BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140011070 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's earlier request to correct his records to show he was promoted to staff sergeant (SSG) effective 17 December 2005 with back pay and allowances.

2.  Counsel states:

	a.  Through no fault of his own, and through U.S. Government neglect, the applicant was not promoted to SSG on 17 December 2005.

	b.  From 2005 to present the applicant has sought to gain administrative relief.  On 14 January 2014, he received partial relief.  He now seeks full relief from the Army Board for Correction of Military Records (ABCMR) after having exhausted all other administrative remedies.

	c.  On 17 November 2005, the applicant received an enlisted promotion system (EPS) letter advising him of his promotion to SSG in the Texas Army National Guard (TXARNG).  On that date, he accepted the promotion to SSG.  On 5 December 2005, the TXARNG acknowledged that the promotion offer was accepted.  On 5 January 2006, a properly-executed DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) was properly filed and his enlistment was extended for 1 year.

	d.  On 13 January 2006, the TXARNG asked the applicant's command for the required DA Form 4187 (Personnel Action) which his command had failed to submit.  A DA Form 4187 had been prepared by his command; but through command negligence was not submitted.

	e.  On 27 January 2006, the applicant was released from active duty.

	f.  Due to a medical condition which was combat-related, the applicant was medically retired from the TXARNG on 11 November 2013.  He completed 24 years, 10 months, and 9 days of qualifying service for retired pay at age 60.

	g.  After Congressional intervention, the TXARNG promoted the applicant to SSG effective 11 November 2013.  From 17 December 2005 to 11 November 2013, the applicant held the rank/grade of sergeant (SGT)/E-5.

	h.  The TXARNG admits the error.

3.  Counsel provides:

* EPS promotion letter and related documents
* DA Form 4836
* DA Form 4187
* request for extension on active duty
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* letter from the U.S. Army Physical Evaluation Board, dated 2 November 2012
* undated, letter from the U.S. Army Human Resources Command
* letter to a Member of Congress, dated 31 January 2014
* promotion orders, dated 14 January 2014
* discharge orders, dated 15 January 2014 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080010571 on 6 November 2008.

2.  Counsel provided documentation that shows the applicant was notified in November 2005 he had been selected for promotion to SSG/E-6.  On 17 November 2005, he accepted the SSG/E-6 position offered to him.  On 5 December 2005, the TXARNG acknowledged the applicant had accepted the promotion offer and requested preparation of a DA Form 4187 and DA Form 4836 for the promotion and extension/reenlistment for a period of 12 months (1 year).

3.  The EPS promotion letter and related documents are new evidence that will be considered by the Board.

4.  Having prior enlisted service in the Regular Army, U.S. Army Reserve (USAR), and ARNG, the applicant enlisted in the TXARNG on 24 April 2004.

5.  He was ordered to active duty on 26 June 2004 in support of Operation Iraqi Freedom.  He served in Iraq from 23 November 2004 to 26 October 2005.

6.  A DA Form 4836, dated 5 January 2006, shows the applicant extended his enlistment for a period of 1 year.

7.  Counsel provided an incomplete DA Form 4187, dated 5 January 2006, which shows the applicant was promoted to SSG/E-6; however, the effective date is blank.

8.  On 27 January 2006, the applicant was released from active duty.

9.  His records contain an NGB Form 22 showing he was discharged from the TXARNG on 23 October 2007 by reason of expiration term of service.

10.  Counsel provided an NGB Form 22 showing the applicant was honorably discharged from the TXARNG on 12 November 2013 and he was placed on the Permanent Disability Retired List.

11.  TXARNG Orders 014-057, dated 14 January 2014, promoted the applicant to SSG effective 11 November 2013.

12.  TXARNG Orders 018-061, dated 15 January 2014, honorably discharged the applicant from the TXARNG and reassigned him to the USAR Retired Reserve in the rank of SSG.

