IN THE CASE OF:	  

		BOARD DATE:	    12 December 2013

		DOCKET NUMBER:  AR20130006715 


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, in effect, requests reconsideration of his request for retroactive promotion to staff sergeant (SSG)/E-6 and promotion consideration to sergeant first class (SFC)/E-7 with entitlement to back pay.

2.  The applicant states the Army Board for Correction of Military Records (ABCMR) did not render a fair and just decision.  Therefore, he requests a U.S. Army judge with arbitration authority undertake a formal review of his case and render a ruling.  He adds that the Department of the Army stalled his U.S. Army career, severely and adversely impacted him financially, inflicted emotional grief upon him, and hindered him from aging with self-respect and dignity.

   a.  He also states:

* the Board failed to address the substance of his application; specifically, that he should have been promoted, instead of requiring him to prove that he was promoted
* he had no record of disciplinary actions
* he completed the Primary Leadership Course, had a near-perfect Skill Qualification Test score of 97%, and an above-average General Technical score of 117
* he was recommended for promotion to SSG by a U.S. Army promotion board and placed on the recommended list with 884 total points
* the Army failed in maintaining his records as evidenced by the fact that his promotion points were not recorded on his DA Form 2A (Personnel Qualification Record) and there is no promotion packet in his records
* after being reassigned he was abruptly deleted from the promotion list for no reason and without his consent or knowledge
* had he remained on the recommended list and been promoted to SSG, he would have been eligible for promotion to SFC, which would have prolonged his military career

   b.  The applicant concludes by stating the U.S. Army's long overdue debt due him has approached nearly $450,000.00, before taxes, and this does not include potential damages.

3.  The applicant provides copies of the following documents:

* his formal request, history statement, and counter-points to the ABCMR
* Disposition Form, subject:  Recommendation for Promotion
* Memorandum, subject: Out-processing without Promotion Standing List
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Forms 2A and 2-1 (Personnel Qualification Record - Parts I and II)
* ABCMR Docket Number AR20120009970, dated 13 November 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant requests a formal review of his case by U.S. Army judge with arbitration authority.  U.S. Army judges do not have the jurisdiction to arbitrate Army personnel issues.  Therefore, this portion of his request will not be discussed further.  The applicant's case, along with the new argument and evidence he provides, will be reconsidered by the ABCMR.

2.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120009970, on 13 November 2012.

3.  The applicant had prior enlisted service from 23 May 1966 to 3 May 1969 and from 30 September 1969 to 29 September 1972.

4.  After a break in military service, he enlisted in the Regular Army (RA) on
13 April 1977 in the rank/grade of private/E-2 and he was awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).

5.  He was promoted to specialist four/E-4 on 24 November 1977.  He completed the 1-week Personal Property Transportation course in 1979, the 4-week Primary Leadership Course in 1980, and he was awarded MOS 71N (Movement Control Specialist).
6.  Headquarters, 178th Personnel Service Company (Germany), Orders 176-4, dated 28 July 1981, promoted the applicant to specialist five (SP5)/E-5 with a date of rank (DOR) of 2 July 1981, effective 1 August 1981.

7.  On 1 October 1985, he was laterally appointed to sergeant (SGT)/E-5, with a DOR of 2 July 1981, and he was awarded MOS 88N (Movement Specialist).  He continued to serve in the RA in a variety of assignments in MOS 88N2O.

8.  A DA Form 2A, prepared on 7 January 1988, shows the applicant's rank was SGT, with a DOR of 2 July 1981.  It also shows in:

   a.  section II (Qualification Data), item 31 (Promotion Points/Current Date):  June 1985; and

   b.  section V (Position Data), item 4 (Authorized Grade/Code):  SGT/5.

9.  The applicant's DA Form 2-1 shows in:

   a.  item 18 (Appointments and Reductions), that the highest grade he attained was E-5;

   b.  item 35 (Record of Assignments), that from 10 March 1983 through
11 September 1984 he served in principal duty MOS 71N3O, Movement Control Supervisor (an E-6 position), while assigned to Headquarters and Headquarters Company, 2nd Forward Support Battalion, Fort Lewis, WA; and

   c.  item 33 (Date) that the document was prepared on 13 October 1987, the applicant placed his signature on the document, and he last reviewed the information on 13 February 1989.

10.  A DA Form 2339 (Application for Voluntary Retirement), dated 4 June 1990, shows the applicant requested a retirement date of 1 June 1991.  He indicated that his current rank/grade was SGT/E-5 with an effective date of 1 August 1981 and that the highest grade served on active duty was SGT (E-5).

