IN THE CASE OF:	   

		BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140003799 


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 the rank/pay grade of staff sergeant (SSG)/E-6.

2.  The applicant states, in effect, he served in the Regular Army (RA) from January 1987 to December 1998 and in the Army National Guard (ARNG) from December 1998 to May 2006.  He states that he met all the requirements in 1997, and he held the position for 2 years.  He completed the Primary Leadership Development Course (PLDC) and the Basic Noncommissioned Officer Course (BNCOC) prior to leaving active duty in 1998.  He believes he was overlooked for promotion with no justification.  He also believes he would be more instrumental in fulfilling his duties as a SSG if he were called back from the Retired Reserve to active duty. 

3.  The applicant provides:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 1 March 1988, 26 December 1998, and 28 March 2004
* National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service) ending on 9 January 1990 and 26 May 2006

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 in November 1963.  He will turn age 60 in November 2023.  

3.  He enlisted in the RA on 5 March 1985 and he held military occupational specialty (MOS) 31V (Tactical Communications Systems Operator/Maintainer).  

4.  He was honorably released from active duty in the rank/grade of specialist four (SP4)/E-4 on 1 March 1988.  He was issued a DD Form 214 that captured this period of active service. 

5.  On 14 March 1988, he enlisted in the Pennsylvania Army National Guard (PAARNG) and he was honorably discharged from the ARNG in the rank/grade of specialist (SPC)/E-4 on 9 January 1990.  He was issued an NGB Form 22 that captured his ARNG service.  

6.  He enlisted in the RA on 10 January 1990 and he held MOS 98G (Voice Interceptor).  He served through multiple reenlistments and he was promoted to sergeant (SGT)/E-5 on 30 December 1990. 

7.  He completed PLDC from 25 August to 24 September 1992 and BNCOC from 3 January to 15 February 1996. 

8.  On 27 June 1997, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for signing a false official statement and willfully setting fire to his own property (an automobile) to defraud his insurer.  His punishment consisted of a reduction to SPC/E-4.  

9.  He was honorably discharged from active duty on 26 December 1998 by reason of completion of his required service.  His DD Form 214 for this period of service listed his rank/grade as SPC/E-4 and his effective date of grade as 27 June 1997. 

10.  He enlisted in the PAARNG in the rank/grade of SPC/E-4 on 3 December 1998.  He was promoted back to SGT/E-5 in the PAARNG on 27 November 1999.  He also executed a 4-year/5-month extension on 26 May 2000.  

11.  He transferred to the Maryland ARNG (MDARNG) in or around March 2003. He was assigned to the 629th Military Intelligence Battalion, Laurel, MD. 

12.  On 16 June 2006, MDARNG published Orders 167-133 honorably discharging him from the ARNG and transferring him to the Retired Reserve effective 26 May 2006.  His NGB Form 22 for this period of service listed his rank/grade as SGT/E-5, effective 27 November 1999.

13.  There is no evidence in his records that confirms he was recommended for promotion to SSG and/or he appeared before a promotion board at the battalion/unit level, or his name was incorporated on the promotion list.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been promoted to SSG/E-6.  However, he does not state if this promotion should have occurred in the RA or in the ARNG. 

2.  The applicant served in the RA form 13 January 1987 to 26 December 1998.  He was promoted to the rank of SGT/E-5 on 30 December 1990 and he had completed PLDC and BNCOC.  

	a.  He accepted NJP under the provisions of Article 15 of the UCMJ on 27 June 1997 that resulted in his reduction to the rank SPC/E-4.  He was honorably discharged from active duty on 26 December 1998 by reason of completion of his required service.  He held the rank/grade of SPC/E-4 at the time of discharge from active duty. 

	b.  There is no evidence in his records, and he provides none to show he was recommended for promotion to SGT/E-5, re-appeared before a promotion board, and/or he was promoted back to SGT/E-5 prior to his discharge from active duty. Since he held the rank/grade of SPC/E-4, he could not have been recommended for promotion to SSG/E-6.  Therefore, contrary to his contention, he was not eligible for promotion consideration to SSG/E-6.  

3.  He served in the ARNG from 27 December 1998 to 28 May 2006.  Although he was promoted in the ARNG to SGT/E-5 on 27 November 1999, there is no evidence in his records and he provides none to show he was recommended for promotion to SSG/E-6 and/or appeared before a unit promotion board.  Likewise, there is no evidence that his name was incorporated on a unit promotion list or that a vacancy existed in his unit for his MOS or that he was on an order of merit list for a vacancy, if it existed. 

4.  There is insufficient evidence to support the applicant's promotion to SSG.  As such, there is insufficient evidence to grant him 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)                                         AR20140003799



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ABCMR Record of Proceedings (cont)                                         AR20140003799



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