IN THE CASE OF:
BOARD DATE: 29 November 2011
DOCKET NUMBER: AR20110007884
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 military records to show he was considered and selected for promotion to the rank/grade of sergeant first class (SFC)/E-7 with retroactive retirement in that grade.
2. The applicant states he was not promoted to SFC because his completion of the Basic Noncommissioned Officer Course (BNCOC) was not posted to his records.
3. The applicant provides:
* a notarized copy of his BNCOC Diploma, dated 9 October 1987
* the Service Computation Data and General Administrative Data portions of his Official Military Personnel File (OMPF) microfiche
* approximately 175 pages of documents from his OMPF
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's military records show:
a. he served on active duty from May 1971 to June 1973;
b. he served in the U.S. Army Reserve (USAR) from June to September 1973;
c. he served on active duty from September 1973 to September 1977;
d. he served in the USAR from July 1977 to June 1978; and
e. he served In the USAR from June 1978 to January 1979.
3. On 30 January 1979, the applicant enlisted in the Regular Army in the rank/grade of specialist four (SP4)/E-4.
4. On 1 June 1981, the applicant was promoted to sergeant (SGT)/E-5.
5. On 3 December 1983, the applicant was promoted to staff sergeant (SSG)/
E-6.
6. A DA Form 1059 (Service School Academic Evaluation Report (AER)), dated
8 October 1987, shows the applicant attended the resident BNCOC at the Military Police School from 12 August through 9 October 1987. He achieved the course standards and he was declared a graduate of the course.
7. Review of the applicant's OMPF shows the AER discussed in the previous paragraph was filed in the performance section of his fiche. This AER is placed between his Enlisted Evaluation Reports (EER) for the period ending November 1986 and November 1987.
8. The applicant's DA Form 2-1 (Personnel Qualification Record (PQR) - Part II), prepared on 2 March 1989 and last reviewed by the applicant on 14 May 1992, shows in:
a. Item 17 (Civilian Education and Military Schools) he completed the 8-week BNCOC at Fort McClellan, AL in 1987; and
b. Item 27 (Remarks) a copy of his PQR was forwarded for the E-7 selection board on 7 August 1991.
9. On 31 January 1993, the applicant retired due to length of service. He had attained the rank/grade of SSG/E-6. He completed 20 years and 10 days of creditable active service.
10. On 11 May 2009, a DD Form 215 (Correction to DD Form 214) corrected the applicant's DD Form 214 (Certificate of Release or Discharge) for the period ending 31 January 1993 to add in Item 14 (Military Education) an entry showing he completed the 8-week BNCOC in October 1987.
11. The legal "Doctrine of Laches" bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the opposing party.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected to show he was considered and selected for promotion to SFC/E-7 and to retroactively retire him in that grade because his diploma for completion of BNCOC was not filed in his OMPF.
2. The available evidence of record shows:
a. the applicant's records were posted in a timely manner with a copy of his AER showing his successful completion of BNCOC in October 1987;
b. the PQR was forwarded to at least one promotion board for consideration to SFC; and
c. he last reviewed his PQR on 14 May 1992 which contains the entry pertaining to his BNCOC completion in 1987 that his PQR was forwarded to the E-7 selection board on 7 August 1991.
3. It has been over 18 years since the applicant's retirement for length of service. Available records are inadequate to confirm or deny the applicant's contention that he was denied proper promotion consideration. Regrettably, due to the passage of time pertinent information has been lost or destroyed; therefore, favorable consideration of the applicant's request is barred by the doctrine of laches.
4. In view of the above, there is an insufficient evidentiary 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) AR20110007884
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20110007884
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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