11.  The applicant's DD Form 214 shows he was honorably retired from active duty on 31 May 1991.  It also shows in:

* items 4a (Grade, Rate or Rank) and 4b (Pay Grade) - "SGT" and "E-5"
* item 12h (Effective Date of Pay Grade) - "81  08  01"
* item 21 (Signature of Member Being Separated) - that he placed his signature on the document

12.  The applicant was placed on the Retired List in his retired rank/grade of SGT/E-5 on 1 June 1991.

13.  On 20 January 2000, the applicant requested correction of his records to show he was advanced on the Retired List to SSG/E-6 and requested a personal appearance hearing, if necessary.  He stated, "After having been successfully boarded, I was removed from [the] promotion list (not for misconduct), but because [the] U.S. Army overhauled [the] promotion system, instead of promoting those few on [the] list.  This left me a bitter Soldier."

14.  On 6 June 2000, the Director of the ABCMR informed the applicant that, "Inasmuch as your official military records show that you were retired in the highest grade to which you were ever promoted while on active duty, no effective relief can be granted by the Army Grade Determination Review Board or the ABMCR.  Accordingly, your application has been filed without action."

15.  In support of his request for reconsideration, the applicant now submits:

   a.  a DA Form 2496 (Disposition Form), dated 2 July 1984, subject:  Recommendation for Promotion, that shows the applicant's immediate supervisor and his noncommissioned officer in charge recommended him for promotion and that he appear before the E-6 promotion board.

	b.  Headquarters, I Corps and Fort Lewis, WA, memorandum, dated 
31 August 1984, addressed to the Commander, U.S. Army Military District of Washington. that shows the applicant departed Fort Lewis prior to being integrated onto the promotion list.  He appeared before a promotion board in August 1984 and he had 834 total points.

16.  Army Regulation 600-8-19 (Enlisted promotion and Reductions) prescribes the policies and procedures governing promotion and reduction of Army enlisted personnel.  It provides for the management and operation of semi-centralized boards and governs the SGT and SSG promotion system for Active Army.  It states that field-grade commanders in units authorized a commander in the grade of lieutenant colonel or higher have promotion authority to the grades of SGT and SSG; however, the promotion branch at the servicing personnel center maintains the recommended list and issues the orders.  Field operations will handle board appearance, promotion point calculation, promotion list maintenance, and the final execution of the promotion occurs in the field in a decentralized manner.  Headquarters, Department of the Army (HQDA) operations will handle promotion cutoff scores and the monthly SGT/SSG promotion selection by-name list, which are determined and announced monthly.  HQDA will determine the needs of the Army by grade and MOS.  Promotion to SGT and SSG is announced in orders. 

17.  Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for correction of military records.  It states the ABCMR will decide cases on the evidence of record.  It's not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his request for retroactive promotion to SSG and promotion consideration to SFC with entitlement to retroactive pay should be reconsidered.

2.  The applicant's request, with an earlier ABCMR application, for a formal hearing/personal appearance was now carefully reconsidered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  The applicant was promoted to SGT/E-5 with a DOR of 2 July 1981 effective 
1 August 1981.

4.  The evidence of record shows the applicant was recommended for promotion to E-6 and that he was placed on the E-6 promotion list with 834 points.

   a. 	The evidence of record also shows he served in an E-6 duty position for approximately 1 year and 6 months (from 10 March 1983 through 11 September 1984).  However, the fact that a Soldier serves in a higher-graded duty position, alone, does not mean that he was appointed or promoted to that grade.

   b.  The evidence shows the applicant acknowledged that he was removed from the E-6 promotion list when the Army promotion system was changed and he was not promoted from the E-6 promotion list (emphasis added).

5.  It is unfortunate that the applicant feels that the result of this change to the promotion system and attendant restructuring of the Army is a personal rebuff.  However, there is no evidence of any error or personal injustice.  Nothing in the circumstances of his voluntary retirement detracts from the value of his service to the Army and the Nation.

6.  A thorough review of the applicant's military service records and the evidence he has provided to this Board fails to support his contention that he should have been promoted to SSG/E-6 while on active duty and, as a result, considered for promotion to SFC/E-7.

7.  Therefore, in view of all of the foregoing, there is no basis for granting the 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 to amend the decision of the ABCMR set forth in Docket Number AR20120009970, dated 13 November 2012.



      _______ _  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)                                         AR20130006715



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ABCMR Record of Proceedings (cont)                                         AR20130006715



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