IN THE CASE OF:	  

		BOARD DATE:	 12 November 2013 

		DOCKET NUMBER:  AR20130003039 


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 a retroactive promotion to master sergeant (MSG)/E-8 and consideration for promotion to sergeant major (SGM)/E-9.

2.  The applicant states:

	a.  his promotion to MSG in 2004 was delayed due to a disparity of the awards program within the Special Forces.  He was unjustly awarded an Army Commendation Medal (ARCOM) for his service and actions during the Persian Gulf War.  The ARCOM was recently upgraded to the Bronze Star Medal (BSM) by the Awards and Decorations Branch.     

	b.  if he had been properly awarded the BSM upon his return from Operation Desert Shield/Desert Storm in 1991, he might have been promoted to MSG sooner and he would have maintained a career fast track within career management field 18 (communications sergeant (SGT)).  Due to not being recognized for this service, his promotion to MSG was delayed because he did not have an Army award above an ARCOM.

	c.  he had been promoted to the next grade in every secondary zone to include sergeant first class (SFC) on 1 October 1992.  After that promotion and while serving in various positions, he had not been considered for promotion due to a lack of an award above the ARCOM level. 

	d.  upon being awarded the Meritorious Service Medal (MSM) in 2003, he was selected for promotion to MSG on the 2004 list and he was number 1 on that promotion selection list.

	e.  all Army records, evaluations, awards and decorations, military and civilian schools, and Department of the Army (DA) photographs were updated and maintained on a regular basis for consideration.
	
	f.  as noted in the supporting endorsements of the BSM award recommendation, both the Battalion Commander and Special Forces Task Force Commander in Desert Shield/Storm and Group Commander stated that had this information been known at the time the award of the BSM would have been made in 1991.  

   g.  he requests the recently-approved BSM be used for reconsideration for retroactive promotion to MSG and consideration for promotion to SGM. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Awards
* Noncommissioned Officer Evaluation Reports
* Certificates of training and achievement
* DA photographs 

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 3 January 1985.  He served as a recruiter, infantryman, and Special Forces senior SGT.  He was promoted to staff sergeant (SSG) on 1 March 1989.  He served in Saudi Arabia from 1 August 1990 to 1 March 1991.  
3.  Orders, dated 7 June 1991, show he received the ARCOM for the period 
17 September 1990 to 4 March 1991.

4.  He also served in Saudi Arabia from:

* 1 August 1992 to 1 November 1992
* 1 January 1993 to 1 April 1993
* 1 October 1994 to 1 April 1995

5.  He was promoted to SFC on 1 October 1992 and to MSG/first sergeant on 
1 May 2004.  On 30 April 2006, he retired in the rank of first sergeant. 

6.  His DD Form 214 shows in:

* Item 4a (Grade, Rate or Rank) the entry "1SG" (first sergeant)
* Item 4b (Pay Grade) the entry "E08"
* Item 12h (Effective Date of Pay Grade) the entry "2004  05  01" (1 May 2004) 

7.  On 10 January 2013, the Awards Branch upgraded the applicant's ARCOM to the BSM for the period 17 September 1990 to 4 March 1991.  The citation stated:

For exceptionally meritorious service from 17 September 1990 to 4 March 1991, while assigned as a Special Forces Communications Sergeant to Special Forces Operational Detachment Alpha 556 ad the 3d Egyptian Infantry Division during Operation Desert Shield and Operation desert Storm.  (The applicant’s) outstanding performance of duty during combat operations contributed to the overwhelming success of the unit.  His actions are in keeping with the finest traditions of military service and reflect great credit upon himself, the 2d Battalion, 5th Special Forces Group (Airborne), the United States Army Special Operations Command and the United States Army.

8.  There is no evidence which shows the applicant completed the U.S. Army Sergeant Major's Course (USASMC).

9.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Department of the Army Promotions Branch, U.S. Army Human Resources Command, Fort Knox, KY.  The advisory official recommends denial of the applicant's request for retroactive promotion to the rank of MSG/E-8 and consideration for promotion to SGM/E-9.  The opinion points out:

	a.  the specific reasons for selection or non-selection are not recorded nor will they be divulged by the board.  Selection boards consider the entire performance portion of the Army Military Human Resource Record, the Enlisted Record Brief, and the DAPMIS photograph.  Information such as Noncommissioned Officer Evaluation Reports, variety of assignments to include manner of performance of duty in leadership positions, military education and physical fitness are also important considerations during board deliberations.

	b.  the upgrade to the referenced ARCOM did not occur until 10 January 2013, 7 years after his effective date of retirement.  There is no regulatory guidance which would allow for a retroactive promotion after a Soldier has retired.   

