IN THE CASE OF:
BOARD DATE: 17 November 2009
DOCKET NUMBER: AR20090002090
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 that his date of rank (DOR) and effective date for promotion to the pay grade of E-7 be changed from 1 September 2008 to 1 February 2008.
2. The applicant states, in effect, that he submitted his promotion packet in time to be considered by the December 2007 Reserve Component E-7 Promotion Selection Board; however, his unit failed to submit his packet in time to be received by that board and by the Special Selection Board (SSB) that could have back-dated his effective date and DOR. Instead, his packet was submitted to the June 2008 board and he was promoted on 1 September 2008. Therefore, he was denied a significant amount of money while deployed to Iraq.
3. The applicant provides a sequence of events, a memorandum for record from the battalion command sergeant major (CSM), a copy of his DA Form 1559 (Inspector General (IG) Action Request), and copies of electronic mail (Email) traffic regarding his promotion packet and IG inquiry.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 25 September 1997 for a period of 5 years and training as a military policeman. He served until he was honorably released from active duty on 24 September 2003 and was transferred to the United States Army Reserve (USAR) to complete his statutory service obligation. He has continued to serve in a USAR Troop Program Unit (TPU) in Pennsylvania and was promoted to the pay grade of E-6 on 18 January 2005.
2. On 3 October 2007, a message was dispatched from the 99th Regional Readiness Command (RRC) announcing the 99th RRC Senior Enlisted Promotion Selection Board for 10 - 14 December 2007 and the requirement to have promotion packets submitted to the 99th RRC no later than (NLT) 26 November 2007.
3. On 4 October 2007, the applicant responded to the message and explained that he and another noncommissioned officer (NCO) would be attending the Basic Noncommissioned Officer Course (BNCOC) from 3 November to 17 November 2007. The applicant requested that they be allowed to submit their packets without their DA Form 1059s (Service School Academic Evaluation Reports) in order to meet the suspense and that they be allowed to provide the 1059s immediately upon their return from BNCOC. The official concurred with the applicant's request and informed him that as long as he provided the form before the 19th of November, he would ensure they made it to his packet before the CSM reviewed them.
4. The applicant departed to attend BNCOC from 3 November to 17 November 2007. He returned to his unit on 18 November 2007 and emailed a copy of his DA Form 1059 for inclusion in his promotion packet.
5. On 12 January 2008, the applicant was mobilized in support of Operation Iraqi Freedom. He returned home on emergency leave on 12 February 2008 due to the birth of his son. On 28 February 2008, he submitted an inquiry to the IG because he had not been considered by the December promotion selection board due to his packet not being forwarded on time to meet the suspense.
6. The applicant was considered by the 99th RRC Senior Enlisted Promotion Selection Board on 23 June 2008 and he was selected for promotion.
7. On 5 August 2008, an official of the IG office responded to the applicant informing him that a preliminary investigation revealed that his records were not considered by the 2007 board, a June 2008 Standby Advisory Board (STAB) was being conducted and if selected his promotion would be back-dated as if he had never missed the board. The IG official also indicated that he considered the case closed.
8. On 22 August 2008, orders were published by the 99th RRC promoting the applicant to the pay grade of E-7 effective 1 September 2008.
9. On 11 September 2008, the IG official informed the applicant by email that he should be promoted to the pay grade of E-7 effective 1 February 2008.
10. On 22 September 2008, the 99th RRC command IG dispatched a letter to the applicant informing him that because his command did not submit his promotion packet within the prescribed suspense date of the original board and the STAB, his packet was returned and that he was selected for promotion by the regular 23 - 27 June 2008 board and his effective date would not be backdated. He was informed that neither the 99th RRC nor the U.S. Army Reserve Command was willing to backdate his promotion and that he could apply to this Board for redress.
11. On 20 December 2008, he departed Iraq and on 5 January 2009, he was honorably released from active duty (REFRAD) at Fort Bragg, North Carolina and returned to his USAR unit in Pennsylvania.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he was unjustly denied promotion on 1 February 2008 and that his promotion was delayed until 1 September 2008 because his chain of command failed to submit his promotion packet to higher headquarters in time appears to have merit.
2. While establishing blame for the delay in submitting the applicant's promotion packet to the promotion board will serve no useful purpose at this point, it is apparent based on the available evidence that the applicant did everything that was required of him, short of personally taking the packet to the RRC, to ensure he would be considered by the December 2007 selection board.
3. However, for reasons that are not adequately explained by either the chain of command or the IG investigation, the packet was delayed and rejected by the RRC because it was not received by the established suspense date and the applicant was denied the opportunity to compete for promotion.
4. While it is apparent that a STAB was conducted, the applicant had deployed to Iraq and there is no evidence to show that he was informed that he had to do anything additional to be considered by the STAB. However, it appears that he was not considered by the STAB and that he was considered by the next regular scheduled board. This prevented him from receiving what appears would have been a promotion effective 1 February 2008 instead of 1 September 2008.
5. Accordingly, it appears that he relied, to his detriment, on his chain of command to ensure that he was properly considered for promotion by the appropriate boards, and that did not occur in a timely manner.
6. Therefore, it appears that it would be in the interest of justice to correct the applicants records to show that he was promoted to pay grade of E-7 effective 1 February 2008 with a DOR of 1 February 2008 instead of 1 September 2008 and to pay him all back pay and allowances he is due from 1 February 2008.
BOARD VOTE:
____X___ ____X___ ___X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was promoted to the pay grade of E-7 effective 1 February 2008, with a DOR of 1 February 2008 and entitlement to all back pay and allowances that flow from this correction.
_______ _ XXX_____ ___
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) AR20090002090
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