IN THE CASE OF:	  

		BOARD DATE:  18 July 2013

		DOCKET NUMBER:  AR20120021362 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was promoted to the rank/grade of sergeant (SGT)/E-5.

2.  The applicant states First Sergeant NP (retired) of Headquarters and Headquarters Company (HHC), 1st Battalion, 130th Aviation, told him in a telephone conversation that if he would transfer from the 732nd Maintenance Company to HHC, 1st Battalion, 130th Aviation, he would be promoted to SGT/
E-5.  He upheld his part of the agreement by transferring to HHC, 1st Battalion, 130th Aviation, and he deployed to Afghanistan with that unit from January 2003 to May 2004.  However, he claims he was discriminated against because another Soldier with less time in service and time in grade was promoted to SGT instead of him.

3.  The applicant provides a self-authored statement and his DD Form 214 for the period ending 3 June 2004.

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.  On 24 July 2001, with more than 10 years of prior military service, the applicant enlisted in the North Carolina Army National Guard (NCARNG) in the rank/grade of specialist (SPC)/E-4 for a period of 1 year.  He extended his enlistment for a period of 3 years.  On 25 March 2005, he reenlisted in the NCARNG as an SPC/E-4 for a period of 3 years.  The highest rank he attained during his military service was SPC/E-4.

3.  Orders 013-805, issued by the State of North Carolina, Office of the Adjutant General, dated 13 January 2003, transferred him from a cook position in the 732nd Maintenance Company to a cook position in HHC, 1st Battalion, 130th Aviation, effective 13 January 2003.  The authorized rank/grade of the position into which he transferred is unknown.

4.  On 21 January 2003, he was ordered to active duty in support of Operation Enduring Freedom.  On 3 June 2004, he was honorably released from active duty at the completion of required active duty in the rank/grade of SPC/E-4 and he was transferred back to his NCARNG unit.

5.  On 16 May 2005, while assigned to a field artillery unit in North Carolina, he was ordered to active duty in support of Operation Iraqi Freedom.  On 29 July 2005, he was honorably released from active duty in the rank/grade of SPC/E-4 and he was reverted to the NCARNG.

6.  His record does not show he attended or completed the Primary Leadership Development Course (PLDC).

7.  On 31 October 2006, he was transferred to the Retired Reserve in the rank/grade of SPC/E-4 with more than 18 years of qualifying service for retired pay due to medical unfitness for retention.

8.  National Guard Regulation 600-200 (Enlisted Personnel Management), in effect at the time, prescribed policies and procedures governing promotion and reduction of ARNG enlisted personnel.  It states the ARNG of the United States 


(ARNGUS) promotion selection process establishes the means to consider all eligible Soldiers and to select the best qualified Soldiers for promotion.  To be considered for promotion a Soldier must meet specific criteria to include being in a promotable status and completion of requisite Noncommissioned Officer Education System courses.  For promotion to SGT/E-5 and above a Soldier must also be evaluated by a promotion selection board.  Promotions will only be made against a current vacancy to which the Soldier is or will be assigned and for which the Soldier is military occupational specialty qualified.  SPC's without PLDC credit who are otherwise eligible are promotable to SGT after they complete PLDC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was promised promotion to SGT and that he was discriminated against because another Soldier with less time in grade and service was promoted instead of him were carefully considered.

2.  There is no evidence he was promised a promotion to SGT.  However, even if he was this would not be a basis for granting him a promotion to SGT.  Furthermore, the established promotion process is based on selection for promotion of the best qualified Soldier, not on longevity.  Therefore, there is no evidence of discrimination in this regard.

3.  In the absence of evidence to show the applicant met the criteria for selection board consideration for promotion to SGT, that he was selected by a board for promotion to SGT, and that there was a vacancy against which he could have been promoted had he been recommended by a promotion selection board, there is no basis for correcting his record to show he was promoted to SGT.

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)                                         AR20120021362



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ABCMR Record of Proceedings (cont)                                         AR20120021362



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