IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130007736 


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, advancement on the Retired List to the highest grade in which he could have served without having been promoted.  In his case, to the rank and pay grade of master sergeant (MSG)/E-8.

2.  The applicant states his record shows during the final years of his military service he was compelled to serve nearly continuously in various positions one or two grades above his actual pay grade.  As such, he bore responsibilities without appropriate compensation for approximately 25 percent of his military career.  He submits that this is unusual and unjust.    

3.  The applicant provides a letter from a Member of Congress and a copy of his DA Form 2-1 (Personnel Qualification Record). 

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 2 July 1980.  He was trained and served in military occupational specialty (MOS) 54B (Chemical Operations Specialist).

3.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1  shows he was promoted to:

* private/E-1 on 2 July 1980
* private/E-2 on 2 January 1981
* private first class/E-3 on 1 June 1981
* specialist/E-4 on 12 February 1982
* sergeant (SGT)/E-5 on 4 February 1984
* staff sergeant (SSG)/E-6 on 1 January 1991

4.  Item 27 (Remarks) of the DA Form 2-1 shows a copy of this document was sent to the sergeant first class (SFC)/E-7 selection board on 1 April 1999.

5.  His record is void of any information regarding his promotion consideration and/or non-selection to SFC/E-7.  His record is also void of any documents showing he was ever promoted beyond the rank of SSG/E-6.

6.  On 31 July 2000, he was honorably retired after completing a total of 20 years and 29 days of active military service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to and authenticated by the applicant on the date of his separation confirms that he held the rank and pay grade of SSG/E-6.  

7.  The applicant provides a copy of his DA Form 2-1.  He highlights entries in item 35 (Record of Assignments) which show periods of service in which he served in positions either one or two grades above his rank.

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions.  It provides the objectives of the Army's Enlisted Promotions System, which include filling authorized enlisted spaces with the best-qualified Soldiers.  It also provides for career progression and rank that is in line with potential, recognizing the best qualified Soldier that will attract and retain the highest caliber Soldier for a career in the Army. 
9.  Army Regulation 600-8-19 states promotions to SFC/E-7, MSG/E-8, and sergeant major (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 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.

10.  Army Regulation 614-200 (Enlisted Assignments and Utilization Management) prescribes the reporting, selection, assignment and utilization of enlisted personnel, excluding initial entry training Soldiers who are governed by Army Regulation 612–201 (Initial Entry/Prior Service Trainee Support).  It provides general assignment policies and responsibilities for managing the enlisted force. Paragraph 3-10a (10) of this regulation states to assign Soldiers in the same grade or up to two grades higher if no higher ranking Soldiers are available.  Utilization in the same or higher skill level should be considered.  The higher skill level will include any other MOS the Soldier should advance in the normal line of progression in the MOS career pattern in Army Regulation 611–201 (Enlisted MOS Codes).

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Army Soldiers who are retiring in their enlisted status.  Retirement will normally be in the regular or reserve grade the Soldier holds on the date of retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be advanced on the Retired List to the rank and pay grade of MSG/E-8 has been carefully examined and found to be without merit.

2.  The available evidence shows the applicant retired in the rank and pay grade of SSG/E-6.  There is no evidence in the applicant's record and he provides no evidence which shows he was ever promoted beyond the rank and pay grade of SSG/E-6.  Promotions are based on past performance and potential for further advancement and contributions.  Many variables determine whether a Soldier is selected for promotion by 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.

3.  While the applicant provides evidence which shows periods of service in which he served in positions either one or two grades above his rank, this is neither unusual nor unjust.  In fact, Army Regulation 614-200 specifically allows for Soldiers to be utilized in the same grade or up to two grades higher if no higher ranking Soldiers are available.

4.  In view of the foregoing he is not entitled to 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)                                         AR20130007736



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ABCMR Record of Proceedings (cont)                                         AR20130007736



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