IN THE CASE OF:	  

		BOARD DATE:	  1 December 2011

		DOCKET NUMBER:  AR20100027331 


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 consideration for promotion to sergeant first class (SFC)/E-7.

2.  He states he was on the promotion list for several years, but he was considered ineligible because he had not completed the Basic Noncommissioned Officer Course (BNCOC) Phase II.  In May 2007, he completed BNCOC Phase II and he was then incorrectly retired on 9 September 2007.  The [retirement] orders were revoked and he continued to serve until 2 October 2009.  He believes he was not considered for promotion due to the erroneous retirement in 2007.

3.  He provides:

* Orders 264-074, issued by The Adjutant General, State of Georgia, Ellenwood, GA, dated 21 September 2007, discharging him from the Army National Guard (ARNG) and assigning him to the Retired Reserve 
* Orders 097-018, issued by the same headquarters, dated 6 April 2008, revoking Orders 264-074
* a DA Form 1059 (Service School Academic Evaluation Report)
* correspondence and documents related to a request for award of the Combat Infantryman Badge he submitted to the Awards and Decorations Branch, Army Human Resources Command


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ARNG on 13 December 1978.

2.  Review of his record shows he was promoted to staff sergeant (SSG)/E-6, effective 11 December 1997.  

3.  On 12 January 2000, he was notified he had completed the required years of service to receive retired pay upon application at age 60.

4.  A DA Form 1059 shows he completed Infantryman BNCOC Phase 2 on 5 May 2007.

5.  On 11 August 2007, he submitted a request to be transferred to the Retired Reserve and the State Retired List, effective 9 September 2007.  He stated his request was due to having over 20 years of qualifying service for retired pay.

6.  On 21 September 2007, The Adjutant General, State of Georgia, Ellenwood, GA, issued Orders 264-074 assigning him to the Retired Reserve and discharging him from the ARNG, effective 9 September 2007.  The orders show he was an SSG/E-6 at the time.

7.  On 6 April 2008, the same authority issued Orders 097-018 revoking Orders 264-074.

8.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows a PEB convened to consider the applicant's case on 18 August 2009.  The PEB considered five diagnoses that had been made by a Medical Evaluation Board (MEB) and recommended his placement on the Temporary Disability Retired List (TDRL) with a 60 percent disability rating percentage based on the MEB's diagnoses of post-traumatic stress disorder and chronic low back pain.  On
24 August 2009 the applicant concurred with the PEB's findings and recommendation and waived a formal hearing of his case.

9.  On 28 August 2009, the U.S. Army Physical Disability Agency, Washington, DC, issued Orders D241-01 placing him on the TDRL effective 2 October 2009 in the retired grade of rank E-6.

10.  On 15 October 2009, the Office of the Adjutant General, State of Georgia Department of Defense, Military Division, Atlanta, GA, issued orders 288-750 honorably discharging him from the ARNG and assigning him to the TDRL 


effective 2 October 2009.  His NGB Form 22 (Report of Separation and Record of Service) shows he completed 28 years of total service for retired pay.

11.  The record is void of documentation and the applicant did not provide any documentation showing he was on a list for promotion to SFC/E-7.

12.  On 29 September 2011, during the processing of this case, the Chief, Personnel Policy Division, National Guard Bureau, provided an advisory opinion.

	a.  The advisory official stated the applicant was discharged upon his request effective 9 September 2007 and his discharge was revoked.  The Georgia Army National Guard stated the discharge was revoked because they were alerted to a possible medical condition that may have been incurred while the applicant was on active duty.  The record indicated the applicant was initially injured in 1996 and the injury was aggravated while in Iraq in 2005 and found to be in the line of duty.  The applicant was subsequently discharged from the ARNG and placed on the TDRL.

	b.  The advisory official opined that the evidence provided by the applicant does not support his concern that he was not considered for promotion to E-7 as a result of his discharge on 9 September 2007.  The advisory official indicated the State concurred with his recommendation.

13.  On 29 September 2011, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comment and/or a rebuttal.  He did not respond.

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 1-20c states per the provisions of Title 10, U.S. Code, section 1372, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list.

15.  Army Regulation 600-8-19, chapter 7, prescribes policies, procedures and systems for promotion of ARNG enlisted Soldiers, except those included in the end strength of the Active Army and who are covered by the Active Army promotion system.  Chapter 7 states, that:

	a.  A Soldier is in a nonpromotable status and will not be selected, promoted, advanced, or appointed to a higher grade when a voluntary retirement application has been approved.
	b.  A Soldier who has an approved retirement will be removed from a promotion list.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show nor has the applicant provided evidence showing his erroneous retirement in 2007 resulted in him being improperly overlooked for promotion to SFC/E-7.

2.  The available records do not show the applicant was on a promotion list when he voluntarily requested transfer to the Retired Reserve in 2007.  Had he been on such a list, he would have been removed from that list when his request to be transferred to the Retired Reserve was approved.

3.  When his transfer to the Retired Reserve was revoked, there may have been justification for restoring his name to the promotion list.  To consider that possibility, however, would require evidence showing he was actually on a promotion list and removed when his request for transfer to the Retired Reserve was approved.

4.  Further, had he been on a promotion list when he was placed on the TDRL, he would have been promoted effective the day before placement on the TDRL.  The record shows he was placed on the TDRL in the retired rank/grade of SSG/E-6.  In the absence of evidence showing otherwise, it must be presumed that he was not on a list for promotion to SFC/E-7 at that time.

5.  While there are scenarios in which he may have been eligible for promotion to SFC/E-7, in the absence of documentation showing he was on a valid promotion list 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 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)                                         AR20100027331



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ABCMR Record of Proceedings (cont)                                         AR20100027331



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