IN THE CASE OF:	   

		BOARD DATE:	  21 May 2015

		DOCKET NUMBER:  AR20140016684 


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 reconsideration of his earlier request for correction of his military records as follows: 

* constructive service credit for active duty from 6 November 1997 (date erroneously discharged) to 29 July 2007 (date properly discharged)
* consideration for promotion to sergeant major (SGM)/E-9 

2.  The applicant states he was wrongfully and illegally discharged from active duty as a member of the Massachusetts Army National Guard (MAARNG) in the Active Guard Reserve (AGR) program in November 1997.  He was discharged for a drug offense without being given an administrative separation board.  He fought back to be reinstated from 1997 to 2004 but faced a deliberate misleading campaign by the MAARNG.  He ultimately petitioned this Board to remove his separation, any derogatory information in his file, award him constructive service credit, and promotion to SGM/E-9.  The Board granted him partial relief. 

	a.  The constructive service credit doctrine holds that if a military member's release from active duty is invalid, then as a matter of law the military member continues in active duty status and is this premised to the pay and benefits associated with such status.  The constructive service credit is premised on the fact that an improper discharge is legally ineffective to separate a service member from the military.  In its original decision, the Board mentioned constructive service credit but errantly stated in its conclusion that the MAARNG had provided constructive service credit.  This was not done.   

	b.  The Board believed that the MAARNG had already granted the service credit and that is the reason the Board failed to give him this credit.  The Board looked at his request on two occasions but refused to make corrections.  The Board suggested he could file a lawsuit.  This is an extremely complex and disturbing process.  

	c.  His rank is sergeant first class (SFC)/E-7 with a date of rank as 3 March 1997.  The error of erroneously discharging him in November 1997 and the correction that was made much later prevented him from advancing beyond the rank/grade of SFC/E-7.  He believes his time in grade is 14 years.  It is extremely unusual for a Soldier to remain in this rank for so long.  He wants the opportunity to be considered for promotion to SGM/E-9.  

3.  The applicant provides:

* letters to his Member of Congress
* letter to the President of the United States 
* Internet printout explaining constructive service doctrine

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090007193, dated 1 April 2010 and ABCMR Docket Number AR20060001099, dated 5 October 2006. 

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his request was neither submitted within one year of the Board's original decision nor does it contain new evidence.  However, in view of Presidential and/or Congressional interest in his case, as a one-time exception to policy his case will be reconsidered by the Board.

3.  The applicant's records show he was born in January 1964.  He enlisted in the Regular Army on 4 May 1983 and he held military occupational specialties 71L (Administrative Specialist) and 18B (Special Forces Weapons Sergeant).  

4.  He served through multiple reenlistments in a variety of assignments and he was promoted to staff sergeant (SSG)/E-6.  He was honorably discharged on 30 April 1995 under the Early Transition Program - Voluntary Separation Incentive (VSI).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 11 years, 11 months, and 27 days of active service.  
5.  Prior to his discharge, he enlisted in the U.S. Army Reserve (USAR) on 28 April 1995.  He enlisted in the NYARNG on 13 March 1996.  He was transferred to the MAARNG on entered the AGR program on 30 September 1996.  

6.  His AGR orders are not available for review with this case.  However, AGR tour length at the time was 3 years.  He was assigned to Detachment 4, Recruiting and Retention Battalion, Headquarters, State Area Command, MAARNG.

7.  On 17 October 1997, the applicant provided a urine sample that tested positive for benzoylecognine (BZE) (cocaine metabolite).  At his request, his urine sample was retested by the command but also resulted in a positive finding.  Based on the positive test results, the MAARNG initiated separation action against the applicant to release him from active duty. 

8.  On 6 November 1997, a board of officers determined that the urinalysis test supported a finding that the applicant wrongfully used cocaine and recommended his release from the MAARNG and AGR program with a general discharge.  A proper authority approved this recommendation.  

