IN THE CASE OF:	  

		BOARD DATE:	  4 December 2014

		DOCKET NUMBER:  AR20140006308 


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)/E-7. 

2.  The applicant states when he left Vietnam on 14 December 1971, he was on the list for promotion to E-7.  When he arrived at Fort Carson, CO, he inquired about his promotion and was told by the Division sergeant major that he (the applicant) was on the promotion list.  He finished his career at Fort Hood, TX and prior to his retirement on 30 April 1974, his promotion packet was submitted to the Department of the Army on 27 November 1972 as indicated on his DA Form 20 (Enlisted Qualification Record).  As of his retirement in April 1974, he was not promoted.  Recently, the Department of the Army assisted him in obtaining 8 awards, including the Silver Star, earned in Vietnam.  He always felt he should have been promoted but did not know he had recourse until recently.  His record shows his promotion file was twice considered but he never got promoted. 

3.  The applicant provides:

* DD Form 214 (Report of Separation from the Armed Forces of the United States), ending on 2 February 1956
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 7 February 1959, 7 February 1965, and 9 November 1970
* DD Form 214 (Report of Separation and Record of Service), ending on 30 April 1974
* DA Form 20

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 is a retired Regular Army staff sergeant (SSG) who served on active duty through multiple reenlistments in a variety of stateside or overseas assignments, from 21 April 1954 to 30 April 1974.  

3.  He was advanced to the permanent rank/grade of SSG/E-6 on 25 March 1967.  His overseas service includes: 

* Johnston Island, September 1954 to January 1956
* Korea, September 1959 to September 1960
* France, October 1961 to September 1962
* Korea, June 1965 to June 1966
* Germany, September 1966 to May 1968
* Vietnam, July 1968 to June 1969
* Vietnam, January 1971 to January 1972

4.  He retired on 30 April 1974 and he was placed on the Retired List in his retired rank/grade of SSG/E-6 on 1 May 1974. 

5.  His DA Form 20 shows his records were forwarded to the Department of the Army SFC/E-7 promotion board on 27 November 1972.  However, it is unclear if he was selected for promotion because promotion data for that era no longer exist.

6.  The applicant recently received awards of the Army Good Conduct Medal, Vietnam Service Medal with bronze and silver star, Korea Defense Service Medal, National Defense Service Medal with bronze star, Sharpshooter Marksmanship Badge with Automatic Rifle Bar, Republic of Vietnam Campaign Ribbon, and the Army Commendation Medal with bronze oak leaf cluster.  There is no indication he was recommended for or awarded the Silver Star.
7.  Army Regulation 600-8-22 (Military Awards) states: 

	a.  The Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  The bronze service star is awarded for wear on selected awards such as the Korean Service Medal, Vietnam Service Medal, and many others, for participation in each credited campaign.  A silver service star is authorized in lieu of five bronze service stars.

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), currently in effect, prescribes the enlisted promotions and reductions function of the military personnel system.  It states: 

	a.  Chapter 4 provides the rules and steps for managing the Centralized Promotion System to SFC, Master Sergeant (MSG), and Sergeant Major (SGM) for the active Army.  The Commander, U.S. Army Human Resources Command promotes Soldiers to the grades of SFC, MSG, and SGM.  A centralized promotion system has been in effect for promotion of enlisted Soldiers since 1 January 1969 for SGM, 1 March 1969 for MSG, and 1 June 1970 for SFC.  HRC will announce the results of a selection board by command memorandum. The memorandum will include the memorandum of instruction and a listing of those considered/selected.  Names of Soldiers considered for promotion will be placed in alphabetical order.  Soldiers who are recommended will be assigned sequence numbers for promotion to SFC, MSG, and SGM.  Sequence numbers will be based on seniority within each recommended military occupational specialty will be determined by date of rank, basic active service date, then age (oldest first).  HRC will determine and announce the total number of promotions to SFC, MSG, and SGM on a monthly basis.

	b.  The Army G–1 or designee (HRC) may approve cases for referral to a Standby Advisory Board (STAB) upon determining that a material error existed in a Soldier’s file when the file was reviewed by a promotion board.  Error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected.  STABs are convened to consider records of those (1) Soldiers whose records were not reviewed by a regular board; (2) Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board; and (3) recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list.  Reconsideration normally will be granted in cases of absence of an award of a Meritorious Service Medal or higher (initial award only).  If the award was recorded on the service record or was reviewed in hard copy by the board, a STAB is not authorized.  The date used for determination of reconsideration will be the date of the order or the ending date, whichever is later, and will not be older than 3 months before the convening date of the board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 21 April 1954 to 30 April 1974 and attained the rank/grade of SSG/E-6.  His records appear to have been considered for promotion to SFC/E-7 in 1972 and possibly 1973, but there is no evidence he was selected for promotion to SFC/E-7.  

2.  It is unfortunate that the applicant does not appear to have been selected for promotion to SFC while he was on active duty; however, it is a well known fact that not everyone who is eligible for promotion during a given selection board is selected, because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.  

3.  Additionally, it is a well-known fact that promotion boards do not reveal the basis for selection or non-selection.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant in 1972 and 1973, it must be presumed that what the board did was correct.  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any Soldier, specific reasons for the promotion board's recommendations are not known. 

4.  A non-selected SSG can only conclude that a promotion selection board determined that his or her overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

5.  Furthermore, this Board is not a promotion board.  This Board corrects military records.  For example, if there had been an error in his selection process or if he was inadvertently omitted from consideration for promotion, normally, the appropriate remedy would be to recommend his records be reconsidered by a STAB.  This happens if there had been a material error.  There does not appear to have been a material error in the applicant's case.  

6.  The applicant confuses the bronze and silver service stars (which designate campaign participation) with the award of the Silver Star, which is awarded for gallantry in action against the enemy.  The applicant was awarded a silver service star to be affixed to his Vietnam Service Medal.  He was not awarded the Silver Star.  Therefore, there is no material error and thus he does not qualify for a STAB. 

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)                                         AR20140006308





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ABCMR Record of Proceedings (cont)                                         AR20140006308



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