IN THE CASE OF
BOARD DATE: 8 January 2013
DOCKET NUMBER: AR20120002038
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 that the effective date of his promotion to the rank of sergeant be changed to 1 June 2009 with entitlement to all back pay and allowances.
2. The applicant states, in effect, that his promotion to the rank of sergeant was unjustly delayed and while he was promoted to the rank of sergeant on
26 February 2010 he should have been promoted on 1 June 2009 because he performed the duties of a team leader and sergeant while deployed to a combat zone; however, he was not compensated for it. He goes on to state that he requested a change of his date of rank (DOR) and effective date through his chain of command and his DOR was adjusted; however, his effective date was not and he has not been given a straight answer as to why. He further states that it is unjust for him to be penalized because the unit did not submit the appropriate paperwork in a timely manner.
3. The applicant provides a copy of his promotion orders and amendment to the promotion orders and a copy of a letter to his congressional representative.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the New York Army National Guard (NYARNG) on 13 June 2006 for a period of 8 years, training as a military policeman, and a $20,000 enlistment bonus.
2. He was ordered to active duty on 25 June 2009 and deployed to Iraq on
10 August 2009. He was promoted to the rank of sergeant on 26 February 2010 and departed Iraq on 12 June 2010. He was honorably released from active duty on 7 July 2010.
3. On 6 December 2011, in response to a congressional inquiry, the Director of Government Affairs for the State of New York dispatched a letter to the applicants congressional representative which explained that the applicant was promoted to fill a vacancy submitted by the unit on 23 February 2010 and while the promotion should have occurred earlier, there was no record of the unit submitting an earlier request. After coordinating with the applicants chain of command, approval was granted to backdate the DOR but not the effective date as documents were not submitted by his unit to justify changing the effective date.
4. On 28 January 2011, the applicants promotion orders were amended to change his DOR to 1 June 2009.
5. In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau (NGB) which recommends disapproval of the applicants request, essentially because his unit did not submit a request through channels justifying a change of his effective date. The advisory opinion was provided to the applicant for comment and to date, no response has been received by the staff of the Board.
6. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides in paragraph 7-6, for the establishment of retroactive effective dates. It provides, in pertinent part, that cases of Soldiers with situations that occur while governed by Tile 32, U.S. Code will be handled by the States with guidance of the NGB. It further states that the promotion authority will submit a DA Form 4187 through channels with a detailed explanation of the specific reasons for the delay or correction to the next higher promotion authority.
DISCUSSION AND CONCLUSIONS:
1. While the available evidence does not explain why the applicants effective date is different from his DOR, it is apparent that the applicants case has been reviewed by the appropriate promotion authorities who have more detailed knowledge of the applicants case and have determined that a change is not warranted.
2. It is also noted that the authority for making such changes rests with the State promotion authority and the NGB and the State both agree that a change to his effective date of promotion is not warranted and that the applicants unit has not submitted a request for such a change in accordance with the applicable regulation.
3. Therefore, in the absence of evidence to show otherwise , it must be presumed that the applicants DOR and effective date are correct as determined by the applicants promotion authorities and that there is no basis to grant his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X____ ___X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20120002038
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ABCMR Record of Proceedings (cont) AR20120002038
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