9.  The applicant was released from active duty on 6 November 1997 under the provisions of chapter 14, Army Regulation (AR) 635-200 (Enlisted Administrative Separations) by reason of misconduct, abuse of illegal drugs.  He was transferred back to the State ARNG.  His DD Form 214 for this period shows he completed 1 year, 1 month, and 7 days of active service. 

10.  Based on his release from active duty, the applicant was processed for separation from the MAARNG.  As such, on 20 November 1997, an administrative separation board convened and recommended his discharge with an under honorable conditions (general) characterization of service.  

11.  On 25 November 1997, The Adjutant General, MAARNG approved the findings and recommendations.  As a result, orders were published to discharge him from the MAARNG on that date.  He was issued an NGB Form 22 (Report of Separation and Record of Service) that captured his ARNG service. 

12.  On 25 June 2004, in response to his petition to the Army Discharge Review Board (ADRB) (Docket Number AR2003097705), the ADRB reviewed his discharge from active duty (6 November 1997) and determined it was proper but the characterization of service was inequitable.  The ADRB voted to:

* change the characterization of service on his DD Form 214 and on his NGB Form 22 from general to honorable
* issue new DD Form 214 and new NGB Form 22 releasing him from active duty and from the MAARNG with an honorable discharge
* void original discharge orders and issue new orders discharging him from the MAARNG and a s Reserve of the Army with an honorable discharge

13.  On 26 July 2004, the applicant was issued a DD Form 215 correcting his DD Form 214 ending on 6 November 1997 to show his characterization of service as honorable.  He was also issued an NGB Form 22A (Correction to NGB Form 22) on that date correcting his NGB Form 22 ending on 25 November 1997 to show his characterization of service as honorable.  He was also issued an Honorable Discharge Certificate from the MAARNG, effective 25 November 1997.

14.  With his DD Form 214 and NGB Form 22 corrected to an honorable discharge, the applicant enlisted in the USAR in the rank/grade of sergeant (SGT)/E-5 on 29 July 2005.  He completed the Civil Affairs (CA) Specialist Course, was awarded MOS 38B (CA Specialist), and he was assigned to the 411th CA Battalion, Danbury, CT. 

15.  He entered active duty on 8 February 2006 and served in Afghanistan from 18 May to 25 July 2006.  He was promoted to SSG/E-6 on 15 September 2006.  He was honorably released from active duty on 29 July 2007. 

16.  Meanwhile, he convinced the Adjutant General, MAARNG, to conduct an AR 15-6 (Procedures for Investigating Officers and Board of Officers) investigation into his discharge.  As such, on 8 March 2006, an investigating officer (IO) issued his findings and recommendations. 

	a.  The IO found:

* The ADRB determined his discharge was inequitable and upgraded his character of service to honorable
* a growing body of case law supported the theory that an individual could unknowingly ingest a small amount of cocaine
* no reason to question the applicant's claim that he did not use cocaine
* it was the applicant's first offense and there was no pattern of abusing drugs

	b.  The IO recommended removal of the discharge action from the applicant's official military personnel file (OMPF).  Although he approved the findings on 21 August 2006, the Chief of Staff, MAARNG, opposed the recommendation to remove the discharge and associated documents from the OMPF.  He consulted with military case law experts and believed the administrative board made a recommendation based on the facts available to it.  

17.  Part of the investigation was a memorandum, dated 8 August 2006, titled "Expert Opinion."  The Commander, Forensic Toxicology Drug Testing Laboratory, Tripler Army Medical Center, HI, stated he received a request from the Chief of Staff, MAARNG, for an expert opinion regarding knowing versus unknowing ingestion of cocaine.  The applicant's BZE concentration was 249 ng/mL.  A concentration of 249 ng/mL may be consistent with a member unknowingly ingesting cocaine.  However, it may also be consistent with the member knowingly ingesting cocaine.  

