IN THE CASE OF:	 

		BOARD DATE:	   20 May 2010

		DOCKET NUMBER:  AR20090018197 


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, a promotion to sergeant major (SGM)/pay grade E-9.

2.  The applicant states:

* he was unable to remain on active duty because of not being promoted to the next higher pay grade
* he feels he should have been promoted
* after he graduated from the Sergeants Major Academy as a master sergeant he was assigned to the 7th Infantry Division Aviation Brigade
* he understood he would be assigned to the Operation Section as the Operations SGM
* in April 1993 the Aviation Brigade was deactivated and the acting SGM recommended he be assigned to a first sergeant position until there was a SGM position available
* there were no Armor units on Fort Lewis for him to be assigned to as a 19Z50 (armor senior sergeant) at that time
* the only open position was a first sergeant as the Headquarters and Headquarters Company (HHC), U.S. Army Garrison (USAG) first sergeant
* he assumed the assignment until he retired in September 1995
* this retirement was because of the restriction put on E-8's to retire from military service at 24 years if not promoted to E-9
* if promoted to SGM he would have continued his career for 30 years or longer if possible
* after graduating from the Sergeants Major Academy he was fully trained to assume any position of a SGM 
* he followed his career program and went to all of the noncommissioned officer (NCO) schools   
* he points out while assigned to HHC, USAG a sergeant first class in his unit was under investigation for being a whistle blower
* this sergeant first class told him [the applicant] he was under investigation for unfairness toward the sergeant first class' case
* the sergeant first class also told him he would never get promoted to SGM once his lawyer was finished with the whole chain of command
* the sergeant first class also got help from a Member of Congress
* the Member of Congress was a key player in getting the sergeant first class promoted to SGM
* the sergeant first class was promoted to SGM without going to the first sergeant or sergeant majors course

3.  The applicant provides a letter, dated 27 January 2009, from Constituent Services, an office of a Member of Congress 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 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 enlisted in the Regular Army on 26 April 1971.  He was awarded military occupational specialty (MOS) 19Z in 1988 and promoted to master sergeant on 1 September 1988.  He completed the U.S. Army Sergeants Major Course in 1993.  The applicant retired on 1 September 1995 in the rank and grade of master sergeant, E-8.  His retirement DD Form 214 (Certificate of Release or Discharge from Active Duty) is not available. 

3.  There is no evidence of record which shows the applicant was promoted to SGM/pay grade E-9 prior to his retirement.   

4.  Army Regulation 600-8-19 (Enlisted Promotion and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.  In pertinent part it states centralized promotion boards (for promotion consideration to grades E-7, E-8 and E-9) will select the best qualified Soldier in each MOS for promotion.  They will recommend 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 selected in each MOS is the projected number the Army needs to maintain its authorized-by-grade strength at any given time.

5.  Army Regulation 600-8-19 states, effective 1 October 1993, the Army linked Noncommissioned Officers Education System to promotion to staff sergeant, sergeant first class, and SGM.  For promotion to SGM, a Soldier must be a U.S. Army Sergeant Major Course graduate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends after graduating from the Sergeants Major Academy he was fully trained to assume any position of a SGM and he should have been promoted.  However, there is no evidence of record which shows the applicant was promoted to E-9.  

2.  Without being able to review all the records, MOS/authorized-by-grade projections and special instructions that were available to the promotion boards that considered the applicant, it cannot be determined why he was not selected for promotion.  It is noted he was considered for promotion during the peak years of the drawdown.  Without evidence to show otherwise, it is concluded the Soldiers who were recommended for promotion to SGM were, in the promotion boards’ considered opinion, the best qualified in their MOS.  

3.  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.

4.  Based on the foregoing, there is no basis for granting the applicant's request for a promotion to SGM/pay grade E-9.    






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)                                         AR20090018197





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ABCMR Record of Proceedings (cont)                                         AR20090018197



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