IN THE CASE OF:	  

		BOARD DATE:	  20 August 2013

		DOCKET NUMBER:  AR20120021947 


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, his promotion to sergeant first class (SFC) based on Order Number 226-40, dated 14 August 2006, be reinstated.  

2.  He states:

	a.  he believes his failure to make the 2005 SFC promotion due to lack of performance is discrimination from the S-1 rear detachment.

	b.  he was a little bitter after his retirement from the Army because of the promotion scenario.  Army Knowledge Online (AKO) announced a message of his promotion, but the Personnel Services Battalion rescinded it so he would not have to repay the military years later because he was mistakenly promoted.

	c.  he asked the Retirement Services Officer about what course of action he should take and was told there was nothing he could do.

	d.  he had approved retirement orders and should have never gotten promoted, but it happened.  This mistake has given him grief over the years and it has always been on his mind.  

	e.  he has been a full-time student since 2007 and graduated in 2008 with an Associate's degree.  In 2010, he enrolled in college with dual majors in Business Administration and Anthropology and finished all requirements (except submitting a paper) for a Masters of Business Administration in 2011.

3.  He provides:

* Two self-authored statements
* Congressional correspondence
* Soldier Deployment History Out-processing Report
* Reassignment and retirement orders
* Five DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* Two DA Forms 638 (Recommendation for Award)
* Two congratulatory letters
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlisted Record Brief
* Promotion orders

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 Regular Army on 10 September 1986 and continued to serve on active duty through a series of reenlistments.  He was promoted to staff sergeant (SSG) with an effective date and date of rank (DOR) of 1 June 2001.  

3.  He served in Iraq from 18 September 2004 to 31 October 2005.  

4.  He provided five NCOERs for the periods ending November 2002, November 2003, August 2004, March 2005, and March 2006 which show he was consistently rated as "Among the Best" by his rating officials.  

5.  On an unknown date, he voluntarily applied for retirement from active duty.  His retirement packet is not available.  

6.  Orders 289-0804, dated 16 October 2005, published by Headquarters, I Corps and Fort Lewis released him from active duty effective 30 September 2006 and placed him on the retired list in the rank of SSG.  His DD Form 214 issued for this period shows his rank and pay grade as SSG/E-6.  

7.  Orders 226-40, dated 14 August 2006, published by the U.S. Army Human Resources Command, Alexandria, VA, promoted him to SFC with an effective date and date of rank of 1 September 2006.  These orders indicated that, "Promotion is not valid and will be revoked if the Soldier concerned is not in a promotable status on the effective date of promotion."

8.  He provided letters from senior officers who congratulated him for his selection for promotion to SFC.  

9.  On 14 September 2006, Order Number 257-4 was published by the U.S. Army Human Resources Command revoking Order Number 226-40.  The authority for the revocation was Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-17.

10.  In a memorandum, dated 19 September 2006, the Chief, Enlisted Promotions, U.S. Army Human Resources Command, indicated the applicant was considered and selected for promotion by the SFC and Advanced NCOC Selection List based on Army Regulation 600-8-19, paragraph 4-16.

11.  He provided a self-authored statement, dated 18 November 2012, attesting:

	a.  he earned his promotion and got caught up in the mismanagement of documentation from his battalion, brigade, personnel service battalion, and even the Department of the Army Promotions Board.  

	b.  if the appropriate personnel had done their job he would have made the promotion list in 2005 and they would have realized he was retiring in 2006.  

	c.  he believes personnel at the rear detachment had something against him because they never submitted his paperwork for promotion while he was in Iraq during 2004 to 2005.  He was informed by the Noncommissioned Officer-in-Charge the NCOER he had was an annual report which would not have been required to be submitted until December 2005, but the promotion board convened in November 2005.  Two other Soldiers in his brigade were promoted before him, one was a female from another battalion who was in the secondary zone and the other one was in his battalion in which he was his supervisor.  

	d.  if the promotion was based on potential, he had already proven himself prior to the promotion board.  He had gone through two change of commands with no losses, taken the place of an SFC, trained as the Senior Logistics Supervisor, deployed and redeployed the battalion in the position as an SSG, received many awards, certificates, and letters.

	e.  he wanted to stay in the military for more than 20 years.  If he had known about getting on the promotion list before he submitted his request for retirement, he would have remained in the military for 24 years and served his country. However, he was prevented by his peers from attaining promotion.  

12.  He provided a second self-authored statement, dated 23 December 2012, providing information he believes also contributed to his failure to make the promotion list to SFC during the 2004-2005.  He reiterated some of the information cited in his statement, dated 18 November 2012.  

	a.  he mentioned the two Soldiers in his brigade who were promoted before him.  These two Soldiers attended the Basic Noncommissioned Officer Course at Fort Lee, VA.  They are now a First Sergeant and an SFC.  He was told that both of them met the chairman of the promotion board and were told they would make the next list for promotion.  

	b.  he did everything to his promotion records and even double checked them, but he was overlooked for promotion.  He was serving in the capacity of an SFC, being paid as an SSG, never once complained about it, and never quit or even had a problem holding the position.  He even conducted two changes of command prior to assuming the S-4 position in Company C, 3rd Battalion, 21st Infantry Regiment.  He had no losses of equipment both times yet he was still overlooked.  He feels it was unfair that he was overlooked and held back from promotion considering his duty performance.  

13.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.

	a.  Paragraph 1-17 states that when a Soldier has been erroneously promoted, and has received pay at the higher grade, a determination of "de facto status" may be made only to allow the Soldier to keep any pay and allowances received at the higher grade.



	b.  Paragraph 1-10a(5) states a Soldier becomes ineligible to reenlist based on suspension of favorable personnel actions (FLAG), pending separation, field or HQDA bar to reenlistment, approved declination of continued service statement (DCSS), approved retirement, or a failing weapons qualification score.

	c.  Paragraph 4-3d states Soldiers who are not selected for promotion will not be provided specific reasons for non-selection.  Soldiers may consult the statistical analysis portion of the promotion list or they may write to the career professional development NCO of their respective branch for an analysis on how to enhance their careers.

	d.  Paragraphs 4-5a and 4-5b state no Soldier may appear in person before a DA selection board on his or her own behalf, or in the interest of anyone being considered.  Soldiers eligible for consideration may write to the president of the promotion board to provide documents and information drawing attention to any matter concerning themselves that they feel is important to their consideration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions in regard to his reinstatement of his promotion to SFC are acknowledged.  However, the evidence of record does not indicate that an error or injustice exists in this case.  

2.  Orders for his promotion to SFC/E-7 were published on 14 August 2006 and were revoked on 14 September 2006, in accordance with the applicable regulation.  Since he had an approved retirement, he was not in a promotable status for promotion to SFC.  Therefore, he is not now qualified for reinstatement to that rank and pay grade.

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)                                         AR20120021947





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ABCMR Record of Proceedings (cont)                                         AR20120021947



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