18.  On 31 August 2006, the applicant was issued a DD Form 215 (Correction to DD Form 214) that changed the separation authority to "chapter 4 of Army Regulation 635-200," the separation code to "LBK," the reentry code to "1," and the narrative reason for separation to "completion of required service."  

19.  On 5 April 2007, based on the findings and recommendations of the AR 15-6 investigation approved by the MAARNG Chief of Staff, an NGB Form 22A (Correction to NGB Form 22) was issued that corrected the following items of the applicant's NGB Form 22 as follows: 

* Item 9 (Command to Which Transferred) changed to USAR Control Group (Reinforcement) U.S. Army Human Resources Command, St. Louis, MO
* Item 18 (Remarks) changed to Active Federal Service 960930 to 971106;  Soldier was discharged without personal notice due to constructive notification by the Office of the Adjutant General; NGB Forms 22 and 55a were mailed to the Soldier's last known address as shown in Item 19
* Item 23 (Authority and Reason) changed to Para 8-27h NGR 600-200, discharged to become a member of the USAR Sep Code: EC
* Item 25 (Type of Certificate Used) changed to NGB Form 55a
* Item 26 (Reenlistment Eligibility) changed to RE-1

20.  On 16 April 2007, the MAARNG Adjutant General provided an endorsement supporting the applicant's petition to this Board for relief.  He stated:

	a.  He had initiated an AR 15-6 investigation to determine if the applicant received the requisite due process in the chain of events that resulted in his discharge from the MAARNG for wrongful use of a controlled substance.  The IO determined that a number of procedural errors occurred in the applicant's discharge and as a result he did not receive the requisite due process.  The Adjutant General also stated that it was troubling to his Staff Judge Advocate and Inspector General (IG) that there was an unexplained discrepancy on the chain of custody form accompanying the urine samples from the testing site to the laboratory and that absent any explanation to the contrary the chain of custody indicates a break in the chain of custody.  

	b.  He further concluded that he was advised by his SJA that the unexplained chain of custody discrepancy should have resulted in the matter being dismissed. Therefore, he believes that as a matter of justice it would be in the best interest of the Soldier and the U.S. Army for the applicant's records to be corrected appropriately.

21.  On 30 July 2007, he entered active duty in the AGR program.  He was assigned to the 353rd CA Command, Staten Island, NY, and then the 411th CA Battalion, Danbury, CT.

22.  On 19 September 2007, in response to his petition (ABCMR Docket Number AR20060017164), the Board denied him relief in relation to (emphasis added):

* revoking his 6 November 1997 for misconduct 
* removal of all derogatory information from his OMPF
* award of constructive credit from date of discharge to date of current enlistment
* promotion to SGM/E-9 with a date of rank commensurate with normal progression in the USAR/AGR program

23.  On 10 October 2007, by memorandum, the Office of the Adjutant General, requested favorable reconsideration of the applicant's petition for correction of his military records that were affected by his discharge from the MAARNG in November 1997 after being accused of substance abuse.  The Adjutant General stated the MAARNG conducted a thorough examination of the circumstances surrounding the applicant's testing and subsequent discharge.  As a result, the urinalysis conducted on 17 October 1996 was determined to be invalid and all results of this subject urinalysis are inadmissible in disciplinary action against any service member.  In the interest of justice, the MAARNG dismissed all disciplinary matters regarding this issue and corrected the applicant's records to the fullest extent within their purview (emphasis added).

24.  On 17 July 2008, his servicing personnel office prepared a DA Form 1506 (Statement of Service - for Computation of Length of Service for Pay Purposes).  This form shows the applicant was awarded constructive credit for non-active duty service in the USAR for the period between his discharge from the ARNG on 25 November 1997 and his USAR enlistment on 29 July 2005 in the amount of 7 years, 8 months, and 3 days (emphasis added).
25.  On 11 May 2009, HRC, St. Louis published Orders B-05-903111 promoting him to SFC/E-7 effective 1 June 2009, while serving in the USAR Control Group (AGR).

