IN THE CASE OF:
BOARD DATE: 3 June 2014
DOCKET NUMBER: AR20130017031
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 the removal from his Army Military Human Resource Record (AMHRR) of the orders that revoked the orders promoting him to the rank/grade of staff sergeant (SSG)/E-6.
2. The applicant states the orders should be removed because he was not reduced in rank as a result of his Article 15. He was promoted to SSG after his punishment was completed.
3. The applicant provides a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) with attachments, a memorandum, orders, and two DA Forms 268 (Report to Suspend Favorable Personnel Actions (Flag)).
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 was serving as a member of the U.S. Army Reserve (USAR) in the rank/grade of sergeant (SGT)/E-5. He was assigned to the 423rd Transportation Company (TC), Fort Carson, CO.
3. He was ordered to active duty in support of Operation Iraqi Freedom as a member of his USAR unit and he entered active duty on 16 January 2006. He served in Iraq from 23 April 2006 to 23 April 2007 while assigned to the 423rd TC, 524th Combat Sustainment Support Battalion.
4. On 26 February 2007, a flag was placed against him pending adverse action.
5. On 2 March 2007, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for losing his assigned weapon. The punishment imposed was forfeiture of $645.50 per month for 2 months, suspended and to be automatically remitted if not vacated by 30 April 2007; extra duty for 45 days; and restriction for 14 days.
6. Orders 07-073-00017, dated 14 March 2007, issued by Headquarters (HQ), 96th Regional Readiness Command (RRC), Salt Lake City, UT, promoted him to SSG with an effective date and date of rank (DOR) of 1 March 2007. These orders stated, in part, the promotion is not valid and this order will be revoked if he is not in a promotable status on the effective date of promotion (emphasis added).
7. Orders 07-075-00003, dated 16 March 2007, issued by HQ, 96th RRC, revoked Orders 07-073-00017, pertaining to his promotion.
8. On 18 April 2007, the flag was removed as disciplinary action had been taken. The applicant was subsequently promoted to SSG. The new orders promoting him to SSG are not available for review with this case.
9. He was honorably released from active duty on 22 May 2007.
10. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he held the rank of SSG at time of his release from active duty with a DOR of 1 March 2007.
11. On 3 January 2012, he was honorably separated from the USAR. A review of the U.S. Army Human Resources Command's (HRC) Soldier Management System database shows he held the rank of SSG at that time with a DOR of 1 March 2007.
12. Army Regulation 600-9-19 (Enlisted Promotions and Reductions) governs promotion and reduction of enlisted personnel to include Regular Army, USAR, and Army National Guard Soldiers. Chapter 3 states if a Soldier is flagged he should be removed from the promotion standing list and placed in a not eligible for promotion status. If a Soldier is flagged for adverse action and receives a summarized Article 15 or is exonerated from the initial flag, he will be re-integrated back onto the promotion standing list. If the Soldier was eligible for promotion prior to reinstatement, the DOR and effective date will be the date of original eligibility.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms the applicant had a flag placed against him on 26 February 2007 as he was pending NJP. As he was not in a promotable status to SSG on 1 March 2007, in compliance with the governing regulation Orders 07-073-00017, dated 14 March 2007, were properly revoked on 16 March 2007.
2. The flag was lifted on 18 April 2007 and he was subsequently promoted to SSG with a DOR of 1 March 2007. The revocation of the initial promotion orders does not indicate he was reduced in rank as a result of the Article 15, only that he was not in a promotable status on the effective date of the promotion as stated in Orders 07-073-00017.
3. 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) AR20130017031
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ABCMR Record of Proceedings (cont) AR20130017031
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