IN THE CASE OF:	  

		BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100015805 


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 retroactive promotion to sergeant (SGT) with back pay and allowances.  

2.  He states:

* he wasn’t promoted in a timely manner due to administrative errors
* he made cut-off promotion points score of 350 on 8 August 1999, 1 October 2007, and 1 January 2009 in MOS 92Y (Unit Supply Specialist)
* his Enlisted Record Brief (ERB) shows his promotion points was 350 on 8 August 1999
* Installation Management Command (IMCOM) reviewed his records and didn’t see any flags, adverse actions or a promotion bar

3.  He provides:

* Military Personnel (MILPER) Message 05-272
* ERB 
* Promotion Point Update
* Promotion Point Worksheet
* Promotion Point Cut-Off Scores for 1 October 2007 and 9 January 2009
* Email correspondence from IMCOM
* DA Form 2823 (Sworn Statement)



CONSIDERATION OF EVIDENCE:

1.  The applicant completed prior service in the U.S. Marine Corps from 20 June 1994 through 19 December 1998 and the U.S. Marine Corps Reserve from 20 December 1998 through 15 August 1999.  His ERB shows he had 350 promotion points on 8 August 1999.  

2.  On 16 August 1999, he enlisted in the Army National Guard in pay grade E-4 and was discharged on 15 August 2000 in the rank of private, E-2.  Item 18 (Remarks) of his NGB Form 22 (Report of Separation and Record of Service) shows the highest grade he held was specialist (SPC)/E-4 (1 October 1997 through 24 April 2000).  On 16 August 2000, he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of his military service obligation.  

3.  On 5 July 2001, he enlisted in the Army National Guard in pay grade E-2 and was discharged on 30 June 2002 in the same pay grade.  On 1 May 2002, he was transferred to the USAR Control Group (Reinforcement) for completion of his military service obligation.  

4.  On 27 January 2005, he enlisted in the Regular Army in pay grade E-2 and was honorably discharged on 20 December 2005 for immediate reenlistment.  

5.  He reenlisted on 21 December 2005 in pay grade E-4.  

6.  The Department of the Army Promotion Point Cut-Off Scores for 1 October 2007 was 350 for 92Y.  His service record does not indicate he was recommended for promotion to SGT in October 2007.  

7.  He provided email messages, dated 7 November 2007, from IMCOM personnel in regard to his automatic promotion to SGT who stated:

	a.  SFC A---- to Mr. C----:  “We at the 39th are working so that no one gets promoted automatic.  The command has posted a policy letter stating all Soldiers will attend the promotion board.  So, in the case of [applicant] NO do not promote…”  

	b.  Mr. C----- to [applicant]:  “Your command cannot override Army Policy.  The promotion regulation cannot be supplemented amended or changed.  Have your leaders read the first page of the regulation concerning supplementation: [quote cited]”


	c.  Mr. W--- to Mr. C----: “What caused his automatic promotion not to take effect?”  In response, Mr. C---- stated “I checked his records and did not see evidence that he was ever flagged, underwent any adverse action, or received a PBAR.  He told me that his previous commander, like his current commander, did not believe on automatic promotions and thus he was not promoted.”

	d.  Mr. W---- to Mr. C----:  “I read Paragraph 3-17 of AR 600-8-19.  If his name appeared on the HQDA list of Soldiers to be promoted on 1 October, he should have been promoted on that date, barring any clearly established ineligibility.  His unit cannot now prevent his promotion.”  

8.  The January 2009 Promotion Point Cut-Off Scores shows the promotion point cut-off score was 350 for MOS 92Y.  His service record does not indicate he was recommended for promotion in January 2009.  

9.  On 10 February 2010, he reenlisted in the Regular Army in pay grade E-4.  

10.  His DA Form 3357 (Board Recommendation), dated 5 May 2010, shows he received 150 promotion board points for promotion to SGT in MOS 92Y.  

11.  His ERB, dated 22 May 2010, shows he had 622 promotion points in May 2010.  

12.  Orders 196-01, dated 16 July 2010, promoted him to SGT in MOS 92Y2O with an effective date and date of rank (DOR) of 1 June 2010.   

