IN THE CASE OF:	  

		BOARD DATE:  27 August 2013

		DOCKET NUMBER:  AR20120020344 


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 promotion consideration to the rank/pay grade of master sergeant (MSG)/E-8.  He also requests an earlier promotion effective date of 1991 for the rank/grade of sergeant first class (SFC)/E-7.

2.  The applicant states:

* he was informed to maintain membership within his unit upon accepting a military technician (MT) position on 14 October 1984
* he was promoted to the rank/grade of SFC/E-7 upon his return from Operation Desert Storm
* his promotion orders were revoked because the promotion was in another unit
* he was later informed that an MT could be promoted in any unit within the same major command
* his original promotion orders should stand and he questions whether he should be considered for promotion to the rank/grade of MSG/E-8
* he served honorably and met all the qualifications for promotion
* when his unit of assignment inactivated in February 1997, the 83d U.S. Army Reserve Command (ARCOM) was not able to locate a unit with his military occupational specialty (MOS) within a reasonable commuting distance and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired)
* the misinterpretation of policy regarding his MT assignment requirement prevented him from being promoted and reaching his full potential in the U.S. Army
* his records should be reviewed and he should be considered for promotion based on time in grade, time in service, and meeting all the requirements for promotion to the rank/grade of MSG/E-8

3.  The applicant provides:

* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* data printout from the U.S. Army Human Resources Command (HRC) Total Army Personnel Database-Reserve
* Permanent Orders F-029-04 issued by Headquarters, U.S. Army Reserve Command (USARC), Atlanta, GA, dated 29 January 1997
* Orders 97B-094-07 issued by Headquarters, 88th Regional Support Command, Fort Snelling, MN, dated 4 April 1997
* memorandum from the Recruiting and Retention Manager, 88th Regional Support Command, dated 7 February 1997
* Orders 55-004 issued by the 83d ARCOM, dated 24 February 1995
* HRC Integrated Web Services database printout
* DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period November 1995 through September 1996
* USAR Personnel Center Form 249-2-E (Chronological Statement of Retirement Points), dated 11 February 1997
* Department of the Army-Reserve Components Form 249-1-R (Request for Correction of Chronological Statement of Retirement Points for USAR Troop Program Members)
* DA Form 4187 (Personnel Action), dated 28 March 1997

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 applicant enlisted in the USAR Delayed Enlistment Program on 6 October 1976 and was honorably discharged on 8 November 1976 for immediate enlistment in the Regular Army.  On 9 November 1976, he enlisted in the Regular Army for a 3-year period.  He completed training and was awarded MOS 72E (Communications Center Specialist) and 71L (Administrative Specialist).

3.  On 11 June 1982, the applicant was honorably released from active duty and transferred to the USAR Control Group (Reinforcement).

4.  On 27 January 1983, the applicant enlisted in the USAR following a break in service.

5.  Orders 55-004, Headquarters, 83d ARCOM, dated 24 February 1995, show:

* the applicant was promoted to the rank/grade of SFC/E-7 effective 13 March 1995
* he was awarded primary MOS 71L
* he was relieved from assignment to the 350th Combat Support Hospital, Canton, OH, and assigned to Headquarters, 83d ARCOM, Columbus, OH
* his promotion would not be valid and would be revoked if he was not in a promotable status on the effective date of promotion

6.  Permanent Orders F-029-04, Headquarters, USARC, dated 29 January 1997, show:

* the U.S. Army Element, U.S. Commander in Chief, U.S. Atlantic Command (unit identification code W7TDAA), 4H, Schaffner USAR Center, Akron, OH, was inactivated effective 15 February 1997
* personnel assets made available through this inactivation would be reassigned locally to the maximum extent possible, others would be reassigned in accordance with regulatory guidance

7.  On 4 March 1997, the applicant submitted a DA Form 4187 requesting transfer to the Retired Reserve with special separation pay due to the inactivation of his unit.  His request was approved on 28 March 1997.