26.  His ARPC Form 249-E (Chronological Statement of Retirement Points), dated 5 March 2010, shows he was awarded constructive credit for non-active duty service in the USAR for the period between his discharge from the ARNG on 25 November 1997 and his USAR enlistment on 29 July 2005 (emphasis added) in the form of 15 membership points per year, which resulted in 15 total points creditable per year during this period.  The applicant was not awarded any qualifying years [commonly referred to as "good years"] for retirement purposes during this seven-year period.

27.  On 1 April 2010, in response to his and his counsel's petition for reconsideration (Docket Number AR20090007193), the Board adjudicated his case for the below issues and granted him partial relief.  He requested correction of his records by:

* rescinding his relief from active duty due to misconduct on 6 November 1997 and rescinding his discharge from the MAARNG due to misconduct on 25 November 1997
* providing him constructive service credit from the date of his discharge through the date of his current enlistment
* restoring his Voluntary Separation Incentive (VSI) pay retroactive to the date of his discharge
* promoting him to the SGM/E-9, the rank commensurate with his normal progression in the USAR/AGR program 
* expunging all references to :

* the urinalysis conducted by his MAARNG unit on 17 October 1996
* his relief from active duty on 6 November 1997
* his discharge from the MAARNG on 25 November 1997
* paying him all entitlements resulting from the above corrections

28.  In adjudicating his case, the Board noted: 

	a.  The evidence shows the MAARNG determined the urinalysis conducted on 17 October 1996 was invalid and all results of this urinalysis were inadmissible in disciplinary action against any service member.  In the interest of justice, the MAARNG dismissed all disciplinary matters regarding this issue and already corrected a portion of the applicant's record by:

* rescinding his relief from active duty due to misconduct on 6 November 1997
* rescinding his discharge from the MAARNG due to misconduct on 25 November 1997
* issuing him new discharge orders which transferred him to the USAR, effective 25 November 1997
* providing him constructive service credit from the date of his discharge from the ARNG through the date of his current enlistment in the USAR

	b.  In view of the foregoing, and in the interest of equity, all references to the urinalysis conducted by his MAARNG unit on 17 October 1996, his relief from active duty on 6 November 1997 due to misconduct, and his discharge from the MAARNG on 25 November 1997 due to misconduct should be expunged from his records and any administrative action taken solely because of this urinalysis should be corrected.

	c.  When the applicant was awarded constructive credit for non-active duty service in the USAR for the period between his discharge from the ARNG on 25 November 1997 and his USAR enlistment on 29 July 2005 it was only in the form of 15 membership points per year, which resulted in 15 total points creditable per year during this period.  It is also noted the applicant was not awarded any "good years" for retirement purposes during this period.

	d.  At the time of his discharge from the ARNG on 25 November 1997, the applicant was serving on a 3-year AGR tour which began on 30 September 1996. It is reasonable to conclude that, but for this discharge, he would have remained on active duty to complete that tour.  In the interest of equity, the applicant's record should be corrected to show he completed his AGR tour in an active duty status on 29 September 1999.  Accordingly, he should be paid any retroactive entitlements associated with this correction.  This correction will also result in crediting the applicant with "good years" for the purpose of retirement for retirement years 1996 through 1999.

	e.  In view of the fact the applicant's premature and improper discharge from the ARNG was rescinded, his entitlement to VSI payments should be restored, effective 18 March 1996, and he should be paid any unpaid VSI payments retroactive to that date.

	f.  The evidence shows he consistently earned enough points to qualify for a "good year" whenever afforded the opportunity and it is reasonable to assume he would have continued to do so had it not been for his discharge from the ARNG.  Therefore, in the interest of equity, he should be awarded an additional 35 inactive duty points per year for retirement years 1999 through 2005 in order to credit him with the 50 point minimum required to qualify for a "good year" each year.

