BOARD DATE:	  31 December 2013

		DOCKET NUMBER:  AR20130007586 


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 promotion to pay grade E-8 with entitlement to all back pay and allowances, effective 27 December 2007.  

2.  The applicant states he applied for promotion to pay grade E-8 with the 88th Regional Readiness Command (RRC).  He was placed on the considered list for promotion in military occupational specialty 11Z (Infantry Senior Sergeant) and 19Z (Armor Senior Sergeant).  He signed an addendum to accept the promotion to pay grade E-8, but he never received promotion or reassignment orders.  In addition, his name appears on the permanent promotion recommended list (PPRL).  He is willing to do a retirement recall that would allow him to fulfill the obligation that is required to retire in the pay grade of E-8.

3.  The applicant provides: 

* Headquarters, 88th RRC memorandum, dated 22 October 2007, Subject:  After Action Report for the Senior Enlisted Promotion Board
* Headquarters, 88th RRC memorandum, dated 23 October 2007, Subject: Senior Enlisted Selection Board Results 
* Headquarters, 108th Division (Institutional Training) Mobilized Soldier Addendum, Promotion Acceptance/Declination Statement, dated 
27 December 2007
* seven pages of email from various units in the 88th RRC



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’s record shows that he served on active duty in the Regular Army (RA) from 12 August 1982 through 2 July 1996, at which time he was honorably discharged, in the rank of staff sergeant (SSG), and enlisted in the U.S. Army Reserve (USAR) with assignment to a troop program unit (TPU).

3.  Orders 166-0093, dated 14 June 2004, issued by Headquarters, U.S. Army Armor Center and Fort Knox, show the applicant was ordered to active duty in support of Operation Enduring Freedom.  

4.  A Headquarters, 88th RRC memorandum, dated 20 October 2007, Subject: Senior Enlisted Selection Board Results, shows the applicant's name on the PPRL.

5.  On 27 October 2007, he completed an addendum and accepted a promotion to E-8.  The document stated he understood upon release from active duty (REFRAD) he would report to the above unit [unit information is blank].  He would provide a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He further understood that if he did not transfer or declined the promotion after REFRAD his promotion order would be revoked and he could incur a debt to the government for funds received at the higher grade.  He understood that as a condition of his promotion he must transfer to the above position and remain in that position for 12 months from the date of assignment.

6.  In an email to the 88th RRC, dated 21 May 2008, the applicant asked why the acceptance of the promotion addendum had not been forwarded to the 88th RRC.  


7.  In an email, dated on or about 2 June 2008, a noncommissioned officer stated the acceptance of the promotion addendum had been prepared in advance in the event an E-8 position became available.  The reason for not submitting the acceptance of promotion addendum was that there was no position to promote the applicant into.

8.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 May 2008 shows he was honorably released from active duty.

9.  Orders A-07-813950, dated 25 July 2008, issued by HRC, show the applicant was ordered to active duty to obtain 20 years of federal service under the extended active duty (EAD) sanctuary program.

10.  A DD Form 214 for the period ending 30 November 2009 shows the applicant retired as a sergeant first class (SFC)/E-7.

11.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Management Division, HRC.  The official recommended disapproval.  The applicant's records show he was recommended for promotion to master sergeant by the August 2007 Senior Enlisted Promotion Board and integrated onto the PPRL managed by the 88th RRC.  Upon obtaining 18 years of active Federal service, the applicant requested voluntary enrollment in the sanctuary program.  Because of the approved request, he was accessed into the Active Army strength accountability on 31 May 2008.  As a result, he was removed from the PPRL.  Prior to his removal, no valid vacancies were reported within his military occupational specialty and elected mileage.  

12.  The applicant did not provide rebuttal comments to the advisory opinion.

13.  There is no evidence the applicant was placed in an E-8 position or that orders were published promoting him to pay grade E-8.

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides the Army's enlisted promotion and reduction policy.  Paragraph 5-7 states position vacancies are not required for promotion selection board consideration and placement on the PPRL.  However, promotion off the PPRL requires the existence of a position vacancy. 




   a.  Paragraph 5-25 of Army Regulation 600-8-19 states based on cumulative vacancy computations the unit will report a current or projected vacancy 
requirement to the authority responsible for maintaining the PPRL.  The regional promotion list manager will identify the Soldier on the PPRL who will be promoted into the vacancy and notify the promotion and/or orders publishing authority. The promotion and/or orders publishing authority will publish the promotion and reassignment orders.

   b.  Paragraph 5-44b of Army Regulation 600-8-19 contains the rules for removing a member from a promotion list.  It states, in pertinent part, the commander or first field grade officer in the direct line of supervision may recommend the removal of a name from a recommended list at any time.
   
   c.  Paragraph 5-44f of Army Regulation 600-8-19 states before submitting removal action, commanders will promptly advise the convening authority of any Soldier whose name appears on the promotion list that is released from TPU assignment and reassigned to Active Army strength accountability.
   
15.  Title 10, U.S. Code, section 12686 (Reserves on active duty within two years of retirement eligibility:  limitation on release from active duty), subsection a (Limitation), provides that under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be promoted to E-8 with all back pay, allowances, and benefits with an effective date of 27 December 2007 was carefully considered.  There is insufficient evidence to support the request.  It is acknowledged the applicant was recommended for promotion to E-8 and placed on the PPRL.  He later signed an addendum accepting a promotion to E-8.  However, there is no evidence that shows he was placed in an E-8 position or that orders were published promoting him to E-8 prior to him be ordered to active duty. 

2.  Upon reaching 18 years of active duty service, he requested voluntary enrollment in the Sanctuary Program.  According to the advisory opinion, he was accessed into the active Army strength accountability on 31 May 2008.  As a result, he forfeited his placement on the PPRL.  
3.  In view of the available evidence, there is an insufficient basis upon which to grant 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 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)                                         AR20130007586



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ABCMR Record of Proceedings (cont)                                         AR20130007586



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