BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100023408 


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 correction of his record to show his rank/grade as sergeant (SGT)/E-5.

2.  He states his chain of command did not want him to be promoted, because they thought he promoted himself.  They did an investigation and found he did not have the ability to do so and still refused to give him the stripes he earned.

3.  He provides copies of:

* an Enlisted Record Brief (ERB)
* a Defense Finance and Accounting Service (DFAS) Form 702 (Military Leave and Earnings Statement)
* his promotion packet
* a promotion order
* a promotion list published in the Army Times
* an Honorable Discharge Certificate, dated 5 February 2007
* an Adjutant General School Diploma
* a DA Form 1059 (Service School Academic Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 April 2004 in the rank/grade of private first class/E-3.  After completing initial entry training, he was awarded military occupational specialty (MOS) 13P (Multiple Launch Rocket Systems Automated Tactical Data Systems Specialist).  He reenlisted on 6 February 2007.

2.  His record in the interactive Personnel Electronic Records Management System (iPERMS) includes an ERB, dated 22 February 2007, showing he was promoted to specialist/E-4 on 1 December 2005.  The ERB shows his primary MOS (PMOS) as 13P.

3.  Orders 086-636, issued by Headquarters, U.S. Army Garrison, Fort Sill, OK, on 27 March 2007, promoted him to sergeant (SGT)/E-5 effective 1 April 2007 and awarded him PMOS 42A (Human Resources Specialist).  The orders state the promotion would not be valid and would be revoked if he was not in a promotable status on the effective date of promotion.

4.  Orders 095-630 issued by the same headquarters on 5 April 2007 revoked Orders 086-636.

5.  On 15 November 2007, his commander informed him he was initiating action to separate him for a pattern of misconduct under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, and recommending he receive an under other than honorable conditions characterization of service.  He listed the following reasons for the proposed action:

* making false official statements on six occasions during September and October 2007
* wrongfully wearing the rank of SGT on his uniform from 20 August to 12 October 2007

6.  On 26 November 2007, he consulted with legal counsel and he was advised of the basis for the contemplated separation for misconduct and its effect, the rights available to him, and the effect of any action taken by him in waiving his rights.  The applicant understood that if he received a discharge under conditions other than honorable he could expect to encounter substantial prejudice in civilian life and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He waived his rights to consideration of his case by a board of officers and personal appearance before a board of officers.

7.  On 27 November 2007, his commander submitted the recommendation for separation.

	a.  He stated the applicant had been counseled on four occasions and through subsequent behavior had demonstrated a lack of acceptance of rehabilitative measures.

	b.  The memorandum also shows the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 25 October 2007 for wearing the rank of SGT without authority and making four false official statements.  His punishment was reduction to private (PVT)/E-1, forfeiture of $650.00 pay per month for 2 months, 45 days of restriction, and 45 days of extra duty.

8.  On 20 December 2007, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, and directed the characterization of his service as under other than honorable conditions.  On 3 January 2008, he was discharged accordingly.  He completed 3 years, 8 months, and 12 days of total active military service.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of PVT/E-1.  Item 11 (Primary Specialty) shows he held MOS 42A for 3 months and MOS 13P for 3 years and 1 month.

10.  He provides an ERB, dated 5 April 2007, showing his date of rank for SGT as 1 April 2007 and his PMOS as 42A.  Section IX (Assignment Information) shows two entries for 6 February 2007.  The first shows his duty MOS as 13P.  The second shows his duty MOS as 42A.

11.  He also provides:

* a DFAS Form 702 for April 2007 showing him as an SGT/E-5
* a promotion packet showing he was considered for promotion in MOS 13P
* a promotion list published in the Army Times showing he was selected for promotion in MOS 42A
* Orders 276-483 issued by Headquarters, U.S. Army Training Center and Fort Jackson, dated 3 October 2007, showing his rank as SGT and showing he was awarded PMOS 42A and that PMOS 13P was withdrawn effective upon completion of the course for MOS 42A
* an Adjutant General School Diploma and a DA Form 1059 showing his rank as SGT and showing he completed the Human Resources Specialist Course for MOS 42A on 4 October 2007

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states Soldiers must be promoted in their career progression MOS and must be fully qualified in their MOS to include meeting school requirements to be promoted.  The regulation also states instruments announcing erroneous promotions will be revoked.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  Discharges under other than honorable conditions require reduction to the lowest enlisted rank.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was not qualified for promotion to SGT/E-5 in MOS 42A when promotion orders were published in March 2007.  At that time, he had not yet completed the school requirements for MOS 42A.  As a result, the promotion order was revoked as required by the governing regulation.

2.  He later completed the school requirements for MOS 42A and was awarded it as his PMOS.  However, the record does not show he was properly considered for promotion in that MOS.

3.  The record shows he misrepresented his rank/grade while attending the Human Resources Specialist Course and that U.S. Army Training Center and Fort Jackson published orders and issued documents based on his misrepresentation.  He was later reduced to PVT/E-1 and discharged for this misconduct.

4.  In the absence of documentary evidence showing he was improperly denied promotion to SGT/E-5 and improperly reduced to PVT/E-1, there is no basis for granting the relief he requests.

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 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)                                         AR20100023408



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ABCMR Record of Proceedings (cont)                                         AR20100023408



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