IN THE CASE OF:	  

		BOARD DATE:	  9 May 2013

		DOCKET NUMBER:  AR20130003382 


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 correction of his record to showing his effective date and date of rank (DOR) for staff sergeant (SSG)/E-6 as 1 February 2008.

2.  The applicant essentially states in a 4-page narrative:

	a.  He wants a retroactive correction to his DOR due to an injustice that occurred during a previous hostile command environment.

	b.  After having prior enlisted service in the U.S. Air Force, he joined the Army as a sergeant (SGT)/E-5.  He deployed in 2005 with the 3rd Infantry Division.  His unit had multiple structure changes.  He was never counseled in any form concerning promotion and career progression.

	c.  When Military Personnel (MILPER) Message Number 08-033, subject:  (Updated)  AAA-294 Enlisted Promotion Report – Automatic List Integration Section for Staff Sergeant) was issued on 1 February 2008, he was never informed of its provisions and he was not aware of any action by the U.S. Army Human Resources Command (HRC) to put him on the standing list for promotion to SSG/E-6.

	d.  He was subsequently assigned to the 240th Quartermaster Service Company (QMSC) in Germany, where he quickly fell into a hostile environment.  The company commander, first sergeant, and the battalion command sergeant major formed negative opinions of him from the start due to his medical challenges.  He later witnessed them forming similar opinions and denials of opportunity to other noncommissioned officers (NCOs) arriving in the battalion.

	e.  The 240th QMSC failed to inform him about the MILPER Message authorizing automatic integration on to the promotion list.  His chain of command failed to counsel him about being denied such integration.  He further states that because of the negative opinions of him, he was not afforded the opportunity to appear before the battalion promotion board for SSG.

	f.  He contends that his Enlisted Record Brief (ERB) was never updated to show a change in his promotion status, indicating to him that HRC never integrated him onto a promotion standing list.

	g.  He refers to his last two NCO Evaluation Reports (NCOER) wherein he was a section sergeant.  His filling in as platoon sergeant was demonstrably recognized by his supervisors.  A sergeant first class (SFC)/E-7 who was very aware of his service history wrote a letter of recommendation for him to appear before the SSG promotion board, but this never happened.

	h.  He contends that one of his NCOERs was removed and the dates on another NCOER adjusted to show 2 years of nonrated time.  They simply did not want to address issues in the appropriate manner.  He states this issue is still being worked.

	i.  He contends his supervisors would pen approvals for awards and write excellent performance evaluations while also attempting to find anything negative to counsel him about.

	j.  He contends his medical challenges led to work-related challenges.  He twice filed formal complaints with the inspector general.  No matter how well he tried to correct his record and no matter how well he tried to prove himself worthy of being an SSG, there was no opportunity for promotion.

	k.  In 2012, he was medically evacuated to Fort Sam Houston, TX for a medical evaluation board (MEB) and ultimately a physical evaluation board (PEB).  It was here that he first learned about MILPER Message 08-033.  His squad leader was wondering why he was not in a promotable status.  The applicant inquired at HRC as to why he was not on a promotion standing list, but he received no reply.

	l.  He was subsequently placed on the promotion standing list while at Fort Sam Houston.

	m.  He concludes that he will be medically retired as of 29 March 2013.  Had he been properly mentored and counseled by senior enlisted supervisors during his time of service in the U.S. Army so that he could have corrected any deficiencies and get promoted while still in the service, he would have been an SSG many years ago and he would have been eligible to retire as an SFC.

3.  The applicant provides:

* Page 2 of MILPER Message 08-033
* Army Regulation 600-8-19 (Enlisted Promotions), paragraph 3-17
* DA Form 2166-8 (NCOER) for the period 8 November 2005 through
7 November 2006
* DA Form 2166-8 for the period 8 November 2006 through 30 June 2007
* DA Form 2166-8 for the period 8 November 2007 through 7 November 2008
* DA Form 2166-8 for the period 1 July 2007 through 9 August 2010
* DA Form 2166-8 for the period 10 August 2010 through 9 August 2011
* DA Form 2166-8 for the period 9 August 2011 through 21 May 2012
* DA Form 2166-8 for the period from 10 August 2011 through 10 June 2012
* DA Form 638 (Recommendation for Award), dated 10 October 2006
* DA Form 638, dated 5 February 2007
* DA Form 638, dated 22 October 2011
* Permanent Orders 031-06, issued by Headquarters, 3nd Battalion,
69th Armor, Fort Stewart, GA, dated 31 January 2009
* DA Form 638, dated 5 December 2009
* DA Form 638, dated 30 March 2011
* Permanent Orders 181-03, issued by Brooke Army Medical Center, Fort Sam Houston, dated 29 June 2012
* DA Form 638, dated 12 September 2012
* Nine Enlisted Record Briefs (ERBs), dated between 7 August 2009 and
17 September 2012
* Memorandum for Record, issued by Headquarters and Headquarters Company, 391st Combat Sustainment Support Battalion, Germany, subject:  Promotion Board, dated 15 June 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army (RA) in the rank of SGT.


2.  The applicant's enlistment contract, dated 8 November 2005, indicates he enlisted in the rank of SGT for a period of 3 years and 20 weeks.

	a.  Section VI - Remarks of this contract states a request for grade determination for the purpose of enlistment in the RA was approved in the grade of E-5.  The applicant was required to acknowledge he was being enlisted as an SGT conditionally and that he must complete the training and attain the required clearance for the selected military occupational specialty (MOS).

	b.  The applicant indicated in the contract he had previously served in the Hawaii Air National Guard and the U.S. Air Force Reserve from 22 January 1997 to 16 December 2003.

