IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090003262 


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 correction of his military records to show he was promoted to sergeant first class/pay grade E-7 on the 81st Regional Readiness Command (RRC) Promotion Board July 2005.

2.  The applicant states the unit started the process to request equivalent credit for Basic Noncommissioned Officer Course (BNCOC) Phase 1 and 2 in November 2004.  He states that upon approval of equivalent credit for Phase 1 of the BNCOC his unit did not request equivalent credit for BNCOC Phase 2.  He states that the U.S. Sergeants Major Academy (USASMA) directed the unit to request Phase 2 credit through the military occupational specialty (MOS) proponent.  He states that some key personnel in his organization would not process a request for Phase 2 equivalency credit based on an interpretation of the regulations that he should attend BNCOC instead of requesting Phase 2 equivalent credit.  He states that after he was mobilized he asked the task force commander to process the personnel action requesting equivalent credit for 11B BNCOC Phase 2.  A request was processed and he was granted equivalent credit in February 2008.  He states, in effect, that he was selected for promotion by the first promotion board that convened after that date; however, to be promoted it was necessary to accept a position in another unit.  He requests that his promotion be backdated so he can be promoted in his previous unit of assignment to facilitate receiving new mobilization orders with that unit.



3.  The applicant provides a memorandum, subject: Request for BNCOC Equivalency Course, dated 30 November 2004; a memorandum, subject Request for BNCOC Equivalency Course Approval, dated 3 December 2004; memorandum, subject: Request for BNCOC Equivalency Course, dated 8 December 2004; a memorandum, subject BNCOC (Common Core, PH I) Equivalent Credit for SSG S******, S****** T., ***-**-6852, dated 25 February 2005; temporary duty orders, dated 3 June 2005; an e-mail extract subject, 81st RRC July 2005 Troop Program Unit (TPU) Senior Enlisted Promotion Board Announcement with Enclosures and Vacancies; a copy of an e-mail with the subject, RE: Information for SSG S******;  a copy of an e-mail addressed to MSG K******; DA Form 1059 (Service School Academic Evaluation Report) for the 11B BNCOC Phase II (010-11B3O) Class 2-08; and a promotion order to sergeant first class (SFC), dated 12 December 2008, in support of this 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 was appointed as a second lieutenant on 5 May 1979 in the specialty of field medical assistant.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) after completing 3 years, 1 month, and 21 days of active service and 2 months and 5 days of inactive service.  He received an honorable discharge in the rank of major on 30 April 2001.

3.  On 1 May 2003, the applicant enlisted in the USAR in pay grade E-6.  

4.  On 30 November 2004, the applicant's unit initiated a request for BNCOC equivalency.  On 8 December 2004, the USASMA, Director of Training and Doctrine, recommended approval of BNCOC equivalency credit Phase 1.  In the same paragraph the USASMA indicated that the proponent military occupational specialty (MOS) school must approve a request for equivalency credit for BNCOC Phase 2.

5.  On 25 February 2005, the Headquarters, USAR Command approved Phase 1 of BNCOC equivalent credit.

6.  On 18 September 2005, the applicant entered active duty in Support of Operation Enduring Freedom and served on active duty for a total of 4 years and 16 days.

7.  The applicant provided an e-mail from Second Lieutenant O***** with a date of 1 June 2007 indicating the applicant's promotion packet was submitted the previous year, and he was not recommended for promotion.  The officer indicated the applicant still needed to complete BNCOC Phase 2 and until he completed the course he would not be recommended for promotion.

8.  Evidence indicates that a request for BNCOC Phase 2 equivalent credit was initiated outside the applicant's chain of command while he was performing temporary duty with a task force.  A DA Form 1059, dated 11 March 2008, shows the U.S. Army Infantry School granted the applicant equivalent credit for Phase 2 of BNCOC.

9.  The applicant was promoted to sergeant first class (SFC)/pay grade E-7 effective 1 November 2008.

10.  Training and Doctrine Command (TRADOC) Regulation 350-10, paragraph 
2-16 states in pertinent part that constructive credit may be granted in lieu of course attendance based on duty assignment history and past academic experiences.  It states that individuals must possess the same skills and qualifications as course graduates.

11.  The unit's initial request for BNCOC equivalency credit was based on his attendance at the Army Medical Corps Basic and Officer Advanced Courses.  TRADOC Regulation 350-10, paragraph 2-16 prescribes that Primary Leadership Development Course (PLDC) NCOES course equivalency may be granted for completion of officer courses such as the Officer Basic Course or the Officer Advanced Course.

12.  This regulation does not prescribe courses considered to be equivalent for BNCOC.  Instead, equivalent credit for BNCOC Phase 1 requires approval from the USASMA and the proponent MOS school is the approval authority for BNCOC Phase 2.  In all cases, a request for equivalency credit must include an outline of the individual’s prior leadership and technical training and experiences, along with supporting documentation to be attached to a DA Form 4187 (Personnel Action) and submitted with this information through command channels and the course proponent for consideration by the appropriate personnel command.

