IN THE CASE OF:
BOARD DATE: 31 May 2011
DOCKET NUMBER: AR20100028646
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, in effect, that his records be corrected to show he retired as a staff sergeant (SSG).
2. The applicant states he was reduced from SSG to sergeant (SGT) because he did not have a high school diploma or general education development (GED) certificate. He was promoted and performed his duties well as a SSG. There was no reason for the reduction. The Army was aware when he enlisted that he didn't have a high school diploma or GED certificate.
3. The applicant provides copies of his summary of retired pay computation, Physical Profile Board Proceedings, and retirement orders.
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 applicants 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 applicants 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 5 September 1972. He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).
3. His DA Form 2-1 (Personnel Qualification Record - Part II) shows in:
a. item 17 (Civilian Education and Military Schools) that he attended high school for 2 years ending in 1974. He did not complete high school.
b. item 18 (Appointments and Reductions) that he was promoted to SGT effective 31 December 1974, and to SSG effective 15 February 1980. The promotion entry for SSG is lined through. There is no available evidence showing when the SSG promotion entry was lined through.
4. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was retired due to physical disability effective 25 June 1985 as a sergeant (SGT)/E-5.
5. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, states in paragraph:
a. 7-15. Eligibility and selection criteria. Normal requirements necessary to establish an individual's eligibility for promotion under this section are set forth below. However, the promotion authority may waive any two of the requirements indicated below as waivable for personnel who are otherwise highly qualified
for promotion. This waiver provision will be used to permit promotion consideration of individuals who demonstrate an outstanding level of performance.
b. 7-15a(9) Education:
(1) Completion of eighth grade or GED equivalent for promotion to pay grade E-5.
(2) Have high school diploma or GED equivalent for promotion to pay grades above pay grade E-5. WAIVER: Waiver not granted.
DISCUSSION AND CONCLUSIONS:
1. The applicant had not completed high school when he enlisted in the Army. There is no available evidence to show he completed high school or a GED during his over 12 years of service.
2. He was not eligible for promotion to SSG because he lacked the educational qualification and that lack of qualification was not waivable. The promotion was erroneous and had to be revoked.
3. In view of the foregoing, there is insufficient evidence to grant 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) AR20100017538
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