IN THE CASE OF:
BOARD DATE: 4 February 2010
DOCKET NUMBER: AR20090015614
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, correction of his military records to show he was promoted to the rank/grade of sergeant first class/E-7.
2. The applicant states even though he was selected for and completed the Advanced Noncommissioned Officer Course (ANCOC) he was not selected for promotion by the 1985-1987 promotion boards.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 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's military records show he enlisted in the Regular Army on 24 July 1975. He was awarded the military occupational specialty (MOS) of infantryman, and he was promoted to pay grade E-6.
3. Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
6 March 1978 for hitting his superior noncommissioned officer on the right eye on or about 18 February 1978.
4. The applicant's records show he completed ANCOC in 1986.
5. The applicant's DD Form 214 shows he was separated from active duty for physical disability (temporary) on 2 June 1988 after completing 12 years, 10 months, and 9 days of active service.
6. Orders D93-2, dated 12 May 1988, show the applicant was placed on the Temporary Disability Retired List (TDRL) effective 3 June 1988 in the retired rank/grade of SSG/E-6 with a 70 percent disability rating.
7. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribes the enlisted promotions function of the military personnel system. Eligibility and selection criteria for promotion to pay grade E-7 includes requirements such as serving in the next lower rank for a specified time and meeting minimum time in service requirements, in addition to other requirements. Paragraph 7-40 (Selections) of this regulation states that selections by Department of the Army (DA) boards will be based on impartial consideration of all eligible soldiers in the announced zone. It further states that promotion boards will select a specified number of Soldiers by MOS from zones of consideration who are the best qualified to meet the needs of the Army. The total number who may be selected in each MOS for E-7, E-8, and E-9 is the projected number the Army needs to maintain its authorized by-grade strength at any given time. Paragraph 7-40b states that Soldiers who are not selected for promotion by DA boards will not be provided specific reasons for nonselection. Board members will not record their reasons nor give any reasons for selection or nonselection. Selections are based on relative qualifications and the projected need in each MOS for E-7, E-8, and E-9.
DISCUSSION AND CONCLUSIONS:
1. While the applicant completed ANCOC, promotion boards are instructed to select the best qualified Soldiers for promotion to meet the needs of the Army based on impartial consideration of all eligible Soldiers. Promotion consideration is to some degree subjective and the specific reasons for selection or
nonselection is not recorded. Therefore, the reason a Soldier is not selected for promotion is not a matter of record.
2. While, it is also understandable that the applicant desires to have his records corrected to show he was selected for promotion by one of the boards convening from 1985 to 1987 he has not shown that an error or injustice contributed to his nonselection. As such, there is an insufficient basis to grant him relief.
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.
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