IN THE CASE OF:
BOARD DATE: 30 January 2014
DOCKET NUMBER: AR20130008530
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 sergeant first class (SFC), pay grade E-7.
2. The applicant states:
* he was transferred to a truckmaster position on 29 July 2004
* he was on active duty until 30 August 2004, which placed him in an E-7 position with his unit
* he held a truckmaster position until June 2009 at which time he was transferred to the Individual Ready Reserve (IRR)
* he was told when he transferred to the IRR he should have been automatically promoted to an E-7 position because he was on active duty, which never happened
* as soon as he became active duty, he was to be promoted to staff sergeant (SSG), pay grade E-6, which did not happen until 18 May 2004
* the unit clerk forgot to send the request for orders
* that is why it shows E-6 orders being cut just before he got home from Iraq and then he got the E-7 position
3. The applicant provides:
* Orders 162-017, dated 10 June 2004
* Orders 236-704, dated 23 August 2004
* Orders 236-705, dated 23 August 2004
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3Â 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. With prior enlisted service in the U.S. Navy, the applicant enlisted in the Army National Guard on 21 January 1983, in pay grade E-1. He was promoted through the ranks to pay grade E-6, effective 18 May 2004.
3. The applicant was discharged from the Army National Guard on
30 September 2009. He was assigned to the U.S. Army Reserve (IRR), effective 1 October 2009.
4. During the processing of this case an advisory opinion was obtained from the U.S. Army Human Resources Command, Chief, DA Promotions, recommending denial of the applicantÂ’s requests. He states that the records available to the Senior Enlisted Promotion Section reflect the applicant transferred to the U.S. Army Reserve IRR, effective 1 October 2009. He states the applicant's transfer did not warrant an automatic promotion, as Soldiers in pay grade E-6 and above must be considered for promotion by a centralized promotion board. He states in accordance with Military Personnel (MILPER) Message 10-058, dated 3 March 2010, the applicant did not meet eligibility requirements for consideration on the Fiscal Year (FY) 2010 IRR/Drilling Individual Mobilization Augmentee (DIMA) SSG through Sergeant Major (SGM) Selection Board Announcement Message.
5. The applicant was furnished a copy of the advisory opinion. No response has been received.
6. On 4 June 2012, the applicant was assigned to the Retired Reserve.
7. The applicant provides Orders 162-017 amending Orders 045093, which ordered him to active duty. He provides Orders 236-704 promoting him to SSG and Orders 236-705 transferring him to a truckmaster position.
8. MILPER Message Number 10-058 (FY2010 IRR/DIMA SSG through sergeant major (SGM) Selection Board Announcement Message) contains instructions regarding the selection of IRR, IMA and Standby Reserve (Active List) noncommissioned officers for promotion to SSG through SGM. It states to be considered for promotion to SSG through SGM, a Soldier must be assigned to the IRR, IMA, or Standby Reserve (Active List) for a minimum of 12 months as of 5 August 2010.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted. His supporting evidence has been considered.
2. According to MILPER Message 10-058, the applicant's transfer did not warrant an automatic promotion, as Soldiers in pay grade E-6 and above must be considered for promotion by a centralized promotion board.
3. MILPER Message 10-058 states that to be considered for promotion to SSG through SGM a Soldier must be assigned to the IRR, IMA, or Standby Reserve (Active List) for a minimum of 12 months as of 5 August 2010. His records show he transferred to the IRR on 1 October 2009. He did not meet the criteria for promotion consideration to SFC by the FY 2010 IRR/DIMA SSG through SGM Selection Board.
4. In view of the foregoing, the applicant's request should be denied.
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) AR20130008530
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