IN THE CASE OF:
BOARD DATE: 1 May 2012
DOCKET NUMBER: AR20110021322
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 reinstatement of his rank to staff sergeant/E-6 (SSG/E-6).
2. The applicant states he was demoted from the rank of SSG/E-6 to the rank of sergeant/E-5 (SGT/E-5) after 4 years because of a conditional promotion. He states the Noncommissioned Officer Education System (NCOES) requirement for promotion to SSG/E-6 is completion of the Primary Leadership Development Course (PLDC) or Warrior Leaders Course (WLC) which he completed in 1994.
3. The applicant provides a DA Form 1059 (Academic Evaluation Report) in support of his application.
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 record shows the applicant served in the Regular Army from 9 May 1984 through 24 March 1987 and U.S. Army Reserve (USAR) from 25 March 1987 through 9 May 1989, and after a break in service from 10 May 1989 through 22 June 1991, he enlisted in the USAR and has continuously served in that status through the present.
3. The applicants Official Military Personnel File (OMPF) contains a DA Form 1059 that shows he successfully completed PLDC on 10 September 1994.
4. On 3 November 1998, the applicant was conditionally promoted to SSG/E-6 contingent on enrolling in the Basic Noncommissioned Officer Course (BNCOC) within 12 months and completing the course within 24 months.
5. The applicants OMPF is void of any documents indicating he ever enrolled in completed BNCOC.
6. On 10 July 2002, the applicant was reduced from SSG/E-6 to SGT/E-5 under the authority of paragraph 7-12d-g, Army Regulation 140-158.
7. In connection with the processing of this case an advisory opinion was obtained from the Chief, Personnel Management Division, U.S. Army Reserve Command (USARC). This official recommends disapproval of the applicants request to be reinstated to the rank of SSG/E-6. He states the applicant was conditionally promoted to SSG/E-6 effective 3 November 1998, and in accordance with the governing regulation conditional promotions require Soldiers to enroll in BNCOC within 12 months of the conditional promotion and to complete all phases of the course within 24 months of the Phase 1 completion date. In the applicants case, his record indicates he never enrolled in the required course and therefore was reduced to the rank of SGT/E-5.
8. On 6 January 2012, the applicant was provided a copy of the USARC advisory opinion in order to have the opportunity to respond to or rebut its contents. To date, he has failed to reply.
9. Army Regulation 140-158 (Enlisted Promotions and Reductions) prescribed the enlisted promotion and reduction policy for USAR Soldiers in effect at the time. Paragraph 7-12 provided guidance on publishing reduction orders. Chapter 8 contains guidance on promotions and the NCOES. Paragraph 8-2 identified the NCOES course requirement for promotion and stated the requirement for promotion to SSG/E-6 was completion of BNCOC.
DISCUSSION AND CONCLUSIONS:
1. The applicants request that his rank of SSG/E-6 be reinstated because the current requirement for promotion to SSG/E-6 is completion of WLC/PLDC has been carefully considered. However, there is insufficient evidence to support this claim.
2. The evidence of record confirms the applicants promotion to SSG/E-6 was conditional and contingent on his completion of BNCOC, which was the NCOES education requirement necessary to qualify for promotion to SSG/E-6 in effect at the time. It further confirms the applicant never enrolled in or completed this required course. As a result, as confirmed by the USARC advisory opinion, his reduction to SGT/E-5 was appropriate based on his failure to meet the NCOES education requirement upon which his conditional promotion was based.
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) AR20110021322
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ABCMR Record of Proceedings (cont) AR20110021322
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