IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100011169 


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 his rank be restored or that he be promoted to sergeant first class (SFC/E-7) and retired in this rank.  He also requests award of the Meritorious Service Medal and disability compensation.

2.  The applicant states he was removed from the SFC promotion list without a fair hearing.  He contends his chain of command intimidated him into signing papers acknowledging he failed the Advanced Noncommissioned Officer Course (ANCOC) and committed adultery.  Further, he was prevented from keeping a meeting with his brigade commander because he was in the field and he did not have transportation.  He states he was promoted and paid as a SFC but he had to repay the money because his sergeant major backdated his flagging action in order to take his promotion away and a bar to reenlistment was imposed against him.  Finally, he states he failed ANCOC because English is his second language and he had a problem understanding the instructor.

3.  The applicant provides his Enlisted Evaluation Reports, award certificates, training certificates, DD Form 2586 (Verification of Military Experience and Training), Honorable Discharge Certificate, Basic Noncommissioned Officer Course diploma, retirement award recommendation, and microfiche.

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.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  These compensation rates are calculated using categories such as, "Veteran Only, Veteran with Spouse Only, and Veteran with Spouse and Child."  Pay grade and rank are not used to calculate compensation rates.  This issue will not be further addressed as the board has no jurisdiction in this area.

3.  The complete facts and circumstances related to his removal from the promotion list were not available; however his record shows the following:

   a.  he entered active duty on 27 October 1971.  He was trained in and awarded military occupational specialty 11B (Infantryman);

   b.  Headquarters, Fort Carson and Headquarters, 4th Infantry Division (Mechanized) Orders Number 193-152, dated 3 October 1978, promoted him to staff sergeant (SSG)/E-6 with an effective date of 30 October 1978 and a date of rank of 18 September 1978;
   
   c.  U.S. Army Military Personnel Center, Orders Number 161-37, dated 
2 November 1982, show he was promoted to SFC with an effective date of 
1 December 1982 and a date of rank of 13 November 1982.  These orders stated the promotion would not be valid and would be revoked if the Soldier concerned was not in a promotable status on the effective date of promotion;

	d.  a U.S. Military Personnel Center Memorandum, dated 21 March 1984, Subject:  Promotion Status, shows the applicant would not be promoted to the next higher grade as his name was removed from the Sergeant First Class Promotion List announced in letter, DAPC-MSP-E, dated 30 March 1982; and

	e.  item 6 (Highest Grade Served on Active Duty and Branch of Service) of his DA Form 2339 (Application for Voluntary Retirement) shows "SSG/RA."  He authenticated this document on 1 March 1991.
4.  The applicant provided a copy of his retirement award recommendation which shows he was recommended for the Meritorious Service Medal; however, the award was downgraded and approved for the Army Commendation Medal.

5.  He retired from active duty on 31 July 1991 in the rank of SSG/E-6.

6.  He provided numerous supporting documents which attest to his commendable conduct and duty performance during his period of service.

7.  Army Regulation 600-200 (Personnel - General, Enlisted Personnel Management System), in effect at the time, prescribed in paragraph 7-44 removal from a Department of the Army (DA) promotion recommended list has far reaching, long lasting effects on the Soldier.  The probability for subsequent selection for promotion is extremely limited.  Therefore, removal from recommended lists should be considered only when the circumstances involved warrant such significant action.  When considering removal, commanders should evaluate the circumstances to insure that all other appropriate actions have been taken or the basis for considering removal is serious enough to call for denying the individual's promotion.  Further, commanders may recommend a Soldier's name be removed from a DA recommended list at any time.  The recommendation for removal must be fully documented and justified.  Headquarters, DA will make the final decision on the removal based on the results and recommendation of the DA Standby Enlisted Advisory Board.

8.  Army Regulation 600-8-22 (Military Awards) states the Meritorious Service Medal is awarded to members of the Armed Forces of the United States or of a friendly foreign nation who distinguish themselves by outstanding meritorious achievement or service in a noncombat area.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  

9.  Title 10 of the U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

10.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander,  U.S. Army 


Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his rank be restored or that he be promoted to the rank of SFC/E-7 and retired in this rank.  He also requests award of the Meritorious Service Medal.

2.  The evidence of record contains DA orders which promoted the applicant to SFC, effective 1 December 1982, as well as a DA Memorandum, dated 
21 March 1984, removing him from the 30 March 1982 SFC Promotion List.  

3.  There is no evidence nor has he presented any evidence to show that his removal from the SFC Promotion List was in error or that an injustice occurred.  In the absence of evidence to the contrary, it is presumed that the removal of his name from the list was accomplished in accordance with applicable Army regulations and policies.

4.  The decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  It is clear in this case the award recommendation was processed by his chain of command and the commander having award approval authority approved a lesser award.  Therefore, the applicant is not authorized award of the Meritorious Service Medal.  

5.  However, this in no way affects his right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

6.  Based on the foregoing, his request should be denied.



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)                                         AR20100011169



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ABCMR Record of Proceedings (cont)                                         AR20100011169



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