IN THE CASE OF:	  

		BOARD DATE:	    29 September 2011

		DOCKET NUMBER:  AR20110004845 


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, correction of his record to show the highest rank that he held was sergeant first class (SFC)/E-7.

2.  The applicant states, in effect:

* Public Law 230, Title 10, and Section 3964 entitle him to promotion to SFC
* The "P" shown in item 13 (Primary Specialty Number, Title and Date Awarded) of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) indicates he was promotable 

3.  The applicant provides a self-authored statement and numerous documents which are listed on his application and are listed on a two-page table of contents titled "Supporting Evidence." 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 available evidence shows the applicant served in the:

* Regular Army (RA) from 5 October 1979 to 30 September 1983
* Army National Guard (ARNG) from 1 October 1983 to 3 October 1985
* U.S. Army Reserve (USAR) from 16 May 1986 to 8 July 1993
* ARNG from 1 July 1994 to 30 June 1995
* USAR from 1 July 1995 to 12 August 2000
* USAR (on active duty in an Active Guard Reserve (AGR) status) from     13 August 2000 to 30 August 2002
* ARNG from 31 August 2004 to 16 February 2006 (Transferred to Retired Reserve)

3.  A review of his military personnel records show the highest rank/grade he held was staff sergeant (SSG)/E-6.

4.  The applicant's records do not show he was recommended for promotion or that a vacancy existed for the higher grade or that promotion orders were published to promote him to SFC/E-7.

5.  Headquarters, Massachusetts National Guard, Office of The Adjutant General, Milford, MA, memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 22 September 2005, shows he was notified he had completed the required years of service and he was eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, Section 12731.

6.  The applicant's NGB Form 22 shows he enlisted on 31 August 2004, he was honorably separated on 16 February 2006 under the provisions of National Guard Regulation 600-200, paragraph 8-26j(1), with a narrative reason of "medically unfit for retention," and transferred to the USAR Retired Reserve.  

7.  At the time of separation he held the rank/grade of SSG/E-6.  Item 13 of his NGB 22 shows the entry "(P) 63B3O LT WV MECH 040831//NOTHING FOLLOWS."  



8.  The applicant provides copies of personal documents, identification cards, civilian education transcripts, military training certificates, award orders, letters of commendation, letters of appreciation, discharge documents, pay documents, and medical information.  None of these documents indicate he was selected for promotion, that he held the rank of SFC, or that he was promoted to SFC.

9.  In his self-authored statement the applicant contends he should be advanced on the retired list to the highest grade held satisfactorily while on active duty, under the provisions of Title 10, USC, Section 3964.  He argues two points:

   a.  In effect, at the time of his last active duty assignment, post-11 September 2001, his chain of command was mobilized to Schenectady, NY.  He was assigned to the 962nd Ordnance Company in Schenectady and he was responsible for movement of all equipment and vehicles from Schenectady, Plattsburgh, Malone, Fort Totten, and Central New York which included Northeastern New Jersey to Ground Zero.  He was a staff sergeant (SSG) but he performed the duties of an SFC.  In preparation for the promotion board he took a photograph and went to the SFC board.  He was not informed of the "Reduction in Force of the grade until after being discharged of his duties."  
   
   b.  He was transferred to the Retired Reserve with a terminal date of Reserve/Military Service Obligation through 30 August 2010. 

10.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), then in effect, provides for the promotion and reduction of Army Reserve enlisted personnel.  Chapter 4 describes the promotion policies for Soldiers serving in an AGR status and provides that promotion to Staff Sergeant and above will be made through the centralized process against existing or projected vacancies and announced by the Commander, PERSCOM in official orders.  

11.  Title 10, USC, Section 3964, higher grade after 30 years of service:  Warrant officers and enlisted: 

   a.  Each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.
   
   b.  This section applies to:
   
* Warrant Officers of the Army
* Enlisted members of the Regular Army
* Reserve enlisted members of the Army who, at the time of retirement,
are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty)

12.  National Guard Regulation 600-200 (Enlisted Personnel Management) states to prepare an NGB Form 22 for every Soldier being separated from the ARNG or released from the custody and control of the military.  It states to enter in block 13 the primary, secondary, and additional military occupational specialty (MOS), Title Number, and date awarded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be promoted to SFC/E-7 under the provisions of Title 10, USC, Section 3964.  However, this public law does not apply in retirement for nonregular service (Reserve retirement) cases when the retiree was not on active duty (or, in the case of members of the National Guard, when the retiree was not on full-time National Guard duty) at the time of retirement.

2.  At the time of his transfer to the Retired Reserve, on 16 February 2006, he held the rank of SSG/E-6.  His record is void of any evidence to show he was selected by a centralized promotion board for promotion to SFC/E-7, or that a he was selected to fill a vacancy in the higher grade.  

3.  His NGB Form 22 shows the entry "(P) 63B3O" in block 13 and the applicant contends the "P" indicates he was promotable.  Regulatory guidance states to enter the Soldier's primary MOS in block 13 of the NGB Form 22.  Therefore, the "P" indicates that 63B3O was his Primary MOS and not that he was promotable.

4.  His post-service achievements, military awards, education, and letters of recommendation were noted.  However, promotions of enlisted personnel to grade of Staff Sergeant and above are announced in orders.  In the absence of such orders and/or the authority for this promotion, these documents are insufficient evidence to grant relief.  

5.  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 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)                                         AR20110004845



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ABCMR Record of Proceedings (cont)                                         AR20110004845



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