IN THE CASE OF:	  

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20080018039 


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 promoted to master sergeant (MSG) effective 1 August 1993 and promotion consideration to sergeant major (SGM).

2.  The applicant states, in effect, that he was passed over for promotion to MSG until the North Carolina Army National Guard (NCARNG) was forced by the Department of Defense (DOD) to correct their promotion policy.  This claim was substantiated during a DOD complaint that resulted in his promotion to MSG in 2000.  If he had been promoted to MSG, he would have ranked most promotable for SGM.  Since the inception of the Select, Train, Assign, and Promote (STAP) program in 1993, he was ranked at the top of the promotion list.  Until 1999, he had been passed over for promotions.  The NCARNG refused to follow the promotion policies as directed by the National Guard Bureau (NGB).  He further states that from 1993 to 1999 he was passed over for MSG, first sergeant, and SGM.

3.  The applicant also states that after the DOD complaint he was promoted to MSG.  It is his belief that if he had been promoted to MSG in 1993, he would have been promoted to SGM in 1996 when he had obtained his time in grade.  He further states that he was not aware of the correction board until last summer when he was notified for recall to active duty.  He is not asking for any back pay, but he would like to hold the rank he deserves, even if it was effective on his retirement date (31 March 2001).  He is including the promotion lists from 1988 and 1989 so the numbers can be compared.  After his promotion, he was hounded and threatened by the officers and noncommissioned officers running the promotion system (his supervisors); he elected to take early retirement.

4.  The applicant provides no additional documentation 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, 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 military records show he enlisted in the NCARNG in pay grade E-1 on 18 March 1982 for 6 years.  The applicant had previously extended his enlistment three times and on 22 August 1996, he extended his enlistment for 6 years.

3.  Orders 234-108, dated 1 October 1999, were issued by the NCARNG promoting the applicant to MSG effective 1 October 1999.

4.  The applicant was honorably discharged from the NCARNG in the rank and pay grade of MSG/E-8 effective 30 April 2001 and transferred to the Retired Reserve.

5.  In an advisory opinion, dated 19 February 2009, the Chief, Personnel Division, Departments of the Army and Air Force, NGB, states that the applicant requests that his promotion to MSG be backdated to August 1993 and that he be promoted ahead of his peers who had less promotion points.  The applicant also requests that he should have been considered for SGM in 1996.  The NGB official recommended partial approval of the applicant's requests based on documents included in the applicant's packet.  He recommends the applicant's promotion effective date for MSG be backdated to 16 June 1997, which is a comparable effective date to his peers who were promoted earlier than he, yet had fewer points on the same promotion list.  Furthermore, the NGB official recommends that the applicant receive all back pay and allowances as a result of this adjustment.

6.  The NGB official also states that the applicant requested that his promotion be backdated to 1993; however, upon coordination with the NCARNG, no promotion lists were available for that time period.  Attached is the 1998 E-8 (MSG) promotion list showing the applicant as number 19 on the list with 785 points. The NGB official further states that also attached are NCARNG Orders 234-108, dated 1 October 1999, showing the applicant being promoted to MSG with an effective date of 1 October 1999.  Also attached are NCARNG Orders 139-126, dated 17 June 1997, showing another Soldier being promoted with an effective date of 17 June 1997.

7.  The NGB official recommends disapproval of the applicant's request for promotion to SGM based on the fact that if he was to be selected to SGM, that promotion would have to be authorized by the State Adjutant General (AG) and Command Sergeant Major since that was the promotion authority for all ARNG Soldiers.  National Guard Regulation 600-200 (Enlisted Personnel Management), chapter 3, paragraph 1(b), states that Soldiers who are eligible and available will be offered the position from the Enlisted Promotion List in the sequence as they appear on the promotion list.  Chapter 11-2(b) states that AGs are the convening and promotion authorities for all promotion boards for Sergeant to SGM.  They may delegate their authority to their assistant State AG (Army) or Deputy State Area Regional Commander.

8.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 25 February 2009.  In his response, dated 2 March 2009, the applicant states that after reading the opinion, it was the closest thing to fair treatment he had seen in their promotion system in a long time.  He also states that he noticed it was recommended he not be promoted to SGM based on the fact the promotion authority rests on the North Carolina AG and the State Command Sergeant Major and SGMs will be selected from the promotion list by the sequence in which they appear.  If he had been correctly promoted on 16 June 1997, his time in grade for SGM would have been 15 August 1998.  He is attaching the 1998 promotion list that shows him with 785 points and the MSG to SGM list from 1998 to show that he would have been number 2 on the promotion list.

9.  The applicant further states that there are four promotable people on the list.  The number four person on the list was promoted to SGM by the NCARNG, the number two person was transferred to the NGB, and the persons listed as numbers one and three retired the following year.  He also states that he is requesting back pay at this time as well as a promotion to SGM comparable to the time that D____ B____ was promoted (around June 1999).  The review board has established a comparable promotion date to MSG.  In this process, they have also established his time in grade for SGM and a timeline as to when and who he should be compared to for promotion to SGM.  With all this now established, a fair and just process can now be adhered to by verifying D____ B____'s date of rank.

10.  In support of his rebuttal, the applicant provides copies of his letter to the NCARNG Inspector General and a DOD Hotline Complaint Report.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to correction of his records to show he was promoted to MSG with a promotion effective date and date of rank of 16 June 1997 with entitlement to appropriate back pay and allowances.

2.  The evidence shows the applicant should receive a comparable effective date to his peers on the same promotion list who were promoted earlier and yet had fewer points than he.  Therefore, it is concluded that based on a matter of equity and on the support for favorable consideration expressed by the NGB Personnel Division, the applicant should be granted partial relief as recommended.

3.  In his rebuttal, the applicant contends that in backdating his promotion to MSG to 16 June 1997, this would establish his time in grade for SGM.  He believes he should have been promoted to SGM around June 1999.  Based on a promotion to SGM in June 1999, he believes he should also be entitled to back pay and allowances.  However, in accordance with pertinent regulations, in order for the applicant to have been promoted to SGM, he would have had to have been selected for promotion to SGM and the promotion would have required approval by the State AG or the delegated authority.  Notwithstanding documentation submitted by the applicant, which showed he had 785 points for promotion to MSG, his selection and promotion to SGM is speculative at best and he is therefore not eligible for promotion to SGM at this time.

4.  In view of the foregoing, the applicant’s NCARNG and Department of the Army records should be corrected as recommended below.


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 all of the State of North Carolina and Department of the Army records of the individual concerned be corrected by:

   a.  showing the applicant was promoted to MSG with a promotion effective date and date of rank of 16 June 1997 with entitlement to all back pay and allowances; and 
   
   b.  showing the applicant was discharged from the NCARNG in the rank and pay grade of MSG/E-8 effective 30 April 2001 and placed on the Retired List in the same grade.

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 promotion to SGM with entitlement to back pay and allowances.



      _____________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)                                         AR20080018039



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ABCMR Record of Proceedings (cont)                                         AR20080018039



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