand that you may be carried in an AWOL status if you fail to obtain this documentation and do not report for duty."

5.  A DA Form 4187, dated 9 November 2004, shows the applicant's duty status was changed from present for duty to AWOL as of 29 October 2004.

6.  Records at the Defense Finance and Accounting Service (DFAS) show the applicant was AWOL from 29 October 2004 to 21 November 2004.

7.  On 10 November 2004, a medical evaluation board diagnosed the applicant with supraspinatus tear and subacromial cyst, osteoarthritis of the humeral head and acromioclavicular joint, osteoarthritis of the knee, and degenerative joint disease of the cervical spine.  The applicant indicated that he did not desire to continue on active duty.  He was referred to a physical evaluation board (PEB).  The applicant concurred with the board’s findings and recommendation.

8.  The applicant provided document, dated 13 December 2004, pertaining to his work status.  This document states, in pertinent part, that he reported for duty on 17 November 2004 but had to be taken to the emergency room. 

9.  On 30 June 2005, a PEB found the applicant physically unfit due to chronic neck pain secondary to degenerative arthritis of the cervical spine, chronic back pain since a motor vehicle accident in 2002, and chronic right shoulder and left knee pain.  The PEB recommended that the applicant be permanently retired with a combined rating of 30 percent.  The applicant concurred with the results of the PEB on 11 July 2005.

10.  On 31 October 2005, the applicant retired in the rank of SFC/E-7 by reason of permanent disability.

11.  On 31 October 2005, the applicant was honorably discharged from the Army National Guard and transferred to the Retired Reserve.

12.  There is no evidence of record which shows the applicant was recommended for promotion to MSG/E-8 or that he was promoted to First Sergeant prior to his retirement.

13.  In support of his claim for promotion, the applicant provided excerpts from promotion lists which contain his name.  He provided a memorandum, dated 10 February 2004, from a first lieutenant of Company B, 1st Soldier Support Battalion, New Jersey Army National Guard.  He attests that in November 1999 the applicant was selected to be the First Sergeant of Battery C, 1st Battalion, 258th Field Artillery, that he witnessed this announcement which was done during a Battery formation, that was his understanding based on numerous conversations with the Battalion Commander at the time that although the decision to promote the applicant to First Sergeant had been made there was additional paperwork which needed completion in order to make official his promotion, and that the applicant performed the duties of First Sergeant of Battery for 3 years.

14.  The applicant also provided a sworn statement, dated 16 March 2004, from a retired First Sergeant of Battery C, 1st Battalion, 258th Field Artillery.  He attests that he was the First Sergeant from October 1992 to November 1999 and that during his last drill in November 1999 the Battalion Command Sergeant Major had him bring the applicant before the formation and announce that the applicant was the newly selected First Sergeant.  He also states that it was his understanding that the paperwork had been completed since the applicant was number one on the promotion list and that he performed the duties of First Sergeant for approximately 3 years.

15.  In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau.  That office recommends disapproval of the applicant's requests.  The opinion states that records from the New York Army National Guard indicate there is no supporting documentation referencing the appointment as a First Sergeant or promotion and there is no indication that the applicant did not receive pay for any specified period.  The opinion states that the applicant's retirement point's statement does not reflect any loss of pay or indication he was placed in an AWOL status.  The opinion does point out that a DA Form 4187 references an AWOL status.  The opinion also states that no additional action was taken that caused the applicant to lose any pay.

16.  The advisory opinion references National Guard Regulation 600-200 (Enlisted Personnel Management), dated 1 October 2006, chapter 4, section III, paragraph 4-7h, which states in the absence of qualified Soldiers in the correct grade for positions authorized in grades SGT/E-5 through MSG/E-8, the immediate (or a higher level) commander should temporarily assign the best-qualified individual available.  This assignment carries no permanence or guarantee of promotion in that position.  The immediate or any higher level commander can assign a fully qualified individual (including one on a promotion list for promotion to the authorized grade) to that position at any time.

17.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  Counsel responded.  In summary, he withdrew the applicant's request for pay since the National Guard Bureau stated that there was no record that the applicant's pay was reduced because of being placed in an AWOL status.  Counsel stated that the National Guard Bureau relied on a regulation, National Guard Bureau 600-200, that was not in effect at the time the applicant was appointed to serve as First Sergeant and was told he would be promoted to First Sergeant.  Therefore, it has no bearing on the case.  Even if it did, in this case the applicant served as First Sergeant for over 2 years and received two NCOERs for his service as First Sergeant.  Counsel argues that the applicant's service cannot reasonably be described as "temporary" and that there is no evidence of record that the Army National Guard removed the applicant from the position of First Sergeant or intended to do so.  Rather, his service was permanent.  Counsel states the evidence submitted contradicts and undermines the information provided in the advisory opinion (i.e., the two statements pertaining to the applicant's assignment to the position as First Sergeant, their clear understanding that he would be officially promoted to MSG/E-8, and their personal knowledge of his nearly 3 years of service as First Sergeant).  He points out that the applicant provided documents showing he was number one on the list of candidates for promotion and his name in fact appeared on the 2001-2002 promotion selection list for SFC/E-7 to MSG/E-8.

18.  Chapter 11, section IV, paragraph 11-32, of National Guard Regulation 
600-200 dated 1 March 1997, stated, in pertinent part, that Soldiers might be promoted only into vacant positions based on being placed in the selection objective of a promotion list by board action.

DISCUSSION AND CONCLUSIONS:

1.  The NCOERS, the portions of the promotion lists, and the two statements provided by the applicant were acknowledged.  However, there is no evidence to show the applicant was recommended for promotion to MSG/E-8 or that he was promoted to MSG/E-8.  Therefore, there is an insufficient basis for granting the applicant’s requests that he be retroactively promoted to MSG/E-8 or that adjustments be made to his retired pay.

2.  The applicant's contention that while he was undergoing treatment and evaluation for his medical conditions he was erroneously listed as AWOL for
23 days was noted.  However, DFAS records show he was AWOL from 
29 October 2004 to 21 November 2004.  It is noted that the applicant stated on 13 December 2004 that he had returned for duty on 17 November 2004; however, there is no corroboration of his duty status from his chain of command.  The applicant provides insufficient evidence to show the DFAS records were incorrect.  Therefore, there is no basis for granting the applicant's request that his military records be corrected to show he was not AWOL.

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
      
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)                                         AR20080015242



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ABCMR Record of Proceedings (cont)                                         AR20080015242



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