13.  In the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Promotions, Promotions Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY.  This office opined that the applicant’s request for retroactive promotion, including entitlements was not warranted.  The opinion points out that:

   a.  The applicant was selected for Automatic List Integration (ALI) by Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 3-17.  
   
   b.  When the Army’s requirements for promotion by MOS, are not met by the number of Soldiers boarded and recommended for promotion, cut-off scores for promotion drop to 350 for SGT and 450 for staff sergeant (SSG).  This allows ALI Soldiers the opportunity to be promoted to fill the remaining promotion requirements.
   
   c.  Priority goes to ALI Soldiers with the greatest DOR and basic active service date (BASD).  Therefore, not all ALI Soldiers are promoted that meet the points prescribed above.  
   
	d.  The applicant was not identified on the Headquarters, Department of the Army (HQDA) monthly SGT/SSG Promotion Selection Name list for October 2007 or January 2009.  Therefore, he did not meet the DOR and BASD criteria to satisfy the remaining promotion requirements for his MOS. 

	e.  It was discovered that the applicant was promoted to SGT with a DOR of 1 June 2010.  He was not on the HQDA Monthly SGT/SSG Promotion Selection Name List for June 2010.  The applicant was selected for promotion to SGT on 1 July 2010.  As a result of these findings, his DOR should be changed to 1 July 2010 and his promotion orders should be amended to reflect the correction to his DOR.  

14.  A copy of the advisory opinion was forwarded the applicant to allow him to provide comments or a possible rebuttal.  However, he did not respond within the allotted timeframe.   

15.  Army Regulation 600-8-19, paragraph 3-17 states, in pertinent part, that each month, Active Army Soldiers in all MOSs who meet the following criteria will be automatically integrated onto the SGT and SSG promotion standing lists, provided they are otherwise eligible for promotion consideration despite lacking the actual promotion board appearance.  For promotion to SGT:

	a.  46 months TIS (to become eligible for promotion at 48 months).

	b.  10 months TIG (to become eligible for promotion at 12 months).

	c.  Otherwise not ineligible in accordance with this regulation.

	d.  Not otherwise denied by the CDR.

	e.  Soldier must have a minimum of 90 days remaining service as of the 
month of integration onto the recommended list. 

16.  MILPER Message 06-216, dated 7 August 2006, DA Promotion List Integration to SGT Promotions, effective 1 October 2006, provides procedural guidance to the automatic promotion list integration for Soldiers who meet the required criteria.  It states, in pertinent part, that eligible Soldiers in the grade of E-4 with 46 months TIS and 10 months TIG, and who are not otherwise denied by the commander, will be automatically integrated into the recommended list provided they are otherwise eligible for recommended list consideration despite lacking the actual board appearance.  These Soldiers will be given 350 points.  HRC will post a list of Soldiers who according to the HRC system have met or exceeded the automatic recommended list integration effective 1 August 2006.  A Soldier who is denied automatic recommended list integration will be counseled.  Once monthly cut-off scores have been determined, those meeting or exceeding cut-off scores by board appearance, and otherwise fully eligible, will be promoted first.  If, after review, there is still a requirement for promotions, HRC will select that requirement from those Soldiers listed with 350 points and otherwise fully eligible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he wasn’t promoted to SGT in a timely manner due to administrative errors is acknowledged.  However, the evidence of record does not indicate that an error or injustice exists in this case.  

2.  Although he met the cut-off score of 350 on 8 August 1999, he was a member of the U.S. Marine Corps Reserve at that time and would not have been considered for promotion to SGT based on the Army’s criteria.  

3.  His service record is void of evidence and he did not provide any evidence, which shows he was identified on the SGT/SSG Promotion Selection Name list or was in a promotable status on 1 October 2007 or 1 January 2009.  

4.  He was identified for ALI on 5 May 2010 and met the promotion point cut-off score of 350 for MOS 92Y.  As a result, he was promoted to SGT with an effective date and DOR of 1 June 2010.  Although it was discovered that his DOR should actually be 1 July 2010; it is not the Board’s practice to change a record when the end result will cause an applicant to be worse off than when they began the appeal process.  

5.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100015805





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ABCMR Record of Proceedings (cont)                                         AR20100015805



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