	g.  At the time of the applicant's discharge from the Regular Army, he held the rank/grade of SSG/E-6 with 8 years of time in grade.  At the time of his discharge from the ARNG on 25 November 1997, he still held the rank/grade of SSG/E-6 with an adjusted date of rank of 12 July 1996.  It is reasonable to presume he would have retained the rank/grade of SSG/E-6 had he not been discharged from the ARNG; therefore, it is appropriate to restore him to this rank/grade from the date of his discharge from the ARNG (25 November 1997) through the date of his promotion to SFC/E-7 in the USAR (1 June 2009).  It is also appropriate to pay him all entitlements associated with this correction in rank/grade retroactive to 25 November 1997.

	h.  Many variables determine whether a Soldier is selected for promotion by a centralized promotion board.  These boards are very subjective and are based upon the contemporaneous needs of the Army and how the Soldier's records compare to those of their peers.  Once selected, promotion effective dates are also based upon the contemporaneous needs of the Army and in the Reserve Components are often dependent upon position vacancies in a specific unit.  Therefore, it would be purely speculative to assume if and when the applicant would have been promoted to SFC/E-7 on an earlier date.

	i.  However, it is reasonable to presume the applicant would have been considered for promotion to SFC/E-7 at an earlier date based upon his date of rank to SSG/E-6 of 12 July 1996.  Therefore, it would be appropriate for the applicant to be considered for promotion to SFC/E-7 by a Standby Advisory Board based upon this date of rank.

	j.  It would also be purely speculative to assume if and when the applicant may have been selected for promotion to master sergeant (MSG)/E-8, much less SGM/E-9.  Therefore, it is not appropriate to grant the applicant's requested relief for promotion to the rank/grade of SGM/E-9 in the USAR AGR program.

29.  The Board recommended denial of the application that pertains to promoting him to the rank/grade of SGM/E-9; however, the Board recommended all state Army National Guard records and Department of the Army records of the applicant be corrected by: 

* deleting all references to the urinalysis conducted on 17 October 1996
* deleting all references to his relief from active duty due to misconduct on 6 November 1997
* deleting all references to his discharge from the MAARNG due to misconduct on 25 November 1997
* amending his discharge orders and associated DD Form 214 to show he completed his active duty AGR tour during the period 30 September 1996 through 29 September 1999 in the rank/grade of SSG/E-6
* showing he retained the rank/grade of SSG/E-6 while serving in the USAR until he was promoted to SFC/E-7 on 1 June 2009
* having a Standby Advisory Board consider him for promotion to SFC/E-7 based upon a SSG/E-6 date of rank of 12 July 1996
* reinstating his entitlement to VSI payments effective 25 November 1997, with offsets as applicable
* awarding him an additional 35 inactive duty points per year for retirement years 2002 through 2005 so he may attain the 50 point minimum required to qualify for a "good year" each of these years
* paying him all pay and allowances due as a result of the aforementioned corrections

30.  On 22 April 2010, HRC, St. Louis issued him a Notification of Eligibility for Retired Pay at Age 60. 

31.   On 3 June 2010, he was issued a DD Form 215 that amended his DD Form 214 ending on 30 September 1996 to show completion of 3 years of active service vice the original 1 year, 8 months, and 13 days of active service.

32.  On 28 September 2010, by memorandum, HRC notified the applicant that his records had been identified to appear before an Enlisted STAB for promotion to SFC based on the fact that, through no fault of his own, his record was not considered by the Calendar Year 2003 U.S. Army Reserve Individual Ready Reserve (IRR) and Drilling Individual Mobilization Augmentee (DIMA) SSG through SGM board.   

33.  His record was considered on or about 13 October 2010 under the criteria established for the 2003 IRR/DIMA SSG through SGM board which convened on 28 July 2003.  He was selected for promotion to SFC.  

