IN THE CASE OF:	

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100023269 


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 that he be advanced to the proper grade (E-6) he would have attained had he not been erroneously reduced in grade.

2.  The applicant states, in effect, that at the time of each erroneous reduction in grade he had made the promotion list for the next higher grade and he was subsequently told that be would be placed before a stand-by board but his unit was called to active duty.  He was deployed and was subsequently sent to school for training in another military occupational specialty (MOS) to be promoted.  However, he was again erroneously reduced in grade and no action has been made to return him to the position he would have attained had the reductions not occurred, that being the pay grade of E-6.

3.  The applicant provides copies of orders promoting him to the rank of sergeant, orders reducing him from the rank of sergeant and documents restoring his pay grade.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 September 1987 and served as a military policeman until he was honorably discharged in the pay grade of E-4 on 24 September 1995.  He enlisted in the Georgia Army National Guard (GAARNG) in the pay grade of E-4 on 25 September 1995 for a period of 3 years.  He was promoted to the rank of sergeant (SGT) on 17 October 1996.

2.  On 29 September 2000 orders were published which reduced the applicant to the pay grade of E-4 effective 21 September 2000.  On 29 July 2002, the reduction orders were revoked due to an erroneous reduction in grade

On 24 September 2004 he was honorably discharged from the GAARNG in the rank of SGT due to the expiration of his term of service (ETS).

3.  On 27 January 2005 he again enlisted in the GAARNG in the pay grade of   E-5 for a period of 4 years and training as a wheel vehicle mechanic.  On 31 May 2008 orders were published which reduced the applicant to the pay grade of     E-4, effective 18 May 2008 as a result of nonjudicial punishment.  

4.  On 23 July 2009, the applicant was again promoted to the rank of SGT and on 15 August 2010, the punishment was set aside with regards to his reduction of 18 May 2008.

5.  On 29 June 2009 he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

6.  A review of the available records failed to show any evidence to indicate that the applicant appeared before a promotion selection board for promotion to the pay grade of E-6, that he attained promotion list standing, or that he would have been promoted to the pay grade of E-6.

7.  In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau (NGB) which opines that the applicant’s date of rank (DOR) should have been adjusted to 18 February 1997.  Officials at the NGB recommend that an audit be conducted by the Defense Finance and Accounting Service (DFAS) and that the applicant be considered for promotion to the next higher rank, provided he is otherwise eligible.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

8.  Army Regulation 600-8-19, paragraph 7-48, provides in pertinent part, that Standby Advisory Boards (STABs) are convened to consider the records of Soldiers who are eligible per the original memorandum of instruction, is a member of the State ARNG before the convening date of the board, and because of a material error the records were not reviewed by the regular board.  However, STABs are used during the time in which the promotion list is active.  When the following promotion board is held, the previous promotion list is no longer valid.  Due to the enlisted promotion system being a vacancy-based system, retroactive STABs are not applicable.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be promoted to the pay grade of E-6 has been noted and appears to lack merit.  The applicant has provided no evidence to show that he appeared before an E-6 promotion board or that he attained list standing.  Therefore, there is insufficient evidence to show that he was recommended for promotion or that he would have been promoted to the pay grade of E-6.

2.  However, there is sufficient evidence to show that his DOR for promotion to the pay grade of E-5 should have been adjusted to 18 February 1997.  Accordingly, action should be taken at this time to do so.

3.  Although, the applicant has not provided copies of his leave and earning statements in order to determine if he was properly paid in the pay grade of E-5 since his initial promotion to the pay grade of E-5 on 17 October 1996 and given his two erroneous reductions, the DFAS is requested to conduct an audit of his military pay file and to pay him any back pay and allowances due him.  

4.  In regards to his promotion to the pay grade of E-6, the unit commander has the authority to recommend the applicant for promotion if the applicant is otherwise eligible and deserving.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____X___  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adjusting his DOR for promotion to the pay grade of E-5 to 18 February 1997, with entitlement to all back pay and allowances that flow from this change, and ensure that he was paid in the pay grade of E-5 since 17 October 1996.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to promoting him to the pay grade of E-6 in the GAARNG.  

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   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)                                         AR20100023269





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ABCMR Record of Proceedings (cont)                                         AR20100023269



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