IN THE CASE OF:
BOARD DATE: 21 January 2010
DOCKET NUMBER: AR20090012391
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 advanced to sergeant first class (SFC)/pay grade E-7 on the U.S. Army Retired List.
2. The applicant states, in effect, that he wore the rank of SFC with dignity and honor for over two years. He also states that his physical disabilities prevented him from completing the Advanced Noncommissioned Officer Course (ANCOC).
3. The applicant does not provide any supporting documents with 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 6 December 1983. He completed basic and advanced individual training. He was awarded military occupational specialty 63B (Light Wheeled Mechanic). He continuously reenlisted in the Regular Army until his separation for retirement.
3. On 1 December 1999, the applicant was conditionally promoted to the rank of SFC/pay grade E-7 by the CY199906 SFC Promotion List.
4. On 22 July 2002, he was administratively removed from the CY199906 SFC Promotion List by the U.S. Total Army Personnel Command based on his cancellation from ANCOC due to his failure to meet the requirements of Army Regulation 600-9 (The Army Weight Control Program). The revocation order shows that he was granted defacto status as a SFC for the period 1 December 1999 to 17 July 2002.
5. On 31 December 2003, the applicant was honorably separated from the Regular Army and transferred to the U.S. Army Reserve Control Group (Retired). He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he completed 20 years and 25 days of active federal service. Item 4a (Grade, Rate, or Rank) shows that he was separated in the rank of staff sergeant (SSG) and item 4b (Pay Grade) shows his pay grade as E-6.
6. On 24 March 2008, the applicant applied to the Army Grade Determination Review Board (AGDRB) requesting reinstatement of his rank to SFC.
7. On 15 May 2008, the AGDRB returned his letter stating he was not eligible for advancement by the AGDRB because he was administratively removed from the CY199906 SFC Promotion List based on his cancellation from ANCOC due to his lack of compliance with the standards of The Army Weight Control Program.
8. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in pertinent part, prescribes the Noncommissioned Officers Educational System for promotion and conditional promotion. On 1 October 1993, the Army linked the NCOES to promotion to SSG, SFC, and sergeant major (SGM). For promotion to SFC, a Soldier must be a graduate of ANCOC. Soldiers selected for promotion to SFC who have not completed ANCOC will be promoted conditionally. Soldiers who fail to successfully complete for cause or academic reasons or who do not attend their scheduled ANCOC will have their conditional promotions revoked and will be removed from the promotion list.
9. Army Regulation 635-200 provides for the placement of enlisted Soldiers on the retired list. Paragraph 12-3 of this regulation requires that the retirement of a Soldier be in the pay grade he or she holds on the date of retirement.
DISCUSSION AND CONCLUSIONS:
1. Based on the evidence of record, the applicant was conditionally promoted to the rank of SFC/pay grade E-7 with the understanding that he was required to complete ANCOC to maintain his promotion. He did not complete ANCOC based on his lack of compliance with Army Regulation 600-9, which made him ineligible for graduation from ANCOC. Therefore, he was removed from the SFC promotion list, granted defacto status, and his promotion orders to SFC were revoked. Therefore, the highest rank he satisfactorily held was SSG.
2. The applicant did not provide any evidence to show that he had physical disabilities that prevented him from successfully attending and completing the required ANCOC course.
3. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit evidence that would satisfy this requirement.
4. Therefore, there is insufficient evidence to grant him the requested relief to correct his record to show he was retired in the higher rank of SFC.
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) AR20090012391
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