IN THE CASE OF:	  

		BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20130021868 


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, retroactive promotion to sergeant first class (SFC)/E-7 in the Montana Army National Guard (MTARNG), to the time he was deployed in 2006/2007, with entitlement to back pay and allowances. 

2.  In the alternative, he requests the Board promote him to SFC/E-7 effective 1 August 2009. 

3.  The applicant states:

* he was not allowed to put in a promotion packet while stationed in Iraq
* he was an add-on to the unit and he believes the unit's command was protecting its staff sergeants (SSG)
* he had more points (such as college) and the Basic Noncommissioned Officer Course (BNCOC)
* he was forced into retirement when he should have actually been promoted

4.  The applicant provides:

* National Guard Bureau (NGB) 22 (Report of Separation and Record of Service)
* ARNG Retirement Points History Statement
* Retired Reserve orders, effective 31 July 2009


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 records show he was born on 13 June 1953.  After having had prior service in the U.S. Air Force, he enlisted in the U.S. Army Reserve (USAR) on 22 March 1982.  He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of SSG/E-6 on 1 October 2005. 

3.  He entered active duty as a member of his Reserve unit on 5 January 2006.  He subsequently served in Iraq from 14 March 2006 to 4 March 2007.  He was assigned to the 596th Ordnance Company.

4.  On 8 February 2007, the U.S. Army Human Resources Command (HRC) issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). 

5.  He was honorably released from active duty on 5 April 2007 to the control of the USAR.  

6.  He enlisted on the MTARNG on 26 April 2007.  He was assigned to the 639th Quartermaster Supply Company.  He held military occupational specialty (MOS) 92A (Automated Logistics Specialist). 

7.  On 5 April 2008, he failed the Army Physical Fitness test (APFT).  Accordingly, he was flagged. 

8.  On 5 October 2008, he again failed the APFT.  He remained flagged.  His Noncommissioned Officer Evaluation Report (NCOER) for the rating period 1 November 2007 through 31 October 2008 reflected his failure. 

9.  His NCOER for the rating period 1 November 2008 through 31 July 2009 shows he did not make progress in the weight control program.  
10.  On 22 December 2008, he executed a Notification of Qualitative Retention Board (QRB) Review memorandum and indicated in the event he is not selected for retention by the 2-6 March 2009 QRB, he would like to be transferred to the Retired Reserve. 

11.  On 5 March 2009, MTARNG published Orders 156-014 discharging him from the ARNG and transferring him to the Retired Reserve, as a result of his non-selection for retention, effective 31 July 2009.   The orders listed his grade as SSG.

12.  On 5 April 2009, the MTARNG officially notified him that he was considered by the QRB but not selected for retention. 

13.  On 14 June 2009, he requested to be transferred to the USAR Control Group (Individual Ready Reserve (IRR)).  However, on 11 August 2009, MTARNG formally notified him of the denial of his request.  

14.  On 26 March 2013, HRC published Orders C03-392529 placing him on the Retired List in his retired grade of SSG effective 13 June 2013, his 60th birthday. 

15.  An advisory opinion was obtained from the NGB on 14 August 2014 in the processing of this case.  An advisory official recommended disapproval of the applicant's request.  The official stated:

	a.  The applicant was promoted to SSG in the USAR on 1 October 2005.  In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), Soldiers must have a minimum of 21 months of time in grade as a SSG for promotion consideration to SFC.  When the applicant returned from deployment, he only had 18 months and 24 days of time in grade as a SSG.  He did not yet meet the 21 months minimum time in grade requirements.  Therefore, he was ineligible for consideration in the USAR.  

	b.  He transferred to the MTARNG on 25 April 2007.  Subsequently, he became eligible on 1 July 2007 for promotion to SFC.  The State of Montana did not do any supplemental or standby advisory boards in Fiscal Year 2007.  Although he was eligible to be put on the promotion list, he was not evaluated.  His primary MOS was 92A.  There were no 92A/E-7 vacancies within the State in Fiscal Year 2007.  Therefore, he would not have had the opportunity to be promoted to E-7 had he been on the promotion list. 

	c.  According to a memorandum from the MTARNG, the applicant failed two consecutive APFTs in Fiscal Year 2008.  He also failed to meet the height and weight standards in accordance with Army Regulation 600-9 (Army Weight Control program).  Therefore, he was flagged for both APFT and height/weight failure.  In March 2009, he was not retained by the QRB.  In April 2009, the official enlisted promotion list was activated and the MTARNG held a promotion board.  However, the applicant was ineligible because he was not retained by the QRB.  He was not eligible for promotion during the time of his retirement and according to guidance mentioned above, he was not authorized to retire at the grade of E-7.  

	d.  The MTARNG concurs with this recommendation. 

16.  On 18 August 2014, he was provided with a copy of this advisory opinion to give him an opportunity to comment or submit a rebuttal.  He did not respond. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was neither eligible for nor recommended for promotion to SFC/E-7.  He was promoted to SSG/E-6 on 1 October 2005.  He deployed from the USAR from 14 March 2006 to 4 March 2007.  When he demobilized on 
5 April 2007, he did not meet the criteria to submit a promotion packet to 
SFC/E-7 in the USAR. 

2.  He enlisted in the MTARNG on 26 April 2007.  However, during Fiscal Year 2007, the State of Montana did not do any supplemental or standby advisory boards.  Although he may have been eligible to be put on the promotion list, he was not evaluated.  His primary MOS was 92A.  There were no 92A/E-7 vacancies within the State in Fiscal Year 2007.  Therefore, he would not have had the opportunity to be promoted to E-7 had he been on the promotion list. 

3.  During 2008, not only did he fail weight control standards, he also failed two consecutive APFTs.  This placed him in a non-promotable status.  Finally, he was not selected for retention by a QRB.  He was ultimately transferred to the Retired Reserve in the appropriate rank/grade of SSG/E-6.  

4.  There is no evidence in his records and he was provides none to show he was eligible for, recommended for, or promoted to SFC/E-7.  As such, 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)                                         AR20130021868





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ABCMR Record of Proceedings (cont)                                         AR20130021868



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