IN THE CASE OF:	  

		BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20140019517 


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 that his promotion to the pay grade of E-7 be reinstated with a date of rank of 1 June 1998 with entitlement to all back pay and allowances, that he be placed on the Retired List in the pay grade of E-7, and that he be paid all retired back pay since his retirement.  

2.  The applicant states, in effect, that he was promoted to the pay grade of E-7 on 1 June 1998 and on 11 August 1998, his promotion was unjustly revoked.  He goes on to state that when he questioned the revocation he was threatened and told that if he did not stop complaining and telling his story his family would be harmed and he was told that he would never be promoted in the Massachusetts Army National Guard (MAARNG) Active Guard Reserve (AGR) Program. 

3.  The applicant provides a three-page letter explaining all of the enclosures submitted with his application.

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 was serving in the MAARNG when he was promoted to the pay grade of E-6 on 17 May 1983.  He completed the Reserve Component (RC) Advanced Noncommissioned Officer Course (ANCOC) on 2 November 1984. 

3.  The applicant entered active service in the AGR Program on 9 January 1985 and was issued his 20-Year letter on 17 May 1997.  He was serving in the AGR Program as a staff sergeant/E-6 Personnel Administration Sergeant in an E-7 position in the MAARNG when orders were published on 31 July 1998 promoting him to the pay grade of E-7 effective 1 June 1998.

4.  On 11 August 1998, orders were published which revoked the applicant’s promotion.  The orders do not specify the reason for the revocation. 

5.  On 8 September 1998, the applicant requested constructive credit for ANCOC for promotion to SFC.  In his memorandum he states he completed RC-NCOES Advanced Course #2-85 qualifying him for promotion to SFC/E7, since there was no Phase II requirement then.  He further stated that paragraph 11-28(13)b of National Guard Regulation 600-200 (Enlisted Personnel Management) stated that Soldiers who entered the AGR Program fully qualified in the NCOES for their next promotion would retain their qualification and that paragraph 11-29c(3) stated "before 1 OCT 91, any RC-ANCOC PHASE I only" was creditable for NCOES.  In addition, paragraph 11-31h stated "ARNGUS Soldiers credited with courses under previous policies retain credit until promoted."  He also stated "The change to this NGR did not become effective until after 12 June 1998. Therefore I am promotable to SFC/E7."

6.  A memorandum for record, subject:  Conversation Conducted at 1100 Hours on 15 June 2001, dated 15 June 2001, provides in part that the applicant was informed by Lieutenant Colonel (LTC) C that he (LTC C) was informed that the applicant was not promotable to SFC because he had not completed the Active Component (AC) Advanced Academy in August 1994.  The applicant then told LTC C that he had completed 9 weeks of a 9.5-week AC-ANCOC.  The reason he was sent home was because he could not complete the Army Physical Fitness Test (APFT) requirements.  The applicant also stated that the Human Resources Office had told him that he had to complete the AC Advanced Academy for promotion to SFC.  He further contended that another AGR SSG was promoted to SFC with only completion of RC-NCOES.

7.  The applicant continued to serve on active duty in the AGR Program until     31 July 2004, when he was honorably retired in the pay grade of E-6 due to sufficient service for retirement.  He had served 20 years and 29 days of active service.

8.  In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau (NGB) which opines in effect that the applicant met the education requirements for promotion to the pay grade of E-7 at the time he entered the AGR Program and because the MAARNG could not provide documentation supporting the revocation, the NGB recommended approval of the applicant’s request.  The advisory opinion was provided to the applicant for comment and he responded to the effect that he concurred with the opinion.

9.  National Guard Regulation 600-200, dated 1 March 1997, shows the following:

* paragraph 11-28a(7) states that SSGs with ANCOC credit are promotable to SFC
* paragraph 11-28b states -

* AGR Soldiers will complete only AC-NCOES courses prescribed as their promotion requirement unless otherwise authorized in this paragraph
* All categories of Soldiers will complete NCOES courses only in their career progression military occupational specialty CPMOS (primary or promotion MOS) 
* Soldiers who enter the AGR program fully qualified in the NCOES for their next promotion (for BNCOC and ANCOC this requires Phases I and II) will retain their qualification

* paragraph 11-28c (Advanced Level) states for AGR Soldiers before 1 July 1986, an RC-ANCOC plus the ARNG BSC (Battle Skills Course) was required for the NCOES eligibility requirement  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his promotion to the pay grade of E-7 was unjustly revoked has been carefully considered.

2.  Notwithstanding the NGB advisory opinion, evidence shows that the applicant did not meet the NCOES requirement for promotion to SFC as an AGR Soldier at the time he entered the AGR Program or at any time thereafter.

3.  When he entered the AGR Program in 1985 he was required to have completed either AC-ANCOC or both the RC Advanced Course (Phase I) and the BSC under the provisions of paragraph 11-29c(6) to have met the NCOES requirement for promotion to SFC; not paragraph 11-29c(3) as he contends.  There is no evidence he ever completed either option.

4.  By his own admission he did not successfully complete/graduate from AC-NCOES in 1994.  He requested constructive credit in 1998 for AC-ANCOC, which is further evidence he was not credited with completion of AC-ANCOC.  Furthermore, while he contends other AGR Soldiers were promoted to SFC with only completion of RC-NCOES, he has not shown that to be true nor how,if it was true, such an error should justify his promotion to SFC without his meeting the prerequisites for qualification.

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.

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)                                         AR20140019517



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ABCMR Record of Proceedings (cont)                                         AR20140019517



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