34.  On 7 December 2010, HRC published Orders B-05-903111A01 amending his effective date of promotion and date of rank to SFC/E-7 from 1 June 2009 to 1 November 2003 (emphasis added) with entitlement to back pay and allowances. 

35.  Prior to publishing his promotion amendment orders, he submitted a request for voluntary retirement to be effective 1 July 2011 based on sufficient active service.  His chain of command recommended approval. 
36.  He retired on 30 June 2011 by reason of sufficient active service for retirement and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 July 2011.  He was credited with 20 years, 7 months, and 28 days of active service. 

37.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Chapter 5 prescribes policy for the promotion of USAR Soldiers assigned to TPUs, Army Reserve Elements, and multi-component units.  The selection and promotion process for senior enlisted grades SFC through SGM is centralized at promotion authority headquarters.  All SSGs through MSGs/1SGs who meet the basic eligibility requirements will be considered for promotion.  The promotion selection board will select the best qualified Soldiers for placement on the permanent recommended promotion list.  Soldiers will be promoted sequentially from the list to fill vacancies in accordance with certain criteria.  Promotions off the permanent recommended promotion list will not exceed the cumulative vacancies for that pay grade as computed.  All Soldiers within the announced zone and assigned to a unit will be considered by the promotion selection board. 

	a.  Paragraph 5-5 states the senior enlisted selection and promotion system outlined in this section prescribes the policy governing the promotion of unit Soldiers to SFC, MSG, and SGM.  The selection and promotion process for senior enlisted ranks is centralized at promotion authority headquarters.  To standardize promotions throughout Army Reserve units, and to ensure promotion of the best qualified Soldiers, recommendation by promotion selection board and placement on a promotion list are required.  All SSGs through MSGs and/or 1SGs who meet the basic eligibility requirements will be considered for promotion.  The promotion selection board will select the best qualified Soldiers for placement on the permanent recommended promotion list.  Soldiers will be promoted sequentially from the list to fill vacancies for which they qualify.  All Soldiers within the announced zone will be considered by the promotion selection board unless a declination statement has been provided by the Soldier.  

	b.  Paragraph 5-7 (eligibility criteria for selection board consideration) states commanders will ensure that Soldiers that meet eligibility criteria are considered by the board.  Soldiers must meet the eligibility criteria as of the convening date of the board.  This includes membership, being in a promotable status, civilian education, MOS, military education, physical requirements, proper grade, time in service requirements, time in grade requirements, age, retention, height/weight, security clearance, and Army Physical Fitness Test standards.  

	c.  The time in grade requirements (Non-waivable), for selection to SFC, 36 months as SSG; MSG, 36 months as SFC; and SGM, 36 months as MSG and/or 1SG.  The time in service requirement are, for SFC, 6 years; MSG, 12 years; and SGM, 17 years. 

	d.  Cumulative enlisted service.  Soldiers must have the specified number of years of cumulative enlisted service (nonwaivable) for selection to MSG, 8 years and to SGM, 10 years.

	e.  Paragraph 5-18 (STAB) states the composition of an enlisted STAB is under identical criteria as that of enlisted selection boards.  A STAB will consider records not reviewed by a regular board; which were not properly constituted because of a material error when reviewed by a regular board; and/or of Soldiers on whom derogatory information has been properly substantiated, which may warrant removal from a selection list.  

	f.  The names of Soldiers selected by this board will be integrated on to the Permanent Promotion Recommended List (PPRL).  They will be promoted along with their peers when their sequence number is reached and a vacancy occurs.  The convening authority will determine if a material error existed in a Soldier’s records when the file was reviewed by the selection board.  It must be presumed that a material error in the file may have contributed to non-selection.  

	g.  An error is material when, in the judgment of a mature individual familiar with selection board proceedings, a reasonable chance exists that had the error not existed, the Soldier may have been selected.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant entered the AGR on presumably a 3-year tour that began on 30 September 1996 and terminated prematurely due to his alleged cocaine abuse and subsequent discharge.  Had he completed his full AGR tour, he would have been released from active duty on 29 September 1999 by reason of completion of required service.  Instead, he was discharged on 6 November 1997 due to misconduct. 

