IN THE CASE OF:	  

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090005948 


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 retired rank be corrected to sergeant first class (SFC), pay grade E-7.

2.  The applicant states he should have been retired as an SFC because that  was the highest grade he held.  He was never allowed to go to the Advanced Noncommissioned Officer Course (ANCOC).  Whenever he received orders to go to ANCOC his physical profile prevented him from attending.

3.  The applicant defers to his spouse (as counsel) to submit documents in support of the request. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel (his spouse) requests the applicant be retired as an SFC.

2.  Counsel states the applicant served as an SFC from 2 January 1995 to 
5 December 1996.  This is much more than the required 180 days, so he should have been retired at the higher rate.  She provides a 5 August 1994 Total Army Personnel Command memorandum, dated 5 August 1994, concerning the linkage between attendance at Noncommissioned Officer Education System (NCOES) courses, including ANCOC, to the promotion of U.S. Army Reserve Active Guard Reserve (USAR AGR) Soldiers.  She highlights the statement, "We will not penalize those Soldiers who cannot  complete the course in a timely manner 


through no fault of their own."  She also states, "the difference in pay grade E7 
and E6 had to be repaid."  She relates that the applicant is 100 percent disabled and cannot really handle his own affairs.  She applied in 2000 but was told they must wait until 2008.

 3.  Counsel provides copies of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty); Department of Veterans Affairs (VA) medical records; extracts from publications, regulations, and numerous service record documents including evaluations, physical profiles and certificates of accomplishments; and evidence of his Marine Corps service.

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, with prior Marine Corps active duty and USAR inactive duty service, entered the AGR program on 9 March 1981 as a sergeant.

3.  He was promoted to SSG on 1 January 1988.  On 19 September 1994, while serving at Fort Buchanan, Puerto Rico, the applicant was reprimanded for using cocaine.  After appropriate processing, the reprimand was filed in his Official Military Personnel File (OMPF).

4.  On 2 February 1995, he was promoted to SFC with a date of rank of 2 January 1995.  The promotion orders noted that the conditional promotion would be revoked if he were declared an ANCOC no-show, academic failure, or otherwise failed to meet the graduation requirements.  

5.  The applicant received an NCO Evaluation Report (NCOER) as an SFC for the period May 1995 through April 1996 for performing duties in an E-7 position with Headquarters, 828th Transportation Battalion, 81st Regional Support Command in Livingston, AL.     
6.  He received significant medical treatment  between May 1995 and August 1996, but no definitive diagnosis was reached as to what was causing the problems with his back and legs.  This period included several physical profiles and attendant cancellations to ANCOC for medical reasons.  

7.  There is no available evidence showing the applicant's change in rank from SFC to SSG.   

8.  The applicant received an NCOER as an SSG for the period February 1997 through January 1998 for performing duties as an E-6, with a date of rank of       1 January 1988 with Headquarters and Headquarters Company, 828th Transportation Battalion, 81st Regional Support Command in Livingston.  

9.  There is no available evidence to show why he did not complete ANCOC and none to show why his rank reverted to SSG.

10.  He continuously served in the AGR program until 31 October 1998, when he retired by reason of sufficient service for retirement.  He had 20 years and
21 days active duty service. 
      
11.  On 28 July 2000, the applicant applied for advancement on the retired list to pay grade E-7, the highest pay grade he held satisfactorily.  That case was closed administratively because the 30-year point of the applicant's combined service on active duty and retired status was still several years out.  He was invited to reapply in 2008.  In May 2004, the applicant wrote a letter to the Army Review Boards Agency again asking for advancement on the retired list and inquired as to why his successful years as a Ready Reservist did not count against the 30-year requirement.  He was told, "In order to be eligible for advancement on the retired list, you will need to provide documentation that reflects you served in the grade of E-7 in an “active” duty status.  A copy of a DD Form 214 releasing (or discharging) you from active duty while in the grade of
E-7 would suffice."

12.  He is now rated with a service-connected disability rated at 100 percent by the Department of Veterans Affairs.    

13.  Army Regulation 15-185, paragraph 2-9 states, "The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence."

14.  Title 10, U.S. Code, Section 3964 provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held, as determined by the Service Secretary, when their active service and service on the Retired List totals 30 years.  This service may consist of combined active service and service in the USAR Control Group (Retired).  

DISCUSSION AND CONCLUSIONS:

1.   The applicant states he should have been retired as an SFC because that was the highest grade he held.  He further states he was never allowed to go to ANCOC in that whenever he received orders to go to ANCOC his physical profile precluded him going.  He served as an SFC from 2 January 1995 to 5 December 1996.  This is much more than the required 180 days, so he should have been retired at the higher rate.  The 5 August 1994 Total Army Personnel Command memorandum concerning those conditionally promoted states, "We will not penalize those Soldiers who cannot  complete the course in a timely manner through no fault of their own."  The applicant and counsel also state, "the difference in pay grade E7 and E6 had to be repaid."

2.  The January 1998 NCOER shows that the applicant's rank had been changed from SFC to SSG with his original date of rank .  There is no documentation pertaining to this change in rank.  

3.  Additionally, there is no evidence that physical health problems were the only reason that the applicant did not complete ANCOC and no evidence that failure to complete ANCOC was the reason that his promotion to SFC was effectively voided.     

4.  The presumption of regularity must be applied to the current situation.
  
5.  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)                                         AR20090005948



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ABCMR Record of Proceedings (cont)                                         AR20090005948



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