3.  On 11 March 2009, the applicant reenlisted in the RA for a period of 4 years.

4.  A review of the applicant's ERB, as provided by the applicant, dated 
17 September 2012, shows:

	a.  his basic active service date (BASD) as 26 April 2005;

	b.  his DOR for SGT as 8 November 2005;

	c.  he completed the Warrior Leader Course (WLC) in 2011; and

	d.  he was reassigned to the Warrior Transition Battalion, Fort Sam Houston on 21 May 2012.

5.  On 28 March 2013, the applicant was retired by reason of temporary physical disability.  The DD Form 214 he was issued at the time indicates he completed
7 years, 4 months, and 21 days of net active service this period.  It does not show any other periods of active or inactive service.  His retired rank/grade is shown as SSG/E-6 with an effective date of pay grade as 28 March 2013.

6.  MILPER Message 08-033, dated 1 February 2008, expanded the use of existing automatic list integration policy to include Soldiers eligible for promotion to staff sergeant.

	a.  The time in service (TIS) requirement for primary zone promotion board appearance for SSG was reduced from 83 months to 71 months;

	b.  The TIS requirement primary zone promotion as of the 1st day of the month was reduced from 84 months to 72 months;


	c.  The Army would identify SGTs eligible for automatic integration to the SSG recommended list.  Eligibility requirements included:

* 83 months TIS
* 11 months time in grade (TIG)
* Be a graduate of the WLC

	d.  Soldiers who are integrated would receive the minimum promotion point score of 450; and

	e.  Soldiers who were denied automatic list integration would be reported quarterly and were required to be counseled appropriately by their commanders.  Soldiers who were not eligible for integration would be listed on the "Not Eligible" section of the quarterly report.

7.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides the following primary zone eligibility criteria for recommendation and promotion to SSG, without waivers:

	a.  Eligibility criteria for recommendation:

* MOS:  Soldier must be recommended in primary MOS and must be fully qualified in that MOS
* Civilian Education:  Must have high school diploma, general education development (GED), or an associates or higher degree
* Military Education:  Must complete resident WLC prior to board appearance.
* Time requirement for board appearance as of the first day of the board month is 70 months TIS and 8 months TIG
* Reenlistment eligibility:  Must not be flagged per Army Regulation
600-8-2 (Suspension of Favorable Personnel Actions (Flags) and/or have a reenlistment eligibility code of 9I, 9J, 9K, 9L, 9M, 9P, 9Q, 9R, 9T, 9U, 9V, or 9Y
* Physical qualifications:  Must be considered physically qualified
* Army Physical Fitness Test (APFT):  Must possess a current passing APFT score in accordance with applicable regulations and field manuals
* Weight control:  Cannot be enrolled in the program
* Alcohol, Substance Abuse Program (ASAP):  Cannot be enrolled in the program


* Total promotion points after board appearance:  Minimum of 450 points
* Disciplinary:  Not be flagged

	b.  Eligibility criteria for promotion:

* MOS:  Soldier must be recommended in primary MOS and must be fully qualified in that MOS
* Military education:  Resident WLC or higher
* Time requirement for promotion as of the promotion month is
72 months TIS and 10 months TIG
* Reenlistment:  Must be eligible to reenlist or extend
* Physical qualifications:  Considered physically qualified
* APFT:  Must possess a current passing score not older than
12 months from the date they met the cutoff score.
* ASAP:  Cannot be enrolled in the program
* Disciplinary: Not be flagged

8.  The applicant's military record contains only four NCOERs.  They are:

* Annual report from 8 November 2005 through 7 November 2006 with 9 months non-rated time
* Change of Rater report from 8 November 2006 through 30 June 2007
* Extended annual report from 1 July 2007 through 9 August 2010 with approximately 2 years of non-rated time
* Annual report from 10 August 2010 through 9 August 2011

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected by showing his effective date and DOR for SSG as 1 February 2008 because he was assigned to a hostile command environment and he was never counseled in any form concerning promotion and career progression resulting in his not being integrated on to the promotion standing list.

2.  The governing regulation, as changed by MILPER Message 08-033 issued on 1 February 2008, reduced the primary zone TIS requirement for promotion board appearance to 71 months; but retained the TIS requirement of 83 or more months for eligibility to be automatically integrated on the promotion standing list with the minimum number of promotion points of 450.

3.  The available evidence shows the applicant's BASD was established as
26 April 2005 when he enlisted in the Army.  Accordingly, he did not have 71 


months TIS until 26 March 2011 and did not have 83 months TIS until 26 March 2012.  The applicant did not complete the WLC until sometime in 2011.  Therefore, the earliest he could have been automatically integrated onto the promotion standing list for SSG would have been in March 2012.

4.  The available evidence indicates the applicant was automatically integrated on the promotion list sometime between March 2012 and his retirement on
28 March 2013.  There is no conclusive evidence showing he was wrongfully denied promotion to SSG on any date prior to 1 day before his temporary disability retirement.

5.  The applicant's argument that he never received adequate counseling or mentoring from his chain of command and that he was effectively denied the opportunity to be considered for promotion to SSG is not supported by any available evidence of record.  Furthermore, he has not provided any documentary evidence to substantiate his allegations.

6.  The applicant states that one of his NCOERs was removed and the dates on another NCOER were adjusted to show 2 years of nonrated time.  He contends his command did not want to address issues in the appropriate manner.  A review of his military record shows four NCOERs currently on file covering the periods from 8 November 2005 through 9 August 2011.  Because he does not make any specific requests in regard to these evaluations, and states that the issue is being worked, this is not considered a valid issue in this case.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130003382



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ABCMR Record of Proceedings (cont)                                         AR20130003382



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