IN THE CASE OF:	  

		BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  20110017537 


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 he was promoted to the rank/grade of sergeant (SGT)/E-5 prior to placement on the Temporary Disability Retired List (TDRL).

2.  The applicant states, in effect, he served 1 year in pay grade E-5 and he reenlisted in pay grade E-5.  After he was involved in a negative incident he was demoted and promised he would regain his rank.  He received two Army Good Conduct Medals and an Army Achievement Medal after the incident.  He further states he has been overlooked for promotion due to injuries sustained in combat, an inability to take the Army physical fitness test and weapons qualification testing due to being on a physical profile, and for being non-deployable.  He further claims he was listed on the promotion roster in 2009 for automatic promotion to the rank of SGT/E-5 and he was denied automatic promotion by the sergeant major due to non-deployable status.  

3.  The applicant provides:

* a self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlisted Record Brief
* Promotion Point Worksheet Developmental/Self-Assessment Tool
* DA Form 199 (Physical Examination Board Proceedings)
* Honorable Discharge Certificate
* 2 DA Forms 2166-8 (Noncommissioned Officer Evaluation Report)
* DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States)
* DA Form 705 (Army Physical Fitness Test Scorecard)
* DA Form 5790-R (Record Firing Scorecard * Scaled Target Alternate Course)
* 5-page Summary of Events

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) on          20 February 2003.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Infantryman).  He was promoted to the rank/grade of SGT/E-5 on 1 November 2006 and reenlisted in the RA for 4 years on 2 February 2007 in the rank/grade of        SGT/E-5.

2.  The applicant's records also show he served in Iraq from 27 April to 27 July 2004 and from 1 November 2006 to 31 July 2007 in support of Operation Iraqi Freedom.

3.  His records further show he was awarded the Iraq Campaign Medal with two bronze service stars, Army Commendation Medal (2nd Award), Army Achievement Medal, Army Good Conduct Medal (2nd Award), National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Military Outstanding Volunteer Service Medal, and the Combat Infantryman Badge.

4.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) which shows he received nonjudicial punishment for wrongfully using marijuana between on or about 6 August and 
6 September 2008.  As part of his punishment, the applicant was reduced to the rank/grade of specialist (SPC)/E-4 on 9 December 2008. 

5.  His DD Form 214 shows he was honorably retired in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of temporary physical disability on  15 November 2011.  It further shows he completed 8 years, 8 months, and        26 days of creditable active service during this period.

6.  The applicant's record is void of any evidence and he did not provide any evidence which shows he appeared before a board for consideration of promotion to the rank/grade of SGT/E-5 at any time during his service following his reduction in rank or that he was in a promotable status at the time he was retired and placed on the TDRL.

7.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 3-17 states, in pertinent part, that each month, Active Army Soldiers in all MOSs who meet the following criteria will be automatically integrated onto the SGT and staff sergeant promotion standing lists, provided they are otherwise eligible for promotion consideration despite lacking the actual promotion board appearance.  For promotion to SGT:

	a.  46 months time in grade (TIG) (to become eligible for promotion at
48 months).

	b.  10 months TIG (to become eligible for promotion at 12 months).

	c.  Otherwise not ineligible in accordance with this regulation.

	d.  Not otherwise denied by the commander.

	e.  Soldier must have a minimum of 90 days remaining service as of the 
month of integration onto the recommended list. 

8.  Army Regulation 600-8-19 states, per the provisions of 10 USC 1372, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows the applicant was reduced from the rank/grade of SGT/E-5 to SPC/E-4 on 9 December 2008.  The applicant retired from active duty on 15 November 2011 and he was placed on the TDRL in the rank of SPC/E-4.

2.  Although it appears the applicant may have been eligible for consideration for automatic promotion standing list integration to the rank of SGT/E-5 there is no evidence his commander approved his name for integration to the list.  The applicant claims to have been on a promotion roster for automatic promotion to the rank SGT/E-5 in 2009; however, there is no evidence in his record nor did the applicant provide evidence to substantiate this claim.  


3.  The applicant's record is also void of any evidence and he did not provide any evidence which shows he appeared before a board for consideration of promotion to the rank of SGT/E-5 at any time following his reduction to SPC/E-4 or that he was in a promotable status to the rank of SGT/E-5 at the time he was retired and placed on the TDRL.  

4.  The evidence does not show the applicant was on a promotion list when he was placed on the TDRL.  By law and regulation he is not entitled to be promoted to the rank of SGT/E-5 the day prior to being placed on the TDRL.  Therefore, he is not entitled to correction of his record to show he was promoted to SGT/E-5.  Accordingly, there is no basis for granting the requested relief at this time.

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)                                         AR20110017537



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ABCMR Record of Proceedings (cont)                                         AR20110017537



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