IN THE CASE OF:	

		BOARD DATE:	  30 April 2009

		DOCKET NUMBER:  AR20080017566 


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 to be considered for promotion to sergeant major under the criteria of the two promotion boards that he states he was not considered for after being placed in a medical hold status in November 2004.

2.  The applicant states a Soldier should not be penalized for promotion because of a line of duty disability.  He states he was fully eligible and qualified for promotion to sergeant major but his record did not go before the board for consideration while he was in a medical hold status.  He states he was placed in medical hold status in November 2004 and processed for retirement on 22 April 2005.  He states during the period of his medical hold status two boards met to consider Soldiers for promotion to sergeant major and he was not considered by either board.

3.  The applicant provides, in support of his application, copies of his orders to active duty with modifications, his Regional Level Application Software (RLAS) Personnel Qualification Record, his DA Form 2-1 (Personnel Qualification Record), and his orders for release from active duty.

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 previous service consisted of 4 years in the U.S. Air Force, 
2 years in the U.S. Air Force Reserve, 4 years and 4 days in the Regular Army, and 3 years, 7 months, and 2 days in the Georgia Army National Guard (GAARNG).  On 2 April 1987, the applicant was separated from the GAARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  The applicant continued to serve in the USAR until his retirement.

3.  On 31 January 2001, the applicant was released from his current assignment, by reason of voluntary troop program unit (TPU) transfer, to National Capital Region Element USAR Infantry at Adelphi, MD.  He was promoted to master sergeant with a date of rank of 1 February 2001.  

4.  On 2 October 2002, the applicant was notified that he had completed the required years of qualifying reserve service and was eligible for retired pay on application at age 60.

5.  On 12 November 2003, the applicant was ordered to active duty for 120 days with an end date of 26 January 2004 for the purpose of active duty medical extension (ADME) to report 29 September 2003.  These orders were amended five times providing for a total of 570 days active duty with an end date of 20 April 2005.

6.  On 20 April 2005, the applicant was released from active duty and assigned to the Retired Reserve the following day.  Item 5 (Date of Birth) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 20 April 2005 shows the applicant's date of birth is 30 December 1944.  Item 18 (Remarks) contains the entry: "The Soldier has been separated by reason of physical disability and has elected Reserve retirement in-lieu of severance; no severance pay authorized."

7.  The applicant's RLAS Personnel Qualification Record, dated 10 August 2004, indicates the applicant was enrolled in the U.S. Army Sergeants Major Academy.  However, there is no record that the applicant completed this course.

8.  In the processing of this case, an advisory opinion, dated 30 January 2009, was provided by the Chief, Enlisted Board Support Branch, Promotions Division, U.S Army Human Resources Command, St Louis, MO (HRC-STL).  The applicant was provided a copy of this opinion and given 30 days to submit matters in rebuttal.  No response has been received from the applicant.  

9.  HRC-STL stated the applicant did not meet the eligibility requirement for promotion consideration in that he had to be assigned to the Individual Ready Reserve (IRR) for a minimum of 12 months prior to the convening date of the promotion boards.  HRC-STL also stated the applicant did not meet the age requirement of not being older than 57 years and 6 months for either the 2004 or the 2005 boards.

10.  Chapter 7 (Removal From Active Status) of Army Regulation 140-10, in effect at the time, provided that an enlisted Soldier would be discharged, or transferred to the Retired Reserve if requested and eligible, on the last day of the month in which they reached the age of 60.

11.  Chapter 3 (Promotion of Soldiers Assigned to Troop Program Units) of Army Regulation 140-158 (Army Reserve, Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, provided that a Soldier who accepted a promotion, including a conditional promotion, to sergeant major voluntarily agreed to serve in the duty position to which promoted, even if the promotion requires reassignment to another TPU. The Soldier had to report for duty in the position to which promoted, comply with a reassignment order, if issued, and serve at least 12 months.

12.  Chapter 8 (Promotions and the Noncommissioned Officer Education System [NCOES]) of Army Regulation 140-158, in effect at the time, provided that the NCOES course requirement for promotion to sergeant major was the U.S. Army Sergeants Major Course (SMC).  This regulation further provides that TPU master sergeants/1st sergeants selected for promotion to sergeant major would be automatically selected for enrollment in the next available resident or nonresident course consistent with available quotas.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was placed in a medical hold status in November 2004 and during the period of medical hold two boards met to consider Soldiers for promotion to sergeant major.  He contends he was not considered by these two boards due to his status in medical hold.

2.  The exact date of the applicant being placed in a medical hold status is not a matter of available records.  The convening dates of the boards the applicant contends he was not considered by were not provided by the applicant.  

3.  The advisory opinion provided by HRC-STL is correct.  However, the evidence does not show the applicant was transferred to the IRR.

4.  Army Regulations provide that upon the applicant reaching age 60 he was to be discharged or transferred to the Retired Reserve if requested and eligible.  At the time the applicant contends he was placed in medical hold, he was 1 month shy of his 60th birthday.  At that point the applicant was in a non-promotable status in that it would have been impossible for him to meet the requirement to complete the NCOES course requirement or to serve at least 12 months in a sergeant major position prior to attaining the age of 60.

5.  Therefore, in view of the above, the fact that the applicant was not considered by two sergeant major boards (dates unknown) subsequent to his being placed in a medical hold status was due to his age and not the fact that he was on medical hold.

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 that requirement.

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)                                         AR20080017566





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ABCMR Record of Proceedings (cont)                                         AR20080017566



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