IN THE CASE OF:	   

		BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140005035 


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 staff sergeant (SSG)/E6.

2.  The applicant states his promotion to E-6 was withheld from him based on the rear detachment command receiving misinformation.  He was injured in a combat zone in Iraq in 2005 which caused him to be referred to the Disability Evaluation System (DES).  Since he was in the DES, his rear detachment command denied him the opportunity to appear before a promotion board.  Additionally, the command canceled his orders to the Warrior Leader Course (WLC) and Basic Noncommissioned Officer Course and withheld all advancements.  He was fully eligible for promotion to E-6, met the requirements, and had the necessary points.  His case was never reviewed by the grade determination board.

3.  The applicant provides:

* Self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 038-0022, dated 7 February 2006
* DA Form 2166 (Noncommissioned Officer Evaluation Report (NCOER))
* Enlisted Record Brief (ERB), dated 25 January 2006
* Military Personnel (MILPER) Message Number 13-106
* Course Reservation Verification, dated 9 March 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 enlisted in the Regular Army on 3 April 2002.  He was trained in and awarded military occupational specialty (MOS) 19D (Cavalry Scout).  He served in Kuwait/Iraq from 7 March 2003 to 1 March 2004 and 2 to 28 February 2005.  On 1 December 2004, he was promoted to the rank/grade of sergeant (SGT)/E-5.

3.  His Medical Evaluation Board (MEB) and/or Physical Evaluation Board (PEB) Proceedings are not contained in his official military personnel file (OMPF).

4.  The "Promotion Points Year/Month" entry listed on his ERB, dated 25 January 2006, is blank.  Additionally, his Military Physical Profile Serial System (PULHES) is listed as "133111."

5.  His NCOER for the period December 2004 through November 2005 shows he passed his Army Physical Fitness Test (APFT) in January 2005.  This is the only NCOER in his OMPF.

6.  On 28 February 2006, he was honorably discharged from active duty with disability severance pay.  His DD Form 214 shows he was credited with completing 3 years, 10 months, and 28 days of active duty service. 

7.  A Course Reservation Verification sheet, dated 9 March 2006, shows he was scheduled for the WLC, Class 006, with a report date of 19 April 2006 and an end date of 19 May 2006.

8.  He provides a copy of MILPER Message 13-106, Title "Enlisted Promotion Clarification for Soldiers in the DES," issued 18 April 2013.  This message states, in pertinent part, that: 
   
   a.  Soldiers in the DES who are pending a medical fitness determination or referral to an MEB under Army Regulation 40-400 (Patient Administration) or a PEB under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) remain otherwise eligible for promotion consideration, selection, and pin-on.  The issuance of a permanent profile of "3" or "4" alone will not be used as the sole basis for determining primary MOS disqualification.  
   
   b.  While in the DES, Soldiers are not required to meet the 12-month service remaining requirement for promotion to SSG.

	c.  Per the provisions of Title 10, U.S. Code 1212, Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance will be paid such compensation at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective on the Soldiers separation date.  

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.

	a.  Chapter 3, Semicentralized Promotions (SGT and SSG) governs the promotion system for active Army and Reserve Soldiers.  Table 3-3 provides the eligibility criteria for recommendation for promotion.  It states for promotion to SSG:

* a Soldier must be recommended in the Career Progression MOS and must be fully qualified in recommended MOS 
* must have high school diploma, general education development or an associates or higher degree
* must complete resident WLC prior to board appearance, but may be waived for deployed Soldiers
* 70 months time in service (TIS) and 8 months (TIMIG) which is waiverable to 46/16 months TIS and 5/4 months TIMIG primary and secondary zones, respectively
* must not be flagged
* must be considered physically qualified
* must possess a current passing APFT score in accordance with applicable regulations and field manuals
* cannot be enrolled in the Weight Control Program
* cannot be enrolled in the Army Substance Abuse Program unless a self-referral


   b.  For Soldiers fully qualified but not recommended, the Battalion (BN) Human Resource (HR) specialist will prepare a DA Form 3355 (Promotion Point Worksheet) and forward it to the first-line leader for appropriate counseling.  Once the counseling is completed, the commander will forward the 
DA Form 3355 and counseling documents to the promotion authority for final decision.
   
   c.  Once a Soldier has been counseled for not being recommended for promotion, the BN HR specialist will not continue to provide a new DA Form 3355 to the commander.  Copies of the Soldiers periodic counseling (at least quarterly) will be provided to the promotion authority until the Soldier is recommended for promotion or is no longer eligible.

10.  Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army (SA).  For enlisted cases, the AGDRB will make final determinations on behalf of the SA.  It will determine the highest grade in which a Soldier has served satisfactorily for purposes of service/physical disability retirement, computation of retired pay or separation for physical disability.  While enlisted Soldiers may be reduced in grade by courts-martial, nonjudicial punishment proceedings, administrative separation proceedings, or inefficiency boards, enlisted grade determinations cannot result in reduction of an enlisted Soldier's or retiree's current grade.  Enlisted grade determinations will result in either a decision to retain the individual's current grade or to advance to a higher grade in which the individual satisfactorily served. 

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not provided any to show that he should have been promoted to SSG/E-6.

2.  The evidence of record shows he was credited with 3 years, 10 months, and 28 days of active service, approximately 47 months TIS at the time of his discharge.  The regulation requires 70 months TIS to be fully qualified for promotion to SSG.  Therefore, contrary to his claim that he "met all the requirements for promotion to SSG," the evidence shows he required a TIS waiver.  As stated above, the commander is required to counsel Soldiers who are fully qualified (requiring no waiver) if they are not being recommended for promotion.


3.  There is no evidence and he did not provide any evidence that shows he was recommended for promotion and was on the promotion standing list at the time he was discharged for physical disability.  Therefore, his assertion that MILPER Message 13-106 entitles him to be promoted to SSG is not relevant in his case, since it was issued in 2013 (7 years after his discharge) and only applies to Soldiers on a promotion list .

4.  Additionally, it is noted the AGDRB review cases and will make a final determination that will result in either a decision to retain the Soldier's current grade or to advance the Soldier to a higher grade in which he satisfactorily served.  Therefore, since the applicant never served in grade E-6, there is no reason for his case to be reviewed by the AGDRB.

5.  In view of the foregoing, there is an insufficient basis to grant his 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)                                         AR20140005035





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ABCMR Record of Proceedings (cont)                                         AR20140005035



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