IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100011163 


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 his DD Form 214 to show his rank/grade as sergeant first class (SFC)/E-7.

2.  The applicant wants to be granted the right to have Sergeant First Class placed on his Headstone Plaque at the time of his death.  He states he was promoted to SFC on 1 April 1995 and he performed his duties with increasing responsibility.  He states that due to unforeseen circumstances (health of his daughter, mother, and himself along with him being reassigned on several occasions) he was not able to attend the required Advanced Noncommissioned Officer Course (ANCOC).  Therefore, his sergeant major processed a reduction in rank request reducing him to staff sergeant (SSG)/pay grade E-6.

3.  The applicant did not provide any documentary supporting evidence with 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.  After a brief period in the Indiana Army National Guard (INARNG), on
5 November 1979 the applicant enlisted in the Regular Army.  He completed his initial entry training and he was awarded military occupational specialty 95B (Military Police).  He continued to serve in the Regular Army through subsequent reenlistments.

3.  On 9 March 1995, the applicant was conditionally promoted to SFC/E-7.  At the time of this promotion he did not have ANCOC credit.   His promotion orders contain special instructions that states SSG promoted to SFC who do not have ANCOC credit are promoted conditionally.  Those Soldiers who receive a conditional promotion will have their orders revoked and their names removed from the centralized list if they fail to meet the ANCOC requirement.

4.  Orders 313-0197, published by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 9 November 1998, directed the applicant’s release from active duty effective 31 August 1999 and placement on the retired list the next day,
1 September 1999, for sufficient years of active service for retirement.  These orders show the applicant's retired grade as SFC with a date of rank of 1 April 1995.

5.  The applicant's service record is void of orders directing his reduction to the rank of SSG.  A search within the applicant's interactive Personnel Electronic Records Management System (iPERMS) record failed to show a DA Form 1059 (Service School Academic Evaluation Report) for ANCOC completion.

6.  Prior to his retirement, he received a DA Form 2166-7 (NCO Evaluation Report [NCOER]) for the period from April 1999 through June 1999.  This form shows in item c (Rank) the entry "SSG" and in item d (Date of Rank) the entry "870806."

7.  On 31 August 1999, the applicant was retired from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  He was issued a   DD Form 214 that shows he completed20 years and 10 days of total active service.  Item 4a (Grade, Rate, or Rank) shows he was retired in the rank of SSG, item 4b (Pay Grade) shows his grade as E-6, and item 12h (Effect Date of Pay Grade) shows "1987  09  01."


8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in pertinent part, prescribes the Noncommissioned Officers Educational System (NCOES) for promotion and conditional promotion.  On 1 October 1993, the Army linked the NCOES to promotion to SSG, SFC, and sergeant major (SGM).  For promotion to SFC, a Soldier must be a graduate of ANCOC.  Soldiers selected for promotion to SFC who have not completed ANCOC will be conditionally promoted.  Soldiers who fail to successfully complete ANCOC for cause or academic reasons or who do not attend their scheduled ANCOC will have their conditional promotions revoked and will be removed from the promotion list.

9.  Army Regulation 635-200 provides for the placement of enlisted Soldiers on the retired list.  Paragraph 12-3 of this regulation requires that the retirement of a Soldier be in the pay grade he or she holds on the date of retirement.

10.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity deciding cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant was conditionally promoted to SFC/E-7 with the understanding that he was required to complete ANCOC to validate and maintain his promotion.  Due to numerous personal reasons he did not complete ANCOC.  Therefore, he was removed from the SFC promotion list.  While his service record is void of the reduction order, a presumption of administrative regularity is presumed.  There is no record showing he completed the required ANCOC course prior to his retirement and his final NCOER prior to his release from active duty for retirement shows his rank/grade as SSG/E-6.

2.  Although the applicant's separation order shows he was to retire in the rank/grade of SFC/E-7, it appears he was appropriately administratively removed from the SFC promotion list due to not meeting the NCOES requirement.  Additionally, the applicant's self-authored statement indicates he was administratively removed from the SFC promotion list due to not completing ANCOC.

3.  The applicant did not provide any evidence to show that he had physical disabilities that prevented him from attending and completing the required ANCOC course.  There is also no evidence that the applicant unsuccessfully attempted to attend ANCOC.
4.  In view of the foregoing, there is no basis for granting the applicant's requested 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.

ABCMR Record of Proceedings (cont)                                         AR20100011163



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ABCMR Record of Proceedings (cont)                                         AR20100011163



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