IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100008727 


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 E-7. 

2.  The applicant states he was unjustly separated on 31 December 1993 as stated in a letter he received from the Army Board for Correction of Military Records (ABCMR) and he was retired on 2 February 1994.  He contends had he not been unjustly separated and retained on active duty as requested by his former commander he would have been promoted ahead of his peers based on his previous noncommissioned officer (NCO) evaluation reports and also his selection to attend the Advanced NCO Course (ANCOC) in June 1992 which he did not attend because he was in Turkey supporting Operation Provide Comfort in Northern Iraq.  

3.  The applicant also states his personnel office did not notify him in time to make his course date.  He points out he made distinguished graduate in his last two military NCO schools and would have been in the running for the same status in ANCOC had he attended the course.  Based on these facts and the statements he provided, he is asking the Board to consider him for promotion to E-7/sergeant first class which he would have made in a very short time had he been afforded the opportunity to remain on active duty and complete 20 years.  

4.  The applicant further states to this day he still has nightmares about his involuntary separation.  He indicates he is grateful the Board found his separation unjust and retired him but he still feels short changed because he did not want to leave the military until his full 20 years had elapsed.  His involuntary separation devastated him, crushed his self confidence, and left him very depressed.  He is now on medication for depression through the Department of Veterans Affairs health care system.   

5.  The applicant provides:

* Eight 1993 statements/letters of support
* DD Form 1610 (Request and Authorization for TDY [Temporary Duty] Travel of DOD [Department of Defense] Personnel)

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 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 January 1976 and trained as a helicopter repairer and MANPADS crewmember.  

3.  In March 1979, nonjudicial punishment (NJP) was imposed against the applicant for being drunk and disorderly. 

4.  The applicant was promoted to E-6/staff sergeant on 2 June 1985. 

5.  In June 1992, NJP was imposed against the applicant for sexual involvement with a woman not his wife.    

6.  On 5 May 1993, the applicant was notified he had been identified for the imposition of a Headquarters Department of the Army bar to reenlistment as a result of the Army's Qualitative Management Program (QMP).  At the time of his QMP notification he had completed 17 years and 3 months of creditable active service.  



7.  Although the applicant's appeal of the QMP action was supported by this unit and battalion commanders his brigade commander and the Deputy Commanding General of V Corps recommended denial.  The applicant's appeal was denied on 10 September 1993 and he was informed he was required to separate no later than 31 December 1993.  

8.  On 31 December 1993, the applicant was separated from active duty in pay grade E-6 under the provisions of Army Regulation 635-200, paragraph 16-8, for reduction in force.  He had completed 17 years, 11 months, and 5 days of creditable active service. 

9.  There is no evidence of record which shows the applicant was selected for promotion to E-7 prior to his separation on 31 December 1993 or retirement on 31 January 1994. 

10.  On 9 March 1998, in accordance with actions directed by the ABCMR, the applicant's discharge orders were revoked and he was retired on 1 January 1994 in pay grade E-6 under the provisions of Army Regulation 635-200, for voluntary early retirement.  The ABCMR had found that he was probably selected for QMP action only because the Army was in a drawdown period and, had he completed only 25 days more service, he would have been allowed to stay on active duty to complete 20 years of service for retirement.

11.  In support of his claim, the applicant provided eight 1993 statements/letters of support of his appeal of the QMP action from his unit and battalion commanders. 

12.  Paragraph 1-10 (Nonpromotable Status) of Army Regulation 600-8-19 (Enlisted Promotion and Reductions) states Soldiers (specialist through master sergeant) are nonpromotable to a higher grade when a bar to reenlistment is approved.

DISCUSSION AND CONCLUSIONS:

The applicant's contentions were carefully considered.  However, there is no evidence of record which shows he was selected for promotion to E-7 prior to his separation on 31 December 1993 or subsequent retirement on 31 January 1994.
In addition, having a bar to reenlistment made him ineligible for promotion.  Therefore, there is insufficient evidence on which to grant 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)                                         AR20100008727



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ABCMR Record of Proceedings (cont)                                         AR20100008727



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