BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20140007300 


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 correction of his military records by showing he was considered for and promoted to master sergeant, pay grade E-8 and to sergeant major, pay grade E-9.

2.  The applicant states during his tenure of service he was assigned to both E-8 and E-9 positions.  His performance of duty in these positions warranted consideration for these promotions.  He received numerous awards for exemplary performance while assigned in E-8 and E-9 positions.

3.  The applicant provides copies of:

* Permanent Orders 51-20, 3rd Armored Division, dated 14 May 1986
* Certificate for award of the Meritorious Service Medal, dated 12 May 1986
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) dated    27 October 1988
* Record of Supplementary Action Under Article 15, UCMJ, dated 13 March 1989
* Record of Proceedings, Army Board for Correction of Military Records, dated 24 October 1990
* DA Form 638 (Recommendation for Award) dated 28 February 1992
* Memorandum for the applicant, subject: Commendation, dated                16 November 1992
* DA Form 638, dated 29 January 1993
* DA Form 2166-7 (Noncommissioned Officer Evaluation Report) dated       3 May 1993
* DA Form 638, (front side only) undated
* DA Form 638, (front side only), dated 16 November 1993
* DA Form 2166-7, dated 11 July 1994
* DA Form 2166-7, dated 9 February 1995
* DA Form 638, dated 10 February 1995
* DA Form 638, dated 5 March 1997

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.  On 21 June 1978, the applicant enlisted in the Regular Army.  He progressed through the ranks to staff sergeant, pay grade E-6.

3.  On 30 September 1988, orders were published announcing the applicant's promotion to sergeant first class, pay grade E-7 effective 1 November 1988, with a date of rank of 5 October 1988.

4.  On 27 October 1988, the applicant received nonjudicial punishment (NJP) for failure to obey a lawful order and being derelict in his duties.  The imposed punishment consisted of a forfeiture of pay.  The applicant did not appeal the punishment.

5.  On 23 November 1988, the applicant's promotion orders, as discussed above, were revoked because he was in a non-promotable status.  He remained in a non-promotable status for a period of 7 days.  Eventually, he was promoted to pay grade E-7 with a date of rank of 28 October 1988.

6.  On 13 March 1989, the appropriate authority determined that there was a clear injustice to the applicant concerning his recent NJP.  The punishment was set aside.  He accordingly applied to this Board for additional relief, resulting in his effective date and date of rank for sergeant first class, pay grade E-7 being restored to 1 November 1988 and 5 October 1988, respectively.
7.  The applicant continued to serve on active duty as a sergeant first class until his voluntary early retirement on 30 June 1997.

8.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 (Promotions), in effect at the time, provided the standards that offered Army-wide opportunities for advancement and promotion.

	a.  A centralized promotion system was in effect for promotion of enlisted Soldiers to pay grades E-8 and E-9.  The criteria for primary and secondary zones of consideration were based on dates of rank.

	b.  In order for a Soldier to be included in a zone of consideration, he had to meet certain qualifications, such as being a graduate of the resident or nonresident Advanced Noncommissioned Officers Course (ANCOC) to be eligible to compete for promotion to master sergeant, pay grade E-8.

	c.  General criteria were prescribed in a letter of instruction as well as general guidance provided to each Department of the Army promotion board.

	d.  Promotion boards were charged with the task of selecting the best qualified in each military occupational specialty (MOS).  A specified number of Soldiers, by MOS and zone, had to be recommended.  This number was determined by the needs of the Army in order to maintain the authorized by-grade strength at any given time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by showing he was considered for and promoted to master sergeant, pay grade E-8 and to sergeant major, pay grade E-9 because he received numerous awards for exemplary performance while assigned to these types of positions.

2.  The evidence of record clearly shows that the applicant had almost 
20 years time in service (TIS) when he retired in the rank of sergeant first class, pay grade E-7.  Furthermore, he had more than 8 years time in grade (TIG) at the time of his retirement.

3.  The evidence of record clearly shows that the applicant had sufficient TIS and TIG to be considered for promotion to master sergeant, pay grade E-8.  Unfortunately, at this late date it is impossible to determine whether or not he met all of the criteria for consideration although it is presumed that he was considered for promotion to E-8.  Furthermore, because selection was based on the needs of the Army, it is possible that there were insufficient projected vacancies in his MOS due to overstrength conditions to warrant his selection.  Therefore, it is impossible to determine whether the applicant should or should not have been selected for promotion to master sergeant.

4.  Based on the comments in the preceding paragraph, the applicant's request for promotion to sergeant major, pay grade E-9 is moot.  He would not have been promoted to this rank without first holding the next lower rank for an appropriate period of time.

5.  Based on the above, there is no apparent evidence of any error or injustice.

6.  Therefore, the applicant's request should be denied.

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)                                         AR20140007300



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007300



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1