IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20090019784 


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 placed on the Retired List as a sergeant first class (SFC)/E-7.

2.  The applicant states:

* he was promoted to SFC on 1 January 2004
* he completed Phase I of the Advanced Noncommissioned Officer Course (ANCOC) on 6 June 2004, but he could not attend Phase II of ANCOC at that time due to certain medical conditions
* he took a voluntary reduction in grade effective 9 August 2004 and was transferred to his detachment
* he feels he would have retired at the highest grade held except for medical reasons beyond his control

3.  The applicant provides:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 August 2006
* NGB Form 55b (Honorable Discharge Certificate) from the Army National Guard
* discharge orders
* reduction orders
* promotion orders
* DA Form 1059 (Service School Academic Evaluation Report)
* Certificate of Training
* military and civilian medical records

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 was born on 2 August 1962.  He enlisted in the Alabama Army National Guard on 13 December 1980.  He was ordered to active duty in an Active Guard Reserve status on 24 June 1991.

3.  The applicant was promoted to SFC/E-7 on 1 January 2004.  His promotion orders state that he must enroll in the appropriate Noncommissioned Officer Education System (NCOES) course within 12 months of the effective date of this promotion and failure to enroll, attend, or complete any portion within the allowable time frame will result in a referral to a reduction board per National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 11-60 (Reduction for Inefficiency).  These orders also state if service remaining requirements of this promotion are not fulfilled at the time of separation, the Soldier will be reduced and discharged at the next lower grade under the provisions of paragraph 11-10c (Service Remaining Obligation), National Guard Regulation 600-200.

4.  The applicant completed Phase I of ANCOC on 6 June 2004.

5.  There is no evidence of record which shows the applicant completed Phase II of ANCOC.

6.  On 9 August 2004, the applicant was administratively reduced from SFC/E-7 to staff sergeant (SSG)/E-6 due to a voluntary reduction under the provisions of paragraph 11-55 of National Guard Regulation 600-200.

7.  On 31 August 2006, the applicant retired in the rank of SSG after completing over 20 years of active duty.  He was honorably discharged from the Alabama Army National Guard on 31 August 2006 in the rank of SSG and transferred to the Retired Reserve.

8.  The applicant was placed on the Retired List in the rank of SSG/E-6 on 1 September 2006.

9.  Paragraph 11-10c of National Guard Regulation 600-200 states individuals who accept promotions will fulfill the service remaining requirement before transfer to the Retired Reserve, voluntary retirement for active duty length of service, or expiration term of service.  If they do not, they will be separated in the next lower grade unless granted an exception to policy for the good of the service.

10.  Paragraph 11-28 (NCOES Requirements for Promotion) of National Guard Regulation 600-200 states that SSG's without Basic Noncommissioned Officer Course (BNCOC) or ANCOC credit are promotable to SFC only after they complete BNCOC Phase I and ANCOC Phase II within 2 years after Phase I and before consideration by a master sergeant promotion board.  This is a conditional promotion.

11.  Paragraph 11-55 (Voluntary Reduction) of National Guard Regulation 
600-200 states that if approved by the unit commander, a Soldier may volunteer in writing on a DA Form 4187 (Personnel Action) for reduction to any lower grade for reassignment to another position, another program, or to continue in service.  The promotion authority may then administratively reduce the Solder without board action.

12.  Paragraph 11-56 (Failure to Complete Training) of National Guard Regulation 600-200 states that commands can reduce Soldiers without board action or appeal who fail to successfully complete an NCOES course that is a condition of a promotion due to their failure to apply for, enter, meet standards, or through misconduct or voluntary withdrawal.  The regulation states to reduce these Soldiers automatically effective on the date the Soldier fails to apply for, enroll, or be enrolled in a class for which selected, fails a course, withdraws from the course, or on expiration of the time set for completion at promotion.  Time in grade in the higher grade is not satisfactory service for future adjusted date of rank if promoted again to the grade, nor is it creditable towards retired pay in the higher grade or any other determination dependent upon the higher grade.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to SFC on 1 January 2004, he completed Phase I of ANCOC on 6 June 2004, and he was reduced in rank to SSG/E-6 at his own request on 9 August 2004.

2.  The applicant's promotion to SFC was a conditional promotion contingent upon completion of Phase II of ANCOC within 2 years after completion of Phase I.  By the applicant's own admission, he could not attend Phase Il of ANCOC due to certain medical conditions.  The applicant provided no independent evidence that his medical condition would have prevented his completion of Phase II.

3.  The governing regulation states that Soldiers will be reduced for failure to complete an NCOES course that is a condition of a promotion and time in grade in the higher grade is not satisfactory service, nor is it creditable toward retired pay in the higher grade or any other determination upon the higher grade such as grade in which retired.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20090019784



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090019784



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1