BOARD DATE: 21 July 2009
DOCKET NUMBER: AR20090003689
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 sergeant/E-5.
2. The applicant states that he was serving a 4-year enlistment but he served almost 6 years without reenlisting. He contends that he was placed under a permanent profile for years and that he was left at the 1st Squadron, 1st Cavalry Regiment (his duty station) for his entire career. He claims that he could not PCS [permanent change of station] or attend schools and that when he came up on the E-5 promotion point list he was not allowed to attend the Primary Leadership Development Course (PLDC). He indicates that he was serving in an E-7 slot and that he had letters from his chain of command for an exception to policy promotion; however, it was denied. He also points out that he deployed to training areas with the squadron in Germany.
3. The applicant provides requests and recommendations for an exception to policy promotion; a DA Form 4187 (Personnel Action); the first page of a DA Form 199 (Physical Evaluation Board (PEB) Proceedings); a letter of commendation; discharge orders; a DD Form 2586 (Verification of Military Experience and Training); and a DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 8 January 1991 for a period of 4 years and trained as a cavalry scout. He was promoted to corporal effective
1 October 1992.
3. The applicant provided requests and recommendations, dated August 1995, for an exception to policy for promotion to sergeant from his chain of command.
4. A DA Form 4187, dated 17 August 1995, shows the applicant requested an exception to policy for promotion to sergeant because he had not been allowed to attend PLDC. This form also stated that the applicant had been eligible for promotion since March 1993, that he was on a profile which prevented him from attending PLDC, and that he made the cutoff score on 1 March 1995.
5. The applicant provided the first page of a DA Form 199, dated 28 February 1996, which shows an informal PEB found the applicant physically unfit due to atypical left-sided facial pain and Frey syndrome and anesthesia dolorosa greater auricular nerve and third division of trigeminal nerve status post removal of pleomorphic adenoma left parotid and submaxillary gland. The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay.
6. On 3 May 1996, the applicant was discharged by reason of physical disability (severance pay).
7. Item 4a (Grade, Rate, or Rank) on the applicant's DD Form 214 shows the entry "CPL [corporal]." Item 4b (Pay Grade) on his DD Form 214 shows the entry "E4." Item 12h (Effective Date of Pay Grade) on his DD Form 214 shows the entry "1991 10 01."
8. There is no evidence of record which shows the applicant completed the PLDC prior to his separation.
9. There is no evidence of record which shows the applicant was promoted to sergeant prior to his release from active duty on 3 May 1996.
10. Paragraph 1-10 of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, in pertinent part, stated that Soldiers (private - master sergeant) are nonpromotable to a higher grade when a PEB determined that a Soldier is no longer qualified for continued active service.
11. Table 3-2 of Army Regulation 600-8-19, in effect at the time, stated that effective 1 October 1989 a Soldier must be a graduate of the PLDC for promotion to sergeant and the requirement was not waivable.
DISCUSSION AND CONCLUSIONS:
Although the applicant provided documentation that shows he was recommended for an exception to policy promotion to sergeant by his chain of command, there were no regulatory provisions for waiving the military education requirement for promotion. Regrettably, therefore, there is insufficient evidence on which to retroactively promote him to sergeant/E-5.
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) AR20090003689
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