IN THE CASE OF:	  

		BOARD DATE:  24 May 2012

		DOCKET NUMBER:  AR20110020074 


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 the records of her late spouse, a former service member (FSM), be corrected to show he was promoted to sergeant first class (SFC)/E-7.

2.  The applicant states:

	a.  the local medical facility commander failed to review the FSM's military record; and

   b.  the FSM would have been promoted if proper procedures were followed.
   
3.  The applicant provides:

* DA Form 2-1 (Personnel Qualification Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Death
* Retirement Order
* Multiple medical record documents
* Cornell University Law School Internet document extract (2 pages)
* Army Regulation 600-8-19 (Enlisted Promotions and Reductions) (page 7 only)

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 FSM's military record shows he enlisted in the Regular Army on 8 June 1977.  He was trained in and awarded military occupational specialties (MOS) 75B (Personnel Administration Specialist) and 11C (Indirect Fire Infantryman).

3.  Part II of his DA Form 2-1 shows he was promoted to the rank of staff sergeant (SSG) on 4 November 1988 in item 18 (Appointments and Reductions).  Item 27 (Remarks) shows a copy of this document was sent to the Department of the Army for promotion consideration to SFC/E-7 by the promotion selection board on 23 July 1990.

4.  His record is void of any information regarding his promotion consideration and/or non-selection.  His record is also void of any documents showing he was ever promoted beyond the rank of SSG/E-6.

5.  The FSM's official military personnel file contains a DA Form 2A (Personnel Qualification Record - Part I) dated 20 November 1990.  Section II (Qualification Data) contains a blank in item 15 (Promotion Indicator) and item 21 (Promotion/Progression MOS).

6.  On 31 December 1990, the U.S. Army Total Army Personnel Command (currently known as Army Human Resources Command (HRC)) published Orders D253-1, directing the FSM's release from active duty by reason of physical disability at a rate of 100 percent (%).

7.  On 31 December 1990, the FSM was retired in the rank of SSG/E-6 after completing 13 years, 6 months, and 23 days of active military service.

8.  The applicant provides a Certificate of Death which shows the FSM died on 18 February 1991.
9.  During the processing of this case an advisory opinion was obtained from the Chief, Enlisted Career Systems Division, Office of the Deputy Chief of Staff, G-1). The G1 provides:

	a.  Army Regulations in effect at the time of the FSM's death provided for promotion of critically ill Soldiers who were formally selected for promotion by a DA promotion selection board.  The conditions required that the Soldier's hospitalization be caused by disease or injury received in the line of duty, and that the terminal illness be verified by a medical facility commander, with the Soldier having a life expectancy of 12 months or less.

	b.  The information provided did not show the FSM was in a promotable status at the time of his discharge and his promotion records are unavailable for that time period.  Based on their review of the applicant's request, administrative relief cannot be granted.

10.  On 8 March 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  No response was received.

11.  Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time, prescribed the policies for the management of enlisted personnel of the Army which included promotions and reductions.

   a.  Paragraph 1-19 provided guidance on promoting terminally ill Soldiers.  It stated Soldiers in grades SSG, SFC, or master sergeant (MSG) who have been selected for promotion by a promotion selection board will be promoted by HRC or a Regional Readiness Command/U.S. Army Reserve General Officer Command.

   b.  Chapter 7, section IV, provided guidance on selection to pay grades E-7, E-8, and E-9.  It stated selections of Department of the Army (DA) boards would be based on impartial consideration of all eligible Soldiers in the announced zone.  Selections would be made by career management field (CMF) for E-8 and E-9 and MOS for E-7 and boards would select the best qualified in each CMF/MOS.  It further stated boards would recommend a specified number of Soldiers by CMF for E-8/E-9 and by MOS for E-7 from the zones of consideration who were the best qualified to meet the needs of the Army.  The total number that could be selected in each CMF or MOS would be the projected number the Army needed to maintain its authorized strength by grade at any given time.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim that the FSM should have been promoted to SFC/E-7 based on his terminal illness was carefully considered.  However, by regulation, terminally ill Soldiers in the grades of SSG, SFC, or MSG who have been selected for promotion by a promotion selection board will be promoted.

2.  The evidence of record failed to show the FSM was ever selected for promotion to SFC/E-7 during his tenure on active duty and/or prior to his retirement from active duty.  As a result, there is an insufficient evidentiary basis upon which to grant the applicant's request.

3.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM’s service in arms.

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)                                         AR20110020074





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ABCMR Record of Proceedings (cont)                                         AR20110020074



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