IN THE CASE OF:
BOARD DATE: 8 November 2012
DOCKET NUMBER: AR20120007044
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 his rank be changed to staff sergeant (SSG)/E-6 on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 October 2003.
2. The applicant states:
* at the time of his honorable discharge he was an E-6, but he finished the term with a permanent profile due to service connected injuries
* his service connected injuries basically forced him out of his career
3. The applicant provides no documentary evidence.
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. Having prior active service in the Regular Army and inactive service in the U.S. Army Reserve (USAR) and Army National Guard, the applicant transferred to the USAR on 9 April 1997. On 16 October 2000, he entered active duty in an Active Guard Reserve (AGR) status. He was promoted to sergeant (SGT)/E-5 effective 15 September 2000.
3. Orders, dated 15 January 2003, show he was promoted to SSG/E-6 effective 1 February 2003. These orders state:
a. Soldiers who are promoted automatically incur a 1-year AGR obligation prior to voluntary nondisability retirement.
b. Soldiers accepting this promotion understand that they have 30 days from the effective date of this order to decline the promotion and acceptance of this promotion will subject him or her to worldwide reassignment to a position commensurate with grade and MOS (military occupational specialty). Soldiers accepting a conditional promotion and are subsequently denied enrollment, declared a "No Show," becomes academic failures or otherwise does not meet graduation requirement, will be reduced to the grade and rank held prior to the conditional promotion.
4. Orders, dated 3 October 2003, show he was reduced from SSG/E-6 to SGT/E-5 effective 3 October 2003 under the provisions of Army Regulation 140-158 (Army Reserve/Enlisted Personnel Classification, Promotion, and Reduction), paragraph 7-12d.
5. On 15 October 2003, he was honorably discharged in the rank of SGT/pay grade E-5 for completion of required active service.
6. His DD Form 214 for the period ending 15 October 2003 shows in:
* Item 4a (Grade, Rate or Rank) the entry "SGT"
* Item 4b (Pay Grade) the entry "E5"
* Item 12h (Effective Date of Pay Grade) the entry "2000 09 15"
(15 September 2000)
7. No evidence shows he had a permanent profile due to any medical condition/injury prior to his discharge on 15 October 2003.
8. On 6 November 2003, he underwent a physical examination and was found qualified for service with a physical profile of 111111. He enlisted in the USAR on 6 November 2003 for a period of 6 years in pay grade E-5. On 17 December 2004, he was discharged from the USAR under other than honorable conditions.
9. Army Regulation 140-158, in effect at the time, prescribed policies and procedures pertaining to the classification, promotion, reduction, and grade restoration of enlisted Soldiers of the USAR. Paragraph 7-12d (failure to meet conditional promotion NCOES (Noncommissioned Officer Education System) requirements) of this regulation states that a Soldier who accepts a promotion with the condition that he or she must enroll in, and successfully complete, a specified NCOES course, and fails to meet those conditions, or is subsequently denied enrollment, or becomes an academic failure, or does not meet graduation requirements, or is declared a No-Show, will be reduced to the grade and rank held prior to the conditional promotion.
10. Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
* P - physical capacity or stamina
* U - upper extremities
* L - lower extremities
* H - hearing and ears
* E eyes
* S - psychiatric
11. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he had a permanent profile due to service connected injuries and his service connected injuries forced him out of his career. However, there is no evidence and he provided no evidence to support these contentions. Evidence shows following his honorable discharge on 15 October 2003 for completion of required active service, approximately three weeks later, he underwent a physical examination for enlistment in the USAR on 6 November 2003 and was found qualified for service with a physical profile of 111111.
2. He requests his rank be corrected to show SSG/E-6 on his DD Form 214 for the period ending 15 October 2003.
3. It appears his promotion to SSG was contingent upon him completing a
1-year AGR obligation and a specified NCOES course. His promotion effective date was 1 February 2003. He was honorably discharged from the USAR on
15 October 2003. Therefore, he did not fulfill his promotion obligation to retain the rank of SSG and orders show he was properly reduced to SGT on 3 October 2003. Therefore, there is an insufficient basis for granting the applicant's request.
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) AR20120007044
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ABCMR Record of Proceedings (cont) AR20120007044
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