BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100028182 


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 records to show the highest rank and pay grade he held was master sergeant (MSG)/E-8.

2.  The applicant states he was selected for promotion by the 1987 MSG promotion board while he was on active duty.  He was assigned a promotion sequence number of "00068" on the promotion list and should have been promoted on 1 October 1988.  However, after his medical retirement was denied by a medical evaluation board he never received his promotion.  Since his retirement in 1989, he continued to pursue this issue and has been granted 
100-percent disability.

3.  The applicant provides his Department of Veterans Affairs disability rating decision and compensation letter, dated 18 June and 29 June 2010, respectively.

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.  He enlisted in the Army with prior service on 10 June 1963 and was honorably retired on 31 October 1989.  The highest rank and pay grade he held was sergeant first class (SFC)/E-7.

3.  The applicant's medical records were not available for review and the complete facts and circumstances of his discharge are not contained in his official military personnel file.  A review of the available records shows the following:

	a.  He was promoted to SFC on 1 May 1981.

	b.  On 31 January 1985, a Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) determined he should be retained in his primary MOS, 76Y4O (Supply Specialist).

   c.  On 27 July 1988, he requested voluntary retirement.  Item 6 (Highest Grade Served on Active Duty and Branch of Service) of his DA Form 2339 (Application for Retirement) reads, "SFC  E-7  U.S. Army."  
   
   d.  His request for voluntary retirement was approved on 9 August 1988.

	e.  Headquarters, Fort Sam Houston, Orders 10-55, dated 15 January 1988, show his rank as "SFC(P)."

4.  The records do not contain orders promoting him to MSG or documentation showing he appeared before a medical evaluation board or physical evaluation board and was denied a medical retirement.

5.  In connection with the processing of this case, an unfavorable advisory opinion was obtained from the Chief, Enlisted Promotions, U.S. Army Human Resources Command, Fort Knox, KY.  It states that after a review of the available evidence and extensive research there is no evidence to validate the applicant's claim he was selected for promotion to MSG; however, they will concede his claim to be true.  According to the applicant's statement, he should have been promoted on 1 October 1988, but regulatory guidance in effect at the time prescribed that Soldiers promoted to SFC or higher incur a 2-year service 


obligation.  Because he retired on 31 October 1989, he did not satisfy the 2-year service obligation prior to his retirement; therefore, his rank should not be amended.

6.  On 18 April 2011, the advisory opinion was forwarded to the applicant for acknowledgement/rebuttal.  No response was received.

7.  The applicant provides his disability decision rating from the Department of Veterans Affairs which shows he was granted a 100-percent rating for coronary artery disease with congestive heart failure.

8.  Title 10, U.S. Code, section 3961, provides the general rule for retired grade and states that unless entitled to a higher grade under some other provision of the law, a member retires in the grade he holds on the date of his retirement.

9.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 at the time, prescribed the standards for selection for advancement, promotion, and appointment of enlisted Soldiers on active duty.  Paragraph        7-6(p) stated Soldiers were considered to be in a non-promotable status if they had an approved voluntary retirement application.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was denied promotion to MSG after a medical evaluation board denied him medical retirement.

2.  The record shows the applicant was promoted to SFC on 1 May 1981 and later appeared before an MMRB which retained on active duty.  The record contains orders that show his rank as "SFC (P); however, there is no definitive evidence available to support his contention that he was selected for promotion. 

3.  Operating under the presumption that applicant was selected for promotion, regulatory guidance, in effect at the time, stated Soldiers with approved voluntary retirements were considered to be in a non-promotable status.  The evidence shows his voluntary request for retirement was approved on 9 August 1988 which is prior to the date (1 October 1988) he would have been promoted to MSG; therefore, the applicant was ineligible for promotion.

4.  In view of the above, 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 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)                                         AR20100028182



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ABCMR Record of Proceedings (cont)                                         AR20100028182



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