BOARD DATE: 1 June 2010
DOCKET NUMBER: AR20090017723
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 that his date of rank (DOR) and effective date for promotion to the rank/pay grade of master sergeant (MSG)/E-8 be backdated to 6 July 2007.
2. The applicant states, in effect, that he should have been promoted to the pay grade of E-8 on 6 July 2007; however, a failure of the Enlisted Promotion System (EPS) while he was deployed caused him to be overlooked and his promotion was delayed 24 months.
3. The applicant provides:
* A self-authored memorandum, dated 1 October 2009, explaining his application
* A Standard Form 52-B (Request for Personnel Action), undated
* The results of his Inspector General (IG) complaint, dated 12 November 2008
* A copy of Department of Military Affairs, Boone National Guard Center, Frankfort, KY, Orders 198-814, dated 17 July 2007, promoting him to MSG/E-8, with DOR/effective date of 6 July 2007
* A copy of his transfer orders
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Kentucky Army National Guard (KYARNG) on 18 August 1982 and has remained in the KYARNG through a series of continuous reenlistments. He was promoted to sergeant first class (SFC)/E-7 on 23 February 2004.
2. He was ordered to active duty on 11 July 2006 and deployed in support of Operation Iraqi Freedom (OIF) until he was honorably released from active duty on 19 October 2007 and he was returned to his KYARNG unit.
3. On 12 November 2008, in response to the applicants IG Action Request (IGAR), the KYARNG IG informed the applicant that he had not been promoted to the pay grade of E-8 because he had been omitted from the EPS Promotion List while he was deployed and he did not receive his promotion because of the failure of the entire EPS process to ensure that the data base was accurate and updated in a timely manner.
4. Information provided by the KYARNG J-1 indicates that at the time the E-8 selection list was published, the applicants current Army Physical Fitness Test (APFT) score was not updated in the data base and as a result, the applicant was not promoted and another noncommissioned officer was promoted instead. However, had the applicants APFT score been updated, he would have been promoted on 6 July 2007.
5. In the processing of this case, on 7 December 2009, a staff advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau (NGB), which recommends approval of the applicants request to have his DOR and effective date backdated to 6 July 2007 because he was unjustly denied promotion on that date due to a data base update failure that was through no fault of the applicant.
6. On 14 December 2009, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.
DISCUSSION AND CONCLUSIONS:
1. The applicant has provided sufficient evidence to establish that he would have been promoted to MSG/E-8 with a DOR and effective date of 6 July 2007 had an administrative error/oversight not occurred in his case.
2. The delay in correcting the oversight was further complicated by the applicant being deployed to Iraq during the time the error occurred.
3. Therefore, in the interest of justice, the applicant should not be penalized for being deployed and he should receive the promotion he would have received had he been present at the time to catch the administrative error.
4. Accordingly, his DOR and effective date for promotion to MSG/E-8 should be backdated to 6 July 2007, with entitlement to all back pay and allowances as a result of this change.
BOARD VOTE:
___x____ __x____ ___x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by:
a. showing that he was promoted to MSG/E-8 with a DOR and effective date of 6 July 2007, with entitlement to all back pay and allowances, and
b. paying him all back pay and allowances due as a result of this correction.
__________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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