IN THE CASE OF:	  

		BOARD DATE:	  14 April 2009

		DOCKET NUMBER:  AR20080018578 


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 his record be corrected to show he was eligible for and promoted to staff sergeant (SSG) in April 2005.

2.  The applicant states, in effect, that he should have been placed on the promotion list and eligible for promotion in April 2005, but due to an erroneous suspension of favorable personnel actions (flag) he was not promoted to SSG until 18 October 2006.

3.  The applicant provides a self-authored statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he served on active duty in the Regular Army from 11 October 1977 through 10 October 1980 and in the United States Army Reserve (USAR) from 11 October 1980 through 1 August 1983 and again from 23 October 1987 through 9 May 1994.

2.  On 10 May 1994, the applicant enlisted in the Massachusetts Army National Guard (MAARNG) in the rank of sergeant (SGT) which he had attained in the USAR on 1 April 1982.

3.  The applicant's record contains a memorandum issued by The Adjutant General's Office of the MAARNG on 19 June 1998, subject:  Medical Duty Review Board (MDRB) Results, which shows the result of an MDRB conducted on the applicant was the issuance of a permanent "2" profile.
4.  A DA Form 3349 (Physical Profile) on file confirms he was awarded a "P2" profile for the lower extremities on 18 June 1998.  The profile lists assignment limitations as "walk only, no running, sit-ups, or push-ups"; however, it contains no entries related to the Army Physical Fitness Test (APFT).

5.  The applicant's record contains a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 17 May 2003, which shows a flagging action was imposed on the applicant effective 17 May 2003 based on his failure of the APFT.  It also contains a DA Form 268, dated 5 June 2003, which shows the flagging action was removed.

6.  The applicant's record also contains a DA Form 1059 (Service School Academic Evaluation Report), dated 3 April 2005, which contains an entry that indicates he passed the APFT.

7.  MAARNG Orders 189-3, dated 8 July 2005, awarded the applicant the primary military occupational specialty (PMOS) 92Y and withdrew the PMOS 15U, effective 18 June 2005.

8.  The applicant's record also contains a DA Form 268, dated 7 March 2006, which removed a flag based on the case being closed favorably.  The DA Form 268 that imposed this flag was not on file in the record.

9.  On 18 October 2006, the applicant was promoted to SSG in PMOS 92Y3O in MAARNG Orders 291-19.

10.  The applicant's record contains a Noncommissioned Officer Evaluation Report covering the period 1 December 2005 through 30 November 2006 which contains an entry in Part IVc (Physical Fitness & Military Bearing) that confirms he passed the APFT on 26 May 2006.

11.  On 17 October 2007, the applicant was honorably discharged from the MAARNG and transferred to the Retired Reserve in the rank of SSG.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) contains the Army's enlisted promotion policy.  Chapter 7 contains enlisted promotion and reduction policy for ARNG personnel.  It states, in pertinent part, that the enlisted promotion system is designed to help fill authorized enlisted vacancies in the noncommissioned officer (NCO) grades with the best qualified Soldiers who have demonstrated the potential to serve at the next higher grade.  It further stipulates that the State Adjutant General is the convening and promotion authority for all promotion boards to SGT through sergeant major (SGM).

13.  Paragraph 7-20 of the enlisted promotions regulation contains the criteria for promotion of ARNG Soldiers to the grades of SGT through SGM.  It states, in pertinent part, all Soldiers must go through the board process before they may be selected and promoted.  It further states that the board will consider a Soldier who has a flag (regardless of type) in effect provided they are otherwise eligible for consideration, but the Soldier cannot be selected nor promoted until the suspension has been removed.

14.  Paragraph 7-22 of the same regulation contains guidance on promotion actions and states, in pertinent part, that Soldiers may be promoted into vacant positions on the basis of selection by a promotion board and placement in the selection objective of a promotion list.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been promoted to SSG in April 2005 was carefully considered.  However, there is insufficient evidence to support this claim.  By regulation, promotion to SSG in the ARNG is within the purview of the State Adjutant General.  Promotions are designed to help fill authorized enlisted vacancies in the NCO grades with the best qualified Soldiers and Soldiers may be promoted into vacant positions on the basis of selection by a promotion board and placement in the selection objective of a promotion list.

2.  Although the evidence of record shows the applicant was under a flagging action in 2003 and again in 2005, there is no indication that this resulted in his not receiving a promotion he was eligible for based on promotion list status during this period.  The evidence of record and independent evidence provided by the applicant fails to show he was ever selected for promotion to SSG through a selection board process, or that he was ever placed in the selection objective of a promotion list and promoted by proper authority within the State.  Therefore, absent any evidence showing he was unjustly passed over for promotion after selection through the board process and placement on promotion list, there is an insufficient evidentiary basis to support granting the requested relief.

3.  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 this 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)                                         AR20080018578



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ABCMR Record of Proceedings (cont)                                         AR20080018578



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