2.  The ADRB reviewed his discharge and although the ADRB found his discharge proper, this board determined the character of service was harsh and upgraded it to honorable.  A subsequent investigation by the MAARNG determined there were some improprieties in the discharge process.  As a result, his State recommended his discharge action be thrown out.  He petitioned this Board for correction of his records and the Board granted him relief for all the issues he raised minus the issue of promotion to SGM/E-9. 


3.  With respect to the service credit: 

	a.  He received full service credit through 29 September 1999, the date he would have completed his AGR tour had he not been discharged for misconduct/abuse of illegal drugs.  He also received back pay and allowances for the period through 29 September 1999.

	b.  Following this adjusted date of release from active duty and transfer to the State ARNG, he would have performed inactive duty and received membership points.  The discharge from the ARNG caused him to miss out on receiving service credit for potential ARNG service from September 1999 through May 2005.  The Board remedied that and awarded him full credit, at 50 qualifying retirement points per year (i.e., good year) with back pay and allowances, for the period 30 September 1999 (the date after he was released from active duty) to 28 July 2005 (the date before he enlisted in the USAR).  This issue has been resolved.  

4.  With respect to the promotion issue: 

	a.  The ABCMR is not a promotion board.  Enlisted Soldiers are selected for senior promotions (E-7 through E-9) via a centralized promotion system by a promotion/selection board.  If there is an error with the date of promotion for a Soldier who has already been selected by a promotion board, the ABCMR corrects the error.  Otherwise, the appropriate remedy for promotion issues is a standby advisory board (STAB).  The Board may recommend a STAB if there had been a material error.

	b.  His original date of promotion to SFC/E-7 was 1 June 2009.  However, as a result of various errors in his record, a STAB convened in October 2010 and considered him for promotion of SFC/E-7 under the 2003 criteria.  He was selected for promotion.  His effective date of promotion and date of rank were adjusted to 1 November 2003.  

	c.  Based on his adjusted date of rank to SFC, he would have been eligible for promotion consideration to MSG as early as 2006 (based on 36 months of time in grade as a SFC/E-7).  Therefore, he is entitled to have his records considered for promotion to MSG/E-8 by a STAB under the appropriate year criteria.   

	d.  As for promoting him to SGM/E-9, the applicant was never considered or selected for promotion to MSG/E-8 by a promotion board and he never held the rank/grade of MSG/E-8.  As such, he could not possibly be promoted from SFC/E-7 to SGM/E-9.  Likewise, he is ineligible for consideration for promotion by a STAB because he was never eligible for promotion to SGM/E-9 as per regulatory guidance.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  The evidence presented was sufficient to warrant amendment of the ABCMR Docket Number AR20090007193, dated 1 April 2010 and ABCMR Docket Number AR20060001099, dated 5 October 2006.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  ensuring the applicant's OMPF is complete and accurate and that it includes all corrections by the ADRB, ABCMR, and the MAARNG; and submitting his record to a duly-constituted STAB for promotion consideration to MSG under the appropriate year criteria based on his adjusted date of rank to SFC (1 November 2003); and

	b.  if he is selected for promotion, correcting his records to show he met all the eligibility criteria for promotion effective the date of release of the applicable promotion selection board, promoting him to MSG/E-8 with the appropriate date of rank, and paying him any associated back pay and allowances as a result of the corrections; and if the applicant is not selected by a duly-constituted STAB, he should be so notified.

2.  The Board further determined that the evidence presented is insufficient to 

warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to promoting him to SGM/E-9. 

      
      
      ______ _   __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)                                         AR20140016684



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ABCMR Record of Proceedings (cont)                                         AR20140016684



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