13.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) governs the enlisted promotions and reductions function of the military personnel system. Chapter 5, Section III provides the rules and steps for managing promotion of USAR Soldiers assigned to TPUs.  This section provides, in pertinent part, the eligibility criteria for selection board consideration.  It states that a Soldier must meet these criteria before the selection board convenes to qualify a Soldier for inclusion in a zone of consideration.  The Soldier must meet the time in grade and time in service criteria, the Soldier must also be a graduate of the Noncommissioned Officer Education System (NCOES) course (or the equivalency required for his current grade) as required by paragraph 1–27.

14.  Army Regulation 600-8-19, chapter 4 states in pertinent part that the Deputy Chief of Staff, G-1 or designee may approve cases for referral to a standby advisory board upon determining that a material error existed in a Soldier’s official military personnel file (OMPF) when the file was reviewed by a promotion board.  The U.S. Army Human Resources Command (HRC-St. Louis) (AHRC-MSL-E) is the USAR designee.  An error is considered material when there is a reasonable chance that had the error not existed the Soldier may have been selected.  Standby advisory boards are convened to consider records of those Soldiers whose records were not reviewed by a regular board.  Within 1 year of the board results release date, Soldiers not recommended for promotion may request reconsideration, if they believe their record contained a material error when it was considered.  An eligibility criterion is the date that establishes a cutoff date at which all promotion points (except board points) will be calculated. This date is explained in the promotion board memorandum of instruction.  This date is also used to compute the Soldiers eligibility when considering Soldiers for a standby advisory board and for integration into a promotion list.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant contends that USASMA directed the unit to request BNCOC Phase 2 credit through the MOS proponent, the USASMA memorandum simply indicates that the MOS school is the approval authority for equivalency credit for BNCOC Phase 2 as prescribed in TRADOC Regulation 350-10.  It is at the unit commander's discretion whether to request equivalency for BNCOC in lieu of course attendance by unit members.  The basis for this decision may be based on the commander's evaluation of the individual's duty assignment history, past academic experiences, skills, qualifications, and potential to perform satisfactorily at the next grade level in the absence of course attendance.  Based on Second Lieutenant O*****'s e-mail it can be presumed that the unit leadership believed the applicant should attend the BNCOC Phase 2 course instead of requesting equivalency credit.  Even if the unit had chosen to submit a request for BNCOC Phase 2 equivalency in a timely manner, it cannot be ascertained that Phase 2 approval by the MOS proponent would have been granted prior to the cutoff date for the July 2005 Board, since processing of requests of this nature can take several months.  As such, the available evidence is insufficient for correcting his records to show he was promoted by the July 2005 Board or that a material error occurred at the time of the July 2005 Board which would provide grounds for a standby advisory board to consider him for promotion.    

2.  While it may appear the applicant's career may have been held back due to his TPU not requesting equivalent credit for BNCOC Phase 2, he had the option of attending BNCOC Phase 2 rather than continuing his attempt to gain equivalent credit.  While the applicant served on active duty during the period 18 September 2005 to 3 October 2009 in support of Operation Enduring Freedom, there is no indication that he was deployed overseas or otherwise unable to attend a BNCOC Phase 2 course at some point during this period of time.  His voluntary decision to wait for equivalency credit in lieu of course attendance negated the possibility he could have been considered for promotion prior to the 2008 board from which he was promoted.

3.  The applicant implies that his selection for promotion by the first promotion board that convened after he was granted BNCOC equivalency credit indicates he would have been selected for promotion by the July 2005 Board had the unit processed a request for BNCOC equivalency credit in a timely manner.  BNCOC credit notwithstanding, even if he would have met all other prerequisites for promotion by the cutoff date for the July 2005 Board, based on the number of promotion points he would have had at the time and the differing promotion criteria for each board based on vacancies and other needs of the component there is insufficient evidence to determine that he would have been recommended for promotion by that board.  As such, there is insufficient evidence to support the applicant would have been selected for promotion if he had been granted equivalent credit for BNCOC Phase 2.  

4.  Once the applicant met the NCOES requirement, he was considered and selected for promotion and promoted to SFC on 1 November 2008.

5.  While the applicant contends that promotion by the July 2005 Senior Board would have allowed him to be promoted in his previous unit and therefore he could have received orders to mobilize with that unit, he has provided no evidence showing this to be the case.  However, even if he had, records are not corrected or changed solely for the purpose of helping Soldiers acquire full time work or benefits.

6.  In view of the foregoing, there is insufficient basis for granting the applicant's request.

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)                                         AR20090003262



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ABCMR Record of Proceedings (cont)                                         AR20090003262



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