8.  Orders 97B-094-07, Headquarters, 88th Regional Support Command, Fort Snelling, MN, dated 4 April 1997, assigned the applicant to the Retired Reserve effective 28 March 1997 due to unit inactivation.

9.  On 22 March 2013, an advisory opinion was obtained from the Chief, Personnel Management Division, Headquarters, USARC.  The advisory official recommended disapproval of the applicant's request.  She stated that USARC records indicate the applicant was eligible for promotion consideration prior to his retirement; however, no vacancies within his MOS, geographical area, and condition of employment were available as indicated in his application.  The applicant also contends that he was promoted at an earlier time, but the promotion orders were later revoked as the position was outside his condition of employment.  However, no promotion orders were presented as substantiating documents or are contained in his interactive Personnel Electronic Records Management System to support his claim of this promotion.

10.  The advisory opinion was provided to the applicant for comment and he stated the following in response:

	a.  He was unable to locate a copy of his 1991 promotion orders to SFC.

	b.  He was held to one set of rules which required him to maintain membership in the same unit while the policy allowed MT's to be assigned to any unit under the command and control of the 83d ARCOM.

	c.  Upon accepting his MT position on 14 October 1984, he was held to this standard, but he was promoted to SFC and transferred to the 83d ARCOM in 1995.  After reviewing the MT troop program unit (TPU) assignments more closely, the command started promoting MT's to other units under command and control of the MT assignment.

	d.  He was a sergeant with a date of rank of September 1980 when he left active duty on 12 June 1982.  He held three MOS's when he accepted the MT position; however, the unit had none of these MOS's.

	e.  He was promoted to staff sergeant on 7 March 1987 and the same issues arose regarding consideration for promotion to SFC.  He had to enroll for training in another MOS and submit a promotion packet for that MOS.

	f.  Upon completing the MOS 31U (Signal Support Systems Specialist) course, another Soldier was promoted into the position.  He was the Soldier with five MOS's, but no positions were available in the unit.

	g.  He understands no promotion is guaranteed, but he strongly believes having five MOS's, serving 6 years of active duty, completing a deployment, receiving numerous awards, and meeting all NCO Education System requirements, his career and promotion timelines were on track to reach MSG or sergeant major before his retirement.

11.  Army Regulation 140-158 (Army Reserve – Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, prescribed policy and procedures governing the classification, advancement, promotion, reduction, and grade restoration of applicable USAR Soldiers.  This regulation stated to be eligible for promotion consideration to MSG, Soldiers must have a minimum of 24 months of time in grade as an SFC.  Soldiers recommended for promotion were placed on a list by promotion sequence number.  Additionally, Soldiers accepting promotion to SFC and above must have voluntarily agreed to serve at least 12 months in the duty position before voluntary reassignment to another TPU.

12.  Title 10, U.S. Code, section 10216(d), states an MT (dual status) is required to maintain membership in the Selected Reserve as a condition of employment and shall be required to maintain membership in the unit of the Selected Reserve by which the individual is employed as an MT as a condition of employment or a unit of the Selected Reserve that the individual is employed as an MT to support.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for an earlier promotion effective date of 1991 for the rank/grade of SFC/E-7 and promotion consideration to the rank/pay grade of MSG/E-8 were carefully considered.

2.  Although the applicant contends he was promoted to SFC prior to 1995, his records are void of such promotion orders and he does not provide a copy.

3.  The applicant was eligible for promotion consideration to MSG prior to his retirement; however, his unit was inactivated and there were no vacancies in his MOS in his desired geographical area and his condition of employment.  Further, he elected transfer to the Retired Reserve with special separation pay due to his unit's inactivation.  As a result, there was no longer any basis for considering him for promotion to MSG.  There is no evidence of error or inequity that would warrant retroactively considering him for promotion to MSG.

4.  In view of the foregoing, there is no 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 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)                                         AR20120020344



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120020344



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1