IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20100028625 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank/grade as staff sergeant (SSG)/
E-6 and his military occupational specialty (MOS) as 11B3O.

2.  The applicant states he served in an SSG position as a sergeant (SGT)/E-5 for 2 years including combat tours.  He passed the promotion board and he should have been promoted in May 2006 prior to his release from active duty.  He states he was honorably discharged for parenthood because he became a single parent; however, the chain of command stopped his promotion as punishment.  He also states the error in his rank caused a miscalculation in the separation pay he received.

3.  The applicant provides:

* a DA Form 2166-8 (NCO (Noncommissioned Officer) Evaluation Report (NCOER)) for the period November 2003 through October 2004
* a Headquarters, 2nd Battalion, 87th Infantry, 3rd Brigade, 10th Mountain Division, Fort Drum, NY, memorandum, subject:  Appointment to the Sergeant/Staff Sergeant Promotion Board for December 2005, dated
15 December 2005 [further referred to as Memorandum I]
* a memorandum by the same headquarters, subject:  Memorandum of Instruction (MOI) for the January 2006 Sergeant/Staff Sergeant Promotion Board, dated 15 December 2005 [further referred to as Memorandum II]
* 
a letter from the Office of the Chief Legislative Liaison, Washington, D.C. to his Member of Congress, dated 14 October 2010
* his DD Form 214

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.  The applicant enlisted in the Regular Army on 16 September 1999.  He was trained in and awarded MOS 11B1O (infantryman).

3.  Orders 294-5, issued by Headquarters, 10th Mountain Division, Fort Drum, dated 21 October 2002, promoted the applicant to SGT with an effective date and date of rank of 1 November 2002.  He was awarded MOS 11B2O in conjunction with this promotion.

4.  His record contains an unsigned copy of Memorandum I, dated 15 December 2005, announcing the appointment of members for the January 2006 SGT/SSG Promotion Board.

5.  His record further contains an unsigned copy of Memorandum II, dated 
15 December 2005, that indicates the applicant was scheduled to appear before the January 2006 SGT/SSG Promotion Board on 17 January 2006.  The promotion board results are not contained in the available record.

6.  The applicant provided his NCOER for the period November 2003 through October 2004. This NCOER shows his principal duty title as Squad Leader with a duty MOS code (MOSC) of 11B3O, indicating he was performing duties at the SSG level.

7.  His record contains an NCOER for the period November 2004 through October 2005 that shows his principal duty title as Team Leader in duty MOSC 11B2O.

8.  His record further contains an NCOER for the period November 2005 through March 2006 (his final active duty report) that shows his principal duty title as Squad Leader in duty MOSC 11B3O.

9.  The applicant was honorably discharged on 18 May 2006 under the provisions of Army Regulation 635-6200, paragraph 5-8, for parenthood.  His 
DD Form 214 shows he was discharged as an SGT and that he had served in the primary specialty of 11B2O for 6 years and 4 months.

10.  Section I (Assignment Information) of the applicant's Enlisted Record Brief (ERB), dated 2 May 2006, shows he had 500 promotion points as of March 2006 toward promotion in MOS 11B3.  His ERB further shows he was under a suspension of favorable personnel actions (flagging action) under flag code "BA" with a flag start date of 27 April 2006.

11.  Army Regulation 600-200 (Enlisted Personnel Management System) provides policy and procedures for career management of Army personnel.  Chapter 2 (Personnel Classification), section VI (Determination and Award of Skill Level (Fourth Character of MOSC) governs determination and award of the fourth character of the MOSC which specifies skill level.  Skill level characters denote the level of skill, training, and experience attained.  A direct relationship exists between rank and skill level as follows:

	a.  1 identifies a private (PVT) through specialist (SPC) or corporal (CPL);

	b.  2 identifies an SGT;

	c.  3 identifies an SSG;

	d.  4 identifies a sergeant first class (SFC); and

	e.  5 identifies a master sergeant (MGT)/first sergeant (1SG) through sergeant major (SGM)/command sergeant major (CSM).

12.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.  Chapter 1 (Introduction), section III (Categories of flags) shows that a BA is a transferable flag for the purpose of reassignment to a transition point and prohibits, among other personnel actions, promotion or reevaluation for promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record does show he served in a squad leader/SSG position during a 5-month period from November 2005 through March 2006.  However, there is no evidence and the applicant did not provide any evidence that he met or exceeded the Department of the Army cutoff score for promotion to SSG prior to his discharge from active duty.  Without official orders showing he was promoted to SSG it would be inappropriate to correct his DD Form 214 to show he was an SSG.  Furthermore, without a promotion to SSG, a correction of his MOSC to 11B3O is not warranted.

2.  Additionally, his ERB shows he was flagged as of 27 April 2006 for unknown reasons.  As such, a flagging action prohibits processing of favorable personnel actions, including promotion.

3.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100028625



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028625



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1