13.  Counsel provided a letter from the TXARNG to a Member of Congress, dated 31 January 2014, which states:

* the applicant accepted promotion to SSG on 17 November 2005
* nearly a month later the required documentation had not been submitted by the TXARNG
* due to the non-response, the applicant's promotion offer was rescinded
* his term of service subsequently expired and he was discharged
* the TXARNG could not determine why the applicant's chain of command never submitted all of the documents required for his promotion
* the applicant was promoted to SSG effective 11 November 2013

14.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, dated 20 February 2015.  The NGB recommended approval of the applicant's request.  The advisory official states:

	a.  The applicant believes his promotion to SSG was delayed and incorrectly dated due to U.S. Governmental neglect and the untimely processing of his approved supporting documentation.

	b.  On 17 November 2005, he received a TXARNG EPS letter advising him of his promotion to SSG.  On this same date, he accepted the promotion to SSG with a suspense date of 17 December 2005.

	c.  On 5 December 2005, the TXARNG acknowledged via email that the promotion offer was accepted.  Also, the gaining unit was to complete and processed a DA Form 4187 for promotion and a DA Form 4836 for a 1-year extension/reenlistment.

	d.  On 5 January 2006, the DA Form 4836 was executed, extending the applicant for 1 year.

	e.  On 13 January 2006, the TXARNG completed the DA Form 4187 but failed to submit the form for processing.  Due to no fault of the applicant, the promotion was never completed because the command's negligent mishandling of the documents.

	f.  On 14 January 2014, the applicant was retroactively promoted to SSG effective 11 November 2013, due to physical disability retirement.

	g.  On 15 January 2014, he was retroactively medically discharged to the USAR Retired Reserve effective 12 November 2013.

	h.   The applicant should have been promoted effective 17 November 2005, the date of his promotion offer, acceptance, and signed approval.

	i.  The NGB recommended correction of the applicant's effective date of promotion to SSG to 17 November 2005 and payment of all back pay and allowances in the rank of SSG from the period 17 November 2005 to 11 November 2013.  Additionally, he should be placed on the Retired List in the rank/grade of SSG/E-6 effective 12 November 2013 and receive retired pay from that date to present.

	j.  This case recommendation was coordinated and reviewed with the NGB Enlisted Policy Section.

	k.  The TXARNG concurs with this recommendation.

15.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He responded and accepted/concurred with the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports counsel's contention the applicant was not promoted to SSG on 17 December 2005 through U.S. Government neglect and no fault of his own.

2.  The NGB advisory official states the applicant should have been promoted effective 17 November 2005, the date of his promotion offer, acceptance, and signed approval.  The advisory opinion points out:

	a.  On 17 November 2005, the applicant received a TXARNG EPS letter advising him of his promotion to SSG.  On this same date, he accepted the EPS promotion to SSG with a suspense date of 17 December 2005.

	b.  On 5 December 2005, the TXARNG acknowledged via email that the promotion offer was accepted.  Also, the gaining unit was to complete and process a DA Form 4187 for promotion and a DA Form 4836 for a 1-year extension/reenlistment.

	c.  On 5 January 2006, the DA Form 4836 was executed, extending the applicant for 1 year.

	d.  On 13 January 2006, the TXARNG completed the DA Form 4187 but failed to submit the form for processing.

	e.  In January 2014, the applicant was retroactively promoted to SSG effective 11 November 2013.  He was also retroactively medically discharged from the TXARNG and assigned to the USAR Retired Reserve effective 12 November 2013.

3.  Based on the foregoing evidence and the NGB recommendation, it would be equitable to correct the applicant's records to show he was promoted to SSG effective 17 December 2005 with entitlement to all back pay and allowances.

BOARD VOTE:

___x_____  __x______  ___x_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20080010571, dated 6 November 2008.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by:

	a.  amending TXARNG Orders 014-057, dated 14 January 2014, to show he was promoted to SSG effective 17 December 2005;

	b.  paying him all back pay and allowances due from 17 December 2005 to 11 November 2013 as a result of this correction; and

	c.  paying to him all back retired pay from 12 November 2013



      ___________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)                                         AR20140011070



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140011070



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1