10.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded and stated in summary:

	a.  the reasons cited for denial in the advisory opinion are solely based on the current Army Regulation 600-8-19 (Enlisted Promotions and Reductions).  

   b.  he cites excerpts from research conducted in Rand's National Defense Research Institute, a federally funded research and development center supported by the Office of the Secretary of Defense.  Rand's research of Army Regulation 600-8-19 stated that for centralized promotions "the boards use the "whole Soldier" concept, whereby the Soldier's qualifications for promotion are based on his entire record.  The promotion board's analysis of the Soldier's file includes an evaluation of the scope of a variety of assignments; an estimate of potential expected of an NCO at the next higher grade; trends of efficiency; the length of service and maturity; awards, decorations, and commendations; education (military and civilian); moral standards, integrity, and character; and general physical condition." 

	c.  he believes that he met and/or exceeded the requirements for promotion with the exception of no BSM at the time during his tenure within Special Forces until his reassignment by DA to the U.S. Army Recruiting Command in 1996.
	
	d.  the situation at hand is the non-availability of promotion information after a promotion board is held, especially on senior selection boards for MSG and SGM that exceed over 6 years.  

	e.  the Army does not have a policy in place for retroactive promotions, but this lack of policy makes it an arbitrary final decision for consideration of a retroactive promotion for retirees.
	f.  if the BSM was awarded when it should have been in 1991, it would have made an impact in his career.  He compiled a worksheet of promotion rates for Special Forces Soldiers he knew in the early 1990's.  As a collective, 53% of all Soldiers were promoted to MSG and 11% to SGM.    

	g.  as for retroactive promotions, he cited the retroactive promotion of a lieutenant colonel, Medal of Honor recipient, who was promoted to colonel over 30 years after he had retired from the Army.

11.  Army Regulation 600-8-19 provides the objectives of the Army's Enlisted Promotions System, that include filling authorized enlisted spaces with the best qualified Soldiers.  Further, this system provides for career progression and rank that are in line with potential and for recognition of the best qualified Soldier, which will attract and retain the highest caliber Soldier for a career in the Army.  

12.  Promotions to SFC/E-7, MSG/E-8, and SGM/E-9 are executed in a centralized manner.  In order to be eligible for promotion consideration Soldiers must first meet announced HQDA time in grade and time in service requirements and other eligibility criteria prescribed by the U.S. Army Human Resources Command. The selection board will recommend a specified number of Soldiers by MOS from the zones of consideration who are the best qualified to meet the needs of the Army.  The total number selected for each career progression MOS is the projected number the Army needs to maintain its authorized-by-grade strength.  The following eligibility criteria must be met before the HQDA board convenes.  Soldiers must, in part, be a graduate of the appropriate NCO Education System (NCOES) course required in order to be considered for promotion to the next higher grade.

13.  Army Regulation 600-8-19 states that a Soldier must be a graduate of the USASMC for promotion to SGM.  There is no provision for a retroactive promotion after a Soldier has retired.  

14.  Army Regulation 600-8-19 also states the Deputy Chief of Staff, G-1 or designee may approve cases for referral to a Standby Advisory Board upon determining that a material error existed in a Soldier's Army Military Human Resource Records when the file was reviewed by a promotion board.  Error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends if he had been properly awarded the BSM in 1991, he might have been promoted to MSG sooner.  However, a less than 6-month service award with a generic recommendation that does not mention any significant accomplishment does not constitute a material error for promotion reconsideration. 

2.  Evidence shows he was promoted to MSG on 1 May 2004 and he retired in the rank of first sergeant/E-8 on 30 April 2006.

3.  On 10 January 2013, the Awards Branch upgraded his ARCOM to the BSM for the period 17 September 1990 to 4 March 1991.
 
4.  Many variables determine whether a Soldier is first recommended for consideration by and then selected for promotion by a either a semicentralized or a centralized promotion board.  These boards are very subjective and are based upon the contemporaneous needs of the Army and how the Soldier's records compare to those of their peers.  Once selected, promotion effective dates are also based upon the contemporaneous needs of the Army and in the Reserve Components are often dependent upon position vacancies in a specific unit.

5.  In view of the foregoing, it would be purely speculative to presume that if the applicant had remained in the Army he would have been selected for promotion to any higher grade, much less SGM.   

6.  Since there is no regulatory guidance that would allow for a retroactive promotion after a Soldier has retired, there is no basis for granting the applicant's request for a retroactive promotion to MSG.

7.  Since there is no evidence which shows he completed the USASMC, there is insufficient evidence on which to base consideration for promotion to SGM.

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)                                         AR20130003039





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ABCMR Record of Proceedings (cont)                                         AR20130003039



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